Thisact may be cited as the "Wyoming Food, Drug and Cosmetic Safety Act".
35-7-110. Definitions.
(a) As used in this act:
(i) "Advertisement" means all representationsdisseminated in any manner or by any means, other than by labeling, for thepurpose of inducing the purchase of food, drugs, devices or cosmetics;
(ii) "Color" includes black, white and intermediategrays;
(iii) "Color additive" means a material, other than amaterial exempt under the federal act, which:
(A) Is a dye, pigment or other substance from a vegetable,animal, mineral or other source; or
(B) When added or applied to a food, drug or cosmetic, or tothe human body or any part thereof, is capable (alone or through reaction withother substance) of imparting color thereto.
(iv) "Consumer commodity" means any food, drug, deviceor cosmetic as those terms are defined by this act or by the federal act;
(v) "Cosmetic" means articles other than soap whichare:
(A) Intended to be rubbed, poured, sprinkled or sprayed on,introduced into, or otherwise applied to the human body or any part thereof forcleansing, beautifying, promoting attractiveness or altering the appearance;and
(B) Intended for use as a component of any articles undersubparagraph (A) of this paragraph.
(vi) "Counterfeit drug" means a drug which, or thecontainer or labeling of which, without authorization, bears the trademark,trade name or other identifying mark, imprint or device, or any likenesstherefor, of a drug manufacturer, processor, packer or distributor other thanthe person who in fact manufactured, processed, packed or distributed the drugand which thereby falsely purports or is represented to be the product of, orto have been packed or distributed by, the other drug manufacturer, processor,packer or distributor;
(vii) "Department" means the department of agriculture;
(viii) "Device" means instruments, apparatus andcontrivances, including their components, parts and accessories, intended:
(A) For use in the diagnosis, cure, mitigation, treatment orprevention of disease in man or other animals; or
(B) To affect the structure or any function of the body of manor other animals.
(ix) "Director" means the director of the Wyomingdepartment of agriculture or his duly authorized representative;
(x) "Drug" means:
(A) Articles recognized in the official United Statespharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them; and
(B) Articles intended for use in the diagnosis, cure,mitigation, treatment or prevention of disease in man or other animals; and
(C) Articles (other than food) intended to affect the structureor any function of the body of man or other animals; and
(D) Articles intended for use as a component of any articlespecified in subparagraph (A), (B) or (C) of this paragraph but does notinclude devices or their components, parts or accessories.
(xi) "Establishment" means and includes any place orany area of any establishment in which foods, drugs, devices and cosmetics aredisplayed for sale, manufactured, processed, packed, held or stored;
(xii) "Federal act" means the Federal Food, Drug, andCosmetic Act, as amended, (Title 21 U.S.C. 301 et seq.) and regulationspromulgated under the act;
(xiii) "Food" means:
(A) Articles used for food or drink for humans including meatand ice intended for human consumption;
(B) Chewing gum;
(C) Beverages subject to the Federal Alcohol AdministrationAct, as amended, (Title 27 U.S.C. 201 et seq.);
(D) Articles used for components of any article undersubparagraphs (A), (B) and (C) of this paragraph.
(xiv) "Food additive" means any substance the intendeduse of which results or may be reasonably expected to result, directly orindirectly, in its becoming a component or otherwise affecting thecharacteristics of any food within the meaning of the federal act;
(xv) An "imitation food" is any food which is inphysical characteristics such as taste, flavor, color, texture or appearancewhich resembles or purports to be or is represented as a food for which adefinition and standard of identity has been prescribed and does not conform tosuch standard;
(xvi) "Immediate container" does not include packageliners;
(xvii) "Label" means a display of written, printed orgraphic matter upon the immediate container of any article. A requirement madeby or under this act that any word, statement or other information appear onthe label shall not be considered to be complied with unless the word,statement or other information also appears on the outside container orwrapper, if there is any, of the retail package of the article, or is easilylegible through the outside container or wrapper;
(xviii) "Labeling" means all labels and other written,printed or graphic matter upon an article or any of its containers or wrappers,or accompanying the article;
(xix) "Local board of health" means a county or cityboard of health established pursuant to W.S. 35-1-301 et seq.;
(xx) "Local health department" means a healthdepartment established by a county, municipality or district pursuant to W.S.35-1-301 et seq.;
(xxi) "New drug" means any drug considered to be a newdrug under the federal act;
(xxii) "Official compendium" means the official UnitedStates pharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them;
(xxiii) "Package" means any container or wrapping inwhich any consumer commodity is enclosed for use in the delivery or display ofthat consumer commodity to retail purchasers as interpreted by the federal act;
(xxiv) "Pesticide chemical" means any substance which,alone, in chemical combination, or in formulation with one (1) or more othersubstances is an "economic poison" within the meaning of the FederalInsecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 through 136y) whichis used in the production, storage or transportation of raw agriculturalcommodities;
(xxv) "Principal display panel" means that part of alabel that is most likely to be displayed, presented, shown or examined undernormal and customary conditions of display for retail sale;
(xxvi) "Raw agricultural commodity" means any food inits raw or natural state, including all fruits that are washed, colored orotherwise treated in their unpeeled natural form prior to marketing;
(xxvii) "Regulatory authority" means the authority whichissued the license or promulgated the rule or regulation being enforced includingthe department of agriculture or local health department;
(xxviii) "Farmers market" means a common facility or areawhere several vendors may gather on a regular, recurring basis to sell avariety of fresh fruits and vegetables, locally grown farm products and otheritems directly to consumers;
(xxix) "Function" means any official ceremony ororganized social occasion;
(xxx) "Not potentially hazardous food" means any foodwhich does not require time or temperature control for safety to limitpathogenic microorganism growth or toxin formation. The natural pH or thefinal pH of acidified food must be 4.6 or less;
(xxxi) "This act" means W.S. 35-7-109 through 35-7-127.
35-7-111. Prohibited acts.
(a) No person shall:
(i) Violate this act or any rules promulgated under it;
(ii) Introduce or deliver for introduction into commerce of anyfood, drug, device or cosmetic that is adulterated or misbranded;
(iii) Adulterate or misbrand any food, drug, device or cosmeticin commerce;
(iv) Knowingly receive in commerce of any food, drug, device orcosmetic that is adulterated or misbranded;
(v) Refuse to permit entry, inspection or access to records asauthorized by this act;
(vi) Manufacture any food, drug, device or cosmetic that isadulterated or misbranded;
(vii) Give a false guaranty or undertaking under this act exceptby a person who relied upon a guaranty or undertaking to the same effect signedby, and containing the name and address of, the person residing in the UnitedStates from whom he received in good faith the food, drug, device or cosmetic;
(viii) Forge, counterfeit or without proper authority use anymark, stamp, tag, label or other identification device authorized or requiredby regulations promulgated under this act;
(ix) Make, sell or possess any punch, die, plate, stone, orother thing designed to print, imprint or reproduce the trademark, trade nameor other identifying mark, imprint or device of another or any likeness of anyof the foregoing upon any drug or container or labeling thereof so as to rendersuch drugs a counterfeit drug;
(x) Alter, mutilate, destroy, obliterate or remove any part ofthe labeling of, or the doing of any other act with respect to a food, drug,device or cosmetic, if done while the article is held for sale (whether or notthe first sale) after shipment in commerce and which results in the articlebeing adulterated or misbranded;
(xi) Repealed By Laws 2000, Ch. 37, 4.
(xii) Use in labeling, advertising or other sales promotion ofany reference to any report or analysis furnished by the director in compliancewith this act.
(b) No person shall remove or dispose of a detained orembargoed article in violation of W.S. 35-7-114.
(c) In determining whether labeling or an advertisement ismisleading under this act, the following shall be considered:
(i) Representations made or suggested by statement, word,design, device, sound or in any combination thereof;
(ii) The extent to which the labeling or advertisement fails toreveal facts material in the light of the representations or facts materialwith respect to consequences which may result from the use of the article towhich the labeling or advertisement relates under the conditions of useprescribed in the labeling or advertisement or under conditions of use as arecustomary or usual.
(a) If the director or the director of the department of healthpursuant to W.S. 35-7-123(b)(vi) has probable cause to believe that an imminenthazard to the public health exists from a violation of this act, he may orderany person to immediately cease the practice believed to be a violation andshall provide the person an opportunity for a hearing pursuant to the WyomingAdministrative Procedure Act within ten (10) days after issuing the order.
(b) In addition to any other remedies, the director may applyto the district court for injunctive relief from any person who violates W.S.35-7-111.
35-7-113. Penalties and guaranty.
(a) Any person who knowingly and intentionally violates W.S.35-7-111 is guilty of a misdemeanor punishable by imprisonment for not morethan six (6) months, a fine of not more than seven hundred fifty dollars($750.00), or both. Upon a subsequent conviction under W.S. 35-7-111, theperson may be punished by imprisonment for not more than one (1) year, a fineof not more than one thousand five hundred dollars ($1,500.00), or both.
(b) No person may be convicted under W.S. 35-7-111 if heestablished a guaranty or undertaking signed by, and containing the name andaddress of, the person from whom he received the article in good faith, to theeffect that the article is not adulterated or misbranded within the meaning ofthis act and if he furnishes on request of the director the name and address ofthe person from whom he purchased or received the article in good faith andcopies of all documents pertaining to the delivery of the article to him.
(c) No publisher, radio-broadcast licensee, or agency or mediumfor the dissemination of an advertisement, except the manufacturer, packer,distributor or seller of the article to which a false advertisement relates,may be punished under W.S. 35-7-111 for the dissemination of the falseadvertisement.
35-7-114. Embargo.
(a) If the director has probable cause to believe that anyfood, drug, device, cosmetic or consumer commodity is adulterated or somisbranded as to be dangerous or fraudulent, within the meaning of this act, heshall affix a tag or other appropriate marking to the article giving noticethat the article is or is suspected of being adulterated or misbranded and hasbeen embargoed. The director shall release all other articles.
(b) If the director finds an article embargoed under subsection(a) of this section to be adulterated or misbranded, the director mayimmediately petition the district court for the county in which the article isembargoed to condemn the article, otherwise the tag or other marking shall beremoved by the director or his agent.
(c) If the court finds that an embargoed article is adulteratedor misbranded, the article, after entry of the decree, shall be destroyed atthe owner's expense, under the supervision of the director or his agent. Allcourt costs and fees, transportation costs, and storage and other properexpenses, shall be taxed against the owner of the article or his agent unlessthe adulteration or misbranding can be corrected by proper labeling orprocessing of the article. If so, the court, after entry of the decree andafter costs, fees and expenses have been paid and a good and sufficient bond,conditioned that the article shall be correctly labeled or processed, has beenexecuted, may by order direct delivery of the article to the owner for labelingor processing under the supervision of the director. The expense ofsupervision shall be paid by the owner. The article shall be returned to theowner and the bond shall be discharged on the representation to the court bythe director that the article is no longer in violation of this act and thatthe expenses of supervision have been paid. Nothing in this section preventsthe director from authorizing the owner of an adulterated or misbranded articlefrom destroying it as the director prescribes.
35-7-115. Food; definitions and standards.
(a) Definitions and standards of identity, quality and fill ofcontainer under the federal act or its regulations are the definitions andstandards of identity, quality and fill of container in this state. However,when the action will promote honesty and fair dealing in the interest ofconsumers, the director may promulgate regulations establishing definitions andstandards of identity, quality and fill of container for foods where no federalregulations exist. In addition, in conjunction with W.S. 35-7-127, the directormay promulgate amendments to any federal or state regulations which setdefinitions and standards of identity, and may promulgate amendments to anyfederal or state regulations which set standards of quality and fill of containerfor foods.
(b) Temporary permits now or hereafter granted for interstateshipment of experimental packs of food under the federal act are automaticallyeffective in this state.
35-7-116. Food, drugs and cosmetics; adulteration and misbranding.
Afood, cosmetic or a drug or device is adulterated if it is adulterated underthe federal act. A food, cosmetic or a drug or device is misbranded if it ismisbranded under the federal act.
35-7-117. Food; tolerances for added poisonous ingredients.
Anyadded poisonous or deleterious substance, any food additive, any pesticidechemical in or on a raw agricultural commodity or any color additive, is unsafewith respect to any particular use or intended use if it is deemed unsafe undersection 406 of the federal act.
35-7-118. New drugs.
Noperson shall sell, offer for sale, hold for sale or give away any new drugunless an application with respect thereto has been approved and the approvalhas not been withdrawn under section 505 of the federal act.
35-7-119. Fair packaging and labeling provisions.
(a) All labels of consumer commodities, as defined by this act,shall conform with the requirements for the declaration of net quantity ofcontents of section 4 of the Fair Packaging and Labeling Act (15 U.S.C. 1451,et seq.) and the regulations promulgated pursuant thereto as of the effectivedate of this act. Consumer commodities exempted from the requirements ofsection 4 of the Fair Packaging and Labeling Act are also exempt from thissubsection.
(b) The label of any package of a consumer commodity whichbears a representation as to the number of servings of the commodity containedin the package shall bear a statement of the net quantity (in terms of weight,measure or numerical count) of each serving.
(c) No person shall distribute or cause to be distributed incommerce any packaged consumer commodity if any qualifying words or phrasesappear in conjunction with the separate statement of the net quantity ofcontents required by subsection (a) of this section, but nothing in thissection prohibits supplemental statements, at other places on the package,describing in nondeceptive terms the net quantity of contents. Supplementalstatements of net quantity of contents shall not include any term qualifying aunit of weight, measure or count that tends to exaggerate the amount of thecommodity contained in the package.
(d) If the director determines that regulations containingprohibitions or requirements other than those prescribed by subsection (a) ofthis section are necessary to prevent the deception of consumer or tofacilitate value comparisons as to any consumer commodity, the director shallpromulgate rules and regulations with respect to that commodity in conjunctionwith W.S. 35-7-127.
(e) Every retailer and every wholesaler who sells or offers forsale in this state through an establishment or otherwise any meat, which is theproduct of any country foreign to the United States, shall clearly label themeat as "imported," naming the country of its origin. The departmentshall promulgate rules and regulations with respect to labeling. As used inthis subsection:
(i) "Meat" means the edible part of the muscle ofanimals, which is skeletal or which is found in the tongue, in the diaphragm,in the heart or in the esophagus, with or without the accompanying or overlyingfat, and the portions of bone, skin, sinew, nerve and blood vessels whichnormally accompany the muscle tissue and which are not separated from it in theprocess of dressing, but shall not include the muscle found in the lips, snoutor ears, nor any edible part of the muscle which has been manufactured, cured,smoked, cooked or processed;
(ii) "Retailer" means a person regularly engaged inthe business of selling meat at retail to the public, and selling only to theuser or consumer and not for resale;
(iii) "Wholesaler" means a person regularly engaged inthe business of selling meat at wholesale to retailers for subsequent sale atretail to the public.
35-7-120. Regulations.
(a) The director may promulgate regulations necessary for theefficient enforcement of this act.
(b) The director may promulgate regulations necessary to ensurethat appropriate sanitary conditions and water quality standards are met by anyperson engaged in the distribution of bulk quantities of water for sale forhuman consumption.
35-7-121. Inspections; examinations.
(a) For purposes of enforcement of this act, the director or alocal health department official may, upon presenting appropriate credentialsto the owner, operator or agent in charge:
(i) Enter at reasonable time any factory, warehouse orestablishment in which food, drugs, devices or cosmetics are manufactured,processed or packed or held for introduction into commerce or afterintroduction or to enter any vehicle being used to transport or hold the food,drugs, devices or cosmetics in commerce; and
(ii) Inspect at any reasonable times and within reasonablelimits and in a reasonable manner any factory, warehouse, establishment orvehicle and all pertinent equipment, finished and unfinished materials,containers and labeling therein, and to obtain samples necessary to theenforcement of this act, except that paragraph (i) of this subsection and thisparagraph do not permit the director to inspect any establishment solelybecause it holds prepackaged food, drugs or cosmetics for retail sale by thatestablishment. The frequency of inspections shall be based on the relative foodsafety risk that the factory, warehouse, establishment or vehicle presents tothe public, with no such facility receiving less than one (1) inspection peryear;
(iii) Have access to and to copy all records of carriers incommerce showing the movement in commerce of any food, drugs, devices orcosmetics, or holding thereof during or after movement, and the quantity,shipper and consignee thereof.
(b) Upon completion of any inspection under this section butbefore leaving the premises, the director shall give to the owner, operator oragent in charge a report in writing setting forth any conditions or practicesobserved by him which in his judgment indicate that any food, drug, device orcosmetic in the establishment:
(i) Consists in whole or in part of any filthy, putrid ordecomposed substance; or
(ii) Have been prepared, packed or held under unsanitaryconditions whereby it may have become contaminated with filth or whereby it mayhave been rendered injurious to health. A copy of the report shall be sentpromptly to the director.
(c) If the director obtains any sample during an inspectionunder this section, he shall give to the owner, operator or agent in charge areceipt describing the samples obtained before leaving the premises.
(d) If the director obtains a sample of any food during aninspection under this section and an analysis is made of the sample, a copy ofthe results of the analysis shall be furnished promptly to the owner, operatoror agent in charge.
(e) Repealed By Laws 2000, Ch. 37, 4.
(f) Any person conducting an inspection of an establishment forthe department or any local health department shall demonstrate theirqualifications by being a Wyoming or nationally registered environmental healthspecialist or sanitarian, a registered food safety specialist or hold anin-training status and be working toward registration, be standardized by thefederal food and drug administration or meet qualifications set forth by thedirector in conjunction with the food safety council. Only a registeredenvironmental health specialist or a registered food safety specialist shall beauthorized to recommend the summary suspension of an establishment license by aregulatory authority pursuant to W.S. 35-7-125.
(g) Any inspector hired by a regulatory authority prior to July1, 2000, shall have two (2) years from July 1, 2000 to meet the qualificationsset forth in subsection (f) of this section. Any inspector hired by aregulatory authority after July 1, 2000, shall have one (1) year to meet thequalifications set forth in subsection (f) of this section.
35-7-122. Publicity.
(a) The director may cause to be published from time to timereports summarizing all judgments, decrees and court orders which have beenrendered under this act, including the nature of the charge and the dispositionthereof.
(b) The director may also cause to be disseminated anyinformation regarding food, drugs, devices and cosmetics as the director deemsnecessary in the interest of public health and the protection of the consumeragainst fraud. Nothing in this section prohibits the director from collecting,reporting and illustrating the results of his investigations, except that thedirector shall not disclose any information acquired under this act such ascustomer lists, manufacturing volumes and information concerning any method orprocess which as a trade secret is entitled to protection.
35-7-123. Establishment of food safety system.
(a) The director of the department of agriculture shallestablish and maintain a food safety program located within the department. Thedirector shall carry out the provisions of the food safety program and shall beassisted by the director of the department of health. A local department ofhealth, if established according to law, may establish and maintain its ownlocal food safety program so long as the program meets the requirements of thisact. The director of the department of agriculture or his designee shall:
(i) Gather food safety information and disseminate theinformation to the public, food industry and to local departments of healthwith a food safety program;
(ii) On a voluntary basis, provide food safety training for thefood industry in this state, work with other state, local and federal agenciesto coordinate food safety educational efforts;
(iii) Regulate the safety of foods and work together with thedepartment of health and the governor's food safety council establishedpursuant to W.S. 35-7-127 to promulgate rules and regulations necessary tocarry out the provisions of this act. In any area which does not have a localfood safety program established pursuant to law, the department shall issuelicenses, conduct inspections, hold hearings to enforce any legal provision orrule promulgated under this act;
(iv) Maintain a statewide database of food licenses and inspectionresults;
(v) Work with federal, state and local agencies to coordinatefood safety efforts and activities, and coordinate with all other agencies tomaintain consistency in inspection and enforcement activities;
(vi) Establish food safety priorities for this state based onrisk and information provided by the department of health;
(vii) Provide laboratory support for the analysis of routine foodand water samples used to support inspection activities and to monitor safety;
(viii) Report each year to the department of health on how thefood safety activities have addressed the epidemiological data provided by thedepartment of health;
(ix) Assist the department of health, or any local jurisdiction,when requested to investigate possible food borne and water related illness;
(x) Establish and maintain a meat inspection program for thisstate. However, nothing in this act shall be construed to grant authority inthe director of the department of agriculture or his designee for theinspection or regulation of live animal production or the processing andstorage of meat by a producer of live animals for nonprofit consumption.
(b) The director of the department of health or his designeeshall:
(i) Carry out the surveillance of food borne illness withassistance from the department of agriculture and report each year to thedepartment of agriculture and local jurisdictions on the leading causes of foodborne illness;
(ii) Participate with the department of agriculture and thegovernor's food safety council established pursuant to W.S. 35-7-127 in a jointfood safety rulemaking process;
(iii) Ensure the department of health is the lead agency for theinvestigation of possible food borne illness and outbreaks and to requestassistance from the department of agriculture and local jurisdictions asdetermined to be necessary by the department of health;
(iv) Provide laboratory support for and conduct analysis ofsamples connected with disease outbreak investigations;
(v) Provide support for local food safety programs asauthorized by the legislature;
(vi) Take appropriate action against any person holding a foodlicense for the purpose of protecting the public health and preventing thetransmission of infectious disease;
(vii) Provide consultation and advice on food borne illness tolocal jurisdictions and to the department of agriculture as requested.
(c) Duties of a local board of health shall include:
(i) Issuing licenses, conducting inspections, holding hearingsand taking enforcement actions as necessary to carry out the provisions of thefood safety program;
(ii) Promulgating rules containing provisions for inspectionswhich may differ from state food safety regulations promulgated under this actso long as direct food safety and disease transmission requirements includingcooking temperatures, hot and cold holding temperatures, reheating times andtemperatures, cooling times and temperatures, and such other requirements asdetermined by the department of agriculture, do not differ;
(iii) Coordinating activities with the department of agriculturein order to provide for statewide consistency;
(iv) Providing the department of agriculture with a quarterlyreport providing information on any food licenses issued and the results of anyfood inspections;
(v) Reporting to the department of health any food borneoutbreak of illness and assist the department of health in any outbreakinvestigations, if requested.
(d) A local jurisdiction may provide laboratory support forfood safety and drinking water inspection and accompanying monitoringactivities.
(a) Any person processing, distributing, storing or preparingany food for sale shall obtain a license from the department of agriculture ora local health department. The license is not transferable, shall be renewed onan annual basis and shall be prominently displayed in the establishment. Nofood establishment shall serve, hold for sale or sell food to the publicwithout a valid license. An agricultural producer shall be exempt from thelicensure requirement in this section for processing, distributing, storing orsale of any raw agricultural commodity he produces.
(b) Written application for a new license shall be made on aform approved by the department of agriculture and provided by the departmentof agriculture or the local health department and shall be signed by theapplicant. License requirements and fees for temporary food events operated bynonprofit organizations shall be waived. Licenses shall expire one (1) yearafter the date of issuance unless suspended or revoked. Licenses may be renewedeach year upon application to the department or local health department. Thedirector shall establish license categories and fees by rule and no fee shallexceed one hundred dollars ($100.00).
(c) Fees collected under this section shall be distributed as follows:
(i) In any county, city or district without a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the department ofagriculture shall receive ninety percent (90%) of the amount of the feecollected and the department of health shall receive ten percent (10%). Therevenues shall be deposited into a special account and shall be used to deferthe cost associated with the food safety program;
(ii) In any county, city or district with a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the local healthdepartment shall receive eighty-five percent (85%) of the amount of the feecollected, the department of agriculture shall receive ten percent (10%) andthe department of health shall receive five percent (5%). The revenues shall bedeposited into a special account and shall be used to defer the cost associatedwith the food safety program.
(d) Before approving an application, the department ofagriculture or the local health department shall determine that the establishmentis in compliance with this act and any regulations promulgated hereunder.
(e) The provisions of subsection (a) of this section shall notapply to food operators or kitchens in private homes that prepare food that isnot potentially hazardous and prepared for sale or use at farmers' markets,roadside stands, private homes and at functions including, but not limited tothose operated by not for profit charitable or religious organizations.
(f) The director may allow the permitting, registration,licensing, testing, inspection and reporting requirements of this chapter to beconducted electronically as provided by the Uniform Electronic Transaction Act,W.S. 40-21-101 through 40-21-119 and any applicable federal electronicrequirements.
35-7-125. Summary suspension of a license.
(a) A regulatory authority may summarily suspend a license tooperate a food establishment if it determines through consultation with ahealth officer, inspection, examination of food, employees, records or otherauthorized means that an imminent health hazard exists including, but notlimited to, fire, flood, extended interruption of electrical or water service,or sewage backup.
(b) The regulatory authority may summarily suspend a person'slicense by providing written notice of the summary suspension to the licenseholder or person in charge, without prior warning, notice of a hearing or ahearing.
(c) The regulatory authority shall conduct an inspection of theestablishment or food processing plant for which the license was summarilysuspended within forty-eight (48) hours after receiving notice from the licenseholder stating that the conditions cited in the summary suspension order nolonger exist.
(d) A summary suspension shall remain in effect until the conditionscited in the notice of suspension no longer exist and the elimination of theconditions has been confirmed by the regulatory authority through inspection orother means as appropriate. A suspended license shall be reinstated immediatelyif the regulatory authority determines that the imminent health hazard nolonger exists. A notice of reinstatement shall be provided to the licenseholder or person in charge of the establishment.
(e) Temporary food events where no admission fee is charged andwhere no fee is charged for food shall not be subject to the license suspensionprovisions of this section.
35-7-126. License revocation.
(a) The regulatory authority may initiate revocation proceedingsfor an establishment license:
(i) Repealed By Laws 2003, Ch. 38, 2.
(ii) Repealed By Laws 2003, Ch. 38, 2.
(iii) Repealed By Laws 2003, Ch. 38, 2.
(iv) For failure to correct conditions for which a summarysuspension was issued;
(v) For failure to correct critical violations from routineinspections;
(vi) For multiple critical violations on multiple occasions;
(vii) For a refusal to grant access pursuant to W.S. 35-7-121.
(b) The regulatory authority shall issue notice of a hearing tothe license holder. The notice and the hearing shall be governed by theprovisions of the Wyoming Administrative Procedure Act, W.S. 16-3-101 et seq.
(c) Upon completion of the hearing and consideration of therecord, the regulatory authority shall issue an order which shall includefindings of fact and conclusions of law.
(d) The decision of the regulatory authority may be appealed tothe district court pursuant to the Wyoming Administrative Procedure Act, W.S.16-3-101 et seq.
35-7-127. Governor's food safety council.
(a) There is created the governor's food safety council. Thegovernor shall appoint eleven (11) members of the council as follows:
(i) One (1) member who is an employee of the department ofagriculture;
(ii) One (1) member who is an employee of the department ofhealth;
(iii) One (1) member who is an employee of the laboratory of thedepartment of agriculture or the department of health;
(iv) One (1) member from a local health department;
(v) One (1) ex officio nonvoting member who is an employee ofthe University of Wyoming cooperative extension service;
(vi) Four (4) members representing the food industry, at leastone (1) member representing restaurants and one (1) member representing retailfood stores; and
(vii) Two (2) members with no connections to the food industryrepresenting the general public as consumer representatives.
(b) Members of the council shall hold office for staggeredterms of three (3) years. For the initial council, three (3) members shall beappointed for a term of three (3) years, three (3) members shall be appointedfor a term of two (2) years and five (5) members shall be appointed for a termof one (1) year. Each member shall hold office until his successor isappointed. The governor may remove any member pursuant to W.S. 9-1-202.
(c) No rule shall be promulgated by the department ofagriculture or a local health department under this act until the departmenthas consulted with the governor's food safety council and received comment fromthe council.
(d) The members of the council shall not receive compensationfor their service, but shall receive reimbursement for traveling expenses asprovided by W.S. 9-3-102 for state employees from the department ofagriculture.
(e) The council shall meet not less than once each year.
ARTICLE 2 - STATE CHEMIST
35-7-201. Under direction of department of agriculture; appointment;duties generally; salary and expenses; fee for analysis.
(a) The office of state chemist heretofore created by thelegislature is hereby transferred with all present and existing appropriationsand all property under its control to the state department of agriculture ofWyoming, and shall hereafter be under the direction and supervision of saiddepartment. The state chemist shall be appointed by the state board ofagriculture with the approval of the Wyoming personnel division and his salaryshall be determined and fixed by the Wyoming personnel division to be paid bythe state of Wyoming out of any money not otherwise appropriated, the same tobe paid by the state auditor in the manner provided for the payment of otheraccounts against the state, and he shall receive no other salary.
(b) It shall be the duty of the state chemist to make or causeto be made, analysis of such foods, drugs, drinks, gasoline, illuminating oilsor other materials relative to the enforcement of this article, as shall besubmitted to him or shall be deemed advisable for such analysis, and make afull and complete written report of the same, and when so requested, it shallbe his duty to testify in court. He shall receive his necessary travelingexpenses as paid to other state employees as allowed by law, to be paid by thestate of Wyoming when employed in performing the duties of his office.
(c) Any person, firm, corporation or association, with theexception of cities, counties and state regulatory agencies, who shall submitany article or commodity for analysis or examination shall remit such fee asmay be established for the purpose of making this service available to thegeneral public at a reasonable cost, but which fee shall be comparable to thatcharged for the same service by commercial laboratories operating within thestate. Accounting shall be made of all fees so received by the state chemistand shall be paid into the general fund.
(d) The state chemist may allow the testing, inspection andreporting requirements of this article to be conducted electronically asprovided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through40-21-119 and any applicable federal electronic requirements.
35-7-202. Employment of assistant and second assistant chemists;salaries; location of office; duties generally.
Thestate chemist by and with the approval of the state board of agriculture ishereby authorized to employ an assistant to the state chemist and a secondassistant to the state chemist who shall receive salaries to be determined andfixed by the Wyoming personnel division; the salaries to be paid by the stateof Wyoming out of any moneys not otherwise appropriated, the same to be paid bythe state auditor in the manner provided for the payment of such accountsagainst the state. The assistant chemists shall keep their offices at the Universityof Wyoming and the board of trustees of said university shall furnish thenecessary room for the carrying out of the provisions of this article. Theassistant chemists shall perform such duties as they may be required to performby the state chemist.
35-7-203. Expenses.
Thenecessary traveling expenses and expenses for the purchase of apparatus,chemicals, etc., shall be paid from any appropriation made by the legislatureas a contingent fund for the state chemist; provided, that the expense shall belimited to the appropriation made.
35-7-204. Seal; report.
Thestate chemist shall keep a seal with which to attest official acts anddocuments. He shall, as required by W.S. 9-2-1014, report to the governor, onor before the first day of October of each year, including itemized statementsof all persons employed by him together with such statistics and other matteras he may regard of value to the administration or public at large.
ARTICLE 3 - ADULTERATING OR MISBRANDING
35-7-301. Repealed by Laws 1987, ch. 173, 4.
35-7-302. Repealed by Laws 1987, ch. 173, 4.
35-7-303. Repealed by Laws 1987, ch. 173, 4.
35-7-304. Repealed by Laws 1987, ch. 173, 4.
35-7-305. Repealed by Laws 1987, ch. 173, 4.
35-7-306. Repealed by Laws 1987, ch. 173, 4.
35-7-307. Repealed by Laws 1987, ch. 173, 4.
35-7-308. Repealed by Laws 1987, ch. 173, 4.
35-7-309. Repealed by Laws 1987, ch. 173, 4.
35-7-310. Repealed by Laws 1987, ch. 173, 4.
35-7-311. Repealed by Laws 1987, ch. 173, 4.
35-7-312. Repealed by Laws 1987, ch. 173, 4.
35-7-330. Repealed by Laws 1987, ch. 173, 4.
35-7-331. Repealed by Laws 1987, ch. 173, 4.
35-7-332. Repealed by Laws 1987, ch. 173, 4.
35-7-333. Repealed by Laws 1987, ch. 173, 4.
35-7-334. Repealed by Laws 1987, ch. 173, 4.
35-7-335. Repealed by Laws 1987, ch. 173, 4.
35-7-336. Repealed by Laws 1987, ch. 173, 4.
35-7-350. Short title.
Thisact shall be known and may be cited as the "Wyoming EnvironmentalPesticide Control Act of 1973".
35-7-351. Enforcing agency.
Thisact shall be administered by the department of agriculture of the state ofWyoming, hereinafter referred to as the "department".
35-7-352. Declaration of purpose.
Thelegislature hereby finds that pesticides and devices are valuable to ourstate's agricultural production and to the protection of man and theenvironment from insects, rodents, weeds, and other forms of life which may bepests, and it is essential to the public health and welfare that they beregulated closely to prevent adverse effects on human life and the environment.The purpose of this act is to regulate, in the public interest, the labeling,distribution, storage, transportation, disposal, use and application ofpesticides to control pests. New pesticides are continually being discovered orsynthesized which are valuable for the control of pests, and for use asdefoliants, desiccants, plant regulators, and related purposes. Thedissemination of accurate scientific information as to the proper use ornonuse, of any pesticide, is vital to the public health and welfare and theenvironment both immediate and future. Therefore, it is deemed necessary toprovide for registration of pesticides and devices.
35-7-353. Board of certification.
Aboard of certification is established consisting of the director of thedepartment of agriculture, and a member of the Wyoming weed and pest counciland a University of Wyoming weed or pest specialist to be appointed by thegovernor. The governor may remove any member he appoints as provided in W.S.9-1-202.
35-7-354. Definitions.
(a) "Applicator" or "operator" means:
(i) "Certified applicator" means any individual whois certified by the director as being competent with respect to the use andhandling of pesticides, or of the use and handling of the pesticide or class ofpesticides covered by the individual's certification;
(ii) "Commercial applicator" means a certifiedapplicator (whether or not he is a private applicator with respect to someuses) who uses or supervises the use of any pesticide which is classified forrestricted use for any purpose or on any property other than as provided byparagraph (a)(iii) of this subsection;
(iii) "Private applicator" means any certifiedapplicator who uses or supervises the use of any restricted use pesticide whichis restricted to use by certified applicators and only for purposes ofproducing any agricultural commodity on property owned by him or his employeror under his control or (is applied without compensation other than trading ofpersonal services between producers of agricultural commodities) on theproperty of another person.
(b) "Board of agriculture" means that bodyestablished by law under W.S. 11-2-102.
(c) "Device" means any instrument or contrivance(other than a firearm) which is intended for trapping, destroying, repelling,or mitigating any pest or any other form of plant or animal life (other thanman, or bacteria, virus, or other microorganism on or in living man or otherliving animals) but does not include equipment used for the application ofpesticides when sold separately therefrom.
(d) "Pesticide" means:
(i) Any substance or mixture of substances intended forpreventing, destroying, repelling, or mitigating any pests;
(ii) Any substance or mixture of substances intended for use asa plant regulator, defoliant, or desiccant; and
(iii) Any substance or mixture of substances intended to be usedas a spray adjuvant.
(e) "Restricted use pesticide" means any pesticideproduct, the label of which states "restricted use" as required forregistration by the environmental protection agency under the federal Insecticide,Fungicide and Rodenticide Act of 1972, as amended.
35-7-355. Director to administer and enforce provisions; board ofcertification to adopt regulations.
The director of the department ofagriculture shall administer and enforce the provisions of this act andregulations issued thereunder. The board of certification may issue regulationsafter a public hearing following due notice to all interested persons inconformance with the provisions of the Wyoming Administrative Procedure Act tocarry out the provisions of this act. Regulations may prescribe methods to beused in the application of pesticides, may prescribe standards for theclassification and certification of applicators of pesticides, and may requirecertification, licensing, payment of reasonable fees for licensing orcertification, submission of information, and passing of examinations byapplicators of pesticides. Where the board of certification finds thatregulations are necessary to carry out the purpose and intent of this act, theregulations may relate to the time, place, manner, methods, materials, andamounts and concentrations, in connection with the application of thepesticide, and may restrict or prohibit use of pesticides in designated areasduring specified periods of time and shall encompass all reasonable factorswhich the board deems necessary. The department may issue licenses. Notwithstanding the provisions of W.S. 35-7-354(e), the board of agriculture,by regulation, following a hearing and pursuant to the Wyoming AdministrativeProcedure Act, may declare a specific pesticide or pesticide use a"restricted use pesticide", but only following a recommendation ofthe board of certification, and a finding of fact, in a public hearingconducted by the board of certification, that unreasonable adverse effects onthe environment, including man, pollinating insects, animals, crops, wildlifeand lands, other than pests, may reasonably occur. The director of thedepartment of agriculture may allow the registration, licensing, testing,inspection and reporting requirements of this article to be conductedelectronically as provided by the Uniform Electronic Transaction Act, W.S.40-21-101 through 40-21-119 and any applicable federal electronic requirements.
35-7-356. Registration.
(a) Every pesticide or device which is distributed within thisstate or delivered for transportation or transported in intrastate commerce orbetween points within this state through any point outside this state shall beregistered with the department of agriculture by its manufacturer or formulatorsubject to the provisions of this act. The registration shall be renewedannually prior to December 31 of each year but not if a pesticide or device isshipped from one plant or warehouse to another plant or warehouse as aconstituent part to make a pesticide or device which is registered under theprovisions of this act, if the pesticide or device is not sold and if thecontainer thereof is plainly and conspicuously marked "For ExperimentalUse Only", together with the manufacturer's name and address, or if awritten permit has been obtained from the department to sell the specificpesticide or device for experimental purposes subject to restrictions andconditions set forth in the permit.
(b) The applicant for registration shall file a statement withthe department which shall include:
(i) The name and address of the applicant and the name andaddress of the person whose name will appear on the label, if other than theapplicant's;
(ii) The name of the pesticide or device;
(iii) Other necessary information required for completion of thedepartment's application for registration form;
(iv) The use classification as provided in the FederalInsecticide, Fungicide, and Rodenticide Act when required by regulations underthis act.
(c) The director may require a full description of the testsmade and the results thereof upon which the claims are based on any pesticideor device on which restrictions are being considered. In the case of renewal ofregistration, a statement shall be required only with respect to informationwhich is different from that furnished when the pesticide or device was registeredor last registered. The director may prescribe other necessary information byregulation.
(d) Every registrant of pesticides or device shall pay anannual registration fee of seventy-five dollars ($75.00) each for every productregistered. All registrations shall expire on December 31 of each year,following the date of the registration, and may thereupon be renewed forsuccessive periods of twelve (12) months upon payment of the proper fee. Fundscollected pursuant to this section shall be deposited in the special naturalresource account in the department of agriculture which is hereby created forprograms authorized by W.S. 11-5-113 and 11-5-303.
(e) Any registration approved by the director and in effect onDecember 31 for which a renewal application has been made and the proper feepaid, shall continue in full force and effect until such time as the directornotifies the applicant that the registration has been renewed, or otherwisedenied in accord with the provisions of W.S. 35-7-358. Forms for registrationshall be mailed to registrants at least thirty (30) days prior to the due date.
(f) If it appears to the director that the composition of thepesticide or device is such as to warrant the proposed claims for it and if thepesticide and its labeling and other material required to be submitted complywith the requirements of this act he shall register the pesticide.
35-7-357. Experimental use permits.
(a) Any person may apply to the director of the department ofagriculture for an experimental use permit for a pesticide. The director mayissue an experimental use permit if he determines that the applicant needs thepermit in order to accumulate information necessary to register a pesticideunder this act. An application for an experimental use permit may be filed atthe time of or before or after an application for registration is filed.
(b) Use of a pesticide under an experimental use permit shallbe under the supervision of the director, and shall be subject to such termsand conditions and be for such period of time as the director may prescribe inthe permit.
(c) The director may revoke any experimental use permit, at anytime, if he finds that its terms or conditions are being violated, or that itsterms and conditions are inadequate to avoid unreasonable adverse effects onthe environment.
35-7-358. Refusal to register; cancellation; suspension; legalrecourse.
(a) If it does not appear to the director of the department ofagriculture that the pesticide or device is such as to warrant
Thisact may be cited as the "Wyoming Food, Drug and Cosmetic Safety Act".
35-7-110. Definitions.
(a) As used in this act:
(i) "Advertisement" means all representationsdisseminated in any manner or by any means, other than by labeling, for thepurpose of inducing the purchase of food, drugs, devices or cosmetics;
(ii) "Color" includes black, white and intermediategrays;
(iii) "Color additive" means a material, other than amaterial exempt under the federal act, which:
(A) Is a dye, pigment or other substance from a vegetable,animal, mineral or other source; or
(B) When added or applied to a food, drug or cosmetic, or tothe human body or any part thereof, is capable (alone or through reaction withother substance) of imparting color thereto.
(iv) "Consumer commodity" means any food, drug, deviceor cosmetic as those terms are defined by this act or by the federal act;
(v) "Cosmetic" means articles other than soap whichare:
(A) Intended to be rubbed, poured, sprinkled or sprayed on,introduced into, or otherwise applied to the human body or any part thereof forcleansing, beautifying, promoting attractiveness or altering the appearance;and
(B) Intended for use as a component of any articles undersubparagraph (A) of this paragraph.
(vi) "Counterfeit drug" means a drug which, or thecontainer or labeling of which, without authorization, bears the trademark,trade name or other identifying mark, imprint or device, or any likenesstherefor, of a drug manufacturer, processor, packer or distributor other thanthe person who in fact manufactured, processed, packed or distributed the drugand which thereby falsely purports or is represented to be the product of, orto have been packed or distributed by, the other drug manufacturer, processor,packer or distributor;
(vii) "Department" means the department of agriculture;
(viii) "Device" means instruments, apparatus andcontrivances, including their components, parts and accessories, intended:
(A) For use in the diagnosis, cure, mitigation, treatment orprevention of disease in man or other animals; or
(B) To affect the structure or any function of the body of manor other animals.
(ix) "Director" means the director of the Wyomingdepartment of agriculture or his duly authorized representative;
(x) "Drug" means:
(A) Articles recognized in the official United Statespharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them; and
(B) Articles intended for use in the diagnosis, cure,mitigation, treatment or prevention of disease in man or other animals; and
(C) Articles (other than food) intended to affect the structureor any function of the body of man or other animals; and
(D) Articles intended for use as a component of any articlespecified in subparagraph (A), (B) or (C) of this paragraph but does notinclude devices or their components, parts or accessories.
(xi) "Establishment" means and includes any place orany area of any establishment in which foods, drugs, devices and cosmetics aredisplayed for sale, manufactured, processed, packed, held or stored;
(xii) "Federal act" means the Federal Food, Drug, andCosmetic Act, as amended, (Title 21 U.S.C. 301 et seq.) and regulationspromulgated under the act;
(xiii) "Food" means:
(A) Articles used for food or drink for humans including meatand ice intended for human consumption;
(B) Chewing gum;
(C) Beverages subject to the Federal Alcohol AdministrationAct, as amended, (Title 27 U.S.C. 201 et seq.);
(D) Articles used for components of any article undersubparagraphs (A), (B) and (C) of this paragraph.
(xiv) "Food additive" means any substance the intendeduse of which results or may be reasonably expected to result, directly orindirectly, in its becoming a component or otherwise affecting thecharacteristics of any food within the meaning of the federal act;
(xv) An "imitation food" is any food which is inphysical characteristics such as taste, flavor, color, texture or appearancewhich resembles or purports to be or is represented as a food for which adefinition and standard of identity has been prescribed and does not conform tosuch standard;
(xvi) "Immediate container" does not include packageliners;
(xvii) "Label" means a display of written, printed orgraphic matter upon the immediate container of any article. A requirement madeby or under this act that any word, statement or other information appear onthe label shall not be considered to be complied with unless the word,statement or other information also appears on the outside container orwrapper, if there is any, of the retail package of the article, or is easilylegible through the outside container or wrapper;
(xviii) "Labeling" means all labels and other written,printed or graphic matter upon an article or any of its containers or wrappers,or accompanying the article;
(xix) "Local board of health" means a county or cityboard of health established pursuant to W.S. 35-1-301 et seq.;
(xx) "Local health department" means a healthdepartment established by a county, municipality or district pursuant to W.S.35-1-301 et seq.;
(xxi) "New drug" means any drug considered to be a newdrug under the federal act;
(xxii) "Official compendium" means the official UnitedStates pharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them;
(xxiii) "Package" means any container or wrapping inwhich any consumer commodity is enclosed for use in the delivery or display ofthat consumer commodity to retail purchasers as interpreted by the federal act;
(xxiv) "Pesticide chemical" means any substance which,alone, in chemical combination, or in formulation with one (1) or more othersubstances is an "economic poison" within the meaning of the FederalInsecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 through 136y) whichis used in the production, storage or transportation of raw agriculturalcommodities;
(xxv) "Principal display panel" means that part of alabel that is most likely to be displayed, presented, shown or examined undernormal and customary conditions of display for retail sale;
(xxvi) "Raw agricultural commodity" means any food inits raw or natural state, including all fruits that are washed, colored orotherwise treated in their unpeeled natural form prior to marketing;
(xxvii) "Regulatory authority" means the authority whichissued the license or promulgated the rule or regulation being enforced includingthe department of agriculture or local health department;
(xxviii) "Farmers market" means a common facility or areawhere several vendors may gather on a regular, recurring basis to sell avariety of fresh fruits and vegetables, locally grown farm products and otheritems directly to consumers;
(xxix) "Function" means any official ceremony ororganized social occasion;
(xxx) "Not potentially hazardous food" means any foodwhich does not require time or temperature control for safety to limitpathogenic microorganism growth or toxin formation. The natural pH or thefinal pH of acidified food must be 4.6 or less;
(xxxi) "This act" means W.S. 35-7-109 through 35-7-127.
35-7-111. Prohibited acts.
(a) No person shall:
(i) Violate this act or any rules promulgated under it;
(ii) Introduce or deliver for introduction into commerce of anyfood, drug, device or cosmetic that is adulterated or misbranded;
(iii) Adulterate or misbrand any food, drug, device or cosmeticin commerce;
(iv) Knowingly receive in commerce of any food, drug, device orcosmetic that is adulterated or misbranded;
(v) Refuse to permit entry, inspection or access to records asauthorized by this act;
(vi) Manufacture any food, drug, device or cosmetic that isadulterated or misbranded;
(vii) Give a false guaranty or undertaking under this act exceptby a person who relied upon a guaranty or undertaking to the same effect signedby, and containing the name and address of, the person residing in the UnitedStates from whom he received in good faith the food, drug, device or cosmetic;
(viii) Forge, counterfeit or without proper authority use anymark, stamp, tag, label or other identification device authorized or requiredby regulations promulgated under this act;
(ix) Make, sell or possess any punch, die, plate, stone, orother thing designed to print, imprint or reproduce the trademark, trade nameor other identifying mark, imprint or device of another or any likeness of anyof the foregoing upon any drug or container or labeling thereof so as to rendersuch drugs a counterfeit drug;
(x) Alter, mutilate, destroy, obliterate or remove any part ofthe labeling of, or the doing of any other act with respect to a food, drug,device or cosmetic, if done while the article is held for sale (whether or notthe first sale) after shipment in commerce and which results in the articlebeing adulterated or misbranded;
(xi) Repealed By Laws 2000, Ch. 37, 4.
(xii) Use in labeling, advertising or other sales promotion ofany reference to any report or analysis furnished by the director in compliancewith this act.
(b) No person shall remove or dispose of a detained orembargoed article in violation of W.S. 35-7-114.
(c) In determining whether labeling or an advertisement ismisleading under this act, the following shall be considered:
(i) Representations made or suggested by statement, word,design, device, sound or in any combination thereof;
(ii) The extent to which the labeling or advertisement fails toreveal facts material in the light of the representations or facts materialwith respect to consequences which may result from the use of the article towhich the labeling or advertisement relates under the conditions of useprescribed in the labeling or advertisement or under conditions of use as arecustomary or usual.
(a) If the director or the director of the department of healthpursuant to W.S. 35-7-123(b)(vi) has probable cause to believe that an imminenthazard to the public health exists from a violation of this act, he may orderany person to immediately cease the practice believed to be a violation andshall provide the person an opportunity for a hearing pursuant to the WyomingAdministrative Procedure Act within ten (10) days after issuing the order.
(b) In addition to any other remedies, the director may applyto the district court for injunctive relief from any person who violates W.S.35-7-111.
35-7-113. Penalties and guaranty.
(a) Any person who knowingly and intentionally violates W.S.35-7-111 is guilty of a misdemeanor punishable by imprisonment for not morethan six (6) months, a fine of not more than seven hundred fifty dollars($750.00), or both. Upon a subsequent conviction under W.S. 35-7-111, theperson may be punished by imprisonment for not more than one (1) year, a fineof not more than one thousand five hundred dollars ($1,500.00), or both.
(b) No person may be convicted under W.S. 35-7-111 if heestablished a guaranty or undertaking signed by, and containing the name andaddress of, the person from whom he received the article in good faith, to theeffect that the article is not adulterated or misbranded within the meaning ofthis act and if he furnishes on request of the director the name and address ofthe person from whom he purchased or received the article in good faith andcopies of all documents pertaining to the delivery of the article to him.
(c) No publisher, radio-broadcast licensee, or agency or mediumfor the dissemination of an advertisement, except the manufacturer, packer,distributor or seller of the article to which a false advertisement relates,may be punished under W.S. 35-7-111 for the dissemination of the falseadvertisement.
35-7-114. Embargo.
(a) If the director has probable cause to believe that anyfood, drug, device, cosmetic or consumer commodity is adulterated or somisbranded as to be dangerous or fraudulent, within the meaning of this act, heshall affix a tag or other appropriate marking to the article giving noticethat the article is or is suspected of being adulterated or misbranded and hasbeen embargoed. The director shall release all other articles.
(b) If the director finds an article embargoed under subsection(a) of this section to be adulterated or misbranded, the director mayimmediately petition the district court for the county in which the article isembargoed to condemn the article, otherwise the tag or other marking shall beremoved by the director or his agent.
(c) If the court finds that an embargoed article is adulteratedor misbranded, the article, after entry of the decree, shall be destroyed atthe owner's expense, under the supervision of the director or his agent. Allcourt costs and fees, transportation costs, and storage and other properexpenses, shall be taxed against the owner of the article or his agent unlessthe adulteration or misbranding can be corrected by proper labeling orprocessing of the article. If so, the court, after entry of the decree andafter costs, fees and expenses have been paid and a good and sufficient bond,conditioned that the article shall be correctly labeled or processed, has beenexecuted, may by order direct delivery of the article to the owner for labelingor processing under the supervision of the director. The expense ofsupervision shall be paid by the owner. The article shall be returned to theowner and the bond shall be discharged on the representation to the court bythe director that the article is no longer in violation of this act and thatthe expenses of supervision have been paid. Nothing in this section preventsthe director from authorizing the owner of an adulterated or misbranded articlefrom destroying it as the director prescribes.
35-7-115. Food; definitions and standards.
(a) Definitions and standards of identity, quality and fill ofcontainer under the federal act or its regulations are the definitions andstandards of identity, quality and fill of container in this state. However,when the action will promote honesty and fair dealing in the interest ofconsumers, the director may promulgate regulations establishing definitions andstandards of identity, quality and fill of container for foods where no federalregulations exist. In addition, in conjunction with W.S. 35-7-127, the directormay promulgate amendments to any federal or state regulations which setdefinitions and standards of identity, and may promulgate amendments to anyfederal or state regulations which set standards of quality and fill of containerfor foods.
(b) Temporary permits now or hereafter granted for interstateshipment of experimental packs of food under the federal act are automaticallyeffective in this state.
35-7-116. Food, drugs and cosmetics; adulteration and misbranding.
Afood, cosmetic or a drug or device is adulterated if it is adulterated underthe federal act. A food, cosmetic or a drug or device is misbranded if it ismisbranded under the federal act.
35-7-117. Food; tolerances for added poisonous ingredients.
Anyadded poisonous or deleterious substance, any food additive, any pesticidechemical in or on a raw agricultural commodity or any color additive, is unsafewith respect to any particular use or intended use if it is deemed unsafe undersection 406 of the federal act.
35-7-118. New drugs.
Noperson shall sell, offer for sale, hold for sale or give away any new drugunless an application with respect thereto has been approved and the approvalhas not been withdrawn under section 505 of the federal act.
35-7-119. Fair packaging and labeling provisions.
(a) All labels of consumer commodities, as defined by this act,shall conform with the requirements for the declaration of net quantity ofcontents of section 4 of the Fair Packaging and Labeling Act (15 U.S.C. 1451,et seq.) and the regulations promulgated pursuant thereto as of the effectivedate of this act. Consumer commodities exempted from the requirements ofsection 4 of the Fair Packaging and Labeling Act are also exempt from thissubsection.
(b) The label of any package of a consumer commodity whichbears a representation as to the number of servings of the commodity containedin the package shall bear a statement of the net quantity (in terms of weight,measure or numerical count) of each serving.
(c) No person shall distribute or cause to be distributed incommerce any packaged consumer commodity if any qualifying words or phrasesappear in conjunction with the separate statement of the net quantity ofcontents required by subsection (a) of this section, but nothing in thissection prohibits supplemental statements, at other places on the package,describing in nondeceptive terms the net quantity of contents. Supplementalstatements of net quantity of contents shall not include any term qualifying aunit of weight, measure or count that tends to exaggerate the amount of thecommodity contained in the package.
(d) If the director determines that regulations containingprohibitions or requirements other than those prescribed by subsection (a) ofthis section are necessary to prevent the deception of consumer or tofacilitate value comparisons as to any consumer commodity, the director shallpromulgate rules and regulations with respect to that commodity in conjunctionwith W.S. 35-7-127.
(e) Every retailer and every wholesaler who sells or offers forsale in this state through an establishment or otherwise any meat, which is theproduct of any country foreign to the United States, shall clearly label themeat as "imported," naming the country of its origin. The departmentshall promulgate rules and regulations with respect to labeling. As used inthis subsection:
(i) "Meat" means the edible part of the muscle ofanimals, which is skeletal or which is found in the tongue, in the diaphragm,in the heart or in the esophagus, with or without the accompanying or overlyingfat, and the portions of bone, skin, sinew, nerve and blood vessels whichnormally accompany the muscle tissue and which are not separated from it in theprocess of dressing, but shall not include the muscle found in the lips, snoutor ears, nor any edible part of the muscle which has been manufactured, cured,smoked, cooked or processed;
(ii) "Retailer" means a person regularly engaged inthe business of selling meat at retail to the public, and selling only to theuser or consumer and not for resale;
(iii) "Wholesaler" means a person regularly engaged inthe business of selling meat at wholesale to retailers for subsequent sale atretail to the public.
35-7-120. Regulations.
(a) The director may promulgate regulations necessary for theefficient enforcement of this act.
(b) The director may promulgate regulations necessary to ensurethat appropriate sanitary conditions and water quality standards are met by anyperson engaged in the distribution of bulk quantities of water for sale forhuman consumption.
35-7-121. Inspections; examinations.
(a) For purposes of enforcement of this act, the director or alocal health department official may, upon presenting appropriate credentialsto the owner, operator or agent in charge:
(i) Enter at reasonable time any factory, warehouse orestablishment in which food, drugs, devices or cosmetics are manufactured,processed or packed or held for introduction into commerce or afterintroduction or to enter any vehicle being used to transport or hold the food,drugs, devices or cosmetics in commerce; and
(ii) Inspect at any reasonable times and within reasonablelimits and in a reasonable manner any factory, warehouse, establishment orvehicle and all pertinent equipment, finished and unfinished materials,containers and labeling therein, and to obtain samples necessary to theenforcement of this act, except that paragraph (i) of this subsection and thisparagraph do not permit the director to inspect any establishment solelybecause it holds prepackaged food, drugs or cosmetics for retail sale by thatestablishment. The frequency of inspections shall be based on the relative foodsafety risk that the factory, warehouse, establishment or vehicle presents tothe public, with no such facility receiving less than one (1) inspection peryear;
(iii) Have access to and to copy all records of carriers incommerce showing the movement in commerce of any food, drugs, devices orcosmetics, or holding thereof during or after movement, and the quantity,shipper and consignee thereof.
(b) Upon completion of any inspection under this section butbefore leaving the premises, the director shall give to the owner, operator oragent in charge a report in writing setting forth any conditions or practicesobserved by him which in his judgment indicate that any food, drug, device orcosmetic in the establishment:
(i) Consists in whole or in part of any filthy, putrid ordecomposed substance; or
(ii) Have been prepared, packed or held under unsanitaryconditions whereby it may have become contaminated with filth or whereby it mayhave been rendered injurious to health. A copy of the report shall be sentpromptly to the director.
(c) If the director obtains any sample during an inspectionunder this section, he shall give to the owner, operator or agent in charge areceipt describing the samples obtained before leaving the premises.
(d) If the director obtains a sample of any food during aninspection under this section and an analysis is made of the sample, a copy ofthe results of the analysis shall be furnished promptly to the owner, operatoror agent in charge.
(e) Repealed By Laws 2000, Ch. 37, 4.
(f) Any person conducting an inspection of an establishment forthe department or any local health department shall demonstrate theirqualifications by being a Wyoming or nationally registered environmental healthspecialist or sanitarian, a registered food safety specialist or hold anin-training status and be working toward registration, be standardized by thefederal food and drug administration or meet qualifications set forth by thedirector in conjunction with the food safety council. Only a registeredenvironmental health specialist or a registered food safety specialist shall beauthorized to recommend the summary suspension of an establishment license by aregulatory authority pursuant to W.S. 35-7-125.
(g) Any inspector hired by a regulatory authority prior to July1, 2000, shall have two (2) years from July 1, 2000 to meet the qualificationsset forth in subsection (f) of this section. Any inspector hired by aregulatory authority after July 1, 2000, shall have one (1) year to meet thequalifications set forth in subsection (f) of this section.
35-7-122. Publicity.
(a) The director may cause to be published from time to timereports summarizing all judgments, decrees and court orders which have beenrendered under this act, including the nature of the charge and the dispositionthereof.
(b) The director may also cause to be disseminated anyinformation regarding food, drugs, devices and cosmetics as the director deemsnecessary in the interest of public health and the protection of the consumeragainst fraud. Nothing in this section prohibits the director from collecting,reporting and illustrating the results of his investigations, except that thedirector shall not disclose any information acquired under this act such ascustomer lists, manufacturing volumes and information concerning any method orprocess which as a trade secret is entitled to protection.
35-7-123. Establishment of food safety system.
(a) The director of the department of agriculture shallestablish and maintain a food safety program located within the department. Thedirector shall carry out the provisions of the food safety program and shall beassisted by the director of the department of health. A local department ofhealth, if established according to law, may establish and maintain its ownlocal food safety program so long as the program meets the requirements of thisact. The director of the department of agriculture or his designee shall:
(i) Gather food safety information and disseminate theinformation to the public, food industry and to local departments of healthwith a food safety program;
(ii) On a voluntary basis, provide food safety training for thefood industry in this state, work with other state, local and federal agenciesto coordinate food safety educational efforts;
(iii) Regulate the safety of foods and work together with thedepartment of health and the governor's food safety council establishedpursuant to W.S. 35-7-127 to promulgate rules and regulations necessary tocarry out the provisions of this act. In any area which does not have a localfood safety program established pursuant to law, the department shall issuelicenses, conduct inspections, hold hearings to enforce any legal provision orrule promulgated under this act;
(iv) Maintain a statewide database of food licenses and inspectionresults;
(v) Work with federal, state and local agencies to coordinatefood safety efforts and activities, and coordinate with all other agencies tomaintain consistency in inspection and enforcement activities;
(vi) Establish food safety priorities for this state based onrisk and information provided by the department of health;
(vii) Provide laboratory support for the analysis of routine foodand water samples used to support inspection activities and to monitor safety;
(viii) Report each year to the department of health on how thefood safety activities have addressed the epidemiological data provided by thedepartment of health;
(ix) Assist the department of health, or any local jurisdiction,when requested to investigate possible food borne and water related illness;
(x) Establish and maintain a meat inspection program for thisstate. However, nothing in this act shall be construed to grant authority inthe director of the department of agriculture or his designee for theinspection or regulation of live animal production or the processing andstorage of meat by a producer of live animals for nonprofit consumption.
(b) The director of the department of health or his designeeshall:
(i) Carry out the surveillance of food borne illness withassistance from the department of agriculture and report each year to thedepartment of agriculture and local jurisdictions on the leading causes of foodborne illness;
(ii) Participate with the department of agriculture and thegovernor's food safety council established pursuant to W.S. 35-7-127 in a jointfood safety rulemaking process;
(iii) Ensure the department of health is the lead agency for theinvestigation of possible food borne illness and outbreaks and to requestassistance from the department of agriculture and local jurisdictions asdetermined to be necessary by the department of health;
(iv) Provide laboratory support for and conduct analysis ofsamples connected with disease outbreak investigations;
(v) Provide support for local food safety programs asauthorized by the legislature;
(vi) Take appropriate action against any person holding a foodlicense for the purpose of protecting the public health and preventing thetransmission of infectious disease;
(vii) Provide consultation and advice on food borne illness tolocal jurisdictions and to the department of agriculture as requested.
(c) Duties of a local board of health shall include:
(i) Issuing licenses, conducting inspections, holding hearingsand taking enforcement actions as necessary to carry out the provisions of thefood safety program;
(ii) Promulgating rules containing provisions for inspectionswhich may differ from state food safety regulations promulgated under this actso long as direct food safety and disease transmission requirements includingcooking temperatures, hot and cold holding temperatures, reheating times andtemperatures, cooling times and temperatures, and such other requirements asdetermined by the department of agriculture, do not differ;
(iii) Coordinating activities with the department of agriculturein order to provide for statewide consistency;
(iv) Providing the department of agriculture with a quarterlyreport providing information on any food licenses issued and the results of anyfood inspections;
(v) Reporting to the department of health any food borneoutbreak of illness and assist the department of health in any outbreakinvestigations, if requested.
(d) A local jurisdiction may provide laboratory support forfood safety and drinking water inspection and accompanying monitoringactivities.
(a) Any person processing, distributing, storing or preparingany food for sale shall obtain a license from the department of agriculture ora local health department. The license is not transferable, shall be renewed onan annual basis and shall be prominently displayed in the establishment. Nofood establishment shall serve, hold for sale or sell food to the publicwithout a valid license. An agricultural producer shall be exempt from thelicensure requirement in this section for processing, distributing, storing orsale of any raw agricultural commodity he produces.
(b) Written application for a new license shall be made on aform approved by the department of agriculture and provided by the departmentof agriculture or the local health department and shall be signed by theapplicant. License requirements and fees for temporary food events operated bynonprofit organizations shall be waived. Licenses shall expire one (1) yearafter the date of issuance unless suspended or revoked. Licenses may be renewedeach year upon application to the department or local health department. Thedirector shall establish license categories and fees by rule and no fee shallexceed one hundred dollars ($100.00).
(c) Fees collected under this section shall be distributed as follows:
(i) In any county, city or district without a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the department ofagriculture shall receive ninety percent (90%) of the amount of the feecollected and the department of health shall receive ten percent (10%). Therevenues shall be deposited into a special account and shall be used to deferthe cost associated with the food safety program;
(ii) In any county, city or district with a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the local healthdepartment shall receive eighty-five percent (85%) of the amount of the feecollected, the department of agriculture shall receive ten percent (10%) andthe department of health shall receive five percent (5%). The revenues shall bedeposited into a special account and shall be used to defer the cost associatedwith the food safety program.
(d) Before approving an application, the department ofagriculture or the local health department shall determine that the establishmentis in compliance with this act and any regulations promulgated hereunder.
(e) The provisions of subsection (a) of this section shall notapply to food operators or kitchens in private homes that prepare food that isnot potentially hazardous and prepared for sale or use at farmers' markets,roadside stands, private homes and at functions including, but not limited tothose operated by not for profit charitable or religious organizations.
(f) The director may allow the permitting, registration,licensing, testing, inspection and reporting requirements of this chapter to beconducted electronically as provided by the Uniform Electronic Transaction Act,W.S. 40-21-101 through 40-21-119 and any applicable federal electronicrequirements.
35-7-125. Summary suspension of a license.
(a) A regulatory authority may summarily suspend a license tooperate a food establishment if it determines through consultation with ahealth officer, inspection, examination of food, employees, records or otherauthorized means that an imminent health hazard exists including, but notlimited to, fire, flood, extended interruption of electrical or water service,or sewage backup.
(b) The regulatory authority may summarily suspend a person'slicense by providing written notice of the summary suspension to the licenseholder or person in charge, without prior warning, notice of a hearing or ahearing.
(c) The regulatory authority shall conduct an inspection of theestablishment or food processing plant for which the license was summarilysuspended within forty-eight (48) hours after receiving notice from the licenseholder stating that the conditions cited in the summary suspension order nolonger exist.
(d) A summary suspension shall remain in effect until the conditionscited in the notice of suspension no longer exist and the elimination of theconditions has been confirmed by the regulatory authority through inspection orother means as appropriate. A suspended license shall be reinstated immediatelyif the regulatory authority determines that the imminent health hazard nolonger exists. A notice of reinstatement shall be provided to the licenseholder or person in charge of the establishment.
(e) Temporary food events where no admission fee is charged andwhere no fee is charged for food shall not be subject to the license suspensionprovisions of this section.
35-7-126. License revocation.
(a) The regulatory authority may initiate revocation proceedingsfor an establishment license:
(i) Repealed By Laws 2003, Ch. 38, 2.
(ii) Repealed By Laws 2003, Ch. 38, 2.
(iii) Repealed By Laws 2003, Ch. 38, 2.
(iv) For failure to correct conditions for which a summarysuspension was issued;
(v) For failure to correct critical violations from routineinspections;
(vi) For multiple critical violations on multiple occasions;
(vii) For a refusal to grant access pursuant to W.S. 35-7-121.
(b) The regulatory authority shall issue notice of a hearing tothe license holder. The notice and the hearing shall be governed by theprovisions of the Wyoming Administrative Procedure Act, W.S. 16-3-101 et seq.
(c) Upon completion of the hearing and consideration of therecord, the regulatory authority shall issue an order which shall includefindings of fact and conclusions of law.
(d) The decision of the regulatory authority may be appealed tothe district court pursuant to the Wyoming Administrative Procedure Act, W.S.16-3-101 et seq.
35-7-127. Governor's food safety council.
(a) There is created the governor's food safety council. Thegovernor shall appoint eleven (11) members of the council as follows:
(i) One (1) member who is an employee of the department ofagriculture;
(ii) One (1) member who is an employee of the department ofhealth;
(iii) One (1) member who is an employee of the laboratory of thedepartment of agriculture or the department of health;
(iv) One (1) member from a local health department;
(v) One (1) ex officio nonvoting member who is an employee ofthe University of Wyoming cooperative extension service;
(vi) Four (4) members representing the food industry, at leastone (1) member representing restaurants and one (1) member representing retailfood stores; and
(vii) Two (2) members with no connections to the food industryrepresenting the general public as consumer representatives.
(b) Members of the council shall hold office for staggeredterms of three (3) years. For the initial council, three (3) members shall beappointed for a term of three (3) years, three (3) members shall be appointedfor a term of two (2) years and five (5) members shall be appointed for a termof one (1) year. Each member shall hold office until his successor isappointed. The governor may remove any member pursuant to W.S. 9-1-202.
(c) No rule shall be promulgated by the department ofagriculture or a local health department under this act until the departmenthas consulted with the governor's food safety council and received comment fromthe council.
(d) The members of the council shall not receive compensationfor their service, but shall receive reimbursement for traveling expenses asprovided by W.S. 9-3-102 for state employees from the department ofagriculture.
(e) The council shall meet not less than once each year.
ARTICLE 2 - STATE CHEMIST
35-7-201. Under direction of department of agriculture; appointment;duties generally; salary and expenses; fee for analysis.
(a) The office of state chemist heretofore created by thelegislature is hereby transferred with all present and existing appropriationsand all property under its control to the state department of agriculture ofWyoming, and shall hereafter be under the direction and supervision of saiddepartment. The state chemist shall be appointed by the state board ofagriculture with the approval of the Wyoming personnel division and his salaryshall be determined and fixed by the Wyoming personnel division to be paid bythe state of Wyoming out of any money not otherwise appropriated, the same tobe paid by the state auditor in the manner provided for the payment of otheraccounts against the state, and he shall receive no other salary.
(b) It shall be the duty of the state chemist to make or causeto be made, analysis of such foods, drugs, drinks, gasoline, illuminating oilsor other materials relative to the enforcement of this article, as shall besubmitted to him or shall be deemed advisable for such analysis, and make afull and complete written report of the same, and when so requested, it shallbe his duty to testify in court. He shall receive his necessary travelingexpenses as paid to other state employees as allowed by law, to be paid by thestate of Wyoming when employed in performing the duties of his office.
(c) Any person, firm, corporation or association, with theexception of cities, counties and state regulatory agencies, who shall submitany article or commodity for analysis or examination shall remit such fee asmay be established for the purpose of making this service available to thegeneral public at a reasonable cost, but which fee shall be comparable to thatcharged for the same service by commercial laboratories operating within thestate. Accounting shall be made of all fees so received by the state chemistand shall be paid into the general fund.
(d) The state chemist may allow the testing, inspection andreporting requirements of this article to be conducted electronically asprovided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through40-21-119 and any applicable federal electronic requirements.
35-7-202. Employment of assistant and second assistant chemists;salaries; location of office; duties generally.
Thestate chemist by and with the approval of the state board of agriculture ishereby authorized to employ an assistant to the state chemist and a secondassistant to the state chemist who shall receive salaries to be determined andfixed by the Wyoming personnel division; the salaries to be paid by the stateof Wyoming out of any moneys not otherwise appropriated, the same to be paid bythe state auditor in the manner provided for the payment of such accountsagainst the state. The assistant chemists shall keep their offices at the Universityof Wyoming and the board of trustees of said university shall furnish thenecessary room for the carrying out of the provisions of this article. Theassistant chemists shall perform such duties as they may be required to performby the state chemist.
35-7-203. Expenses.
Thenecessary traveling expenses and expenses for the purchase of apparatus,chemicals, etc., shall be paid from any appropriation made by the legislatureas a contingent fund for the state chemist; provided, that the expense shall belimited to the appropriation made.
35-7-204. Seal; report.
Thestate chemist shall keep a seal with which to attest official acts anddocuments. He shall, as required by W.S. 9-2-1014, report to the governor, onor before the first day of October of each year, including itemized statementsof all persons employed by him together with such statistics and other matteras he may regard of value to the administration or public at large.
ARTICLE 3 - ADULTERATING OR MISBRANDING
35-7-301. Repealed by Laws 1987, ch. 173, 4.
35-7-302. Repealed by Laws 1987, ch. 173, 4.
35-7-303. Repealed by Laws 1987, ch. 173, 4.
35-7-304. Repealed by Laws 1987, ch. 173, 4.
35-7-305. Repealed by Laws 1987, ch. 173, 4.
35-7-306. Repealed by Laws 1987, ch. 173, 4.
35-7-307. Repealed by Laws 1987, ch. 173, 4.
35-7-308. Repealed by Laws 1987, ch. 173, 4.
35-7-309. Repealed by Laws 1987, ch. 173, 4.
35-7-310. Repealed by Laws 1987, ch. 173, 4.
35-7-311. Repealed by Laws 1987, ch. 173, 4.
35-7-312. Repealed by Laws 1987, ch. 173, 4.
35-7-330. Repealed by Laws 1987, ch. 173, 4.
35-7-331. Repealed by Laws 1987, ch. 173, 4.
35-7-332. Repealed by Laws 1987, ch. 173, 4.
35-7-333. Repealed by Laws 1987, ch. 173, 4.
35-7-334. Repealed by Laws 1987, ch. 173, 4.
35-7-335. Repealed by Laws 1987, ch. 173, 4.
35-7-336. Repealed by Laws 1987, ch. 173, 4.
35-7-350. Short title.
Thisact shall be known and may be cited as the "Wyoming EnvironmentalPesticide Control Act of 1973".
35-7-351. Enforcing agency.
Thisact shall be administered by the department of agriculture of the state ofWyoming, hereinafter referred to as the "department".
35-7-352. Declaration of purpose.
Thelegislature hereby finds that pesticides and devices are valuable to ourstate's agricultural production and to the protection of man and theenvironment from insects, rodents, weeds, and other forms of life which may bepests, and it is essential to the public health and welfare that they beregulated closely to prevent adverse effects on human life and the environment.The purpose of this act is to regulate, in the public interest, the labeling,distribution, storage, transportation, disposal, use and application ofpesticides to control pests. New pesticides are continually being discovered orsynthesized which are valuable for the control of pests, and for use asdefoliants, desiccants, plant regulators, and related purposes. Thedissemination of accurate scientific information as to the proper use ornonuse, of any pesticide, is vital to the public health and welfare and theenvironment both immediate and future. Therefore, it is deemed necessary toprovide for registration of pesticides and devices.
35-7-353. Board of certification.
Aboard of certification is established consisting of the director of thedepartment of agriculture, and a member of the Wyoming weed and pest counciland a University of Wyoming weed or pest specialist to be appointed by thegovernor. The governor may remove any member he appoints as provided in W.S.9-1-202.
35-7-354. Definitions.
(a) "Applicator" or "operator" means:
(i) "Certified applicator" means any individual whois certified by the director as being competent with respect to the use andhandling of pesticides, or of the use and handling of the pesticide or class ofpesticides covered by the individual's certification;
(ii) "Commercial applicator" means a certifiedapplicator (whether or not he is a private applicator with respect to someuses) who uses or supervises the use of any pesticide which is classified forrestricted use for any purpose or on any property other than as provided byparagraph (a)(iii) of this subsection;
(iii) "Private applicator" means any certifiedapplicator who uses or supervises the use of any restricted use pesticide whichis restricted to use by certified applicators and only for purposes ofproducing any agricultural commodity on property owned by him or his employeror under his control or (is applied without compensation other than trading ofpersonal services between producers of agricultural commodities) on theproperty of another person.
(b) "Board of agriculture" means that bodyestablished by law under W.S. 11-2-102.
(c) "Device" means any instrument or contrivance(other than a firearm) which is intended for trapping, destroying, repelling,or mitigating any pest or any other form of plant or animal life (other thanman, or bacteria, virus, or other microorganism on or in living man or otherliving animals) but does not include equipment used for the application ofpesticides when sold separately therefrom.
(d) "Pesticide" means:
(i) Any substance or mixture of substances intended forpreventing, destroying, repelling, or mitigating any pests;
(ii) Any substance or mixture of substances intended for use asa plant regulator, defoliant, or desiccant; and
(iii) Any substance or mixture of substances intended to be usedas a spray adjuvant.
(e) "Restricted use pesticide" means any pesticideproduct, the label of which states "restricted use" as required forregistration by the environmental protection agency under the federal Insecticide,Fungicide and Rodenticide Act of 1972, as amended.
35-7-355. Director to administer and enforce provisions; board ofcertification to adopt regulations.
The director of the department ofagriculture shall administer and enforce the provisions of this act andregulations issued thereunder. The board of certification may issue regulationsafter a public hearing following due notice to all interested persons inconformance with the provisions of the Wyoming Administrative Procedure Act tocarry out the provisions of this act. Regulations may prescribe methods to beused in the application of pesticides, may prescribe standards for theclassification and certification of applicators of pesticides, and may requirecertification, licensing, payment of reasonable fees for licensing orcertification, submission of information, and passing of examinations byapplicators of pesticides. Where the board of certification finds thatregulations are necessary to carry out the purpose and intent of this act, theregulations may relate to the time, place, manner, methods, materials, andamounts and concentrations, in connection with the application of thepesticide, and may restrict or prohibit use of pesticides in designated areasduring specified periods of time and shall encompass all reasonable factorswhich the board deems necessary. The department may issue licenses. Notwithstanding the provisions of W.S. 35-7-354(e), the board of agriculture,by regulation, following a hearing and pursuant to the Wyoming AdministrativeProcedure Act, may declare a specific pesticide or pesticide use a"restricted use pesticide", but only following a recommendation ofthe board of certification, and a finding of fact, in a public hearingconducted by the board of certification, that unreasonable adverse effects onthe environment, including man, pollinating insects, animals, crops, wildlifeand lands, other than pests, may reasonably occur. The director of thedepartment of agriculture may allow the registration, licensing, testing,inspection and reporting requirements of this article to be conductedelectronically as provided by the Uniform Electronic Transaction Act, W.S.40-21-101 through 40-21-119 and any applicable federal electronic requirements.
35-7-356. Registration.
(a) Every pesticide or device which is distributed within thisstate or delivered for transportation or transported in intrastate commerce orbetween points within this state through any point outside this state shall beregistered with the department of agriculture by its manufacturer or formulatorsubject to the provisions of this act. The registration shall be renewedannually prior to December 31 of each year but not if a pesticide or device isshipped from one plant or warehouse to another plant or warehouse as aconstituent part to make a pesticide or device which is registered under theprovisions of this act, if the pesticide or device is not sold and if thecontainer thereof is plainly and conspicuously marked "For ExperimentalUse Only", together with the manufacturer's name and address, or if awritten permit has been obtained from the department to sell the specificpesticide or device for experimental purposes subject to restrictions andconditions set forth in the permit.
(b) The applicant for registration shall file a statement withthe department which shall include:
(i) The name and address of the applicant and the name andaddress of the person whose name will appear on the label, if other than theapplicant's;
(ii) The name of the pesticide or device;
(iii) Other necessary information required for completion of thedepartment's application for registration form;
(iv) The use classification as provided in the FederalInsecticide, Fungicide, and Rodenticide Act when required by regulations underthis act.
(c) The director may require a full description of the testsmade and the results thereof upon which the claims are based on any pesticideor device on which restrictions are being considered. In the case of renewal ofregistration, a statement shall be required only with respect to informationwhich is different from that furnished when the pesticide or device was registeredor last registered. The director may prescribe other necessary information byregulation.
(d) Every registrant of pesticides or device shall pay anannual registration fee of seventy-five dollars ($75.00) each for every productregistered. All registrations shall expire on December 31 of each year,following the date of the registration, and may thereupon be renewed forsuccessive periods of twelve (12) months upon payment of the proper fee. Fundscollected pursuant to this section shall be deposited in the special naturalresource account in the department of agriculture which is hereby created forprograms authorized by W.S. 11-5-113 and 11-5-303.
(e) Any registration approved by the director and in effect onDecember 31 for which a renewal application has been made and the proper feepaid, shall continue in full force and effect until such time as the directornotifies the applicant that the registration has been renewed, or otherwisedenied in accord with the provisions of W.S. 35-7-358. Forms for registrationshall be mailed to registrants at least thirty (30) days prior to the due date.
(f) If it appears to the director that the composition of thepesticide or device is such as to warrant the proposed claims for it and if thepesticide and its labeling and other material required to be submitted complywith the requirements of this act he shall register the pesticide.
35-7-357. Experimental use permits.
(a) Any person may apply to the director of the department ofagriculture for an experimental use permit for a pesticide. The director mayissue an experimental use permit if he determines that the applicant needs thepermit in order to accumulate information necessary to register a pesticideunder this act. An application for an experimental use permit may be filed atthe time of or before or after an application for registration is filed.
(b) Use of a pesticide under an experimental use permit shallbe under the supervision of the director, and shall be subject to such termsand conditions and be for such period of time as the director may prescribe inthe permit.
(c) The director may revoke any experimental use permit, at anytime, if he finds that its terms or conditions are being violated, or that itsterms and conditions are inadequate to avoid unreasonable adverse effects onthe environment.
35-7-358. Refusal to register; cancellation; suspension; legalrecourse.
(a) If it does not appear to the director of the department ofagriculture that the pesticide or device is such as to warrant
Thisact may be cited as the "Wyoming Food, Drug and Cosmetic Safety Act".
35-7-110. Definitions.
(a) As used in this act:
(i) "Advertisement" means all representationsdisseminated in any manner or by any means, other than by labeling, for thepurpose of inducing the purchase of food, drugs, devices or cosmetics;
(ii) "Color" includes black, white and intermediategrays;
(iii) "Color additive" means a material, other than amaterial exempt under the federal act, which:
(A) Is a dye, pigment or other substance from a vegetable,animal, mineral or other source; or
(B) When added or applied to a food, drug or cosmetic, or tothe human body or any part thereof, is capable (alone or through reaction withother substance) of imparting color thereto.
(iv) "Consumer commodity" means any food, drug, deviceor cosmetic as those terms are defined by this act or by the federal act;
(v) "Cosmetic" means articles other than soap whichare:
(A) Intended to be rubbed, poured, sprinkled or sprayed on,introduced into, or otherwise applied to the human body or any part thereof forcleansing, beautifying, promoting attractiveness or altering the appearance;and
(B) Intended for use as a component of any articles undersubparagraph (A) of this paragraph.
(vi) "Counterfeit drug" means a drug which, or thecontainer or labeling of which, without authorization, bears the trademark,trade name or other identifying mark, imprint or device, or any likenesstherefor, of a drug manufacturer, processor, packer or distributor other thanthe person who in fact manufactured, processed, packed or distributed the drugand which thereby falsely purports or is represented to be the product of, orto have been packed or distributed by, the other drug manufacturer, processor,packer or distributor;
(vii) "Department" means the department of agriculture;
(viii) "Device" means instruments, apparatus andcontrivances, including their components, parts and accessories, intended:
(A) For use in the diagnosis, cure, mitigation, treatment orprevention of disease in man or other animals; or
(B) To affect the structure or any function of the body of manor other animals.
(ix) "Director" means the director of the Wyomingdepartment of agriculture or his duly authorized representative;
(x) "Drug" means:
(A) Articles recognized in the official United Statespharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them; and
(B) Articles intended for use in the diagnosis, cure,mitigation, treatment or prevention of disease in man or other animals; and
(C) Articles (other than food) intended to affect the structureor any function of the body of man or other animals; and
(D) Articles intended for use as a component of any articlespecified in subparagraph (A), (B) or (C) of this paragraph but does notinclude devices or their components, parts or accessories.
(xi) "Establishment" means and includes any place orany area of any establishment in which foods, drugs, devices and cosmetics aredisplayed for sale, manufactured, processed, packed, held or stored;
(xii) "Federal act" means the Federal Food, Drug, andCosmetic Act, as amended, (Title 21 U.S.C. 301 et seq.) and regulationspromulgated under the act;
(xiii) "Food" means:
(A) Articles used for food or drink for humans including meatand ice intended for human consumption;
(B) Chewing gum;
(C) Beverages subject to the Federal Alcohol AdministrationAct, as amended, (Title 27 U.S.C. 201 et seq.);
(D) Articles used for components of any article undersubparagraphs (A), (B) and (C) of this paragraph.
(xiv) "Food additive" means any substance the intendeduse of which results or may be reasonably expected to result, directly orindirectly, in its becoming a component or otherwise affecting thecharacteristics of any food within the meaning of the federal act;
(xv) An "imitation food" is any food which is inphysical characteristics such as taste, flavor, color, texture or appearancewhich resembles or purports to be or is represented as a food for which adefinition and standard of identity has been prescribed and does not conform tosuch standard;
(xvi) "Immediate container" does not include packageliners;
(xvii) "Label" means a display of written, printed orgraphic matter upon the immediate container of any article. A requirement madeby or under this act that any word, statement or other information appear onthe label shall not be considered to be complied with unless the word,statement or other information also appears on the outside container orwrapper, if there is any, of the retail package of the article, or is easilylegible through the outside container or wrapper;
(xviii) "Labeling" means all labels and other written,printed or graphic matter upon an article or any of its containers or wrappers,or accompanying the article;
(xix) "Local board of health" means a county or cityboard of health established pursuant to W.S. 35-1-301 et seq.;
(xx) "Local health department" means a healthdepartment established by a county, municipality or district pursuant to W.S.35-1-301 et seq.;
(xxi) "New drug" means any drug considered to be a newdrug under the federal act;
(xxii) "Official compendium" means the official UnitedStates pharmacopoeia, official homeopathic pharmacopoeia of the United States,official national formulary or any supplement to any of them;
(xxiii) "Package" means any container or wrapping inwhich any consumer commodity is enclosed for use in the delivery or display ofthat consumer commodity to retail purchasers as interpreted by the federal act;
(xxiv) "Pesticide chemical" means any substance which,alone, in chemical combination, or in formulation with one (1) or more othersubstances is an "economic poison" within the meaning of the FederalInsecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 through 136y) whichis used in the production, storage or transportation of raw agriculturalcommodities;
(xxv) "Principal display panel" means that part of alabel that is most likely to be displayed, presented, shown or examined undernormal and customary conditions of display for retail sale;
(xxvi) "Raw agricultural commodity" means any food inits raw or natural state, including all fruits that are washed, colored orotherwise treated in their unpeeled natural form prior to marketing;
(xxvii) "Regulatory authority" means the authority whichissued the license or promulgated the rule or regulation being enforced includingthe department of agriculture or local health department;
(xxviii) "Farmers market" means a common facility or areawhere several vendors may gather on a regular, recurring basis to sell avariety of fresh fruits and vegetables, locally grown farm products and otheritems directly to consumers;
(xxix) "Function" means any official ceremony ororganized social occasion;
(xxx) "Not potentially hazardous food" means any foodwhich does not require time or temperature control for safety to limitpathogenic microorganism growth or toxin formation. The natural pH or thefinal pH of acidified food must be 4.6 or less;
(xxxi) "This act" means W.S. 35-7-109 through 35-7-127.
35-7-111. Prohibited acts.
(a) No person shall:
(i) Violate this act or any rules promulgated under it;
(ii) Introduce or deliver for introduction into commerce of anyfood, drug, device or cosmetic that is adulterated or misbranded;
(iii) Adulterate or misbrand any food, drug, device or cosmeticin commerce;
(iv) Knowingly receive in commerce of any food, drug, device orcosmetic that is adulterated or misbranded;
(v) Refuse to permit entry, inspection or access to records asauthorized by this act;
(vi) Manufacture any food, drug, device or cosmetic that isadulterated or misbranded;
(vii) Give a false guaranty or undertaking under this act exceptby a person who relied upon a guaranty or undertaking to the same effect signedby, and containing the name and address of, the person residing in the UnitedStates from whom he received in good faith the food, drug, device or cosmetic;
(viii) Forge, counterfeit or without proper authority use anymark, stamp, tag, label or other identification device authorized or requiredby regulations promulgated under this act;
(ix) Make, sell or possess any punch, die, plate, stone, orother thing designed to print, imprint or reproduce the trademark, trade nameor other identifying mark, imprint or device of another or any likeness of anyof the foregoing upon any drug or container or labeling thereof so as to rendersuch drugs a counterfeit drug;
(x) Alter, mutilate, destroy, obliterate or remove any part ofthe labeling of, or the doing of any other act with respect to a food, drug,device or cosmetic, if done while the article is held for sale (whether or notthe first sale) after shipment in commerce and which results in the articlebeing adulterated or misbranded;
(xi) Repealed By Laws 2000, Ch. 37, 4.
(xii) Use in labeling, advertising or other sales promotion ofany reference to any report or analysis furnished by the director in compliancewith this act.
(b) No person shall remove or dispose of a detained orembargoed article in violation of W.S. 35-7-114.
(c) In determining whether labeling or an advertisement ismisleading under this act, the following shall be considered:
(i) Representations made or suggested by statement, word,design, device, sound or in any combination thereof;
(ii) The extent to which the labeling or advertisement fails toreveal facts material in the light of the representations or facts materialwith respect to consequences which may result from the use of the article towhich the labeling or advertisement relates under the conditions of useprescribed in the labeling or advertisement or under conditions of use as arecustomary or usual.
(a) If the director or the director of the department of healthpursuant to W.S. 35-7-123(b)(vi) has probable cause to believe that an imminenthazard to the public health exists from a violation of this act, he may orderany person to immediately cease the practice believed to be a violation andshall provide the person an opportunity for a hearing pursuant to the WyomingAdministrative Procedure Act within ten (10) days after issuing the order.
(b) In addition to any other remedies, the director may applyto the district court for injunctive relief from any person who violates W.S.35-7-111.
35-7-113. Penalties and guaranty.
(a) Any person who knowingly and intentionally violates W.S.35-7-111 is guilty of a misdemeanor punishable by imprisonment for not morethan six (6) months, a fine of not more than seven hundred fifty dollars($750.00), or both. Upon a subsequent conviction under W.S. 35-7-111, theperson may be punished by imprisonment for not more than one (1) year, a fineof not more than one thousand five hundred dollars ($1,500.00), or both.
(b) No person may be convicted under W.S. 35-7-111 if heestablished a guaranty or undertaking signed by, and containing the name andaddress of, the person from whom he received the article in good faith, to theeffect that the article is not adulterated or misbranded within the meaning ofthis act and if he furnishes on request of the director the name and address ofthe person from whom he purchased or received the article in good faith andcopies of all documents pertaining to the delivery of the article to him.
(c) No publisher, radio-broadcast licensee, or agency or mediumfor the dissemination of an advertisement, except the manufacturer, packer,distributor or seller of the article to which a false advertisement relates,may be punished under W.S. 35-7-111 for the dissemination of the falseadvertisement.
35-7-114. Embargo.
(a) If the director has probable cause to believe that anyfood, drug, device, cosmetic or consumer commodity is adulterated or somisbranded as to be dangerous or fraudulent, within the meaning of this act, heshall affix a tag or other appropriate marking to the article giving noticethat the article is or is suspected of being adulterated or misbranded and hasbeen embargoed. The director shall release all other articles.
(b) If the director finds an article embargoed under subsection(a) of this section to be adulterated or misbranded, the director mayimmediately petition the district court for the county in which the article isembargoed to condemn the article, otherwise the tag or other marking shall beremoved by the director or his agent.
(c) If the court finds that an embargoed article is adulteratedor misbranded, the article, after entry of the decree, shall be destroyed atthe owner's expense, under the supervision of the director or his agent. Allcourt costs and fees, transportation costs, and storage and other properexpenses, shall be taxed against the owner of the article or his agent unlessthe adulteration or misbranding can be corrected by proper labeling orprocessing of the article. If so, the court, after entry of the decree andafter costs, fees and expenses have been paid and a good and sufficient bond,conditioned that the article shall be correctly labeled or processed, has beenexecuted, may by order direct delivery of the article to the owner for labelingor processing under the supervision of the director. The expense ofsupervision shall be paid by the owner. The article shall be returned to theowner and the bond shall be discharged on the representation to the court bythe director that the article is no longer in violation of this act and thatthe expenses of supervision have been paid. Nothing in this section preventsthe director from authorizing the owner of an adulterated or misbranded articlefrom destroying it as the director prescribes.
35-7-115. Food; definitions and standards.
(a) Definitions and standards of identity, quality and fill ofcontainer under the federal act or its regulations are the definitions andstandards of identity, quality and fill of container in this state. However,when the action will promote honesty and fair dealing in the interest ofconsumers, the director may promulgate regulations establishing definitions andstandards of identity, quality and fill of container for foods where no federalregulations exist. In addition, in conjunction with W.S. 35-7-127, the directormay promulgate amendments to any federal or state regulations which setdefinitions and standards of identity, and may promulgate amendments to anyfederal or state regulations which set standards of quality and fill of containerfor foods.
(b) Temporary permits now or hereafter granted for interstateshipment of experimental packs of food under the federal act are automaticallyeffective in this state.
35-7-116. Food, drugs and cosmetics; adulteration and misbranding.
Afood, cosmetic or a drug or device is adulterated if it is adulterated underthe federal act. A food, cosmetic or a drug or device is misbranded if it ismisbranded under the federal act.
35-7-117. Food; tolerances for added poisonous ingredients.
Anyadded poisonous or deleterious substance, any food additive, any pesticidechemical in or on a raw agricultural commodity or any color additive, is unsafewith respect to any particular use or intended use if it is deemed unsafe undersection 406 of the federal act.
35-7-118. New drugs.
Noperson shall sell, offer for sale, hold for sale or give away any new drugunless an application with respect thereto has been approved and the approvalhas not been withdrawn under section 505 of the federal act.
35-7-119. Fair packaging and labeling provisions.
(a) All labels of consumer commodities, as defined by this act,shall conform with the requirements for the declaration of net quantity ofcontents of section 4 of the Fair Packaging and Labeling Act (15 U.S.C. 1451,et seq.) and the regulations promulgated pursuant thereto as of the effectivedate of this act. Consumer commodities exempted from the requirements ofsection 4 of the Fair Packaging and Labeling Act are also exempt from thissubsection.
(b) The label of any package of a consumer commodity whichbears a representation as to the number of servings of the commodity containedin the package shall bear a statement of the net quantity (in terms of weight,measure or numerical count) of each serving.
(c) No person shall distribute or cause to be distributed incommerce any packaged consumer commodity if any qualifying words or phrasesappear in conjunction with the separate statement of the net quantity ofcontents required by subsection (a) of this section, but nothing in thissection prohibits supplemental statements, at other places on the package,describing in nondeceptive terms the net quantity of contents. Supplementalstatements of net quantity of contents shall not include any term qualifying aunit of weight, measure or count that tends to exaggerate the amount of thecommodity contained in the package.
(d) If the director determines that regulations containingprohibitions or requirements other than those prescribed by subsection (a) ofthis section are necessary to prevent the deception of consumer or tofacilitate value comparisons as to any consumer commodity, the director shallpromulgate rules and regulations with respect to that commodity in conjunctionwith W.S. 35-7-127.
(e) Every retailer and every wholesaler who sells or offers forsale in this state through an establishment or otherwise any meat, which is theproduct of any country foreign to the United States, shall clearly label themeat as "imported," naming the country of its origin. The departmentshall promulgate rules and regulations with respect to labeling. As used inthis subsection:
(i) "Meat" means the edible part of the muscle ofanimals, which is skeletal or which is found in the tongue, in the diaphragm,in the heart or in the esophagus, with or without the accompanying or overlyingfat, and the portions of bone, skin, sinew, nerve and blood vessels whichnormally accompany the muscle tissue and which are not separated from it in theprocess of dressing, but shall not include the muscle found in the lips, snoutor ears, nor any edible part of the muscle which has been manufactured, cured,smoked, cooked or processed;
(ii) "Retailer" means a person regularly engaged inthe business of selling meat at retail to the public, and selling only to theuser or consumer and not for resale;
(iii) "Wholesaler" means a person regularly engaged inthe business of selling meat at wholesale to retailers for subsequent sale atretail to the public.
35-7-120. Regulations.
(a) The director may promulgate regulations necessary for theefficient enforcement of this act.
(b) The director may promulgate regulations necessary to ensurethat appropriate sanitary conditions and water quality standards are met by anyperson engaged in the distribution of bulk quantities of water for sale forhuman consumption.
35-7-121. Inspections; examinations.
(a) For purposes of enforcement of this act, the director or alocal health department official may, upon presenting appropriate credentialsto the owner, operator or agent in charge:
(i) Enter at reasonable time any factory, warehouse orestablishment in which food, drugs, devices or cosmetics are manufactured,processed or packed or held for introduction into commerce or afterintroduction or to enter any vehicle being used to transport or hold the food,drugs, devices or cosmetics in commerce; and
(ii) Inspect at any reasonable times and within reasonablelimits and in a reasonable manner any factory, warehouse, establishment orvehicle and all pertinent equipment, finished and unfinished materials,containers and labeling therein, and to obtain samples necessary to theenforcement of this act, except that paragraph (i) of this subsection and thisparagraph do not permit the director to inspect any establishment solelybecause it holds prepackaged food, drugs or cosmetics for retail sale by thatestablishment. The frequency of inspections shall be based on the relative foodsafety risk that the factory, warehouse, establishment or vehicle presents tothe public, with no such facility receiving less than one (1) inspection peryear;
(iii) Have access to and to copy all records of carriers incommerce showing the movement in commerce of any food, drugs, devices orcosmetics, or holding thereof during or after movement, and the quantity,shipper and consignee thereof.
(b) Upon completion of any inspection under this section butbefore leaving the premises, the director shall give to the owner, operator oragent in charge a report in writing setting forth any conditions or practicesobserved by him which in his judgment indicate that any food, drug, device orcosmetic in the establishment:
(i) Consists in whole or in part of any filthy, putrid ordecomposed substance; or
(ii) Have been prepared, packed or held under unsanitaryconditions whereby it may have become contaminated with filth or whereby it mayhave been rendered injurious to health. A copy of the report shall be sentpromptly to the director.
(c) If the director obtains any sample during an inspectionunder this section, he shall give to the owner, operator or agent in charge areceipt describing the samples obtained before leaving the premises.
(d) If the director obtains a sample of any food during aninspection under this section and an analysis is made of the sample, a copy ofthe results of the analysis shall be furnished promptly to the owner, operatoror agent in charge.
(e) Repealed By Laws 2000, Ch. 37, 4.
(f) Any person conducting an inspection of an establishment forthe department or any local health department shall demonstrate theirqualifications by being a Wyoming or nationally registered environmental healthspecialist or sanitarian, a registered food safety specialist or hold anin-training status and be working toward registration, be standardized by thefederal food and drug administration or meet qualifications set forth by thedirector in conjunction with the food safety council. Only a registeredenvironmental health specialist or a registered food safety specialist shall beauthorized to recommend the summary suspension of an establishment license by aregulatory authority pursuant to W.S. 35-7-125.
(g) Any inspector hired by a regulatory authority prior to July1, 2000, shall have two (2) years from July 1, 2000 to meet the qualificationsset forth in subsection (f) of this section. Any inspector hired by aregulatory authority after July 1, 2000, shall have one (1) year to meet thequalifications set forth in subsection (f) of this section.
35-7-122. Publicity.
(a) The director may cause to be published from time to timereports summarizing all judgments, decrees and court orders which have beenrendered under this act, including the nature of the charge and the dispositionthereof.
(b) The director may also cause to be disseminated anyinformation regarding food, drugs, devices and cosmetics as the director deemsnecessary in the interest of public health and the protection of the consumeragainst fraud. Nothing in this section prohibits the director from collecting,reporting and illustrating the results of his investigations, except that thedirector shall not disclose any information acquired under this act such ascustomer lists, manufacturing volumes and information concerning any method orprocess which as a trade secret is entitled to protection.
35-7-123. Establishment of food safety system.
(a) The director of the department of agriculture shallestablish and maintain a food safety program located within the department. Thedirector shall carry out the provisions of the food safety program and shall beassisted by the director of the department of health. A local department ofhealth, if established according to law, may establish and maintain its ownlocal food safety program so long as the program meets the requirements of thisact. The director of the department of agriculture or his designee shall:
(i) Gather food safety information and disseminate theinformation to the public, food industry and to local departments of healthwith a food safety program;
(ii) On a voluntary basis, provide food safety training for thefood industry in this state, work with other state, local and federal agenciesto coordinate food safety educational efforts;
(iii) Regulate the safety of foods and work together with thedepartment of health and the governor's food safety council establishedpursuant to W.S. 35-7-127 to promulgate rules and regulations necessary tocarry out the provisions of this act. In any area which does not have a localfood safety program established pursuant to law, the department shall issuelicenses, conduct inspections, hold hearings to enforce any legal provision orrule promulgated under this act;
(iv) Maintain a statewide database of food licenses and inspectionresults;
(v) Work with federal, state and local agencies to coordinatefood safety efforts and activities, and coordinate with all other agencies tomaintain consistency in inspection and enforcement activities;
(vi) Establish food safety priorities for this state based onrisk and information provided by the department of health;
(vii) Provide laboratory support for the analysis of routine foodand water samples used to support inspection activities and to monitor safety;
(viii) Report each year to the department of health on how thefood safety activities have addressed the epidemiological data provided by thedepartment of health;
(ix) Assist the department of health, or any local jurisdiction,when requested to investigate possible food borne and water related illness;
(x) Establish and maintain a meat inspection program for thisstate. However, nothing in this act shall be construed to grant authority inthe director of the department of agriculture or his designee for theinspection or regulation of live animal production or the processing andstorage of meat by a producer of live animals for nonprofit consumption.
(b) The director of the department of health or his designeeshall:
(i) Carry out the surveillance of food borne illness withassistance from the department of agriculture and report each year to thedepartment of agriculture and local jurisdictions on the leading causes of foodborne illness;
(ii) Participate with the department of agriculture and thegovernor's food safety council established pursuant to W.S. 35-7-127 in a jointfood safety rulemaking process;
(iii) Ensure the department of health is the lead agency for theinvestigation of possible food borne illness and outbreaks and to requestassistance from the department of agriculture and local jurisdictions asdetermined to be necessary by the department of health;
(iv) Provide laboratory support for and conduct analysis ofsamples connected with disease outbreak investigations;
(v) Provide support for local food safety programs asauthorized by the legislature;
(vi) Take appropriate action against any person holding a foodlicense for the purpose of protecting the public health and preventing thetransmission of infectious disease;
(vii) Provide consultation and advice on food borne illness tolocal jurisdictions and to the department of agriculture as requested.
(c) Duties of a local board of health shall include:
(i) Issuing licenses, conducting inspections, holding hearingsand taking enforcement actions as necessary to carry out the provisions of thefood safety program;
(ii) Promulgating rules containing provisions for inspectionswhich may differ from state food safety regulations promulgated under this actso long as direct food safety and disease transmission requirements includingcooking temperatures, hot and cold holding temperatures, reheating times andtemperatures, cooling times and temperatures, and such other requirements asdetermined by the department of agriculture, do not differ;
(iii) Coordinating activities with the department of agriculturein order to provide for statewide consistency;
(iv) Providing the department of agriculture with a quarterlyreport providing information on any food licenses issued and the results of anyfood inspections;
(v) Reporting to the department of health any food borneoutbreak of illness and assist the department of health in any outbreakinvestigations, if requested.
(d) A local jurisdiction may provide laboratory support forfood safety and drinking water inspection and accompanying monitoringactivities.
(a) Any person processing, distributing, storing or preparingany food for sale shall obtain a license from the department of agriculture ora local health department. The license is not transferable, shall be renewed onan annual basis and shall be prominently displayed in the establishment. Nofood establishment shall serve, hold for sale or sell food to the publicwithout a valid license. An agricultural producer shall be exempt from thelicensure requirement in this section for processing, distributing, storing orsale of any raw agricultural commodity he produces.
(b) Written application for a new license shall be made on aform approved by the department of agriculture and provided by the departmentof agriculture or the local health department and shall be signed by theapplicant. License requirements and fees for temporary food events operated bynonprofit organizations shall be waived. Licenses shall expire one (1) yearafter the date of issuance unless suspended or revoked. Licenses may be renewedeach year upon application to the department or local health department. Thedirector shall establish license categories and fees by rule and no fee shallexceed one hundred dollars ($100.00).
(c) Fees collected under this section shall be distributed as follows:
(i) In any county, city or district without a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the department ofagriculture shall receive ninety percent (90%) of the amount of the feecollected and the department of health shall receive ten percent (10%). Therevenues shall be deposited into a special account and shall be used to deferthe cost associated with the food safety program;
(ii) In any county, city or district with a local healthdepartment established pursuant to W.S. 35-1-301 et seq., the local healthdepartment shall receive eighty-five percent (85%) of the amount of the feecollected, the department of agriculture shall receive ten percent (10%) andthe department of health shall receive five percent (5%). The revenues shall bedeposited into a special account and shall be used to defer the cost associatedwith the food safety program.
(d) Before approving an application, the department ofagriculture or the local health department shall determine that the establishmentis in compliance with this act and any regulations promulgated hereunder.
(e) The provisions of subsection (a) of this section shall notapply to food operators or kitchens in private homes that prepare food that isnot potentially hazardous and prepared for sale or use at farmers' markets,roadside stands, private homes and at functions including, but not limited tothose operated by not for profit charitable or religious organizations.
(f) The director may allow the permitting, registration,licensing, testing, inspection and reporting requirements of this chapter to beconducted electronically as provided by the Uniform Electronic Transaction Act,W.S. 40-21-101 through 40-21-119 and any applicable federal electronicrequirements.
35-7-125. Summary suspension of a license.
(a) A regulatory authority may summarily suspend a license tooperate a food establishment if it determines through consultation with ahealth officer, inspection, examination of food, employees, records or otherauthorized means that an imminent health hazard exists including, but notlimited to, fire, flood, extended interruption of electrical or water service,or sewage backup.
(b) The regulatory authority may summarily suspend a person'slicense by providing written notice of the summary suspension to the licenseholder or person in charge, without prior warning, notice of a hearing or ahearing.
(c) The regulatory authority shall conduct an inspection of theestablishment or food processing plant for which the license was summarilysuspended within forty-eight (48) hours after receiving notice from the licenseholder stating that the conditions cited in the summary suspension order nolonger exist.
(d) A summary suspension shall remain in effect until the conditionscited in the notice of suspension no longer exist and the elimination of theconditions has been confirmed by the regulatory authority through inspection orother means as appropriate. A suspended license shall be reinstated immediatelyif the regulatory authority determines that the imminent health hazard nolonger exists. A notice of reinstatement shall be provided to the licenseholder or person in charge of the establishment.
(e) Temporary food events where no admission fee is charged andwhere no fee is charged for food shall not be subject to the license suspensionprovisions of this section.
35-7-126. License revocation.
(a) The regulatory authority may initiate revocation proceedingsfor an establishment license:
(i) Repealed By Laws 2003, Ch. 38, 2.
(ii) Repealed By Laws 2003, Ch. 38, 2.
(iii) Repealed By Laws 2003, Ch. 38, 2.
(iv) For failure to correct conditions for which a summarysuspension was issued;
(v) For failure to correct critical violations from routineinspections;
(vi) For multiple critical violations on multiple occasions;
(vii) For a refusal to grant access pursuant to W.S. 35-7-121.
(b) The regulatory authority shall issue notice of a hearing tothe license holder. The notice and the hearing shall be governed by theprovisions of the Wyoming Administrative Procedure Act, W.S. 16-3-101 et seq.
(c) Upon completion of the hearing and consideration of therecord, the regulatory authority shall issue an order which shall includefindings of fact and conclusions of law.
(d) The decision of the regulatory authority may be appealed tothe district court pursuant to the Wyoming Administrative Procedure Act, W.S.16-3-101 et seq.
35-7-127. Governor's food safety council.
(a) There is created the governor's food safety council. Thegovernor shall appoint eleven (11) members of the council as follows:
(i) One (1) member who is an employee of the department ofagriculture;
(ii) One (1) member who is an employee of the department ofhealth;
(iii) One (1) member who is an employee of the laboratory of thedepartment of agriculture or the department of health;
(iv) One (1) member from a local health department;
(v) One (1) ex officio nonvoting member who is an employee ofthe University of Wyoming cooperative extension service;
(vi) Four (4) members representing the food industry, at leastone (1) member representing restaurants and one (1) member representing retailfood stores; and
(vii) Two (2) members with no connections to the food industryrepresenting the general public as consumer representatives.
(b) Members of the council shall hold office for staggeredterms of three (3) years. For the initial council, three (3) members shall beappointed for a term of three (3) years, three (3) members shall be appointedfor a term of two (2) years and five (5) members shall be appointed for a termof one (1) year. Each member shall hold office until his successor isappointed. The governor may remove any member pursuant to W.S. 9-1-202.
(c) No rule shall be promulgated by the department ofagriculture or a local health department under this act until the departmenthas consulted with the governor's food safety council and received comment fromthe council.
(d) The members of the council shall not receive compensationfor their service, but shall receive reimbursement for traveling expenses asprovided by W.S. 9-3-102 for state employees from the department ofagriculture.
(e) The council shall meet not less than once each year.
ARTICLE 2 - STATE CHEMIST
35-7-201. Under direction of department of agriculture; appointment;duties generally; salary and expenses; fee for analysis.
(a) The office of state chemist heretofore created by thelegislature is hereby transferred with all present and existing appropriationsand all property under its control to the state department of agriculture ofWyoming, and shall hereafter be under the direction and supervision of saiddepartment. The state chemist shall be appointed by the state board ofagriculture with the approval of the Wyoming personnel division and his salaryshall be determined and fixed by the Wyoming personnel division to be paid bythe state of Wyoming out of any money not otherwise appropriated, the same tobe paid by the state auditor in the manner provided for the payment of otheraccounts against the state, and he shall receive no other salary.
(b) It shall be the duty of the state chemist to make or causeto be made, analysis of such foods, drugs, drinks, gasoline, illuminating oilsor other materials relative to the enforcement of this article, as shall besubmitted to him or shall be deemed advisable for such analysis, and make afull and complete written report of the same, and when so requested, it shallbe his duty to testify in court. He shall receive his necessary travelingexpenses as paid to other state employees as allowed by law, to be paid by thestate of Wyoming when employed in performing the duties of his office.
(c) Any person, firm, corporation or association, with theexception of cities, counties and state regulatory agencies, who shall submitany article or commodity for analysis or examination shall remit such fee asmay be established for the purpose of making this service available to thegeneral public at a reasonable cost, but which fee shall be comparable to thatcharged for the same service by commercial laboratories operating within thestate. Accounting shall be made of all fees so received by the state chemistand shall be paid into the general fund.
(d) The state chemist may allow the testing, inspection andreporting requirements of this article to be conducted electronically asprovided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through40-21-119 and any applicable federal electronic requirements.
35-7-202. Employment of assistant and second assistant chemists;salaries; location of office; duties generally.
Thestate chemist by and with the approval of the state board of agriculture ishereby authorized to employ an assistant to the state chemist and a secondassistant to the state chemist who shall receive salaries to be determined andfixed by the Wyoming personnel division; the salaries to be paid by the stateof Wyoming out of any moneys not otherwise appropriated, the same to be paid bythe state auditor in the manner provided for the payment of such accountsagainst the state. The assistant chemists shall keep their offices at the Universityof Wyoming and the board of trustees of said university shall furnish thenecessary room for the carrying out of the provisions of this article. Theassistant chemists shall perform such duties as they may be required to performby the state chemist.
35-7-203. Expenses.
Thenecessary traveling expenses and expenses for the purchase of apparatus,chemicals, etc., shall be paid from any appropriation made by the legislatureas a contingent fund for the state chemist; provided, that the expense shall belimited to the appropriation made.
35-7-204. Seal; report.
Thestate chemist shall keep a seal with which to attest official acts anddocuments. He shall, as required by W.S. 9-2-1014, report to the governor, onor before the first day of October of each year, including itemized statementsof all persons employed by him together with such statistics and other matteras he may regard of value to the administration or public at large.
ARTICLE 3 - ADULTERATING OR MISBRANDING
35-7-301. Repealed by Laws 1987, ch. 173, 4.
35-7-302. Repealed by Laws 1987, ch. 173, 4.
35-7-303. Repealed by Laws 1987, ch. 173, 4.
35-7-304. Repealed by Laws 1987, ch. 173, 4.
35-7-305. Repealed by Laws 1987, ch. 173, 4.
35-7-306. Repealed by Laws 1987, ch. 173, 4.
35-7-307. Repealed by Laws 1987, ch. 173, 4.
35-7-308. Repealed by Laws 1987, ch. 173, 4.
35-7-309. Repealed by Laws 1987, ch. 173, 4.
35-7-310. Repealed by Laws 1987, ch. 173, 4.
35-7-311. Repealed by Laws 1987, ch. 173, 4.
35-7-312. Repealed by Laws 1987, ch. 173, 4.
35-7-330. Repealed by Laws 1987, ch. 173, 4.
35-7-331. Repealed by Laws 1987, ch. 173, 4.
35-7-332. Repealed by Laws 1987, ch. 173, 4.
35-7-333. Repealed by Laws 1987, ch. 173, 4.
35-7-334. Repealed by Laws 1987, ch. 173, 4.
35-7-335. Repealed by Laws 1987, ch. 173, 4.
35-7-336. Repealed by Laws 1987, ch. 173, 4.
35-7-350. Short title.
Thisact shall be known and may be cited as the "Wyoming EnvironmentalPesticide Control Act of 1973".
35-7-351. Enforcing agency.
Thisact shall be administered by the department of agriculture of the state ofWyoming, hereinafter referred to as the "department".
35-7-352. Declaration of purpose.
Thelegislature hereby finds that pesticides and devices are valuable to ourstate's agricultural production and to the protection of man and theenvironment from insects, rodents, weeds, and other forms of life which may bepests, and it is essential to the public health and welfare that they beregulated closely to prevent adverse effects on human life and the environment.The purpose of this act is to regulate, in the public interest, the labeling,distribution, storage, transportation, disposal, use and application ofpesticides to control pests. New pesticides are continually being discovered orsynthesized which are valuable for the control of pests, and for use asdefoliants, desiccants, plant regulators, and related purposes. Thedissemination of accurate scientific information as to the proper use ornonuse, of any pesticide, is vital to the public health and welfare and theenvironment both immediate and future. Therefore, it is deemed necessary toprovide for registration of pesticides and devices.
35-7-353. Board of certification.
Aboard of certification is established consisting of the director of thedepartment of agriculture, and a member of the Wyoming weed and pest counciland a University of Wyoming weed or pest specialist to be appointed by thegovernor. The governor may remove any member he appoints as provided in W.S.9-1-202.
35-7-354. Definitions.
(a) "Applicator" or "operator" means:
(i) "Certified applicator" means any individual whois certified by the director as being competent with respect to the use andhandling of pesticides, or of the use and handling of the pesticide or class ofpesticides covered by the individual's certification;
(ii) "Commercial applicator" means a certifiedapplicator (whether or not he is a private applicator with respect to someuses) who uses or supervises the use of any pesticide which is classified forrestricted use for any purpose or on any property other than as provided byparagraph (a)(iii) of this subsection;
(iii) "Private applicator" means any certifiedapplicator who uses or supervises the use of any restricted use pesticide whichis restricted to use by certified applicators and only for purposes ofproducing any agricultural commodity on property owned by him or his employeror under his control or (is applied without compensation other than trading ofpersonal services between producers of agricultural commodities) on theproperty of another person.
(b) "Board of agriculture" means that bodyestablished by law under W.S. 11-2-102.
(c) "Device" means any instrument or contrivance(other than a firearm) which is intended for trapping, destroying, repelling,or mitigating any pest or any other form of plant or animal life (other thanman, or bacteria, virus, or other microorganism on or in living man or otherliving animals) but does not include equipment used for the application ofpesticides when sold separately therefrom.
(d) "Pesticide" means:
(i) Any substance or mixture of substances intended forpreventing, destroying, repelling, or mitigating any pests;
(ii) Any substance or mixture of substances intended for use asa plant regulator, defoliant, or desiccant; and
(iii) Any substance or mixture of substances intended to be usedas a spray adjuvant.
(e) "Restricted use pesticide" means any pesticideproduct, the label of which states "restricted use" as required forregistration by the environmental protection agency under the federal Insecticide,Fungicide and Rodenticide Act of 1972, as amended.
35-7-355. Director to administer and enforce provisions; board ofcertification to adopt regulations.
The director of the department ofagriculture shall administer and enforce the provisions of this act andregulations issued thereunder. The board of certification may issue regulationsafter a public hearing following due notice to all interested persons inconformance with the provisions of the Wyoming Administrative Procedure Act tocarry out the provisions of this act. Regulations may prescribe methods to beused in the application of pesticides, may prescribe standards for theclassification and certification of applicators of pesticides, and may requirecertification, licensing, payment of reasonable fees for licensing orcertification, submission of information, and passing of examinations byapplicators of pesticides. Where the board of certification finds thatregulations are necessary to carry out the purpose and intent of this act, theregulations may relate to the time, place, manner, methods, materials, andamounts and concentrations, in connection with the application of thepesticide, and may restrict or prohibit use of pesticides in designated areasduring specified periods of time and shall encompass all reasonable factorswhich the board deems necessary. The department may issue licenses. Notwithstanding the provisions of W.S. 35-7-354(e), the board of agriculture,by regulation, following a hearing and pursuant to the Wyoming AdministrativeProcedure Act, may declare a specific pesticide or pesticide use a"restricted use pesticide", but only following a recommendation ofthe board of certification, and a finding of fact, in a public hearingconducted by the board of certification, that unreasonable adverse effects onthe environment, including man, pollinating insects, animals, crops, wildlifeand lands, other than pests, may reasonably occur. The director of thedepartment of agriculture may allow the registration, licensing, testing,inspection and reporting requirements of this article to be conductedelectronically as provided by the Uniform Electronic Transaction Act, W.S.40-21-101 through 40-21-119 and any applicable federal electronic requirements.
35-7-356. Registration.
(a) Every pesticide or device which is distributed within thisstate or delivered for transportation or transported in intrastate commerce orbetween points within this state through any point outside this state shall beregistered with the department of agriculture by its manufacturer or formulatorsubject to the provisions of this act. The registration shall be renewedannually prior to December 31 of each year but not if a pesticide or device isshipped from one plant or warehouse to another plant or warehouse as aconstituent part to make a pesticide or device which is registered under theprovisions of this act, if the pesticide or device is not sold and if thecontainer thereof is plainly and conspicuously marked "For ExperimentalUse Only", together with the manufacturer's name and address, or if awritten permit has been obtained from the department to sell the specificpesticide or device for experimental purposes subject to restrictions andconditions set forth in the permit.
(b) The applicant for registration shall file a statement withthe department which shall include:
(i) The name and address of the applicant and the name andaddress of the person whose name will appear on the label, if other than theapplicant's;
(ii) The name of the pesticide or device;
(iii) Other necessary information required for completion of thedepartment's application for registration form;
(iv) The use classification as provided in the FederalInsecticide, Fungicide, and Rodenticide Act when required by regulations underthis act.
(c) The director may require a full description of the testsmade and the results thereof upon which the claims are based on any pesticideor device on which restrictions are being considered. In the case of renewal ofregistration, a statement shall be required only with respect to informationwhich is different from that furnished when the pesticide or device was registeredor last registered. The director may prescribe other necessary information byregulation.
(d) Every registrant of pesticides or device shall pay anannual registration fee of seventy-five dollars ($75.00) each for every productregistered. All registrations shall expire on December 31 of each year,following the date of the registration, and may thereupon be renewed forsuccessive periods of twelve (12) months upon payment of the proper fee. Fundscollected pursuant to this section shall be deposited in the special naturalresource account in the department of agriculture which is hereby created forprograms authorized by W.S. 11-5-113 and 11-5-303.
(e) Any registration approved by the director and in effect onDecember 31 for which a renewal application has been made and the proper feepaid, shall continue in full force and effect until such time as the directornotifies the applicant that the registration has been renewed, or otherwisedenied in accord with the provisions of W.S. 35-7-358. Forms for registrationshall be mailed to registrants at least thirty (30) days prior to the due date.
(f) If it appears to the director that the composition of thepesticide or device is such as to warrant the proposed claims for it and if thepesticide and its labeling and other material required to be submitted complywith the requirements of this act he shall register the pesticide.
35-7-357. Experimental use permits.
(a) Any person may apply to the director of the department ofagriculture for an experimental use permit for a pesticide. The director mayissue an experimental use permit if he determines that the applicant needs thepermit in order to accumulate information necessary to register a pesticideunder this act. An application for an experimental use permit may be filed atthe time of or before or after an application for registration is filed.
(b) Use of a pesticide under an experimental use permit shallbe under the supervision of the director, and shall be subject to such termsand conditions and be for such period of time as the director may prescribe inthe permit.
(c) The director may revoke any experimental use permit, at anytime, if he finds that its terms or conditions are being violated, or that itsterms and conditions are inadequate to avoid unreasonable adverse effects onthe environment.
35-7-358. Refusal to register; cancellation; suspension; legalrecourse.
(a) If it does not appear to the director of the department ofagriculture that the pesticide or device is such as to warrant
