Be it enacted by the General Assembly of Virginia:
1. That §§3.2-5101, 3.2-5130, 3.2-5145.2:1, 3.2-5206, 15.2-2288.6, 28.2-803, and 32.1-12 of the Code of Virginia are amended and reenacted as follows:
§3.2-5101. Board authorized to adopt regulations; exception.
A. Whenever in the judgment of the Commissioner action will promote honesty and fair dealing in the interest of consumers, the Board shall adopt regulations fixing and establishing for any food or class of food: labeling requirements; a reasonable definition and standard of identity; and a reasonable standard of quality and fill of container, or tolerances or limits of variability. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Board shall, for the purpose of promoting honesty and fair dealing in the interest of the consumers, designate the optional ingredients that shall be named on the label. The definitions and standards so adopted may conform so far as practicable to the definitions and standards promulgated by the Secretary of Health and Human Services under authority conferred by §401 of the federal act.
B. The Board may adopt regulations for the efficient administration of subsection C of §3.2-5100 in accordance with the Administrative Process Act (§2.2-4000 et seq.).
C. Any regulations adopted pertaining to this section shall not apply to nonprofit organizations holding one-day food sales. The Commissioner may disseminate to nonprofit organizations educational materials related to the safe preparation of food for human consumption.
D. The provisions of this chapter and regulations adopted pursuant hereto shall not apply to a private home or farm and curtilage where the residents or owners process or prepare any food product made from fruit, grain, herbs, honey, meat, milk, mushrooms, nuts, poultry, seafood, vegetables, or any other ingredient that has otherwise been obtained in accordance with existing law, provided that such products are sold directly to the end consumer and labeled with the producer's name, producer's address, and product ingredients and the following disclosure: "NOT FOR RESALE - PROCESSED AND PREPARED WITHOUT STATE INSPECTION."
For the purposes of this subsection:
"Farm" means an agricultural establishment with 10 or fewer full-time equivalent employees not including members of the producer's family.
"Private home" means the residence of the producer of the food product.
§3.2-5130. Inspections required to operate food establishment.
A. It is unlawful to operate as a food manufacturer, food storage warehouse, or retail food establishment until (i) such food manufacturer, food storage warehouse, or retail food establishment has been inspected by the Commissioner and (ii) the Commissioner has issued a permit pursuant to subsection C of §3.2-5100 for the operation of the food manufacturer, food storage warehouse, or retail food establishment. If the inspection finds no significant health hazards to the public, any food manufacturer, food storage warehouse, or retail food establishment may operate until receipt of the permit. Such permit shall be processed within 30 days of the inspection date.
B. If the Commissioner determines that conditions exist in a food manufacturer, food storage warehouse, or retail food establishment that would render such entity significantly out of compliance with an applicable provision of this chapter or regulation adopted pursuant to this chapter, the Commissioner may, in accordance with the Administrative Process Act (§2.2-4000 et seq.), deny, suspend, or revoke the permit of such entity. If the Commissioner determines that conditions exist in a food manufacturer, food storage warehouse, or retail food establishment that present a significant and immediate public health hazard, the Commissioner may suspend the permit of such entity and shall seek an expedited informal fact-finding proceeding pursuant to §2.2-4019.
C. The provisions of subsections A and B shall not apply to:
1. Food manufacturers operating under a grant of inspection from the Office of Meat and Poultry Services or a permit from the Office of Dairy and Foods in the Department; and Grade A fluid milk manufacturing plants and shellfish and crustacea processing plants operating under a permit from the Virginia Department of Health;
2. Nonprofit organizations holding one-day food sales; and
3. Private homes where
the resident processes and prepares candies, jams, and jellies not considered
to be low-acid or acidified low-acid food products, dried fruits, dry herbs,
dry seasonings, dry mixtures, coated and uncoated nuts, vinegars and flavored
vinegars, popcorn, popcorn balls, cotton candy, dried pasta, dry baking mixes,
roasted coffee, dried tea, cereals, trail mixes, granola, and baked goods that
do not require time or temperature control after preparation if such products
are: (i) sold to an individual for his own consumption and not for resale; (ii)
sold at the private home or at farmers markets; (iii) not offered for sale to
be used in or offered for consumption in retail food establishments; (iv) not
offered for sale over the Internet or in interstate commerce; and (v) affixed
with a label displaying the name, physical address, and telephone number of the
person preparing the food product, the date the food product was processed, and
the statement "NOT FOR RESALE — PROCESSED AND PREPARED WITHOUT STATE
INSPECTION" shall be placed on the principal display panel. Nothing in
this subdivision shall create or diminish the authority of the Commissioner
under §3.2-5102;
4. Private homes where
the resident processes and prepares pickles and other acidified vegetables that
have an equilibrium pH value of 4.6 or lower if such products are (i) sold to
an individual for his own consumption and not for resale; (ii) sold at the
private home or at farmers markets; (iii) not offered for sale to be used in or
offered for consumption in retail food establishments; (iv) not offered for
sale over the Internet or in interstate commerce; (v) affixed with a label
displaying the name, physical address, and telephone number of the person
preparing the food product, the date the food product was processed, and the
statement "NOT FOR RESALE — PROCESSED AND PREPARED WITHOUT STATE
INSPECTION" shall be placed on the principal display panel; and (vi) not
exceeding $3,000 in gross sales in a calendar year. Nothing in this subdivision
shall create or diminish the authority of the Commissioner under §3.2-5102;
5. Private homes where
the resident processes and prepares honey produced by his own hives, if: (i)
the resident sells less than 250 gallons of honey annually; (ii) the resident
does not process and sell other food products in addition to honey, except as
allowed by subdivisions 3 and 4; (iii) the product complies with the other
provisions of this chapter; and (iv) the product is labeled "PROCESSED AND
PREPARED WITHOUT STATE INSPECTION. WARNING: Do Not Feed Honey to Infants Under
One Year Old." Nothing in this subdivision shall increase or diminish the
authority of the Commissioner under §3.2-5102; and
6.
D. Nonprofit organizations,
private homes,, private home,
or retail establishment if a consumer complaint is received.
E. Any person who violates any provision of this section is guilty of a Class 1 misdemeanor.
§3.2-5145.2:1. Sellers or manufacturers of industrial hemp extract; penalties.
A. Any person who manufactures, sells, or offers for sale an industrial hemp extract or food containing an industrial hemp extract shall be subject to the requirements of this chapter and regulations adopted pursuant to this chapter.
B. Any person who (i) manufactures, sells, or offers for sale
an industrial hemp extract or food containing an industrial hemp extract
without first obtaining a permit to do so from the Commissioner pursuant to §
3.2-5100, unless exempt from a permit pursuant to subdivision C 6 3
of §3.2-5130; (ii) continues to manufacture, sell, or offer for sale an
industrial hemp extract or food containing an industrial hemp extract after
revocation or suspension of such permit; (iii) fails to disclose on a form
prescribed by the Commissioner that he intends to manufacture, sell, or offer
for sale a substance intended to be consumed orally that contains an industrial
hemp-derived cannabinoid; (iv) sells or offers for sale at retail a food that
(a) contains a total tetrahydrocannabinol concentration that is greater than
0.3 percent or (b) contains more than two milligrams of total
tetrahydrocannabinol per package and does not contain an amount of cannabidiol
that is at least 25 times greater than the amount of total tetrahydrocannabinol
per package; (v) manufactures, offers for sale, or sells in violation of this
chapter or a regulation adopted pursuant to this chapter a substance intended
to be consumed orally that is advertised or labeled as containing an industrial
hemp-derived cannabinoid; or (vi) otherwise violates any provision of this
chapter or a regulation adopted pursuant to this chapter, in addition to any
other penalties provided, is subject to a civil penalty not to exceed $10,000
for each day a violation occurs. Such penalty shall be collected by the
Commissioner and the proceeds shall be payable to the State Treasurer for
remittance to the Department.
C. Any person who (i) manufactures, sells, or offers for sale
an industrial hemp extract or food containing an industrial hemp extract
without first obtaining a permit to do so from the Commissioner pursuant to §
3.2-5100, unless exempt from a permit pursuant to subdivision C 6 3
of §3.2-5130; (ii) continues to manufacture, sell, or offer for sale an
industrial hemp extract or food containing an industrial hemp extract after
revocation or suspension of such permit; (iii) fails to disclose on a form
prescribed by the Commissioner that he intends to manufacture, sell, or offer
for sale a substance intended to be consumed orally that contains an industrial
hemp-derived cannabinoid; (iv) manufactures, offers for sale, or sells in
violation of this chapter or a regulation adopted pursuant to this chapter a
substance intended to be consumed orally that is advertised or labeled as
containing an industrial hemp-derived cannabinoid; or (v) otherwise violates
any provision of this chapter or a regulation adopted pursuant to this chapter,
in addition to any other penalties provided, is guilty of a Class 1
misdemeanor. Each day in which a violation occurs shall constitute a separate
offense.
D. The Commissioner may, in accordance with the Administrative Process Act (§2.2-4000 et seq.), deny, suspend, or revoke a permit issued pursuant to §3.2-5100 if the permitted entity is found to have violated subdivision A 69, 70, 71, 72, 73, or 74 of §59.1-200 by a court of competent jurisdiction.
E. This section shall not apply to products that are (i) approved for marketing by the U.S. Food and Drug Administration and scheduled in the Drug Control Act (§54.1-3400 et seq.) or (ii) dispensed pursuant to Article 4.2 (§54.1-3442.5 et seq.) of Chapter 34 of Title 54.1.
§3.2-5206. Board authorized to establish standards and adopt regulations; guidance of State Health Commissioner.
A. The Board is authorized to establish definitions, standards of quality and identity, and to adopt and enforce regulations dealing with the issuance of permits, production, importation, processing, grading, labeling, and sanitary standards for milk, milk products, market milk, market milk products, and those products manufactured or sold in semblance to or as substitutes for milk, milk products, market milk, market milk products. Regulations concerning the processing and distributing of Grade A market milk and Grade A market milk products shall be adopted with the advice and guidance of the State Health Commissioner. The Board shall adopt regulations for the issuance of the permits referred to in §3.2-5208. The Board may require permits in addition to those prescribed by the terms of this article, and shall adopt regulations concerning the conditions under which any additional permits shall be issued.
B. In adopting any regulation pursuant to this section, the Board may adopt by reference:
1. Any regulation or part thereof under federal law that pertains to milk or milk products, amending the federal regulation as necessary for intrastate application.
2. Any model ordinance or regulation issued under federal law, including the Pasteurized Milk Ordinance (Public Health Service/Food and Drug Administration Publication Number 229) and the U.S. Department of Agriculture's Milk for Manufacturing Purposes and its Production and Processing Recommended Requirements (hereafter the USDA Recommended Requirements), amending it as necessary for intrastate application and to: (i) require milk on each dairy farm to be cooled and stored at a temperature of 40 degrees Fahrenheit or less, but not frozen; (ii) require the use of recording thermometers and interval timers on every milk storage tank installed on a permitted Grade A milk dairy farm; (iii) specify the design, fabrication, installation, inspection, and record keeping necessary for the proper use of such thermometers and timers; (iv) establish a definition for small-scale processors of cheese under the dairy plant processing requirements contained in the USDA Recommended Requirements; and (v) create exemptions for small-scale processors of cheese from the USDA Recommended Requirements regarding processing requirements for dairy plants, provided such exemptions do not compromise food safety.
3. Any reference, standard, or part thereof relating to milk, milk products, or milk production published by the American Society of Agricultural Engineers, the American Public Health Association, the American Society of Mechanical Engineers, or the International Association of Food Protection.
4. Any method of analysis relating to milk or milk products including any method of analysis published by the United States Public Health Service, the Association of Official Analytical Chemists, or the American Public Health Association.
C. Any regulation adopted pursuant to this section shall, unless a later effective date is specified in the regulation, be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. Neither the provisions of the Administrative Process Act (§2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption of any regulation pursuant to this section. Prior to adopting any regulation pursuant to this section, the Board shall publish a notice of opportunity to comment in the Virginia Register of Regulations. The notice of opportunity to comment shall contain: (i) a summary of the proposed regulation; (ii) instructions on how to obtain the complete text of the proposed regulation; and (iii) the name, address, and telephone number of the agency contact person responsible for receiving public comments. The notice of opportunity to comment shall be made at least 90 days in advance of the last date prescribed in the notice for submittals of public comment. The legislative review provisions of § 2.2-4014 shall apply to the promulgation or final adoption process of regulations under this section. The Board shall consider and keep on file all public comments received for any regulation adopted pursuant to this section.
D. Notwithstanding the provisions of subsections B and C, any permits that may be issued or regulations that may be adopted for the sale or manufacture of cheese from milk from any species not required to be permitted or regulated in intrastate commerce prior to July 1, 2001, under this article, shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) if such regulations or permits apply to persons who manufacture less than 1,000 pounds of such cheese annually.
E. The provisions of this chapter and regulations adopted pursuant hereto shall not apply to a private home or farm and curtilage where the residents or owners process or prepare any food product made from milk products, provided that such products are sold directly to the end consumer and labeled with the producer's name, producer's address, and product ingredients and the following disclosure: "NOT FOR RESALE - PROCESSED AND PREPARED WITHOUT STATE INSPECTION."
For the purposes of this subsection:
"Farm" means an agricultural establishment with 10 or fewer full-time equivalent employees not including members of the producer's family.
"Private home" means the residence of the producer of the food product.
§15.2-2288.6. Agricultural operations; local regulation of certain activities.
A. No locality shall regulate the carrying out of any of the following activities at an agricultural operation, as defined in §3.2-300, unless there is a substantial impact on the health, safety, or general welfare of the public:
1. Agritourism activities as defined in §3.2-6400;
2. The sale of agricultural or silvicultural products, or the sale of agricultural-related or silvicultural-related items incidental to the agricultural operation;
3. The preparation, processing, or sale of food products in
compliance with subdivisions C 3, 4,
and 5 of §3.2-5130 or related
state laws and regulations; or
4. Other activities or events that are usual and customary at Virginia agricultural operations.
Any local restriction placed on an activity listed in this subsection shall be reasonable and shall take into account the economic impact of the restriction on the agricultural operation and the agricultural nature of the activity.
B. No locality shall require a special exception, administrative permit not required by state law, or special use permit for any activity listed in subsection A on property that is zoned as an agricultural district or classification unless there is a substantial impact on the health, safety, or general welfare of the public.
C. Except regarding the sound generated by outdoor amplified music, no local ordinance regulating the sound generated by any activity listed in subsection A shall be more restrictive than the general noise ordinance of the locality. In permitting outdoor amplified music at an agricultural operation, the locality shall consider the effect on adjoining property owners and nearby residents.
D. The provisions of this section shall not affect any entity licensed in accordance with Chapter 2 (§4.1-200 et seq.) of Title 4.1. Nothing in this section shall be construed to affect the provisions of Chapter 3 (§ 3.2-300 et seq.) of Title 3.2, to alter the provisions of §15.2-2288.3, or to restrict the authority of any locality under Title 58.1.
§28.2-803. Examination, analysis and inspection.
A. The State Health Commissioner may in his discretion, or shall at the request of the Governor, the Marine Resources Commission, or the Commissioner of Marine Resources, conduct an examination or analysis of crustacea, finfish, and shellfish, whether on the planting grounds, in an establishment, or in any other place in this Commonwealth, from which the products are to be taken or sold for food purposes.
B. The State Health Commissioner in making such examination may analyze the water and bottom sediment in and adjacent to the crustacea, finfish, or shellfish growing areas for evidence of pollution, and he may survey the sanitary conditions and pollution hazards adjacent to shellfish growing areas, both in the water and on shore.
C. The State Health Commissioner in conducting his analysis shall examine the establishments in which crustacea, finfish, and shellfish are handled and the sanitary conditions surrounding the establishment, except that no such examination shall occur in home food operations authorized under subsection D of § 3.2-5101. At that time, he may analyze the crustacea, finfish, and shellfish in the establishment.
§32.1-12. Regulations, variances and exemptions.
A. The Board may make, adopt, promulgate, and enforce such regulations and provide for reasonable variances and exemptions therefrom as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by it, the Commissioner or the Department.
B. Notwithstanding the provisions of subsection A, the provisions of this title and any regulations adopted pursuant hereto shall not apply to a private home or farm and curtilage where the residents or owners process or prepare any food product made from dairy products, fluid milk, fruit, grain, herbs, honey, meat, milk, mushrooms, nuts, poultry, seafood, vegetables, or any other ingredient that has otherwise been obtained in accordance with existing law, provided that such products are sold directly to the end consumer and labeled with the producer's name, producer's address, and product ingredients and the following disclosure: "NOT FOR RESALE - PROCESSED AND PREPARED WITHOUT STATE INSPECTION."
For the purposes of this subsection:
"Farm" means an agricultural establishment with 10 or fewer full-time equivalent employees not including members of the producer's family.
"Private home" means the residence of the producer of the food product.