To repeal sections 196.931, 196.933, 196.935, 196.937, 196.941, 196.943, 196.945, 196.947, 196.949, 196.951, 196.953, 196.955, 196.957 and 196.959, RSMo 1994, and section 196.939, RSMo Supp. 1996, relating to the state milk board, and to enact in lieu thereof fourteen new section relating to the same subject.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

     Section A. Sections 196.931, 196.933, 196.935, 196.937, 196.941, 196.943, 196.945, 196.947, 196.949, 196.951, 196.953, 196.955, 196.957 and 196.959, RSMo 1994, and section 196.939, RSMo Supp. 1996, are repealed and fourteen new sections enacted in lieu thereof to be known as sections 261.200, 261.205, 261.210, 261.215, 261.220, 261.225, 261.230, 261.235, 261.240, 261.245, 261.250, 261.255, 261.260 and 261.265, to read as follows:

     261.200. As used in sections 261.200 to 261.265 unless the context clearly indicates otherwise, the following words and terms shall have the meaning indicated:

     (1) "Grade A pasteurized milk", grade A raw milk for pasteurization which has been pasteurized, cooled, and placed in the final container in a milk plant and conforming with the sanitation and bacteriological standards authorized by sections 261.200 to 261.265 and regulations promulgated thereunder;

     (2) "Grade A raw milk for pasteurization", raw milk for pasteurization from producer dairies and conforming with all of the sanitation and bacteriological standards authorized by sections 261.200 to 261.265 and regulations which are promulgated thereunder;

     (3) "Graded fluid milk and fluid milk products", milk products include cream, light cream, coffee cream, table cream, whipping cream, light whipping cream, heavy cream, heavy whipping cream, whipped cream, whipped light cream, whipped coffee cream, whipped table cream, sour cream, cultured sour cream, half-and-half, sour half-and-half, cultured half-and-half, reconstituted or recombined milk and milk products, concentrated milk, concentrated milk products, skim milk, skimmed milk, lowfat milk, fortified milk and milk products, vitamin D milk and milk products, homogenized milk, flavored milk or milk products, eggnog, eggnog flavored milk, eggnog flavored lowfat milk, buttermilk, cultured buttermilk, cultured milk, cultured whole milk buttermilk, and acidified milk and milk products, and other fluid milk and fluid milk products so declared by the board which are sold, offered for sale, exposed for sale, delivered or advertised as graded milk and milk products;

     (4) "Manufacturing raw milk", milk that does not meet the requirements of grade A raw milk for pasteurization as defined in sections 261.200 to 261.265;

     (5) "Milk plant", any place, premises or establishment where graded fluid milk or fluid milk products are collected, handled, processed, stored, bottled, pasteurized and prepared for distribution, except an establishment where graded fluid milk products are sold at retail as purchased from a milk plant;

     (6) "Milk plant operator", any person, firm, corporation or association operating any milk plant;

     (7) "Milk producer", any person who operates a dairy farm and provides, sells, or offers milk for sale to a milk plant, receiving station, or transfer station;

     (8) "Official rating agency", the state department of agriculture;

     (9) "Official rating survey", the survey conducted by the official state rating agency, as required by sections 261.200 to 261.265;

     (10) "Person" shall mean an individual or individuals, or a firm, partnership, company, corporation, trustee, or association;

     (11) "Political subdivision", any municipality, city, incorporated town, village, county, township, district or authority, or any portion or combination of two or more thereof;

     (12) "State department of agriculture", the department of agriculture of Missouri;

     (13) "State milk board", an appointed state agency functioning as administrator of "state milk inspection"; and

     (14) "State milk inspection", the services of inspection, regulation, grading, and program evaluation of fluid milk and fluid milk products by agents, representatives or employees of the state milk board under the terms and provisions of sections 261.200 to 261.265 and regulations adopted to regulate the production, transportation, processing, manufacture, distribution and sale of graded fluid milk and fluid milk products.

     261.205. The provisions of sections 261.200 through 261.265 and regulations promulgated thereunder do not apply to manufacturing raw milk and manufactured dairy products, including, but not limited to, butter, condensed milk, evaporated milk, sterilized milk or milk products in hermetically sealed containers and not requiring refrigeration, all types of cheese, nonfat dry milk, dry whole milk and part fat dry milk unless used in the preparation of graded fluid milk or fluid milk products.

     261.210. No person shall sell, offer for sale, expose for sale, transport, or deliver any graded fluid milk or graded fluid milk products in this state unless the milk or milk products are graded and produced, transported, processed, manufactured, distributed, labeled and sold under state milk inspection and the same has also been produced or pasteurized as required by a regulation authorized by section 261.220 and under proper permits issued thereunder. Only pasteurized graded fluid milk and fluid milk products as defined in subdivision (3) of section 261.200 shall be sold to the final consumer, or to restaurants, soda fountains, grocery stores, or similar establishments; except an individual may purchase and have delivered to him for his own use raw milk or cream from a farm.

     261.215. Any person violating any provision of section 261.210 is guilty of a misdemeanor. When construing and enforcing the provisions of sections 261.200 through 261.265, the act, omission or failure of any person acting for or employed by an individual, partnership, corporation, or association within the scope of his employment or office shall, in every case, be deemed a violation of sections 261.200 through 261.265, by the individual, partnership, corporation or association, as well as the violations of sections 261.200 through 261.265, by the person.

     261.220. 1. The state milk board shall promulgate, adopt, and file with the secretary of state as prescribed by law such regulations as deemed necessary for the purpose of sections 261.200 to 261.265. Such regulations shall be enforced by the state milk board through either contractual agreements with political subdivisions of the state or employees of the state milk board. The adoption of regulations for the purpose of establishing a milk inspection program other than one under contractual agreement with the state milk board by any political subdivision is prohibited. Milk inspection by any political subdivision of the state except under contractual arrangements with the board is prohibited; provided the duly authorized official of any political subdivision of this state may take samples of such products which have been moved into, distributed within, or sold within the boundaries of such political subdivisions of this state for the sole purpose of determining that such milk and milk products comply with the standards developed by the state milk board. Nothing in sections 261.200 to 261.265 shall be construed as prohibiting any epidemiological investigations by the proper authorities of any political subdivision. A public hearing shall be held prior to the adoption of any regulation or modification thereof, upon notice published at least thirty days prior to the public hearings. At the public hearing, any person shall be permitted to appear and to be heard on the proposed regulations or modifications thereof. The standards of a regulation may exceed but shall not be less than those contained in the current edition of the Grade A Pasteurized Milk Ordinance of the United States Public Health Service as it exists or as it may be amended. The board may employ an executive secretary and adequate staff for administering sections 261.200 to 261.265, the cost of which shall be paid from the milk inspection fee fund.

     2. No rule or portion of a rule promulgated under the authority of sections 261.200 to 261.265 shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.

     216.225. There is hereby created a board to be known as the "State Milk Board" to consist of eleven members to be nominated by the director of the department of agriculture and shall be appointed by the governor, with the advice and consent of the senate, four of whom shall be representatives and active members of the staff of each of four local health jurisdictions including St. Louis County, Missouri, health department; St. Louis city, Missouri, health division; Kansas City, Missouri, health department; Springfield, Missouri, health department. Four grade A milk producers shall represent dairy producers through a registered milk producer organization or farm organization with no more than one representing any one organization; one member shall represent dairy processors through a recognized processor organization; and one member shall be a consumer at large. Not more than six of the eleven board members shall be members of the same political party. The consumer at large or his spouse shall not be affiliated with any of the above-mentioned groups. The director of the state department of agriculture or his designated representative shall serve as a member. The term of service of each board member shall expire September twenty-eight of the fourth year after appointment. However, the term of the first members appointed shall expire September twenty-eight of the first to fourth year after appointment as specified by the governor and as equally as possible. Board members shall serve without financial compensation.

     261.230. An inspection fee shall be annually established by the board not to exceed five cents on each one hundred pounds of grade A raw milk for pasteurization produced under state milk inspection and shall be paid by the milk plant to the state milk board. Milk dealers, processors, or distributors selling graded fluid milk and fluid milk products in the state as provided for by section 261.245 shall pay a fee, to be established annually by the board, not to exceed five cents on each one hundred pounds of milk or milk products to the state milk board; provided that no milk producer, person, milk dealer, milk processor or milk distributor shall be liable for inspection fees on fluid milk and fluid milk products for which fees have previously been paid to the state milk board. Such fees shall be paid to the state milk board on or before the twentieth day of each month for the preceding calendar month. The annual inspection fees shall be set by the board after holding a public hearing giving thirty days' public notice.

     261.235. All moneys received for state milk inspection shall be deposited in the state treasury and credited to the "State Milk Inspection Fee Fund", which is hereby created, subject to appropriation by the general assembly and to be appropriated to the state milk board and used exclusively for the purpose of defraying the cost of state milk inspection and to other state agencies for such services in addition thereto that are provided by the state government. The state milk board shall remit to the treasury of the local jurisdictions for which it may contract to provide services for administering milk inspection if other than by its own employees, moneys not exceeding five cents per one hundred pounds of milk or milk products. The unexpended balance in the state milk inspection fee fund at the end of the biennium shall not be transferred to the general revenue fund of the state treasury and, accordingly, shall be exempt from the provisions of section 33.080, RSMo, relating to the transfer of funds to the general revenue fund of the state by the state treasurer. The financial proceedings of the board shall be subject to an annual audit by a certified public accountant and the audit report shall be a public record, subject to the inspection by the general public.

     261.240. Graded fluid milk or fluid milk products not inspected under state milk inspection may be sold, offered for sale, exposed for sale, and delivered in the state of Missouri, or any municipality thereof, if approved by the director of the department of agriculture as provided for by regulations adopted jointly by the agency and the state milk board; provided that, the graded fluid milk or fluid milk products from other states shall be produced and processed under the supervision of a duly authorized governmental agency operating under the provisions of an ordinance, statute, or regulation substantially equivalent to the regulations promulgated and adopted by the state milk board and enforced with equal effectiveness as determined by an official rating survey, and products meet applicable temperature, bacteriological and composition standards when sampled on arrival at point of retail sale. Nothing in this section shall prohibit the state or local health officer from satisfying himself that the governmental agency having jurisdiction over the production and processing is properly enforcing such provisions.

     261.245. The department of agriculture is hereby designated as the official rating agency. At least annually, or as often as necessary, the department of agriculture shall make an official rating survey to determine if there is appropriate and effective enforcement of the standards and provisions of sections 261.200 through 261.265 and such other surveys as may be necessary to assure enforcement of sections 261.200 through 261.265 throughout the state. Unsatisfactory conditions shall be deemed to exist when a rating below the minimum acceptable rating established by the director of the department of agriculture is found by the official rating survey. Violation of sections 261.200 through 261.265 shall be deemed to exist when the unsatisfactory conditions causing the rating to fall below the minimum acceptable rating are not corrected within ninety days. The minimum acceptable rating shall be ninety percent for the pasteurized milk supply as determined by rating methods recognized by the United States Public Health Service Food and Drug Administration. The director of the department of agriculture shall promulgate and adopt a single method of making official rating surveys of all milksheds. Official surveys shall be made by a method substantially equivalent to procedures outlined in United States Governmental Printing Office Publication Number 678, titled "Methods of Making Sanitation Ratings of Milksheds".

     261.250. In addition to the remedies provided in sections 261.200 through 261.265, or by law, the attorney general of the state or the prosecuting attorney of any county in which a violation of any provisions of sections 261.200 through 261.265 occurs is authorized to apply to any court of competent jurisdiction for, and the court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction to restrain any person, partnership, corporation, or association from violating any provisions of sections 261.200 through 261.265.

     261.255. Nothing in sections 261.200 to 261.265 shall be so construed as to prohibit any grade A dairyman, who holds a valid grade A milk permit at the inception of sections 261.200 to 261.265, from continuing to sell grade A milk.

     261.260. It is expressly provided that any milk or milk products once inspected and approved under sections 261.200 to 261.265 shall be freely marketable anywhere in the state of Missouri without any further inspection.

     261.265. Any person aggrieved by an order or regulation of the milk board may appeal directly to the circuit court having jurisdiction over his principal place of business. The case shall be placed at the head of the docket for a de novo hearing.

          [196.931. As used in sections 196.931 to 196.953 unless the context clearly indicates otherwise, the following words and terms shall have the meaning indicated:

          (1) "Grade A pasteurized milk", grade A raw milk for pasteurization which has been pasteurized, cooled, and placed in the final container in a milk plant and conforming with the sanitation and bacteriological standards authorized by sections 196.931 to 196.953 and regulations promulgated thereunder;

          (2) "Grade A raw milk for pasteurization", raw milk for pasteurization from producer dairies and conforming with all of the sanitation and bacteriological standards authorized by sections 196.931 to 196.953 and regulations which are promulgated thereunder;

          (3) "Graded fluid milk and fluid milk products", milk products include cream, light cream, coffee cream, table cream, whipping cream, light whipping cream, heavy cream, heavy whipping cream, whipped cream, whipped light cream, whipped coffee cream, whipped table cream, sour cream, cultured sour cream, half-and-half, sour half-and-half, cultured half-and-half, reconstituted or recombined milk and milk products, concentrated milk, concentrated milk products, skim milk, skimmed milk, lowfat milk, fortified milk and milk products, vitamin D milk and milk products, homogenized milk, flavored milk or milk products, eggnog, eggnog flavored milk, eggnog flavored lowfat milk, buttermilk, cultured buttermilk, cultured milk, cultured whole milk buttermilk, and acidified milk and milk products, and other fluid milk and fluid milk products so declared by the board which are sold, offered for sale, exposed for sale, delivered or advertised as graded milk and milk products;

          (4) "Manufacturing raw milk", milk that does not meet the requirements of grade A raw milk for pasteurization as defined in sections 196.931 to 196.959;

          (5) "Milk plant", any place, premises or establishment where graded fluid milk or fluid milk products are collected, handled, processed, stored, bottled, pasteurized and prepared for distribution, except an establishment where graded fluid milk products are sold at retail as purchased from a milk plant;

          (6) "Milk plant operator", any person, firm, corporation or association operating any milk plant;

          (7) "Milk producer", any person who operates a dairy farm and provides, sells, or offers milk for sale to a milk plant, receiving station, or transfer station;

          (8) "Official rating agency", the state department of health;

          (9) "Official rating survey", the survey conducted by the official state rating agency, as required by sections 196.931 to 196.953;

          (10) "Person" shall mean an individual or individuals, or a firm, partnership, company, corporation, trustee, or association;

          (11) "Political subdivision", any municipality, city, incorporated town, village, county, township, district or authority, or any portion or combination of two or more thereof;

          (12) "State department of agriculture", the department of agriculture of Missouri;

          (13) "State department of health", the department of health of Missouri;

          (14) "State milk board", an appointed state agency functioning as administrator of "state milk inspection"; and

          (15) "State milk inspection", the services of inspection, regulation, grading, and program evaluation of fluid milk and fluid milk products by agents, representatives or employees of the state milk board under the terms and provisions of sections 196.931 to 196.959 and regulations adopted to regulate the production, transportation, processing, manufacture, distribution and sale of graded fluid milk and fluid milk products.]

          [196.933. The provisions of sections 196.931 through 196.953 and regulations promulgated thereunder do not apply to manufacturing raw milk and manufactured dairy products, including, but not limited to, butter, condensed milk, evaporated milk, sterilized milk or milk products in hermetically sealed containers and not requiring refrigeration, all types of cheese, nonfat dry milk, dry whole milk and part fat dry milk unless used in the preparation of graded fluid milk or fluid milk products.]

          [196.935. No person shall sell, offer for sale, expose for sale, transport, or deliver any graded fluid milk or graded fluid milk products in this state unless the milk or milk products are graded and produced, transported, processed, manufactured, distributed, labeled and sold under state milk inspection and the same has also been produced or pasteurized as required by a regulation authorized by section 196.939 and under proper permits issued thereunder. Only pasteurized graded fluid milk and fluid milk products as defined in subdivision (3) of section 196.931 shall be sold to the final consumer, or to restaurants, soda fountains, grocery stores, or similar establishments; except an individual may purchase and have delivered to him for his own use raw milk or cream from a farm.]

          [196.937. Any person violating any provision of section 196.935 is guilty of a misdemeanor. When construing and enforcing the provisions of sections 196.931 through 196.953, the act, omission or failure of any person acting for or employed by an individual, partnership, corporation, or association within the scope of his employment or office shall, in every case, be deemed a violation of sections 196.931 through 196.953, by the individual, partnership, corporation or association, as well as the violations of sections 196.931 through 196.953, by the person.]

          [196.939. 1. The state milk board shall promulgate, adopt, and file with the secretary of state as prescribed by law such regulations as deemed necessary for the purpose of sections 196.931 to 196.953. Such regulations shall be enforced by the state milk board through either contractual agreements with political subdivisions of the state or employees of the state milk board. The adoption of regulations for the purpose of establishing a milk inspection program other than one under contractual agreement with the state milk board by any political subdivision is prohibited. Milk inspection by any political subdivision of the state except under contractual arrangements with the board is prohibited; provided the duly authorized official of any political subdivision of this state may take samples of such products which have been moved into, distributed within, or sold within the boundaries of such political subdivisions of this state for the sole purpose of determining that such milk and milk products comply with the standards developed by the state milk board. Nothing in sections 196.931 to 196.959 shall be construed as prohibiting any epidemiological investigations by the proper authorities of any political subdivision. A public hearing shall be held prior to the adoption of any regulation or modification thereof, upon notice published at least thirty days prior to the public hearings. At the public hearing, any person shall be permitted to appear and to be heard on the proposed regulations or modifications thereof. The standards of a regulation may exceed but shall not be less than those contained in the current edition of the Grade A Pasteurized Milk Ordinance of the United States Public Health Service as it exists or as it may be amended. The board may employ an executive secretary and adequate staff for administering sections 196.931 to 196.959, the cost of which shall be paid from the milk inspection fee fund.

          2. No rule or portion of a rule promulgated under the authority of sections 196.931 to 196.959 shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.]

          [196.941. There is hereby created a board to be known as the "State Milk Board" to consist of twelve members to be nominated by the director of the department of agriculture and shall be appointed by the governor, with the advice and consent of the senate, four of whom shall be representatives and active members of the staff of each of four local health jurisdictions including St. Louis County, Missouri, health department; St. Louis city, Missouri, health division; Kansas City, Missouri, health department; Springfield, Missouri, health department. Four grade A milk producers shall represent dairy producers through a registered milk producer organization or farm organization with no more than one representing any one organization; one member shall represent dairy processors through a recognized processor organization; and one member shall be a consumer at large. Not more than six of the twelve board members shall be members of the same political party. The consumer at large or his spouse shall not be affiliated with any of the above-mentioned groups. The director of the state department of health or his designated representative and the state director of the department of agriculture or his designated representative shall serve as members. The term of service of each board member shall expire September twenty-eight of the fourth year after appointment. However, the term of the first members appointed shall expire September twenty-eight of the first to fourth year after appointment as specified by the governor and as equally as possible. Provisions of sections 196.931 to 196.959 shall be implemented within one year of August 13, 1972. Board members shall serve without financial compensation.]

          [196.943. Within thirty days after August 13, 1972, the governor shall appoint ten persons as members of the state milk board as set forth in section 196.941 and their authority to act shall commence upon receiving the advice and consent of the senate, if the senate shall be in session, but if the senate not be in session, the authority to act as an acting board member shall commence immediately upon appointment by the governor, but shall terminate if advice and consent is not received within thirty days after the senate convenes. If advice and consent is not given, such person shall not be reappointed by the governor to the board. To be eligible for appointment by the governor, the board member must be a citizen of the United States and a resident of the state. Advice and consent may be withdrawn with regard to the appointment of a member of the state milk board by a majority vote of the elected members of the senate.]

          [196.945. An inspection fee shall be annually established by the board not to exceed five cents on each one hundred pounds of grade A raw milk for pasteurization produced under state milk inspection and shall be paid by the milk plant to the state milk board. Milk dealers, processors, or distributors selling graded fluid milk and fluid milk products in the state as provided for by section 196.949 shall pay a fee, to be established annually by the board, not to exceed five cents on each one hundred pounds of milk or milk products to the state milk board; provided that no milk producer, person, milk dealer, milk processor or milk distributor shall be liable for inspection fees on fluid milk and fluid milk products for which fees have previously been paid to the state milk board. Such fees shall be paid to the state milk board on or before the twentieth day of each month for the preceding calendar month. The annual inspection fees shall be set by the board after holding a public hearing giving thirty days' public notice.]

          [196.947. All moneys received for state milk inspection shall be deposited in the state treasury and credited to the "State Milk Inspection Fee Fund", which is hereby created, subject to appropriation by the general assembly and to be appropriated to the state milk board and used exclusively for the purpose of defraying the cost of state milk inspection and to other state agencies for such services in addition thereto that are provided by the state government. The state milk board shall remit to the treasury of the local jurisdictions for which it may contract to provide services for administering milk inspection if other than by its own employees, moneys not exceeding five cents per one hundred pounds of milk or milk products. The unexpended balance in the state milk inspection fee fund at the end of the biennium shall not be transferred to the general revenue fund of the state treasury and, accordingly, shall be exempt from the provisions of section 33.080, RSMo, relating to the transfer of funds to the general revenue fund of the state by the state treasurer. The financial proceedings of the board shall be subject to an annual audit by a certified public accountant and the audit report shall be a public record, subject to the inspection by the general public.]

          [196.949. Graded fluid milk or fluid milk products not inspected under state milk inspection may be sold, offered for sale, exposed for sale, and delivered in the state of Missouri, or any municipality thereof, if approved jointly by the director of the department of agriculture and the director of the department of health as provided for by regulations adopted jointly by the two agencies and the state milk board; provided that, the graded fluid milk or fluid milk products from other states shall be produced and processed under the supervision of a duly authorized governmental agency operating under the provisions of an ordinance, statute, or regulation substantially equivalent to the regulations promulgated and adopted by the state milk board and enforced with equal effectiveness as determined by an official rating survey, and products meet applicable temperature, bacteriological and composition standards when sampled on arrival at point of retail sale. Nothing in this section shall prohibit the state or local health officer from satisfying himself that the governmental agency having jurisdiction over the production and processing is properly enforcing such provisions.]

          [196.951. The department of health is hereby designated as the official rating agency. At least annually, or as often as necessary, the department of health shall make an official rating survey to determine if there is appropriate and effective enforcement of the standards and provisions of sections 196.931 through 196.953 and such other surveys as may be necessary to assure enforcement of sections 196.931 through 196.953 throughout the state. Unsatisfactory conditions shall be deemed to exist when a rating below the minimum acceptable rating established by the director of the department of agriculture and the director of the department of health is found by the official rating survey. Violation of sections 196.931 through 196.953 shall be deemed to exist when the unsatisfactory conditions causing the rating to fall below the minimum acceptable rating are not corrected within ninety days. The minimum acceptable rating shall be ninety percent for the pasteurized milk supply as determined by rating methods recognized by the United States Public Health Service Food and Drug Administration. The director of the department of agriculture and the director of the department of health shall jointly promulgate and adopt a single method of making official rating surveys of all milksheds. Official surveys shall be made by a method substantially equivalent to procedures outlined in United States Governmental Printing Office Publication Number 678, titled "Methods of Making Sanitation Ratings of Milksheds".]

          [196.953. In addition to the remedies provided in sections 196.931 through 196.953, or by law, the attorney general of the state or the prosecuting attorney of any county in which a violation of any provisions of sections 196.931 through 196.953 occurs is authorized to apply to any court of competent jurisdiction for, and the court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction to restrain any person, partnership, corporation, or association from violating any provisions of sections 196.931 through 196.953.]

          [196.955. Nothing in sections 196.931 to 196.959 shall be so construed as to prohibit any grade A dairyman, who holds a valid grade A milk permit at the inception of sections 196.931 to 196.959, to continue to sell grade A milk.]

          [196.957. It is expressly provided that any milk or milk products once inspected and approved under sections 196.931 to 196.959 shall be freely marketable anywhere in the state of Missouri without any further inspection.]

          [196.959. Any person aggrieved by an order or regulation of the milk board may appeal directly to the circuit court having jurisdiction over his principal place of business. The case shall be placed at the head of the docket for a de novo hearing.]