§328-10  Foods deemed misbranded when. A food shall be deemed to be misbranded:

(1)  If its labeling is false or misleading in anyparticular; or if its labeling or packaging fails to conform with therequirements of sections 328-2 and 328-19.1;

(2)  If it is offered for sale under the name ofanother food;

(3)  If it is an imitation of another food for which adefinition and standard of identity has been prescribed by rules as provided bysection 328-8; or if it is an imitation of another food that is not subject toparagraph (7), unless its label bears in type of uniform size and prominence,the word "imitation" and, immediately thereafter, the name of thefood imitated;

(4)  If its container is so made, formed, or filled asto be misleading;

(5)  If in package form, unless it bears a labelcontaining (A) the name and place of business of the manufacturer, packer, ordistributor; (B) an accurate statement of the quantity of the contents in termsof weight, measure, or numerical count, which statement shall be separately andaccurately stated in a uniform location upon the principal display panel of thelabel; provided that under subparagraph (B) reasonable variations shall bepermitted, and exemptions as to small packages shall be established, by rules adoptedby the department of health;

(6)  If any word, statement, or other informationrequired by or under authority of this part to appear on the label or labelingis not prominently placed thereon with such conspicuousness (as compared withother words, statements, designs, or devices, in the labeling) and in suchterms as to render it likely to be read and understood by the ordinaryindividual under customary conditions of purchase and use;

(7)  If it purports to be or is represented as a foodfor which a definition and standard of identity have been prescribed by rulesas provided by section 328-8, unless (A) it conforms to such definition andstandard, and (B) its label bears the name of the food specified in thedefinition and standards, and, insofar as may be required by the rules, thecommon names of optional ingredients (other than spices, flavoring, andcoloring) present in the food;

(8)  If it purports to be or is represented as:

(A)  A food for which a standard of quality hasbeen prescribed by rules as provided by section 328-8 and its quality fallsbelow such standard unless its label bears, in such manner and form as therules specify, a statement that it falls below such standard; or

(B)  A food for which a standard or standardsof fill of container have been prescribed by rules as provided by section328-8, and it falls below the standard of fill of container applicable thereto,unless its label bears, in such manner and form as the rules specify, astatement that it falls below such standard;

(9)  If it is not subject to paragraph (7), unless itslabel bears (A) the common or usual name of the food, if any there be, and (B)in case it is fabricated from two or more ingredients, the common or usual nameof each such ingredient; except that spices, flavorings, and colorings, otherthan those sold as such, may be designated as spices, flavorings, andcolorings, without naming each; provided that to the extent that compliancewith the requirements of subparagraph (B) is impractical or results in deceptionor unfair competition, exemptions shall be established by rules prescribed bythe department; and, provided further that the requirements of subparagraph (B)shall not apply to food products which are packaged at the direction ofpurchasers at retail at the time of sale, the ingredients of which aredisclosed to the purchasers by other means in accordance with rules prescribedby the department;

(10)  If it purports to be or is represented forspecial dietary uses, unless its label bears such information concerning itsvitamin, mineral, and other dietary properties as the department determines tobe, and by rules prescribes, as necessary in order to fully inform purchasersas to its value for such uses;

(11)  If it bears or contains any artificial flavoring,artificial coloring, or chemical preservative, unless it bears labeling statingthat fact; provided that to the extent that compliance with the requirements ofthis paragraph is impracticable, exemptions shall be established by rulesprescribed by the department; and, provided further that this paragraph andparagraphs (7) and (9) with respect to artificial coloring shall not apply inthe case of butter, cheese, or ice cream.  The provisions of this paragraphregarding chemical preservatives shall not apply to a pesticide chemical whenused in or on a raw agricultural commodity which is the produce of the soil;

(12)  If it is a product intended as an ingredient ofanother food and, when used according to the directions of the purveyor, willresult in the final food product being adulterated or misbranded;

(13)  If it is a color additive unless its packagingand labeling are in conformity with the packaging and labeling requirementsapplicable to the color additive prescribed under the Federal Act;

(14)  If it is a raw agricultural commodity which isthe produce of the soil, bearing or containing a pesticide chemical appliedafter harvest, unless the shipping container of such commodity bears labelingwhich declares the presence of such chemical in or on such commodity and thecommon or usual name and the function of such chemical; provided that no suchdeclaration shall be required while such commodity, having been removed fromthe shipping container, is being held or displayed for sale at retail out ofsuch container in accordance with the custom of the trade;

(15)  If it is a confectionery and contains alcohol inexcess of one-half of one per cent by weight and that fact does not appear onthe label for the food. [L 1941, c 318, §7; RL 1945, §2210; RL 1955, §51-10; amL Sp 1959 2d, c 1, §19; am L 1967, c 152, §5; HRS §328-10; am L 1972, c 151,§5; am L 1979, c 105, §34; am L 1987, c 52, §1; am L 1988, c 402, §3]

 

Attorney General Opinions

 

  Sale of "Grade AA Pasteurized Milk" as "GradeA Recombined Milk" constitutes misbranding. Att. Gen. Op. 67-19.