Current through Register Vol. 42, No. 11, August 30, 2024
(1) An
"Equivalent number" shall be determined using a factor that takes into account
the number of packages, case lots, containers or such other packaging and the
length of time said products have passed an expiration date. The following
factors shall be used to determine an "equivalent number":
(a) For each package that has passed the
expiration date by four to seven days the factor would be 0.75
(b) For each package that has passed the
expiration date by eight to fourteen days the factor would be 1
(c) For each package that has passed the
expiration date by greater than fourteen and less than 30 days the factor would
be 1.5
(d) For each package that
has passed the expiration date by 30 days or more the factor would be
2
(2) The equivalent
number shall be determined by multiplying the number of out-of-date packages by
the appropriate factor as specified in paragraph "(1)" of this rule. An
equivalent number shall be determined for each of three primary retail display
areas, (Meat, Dairy, Baby Food and Infant Formula), as well as the equivalent
number for the aggregate of all three areas. The following criteria shall be
used in determining classes of violations for products offered for sale in
retail establishments:
(a) Class I Violations:
If each of the three areas have an "equivalent number" less than 20, and the
aggregate of all three areas is less than 35, no civil penalty is required. A
warning letter may be issued if the "equivalent number" is more than 10 and
less than 20 in any of the three categories.
(b) Class II Violations: If any of the three
areas have an "equivalent number" equal to or greater than 20 and less than 40
the violation is considered a Class II violation. If the total of all three
areas result in an "equivalent number" equal to or greater than 35 and less
than 105 the violation is considered a Class II violation.
(c) Class III Violations: If any of the three
areas have an "equivalent number" equal to or greater than 40 and less than 80
the violation is considered a Class III violation. If the total of all three
areas result in an "equivalent number" equal to or greater than 105 and less
than 130 the violation is considered a Class III violation. Subsequent Class II
violations within a one year period shall also result in a Class III
violation.
(d) Class IV Violations:
If any of the three areas have an "equivalent number" equal to or greater than
80 the violation is considered a Class IV violation. If the total of all three
areas result in an "equivalent number" equal to or greater than 130 the
violation is considered a Class IV violation. Subsequent Class III violations
within a one year period shall also result in a Class IV violation. Products
deemed misbranded are considered a Class IV violation. More than ten packaged
items offered for sale at retail without proper labeling to include ingredient
statements and/or cure ingredients is a Class IV Violation and will result in a
warning letter. Subsequent labeling violations will result in a penalty
administered as a Class IV violation. Obscuring, removing, or extending
existing open date statements shall be considered as misbranding and therefore
a Class IV violation.
(e) Class V
Violations: Subsequent Class IV violations within a one year period shall
result in a Class V violation. Products found to be adulterated are considered
a Class V violation. Adulterated products with food safety concerns of an
immediate nature will be subject to penalties on the first violation. If a
determination is made by the Department that an establishment is involved in
the practice of buying short-dated or date-expired Class A foods and by intent
or neglect offers for sale date-expired products the actions by the
establishment shall be considered a Class V violation.
(3) The same provisions in paragraph "(1)" of
this rule used to determine equivalent numbers shall be used in the assessment
of class violations as set forth herein for wholesale packages except that: the
unit (package) through which the product is offered for sale shall constitute
one package, i.e. case lots, large containers, etc. If the equivalent number is
exceeded, the penalty shall be assessed in the appropriate class of violation.
The following criteria shall be used in establishing class violations for
wholesale packages:
(a) Class I Violations:
(Wholesale distribution packages) If the out-of-date products have an
"equivalent number" less than 5, no civil penalty is required. A warning letter
may be issued if the "equivalent number" is more than 1 and less than
5.
(b) Class II Violations:
(Wholesale distribution packages) If the out-of-date products have an
"equivalent number" equal to or greater than 5 and less than 20 the violation
is considered a Class II violation.
(c) Class III Violations: (Wholesale
distribution packages) If the out-of-date products have an "equivalent number"
equal to or greater than 20 and less than 40 the violation is considered a
Class III violation. Subsequent Class II violations within a one-year period
shall also result in a Class III violation.
(d) Class IV Violations: (Wholesale
distribution packages) If the out-of-date products have an "equivalent number"
equal to or greater than 40 the violation is considered a Class IV violation.
Subsequent Class III violations within a one year period shall also result in a
Class IV violation. Products deemed misbranded are considered a Class IV
violation. Obscuring, removing, or extending existing open date statements
shall be considered as misbranding and therefore a Class IV
violation.
(e) Class V Violations:
Subsequent Class IV violations within a one year period shall result in a Class
V violation. Products found to be adulterated are considered a Class V
violation. Adulterated products with food safety concerns of an immediate
nature will be subject to penalties on the first violation.
Authors: Reginald L. Sorrells, Robert J.
Russell
Statutory Authority: Act #2000-320, Regular
Session of Legislature, 2000.
