HB-5837, As Passed House, June 15, 2010

SUBSTITUTE FOR

HOUSE BILL NO. 5837

A bill to amend 2000 PA 92, entitled

"Food law of 2000,"

by amending section 1105 (MCL 289.1105), as amended by 2008 PA 338.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1105. As used in this act:

(a) "Adulterated" means food to which any of the following

apply:

(i) It bears or contains any poisonous or deleterious substance

that may render it injurious to health except that, if the

substance is not an added substance, the food is not considered

adulterated if the quantity of that substance in the food does not

ordinarily render it injurious to health.

(ii) It bears or contains any added poisonous or added

deleterious substance, other than a substance that is a pesticide

chemical in or on a raw agricultural commodity; a food additive; or

a color additive considered unsafe within the meaning of

subparagraph (v).

(iii) It is a raw agricultural commodity that bears or contains

a pesticide chemical considered unsafe within the meaning of

subparagraph (v).

(iv) It bears or contains any food additive considered unsafe

within the meaning of subparagraph (v) provided that where a

pesticide chemical has been used in or on a raw agricultural

commodity in conformity with an exemption granted or tolerance

prescribed under subparagraph (v) and the raw agricultural commodity

has been subjected to processing the residue of that pesticide

chemical remaining in or on that processed food is, notwithstanding

the provisions of subparagraph (v) and this subdivision, not be

considered unsafe if that residue in or on the raw agricultural

commodity has been removed to the extent possible in good

manufacturing practice and if the concentration of that residue in

the processed food when ready to eat is not greater than the

tolerance prescribed for the raw agricultural commodity.

(v) Any added poisonous or deleterious substance, any food

additive, and pesticide chemical in or on a raw agricultural

commodity, or any color additive is considered unsafe for the

purpose of application of this definition, unless there is in

effect a federal regulation or exemption from regulation under the

federal act, meat inspection act, poultry product inspection act,

or other federal acts, or a rule adopted under this act limiting

the quantity of the substance, and the use or intended use of the

substance, and the use or intended use of the substance conforms to

the terms prescribed by the rule.

(vi) It is or contains a new animal drug or conversion product

of a new animal drug that is unsafe within the meaning of section

360b of the federal act, 21 USC 360b.

(vii) It consists in whole or in part of a diseased,

contaminated, filthy, putrid, or decomposed substance or it is

otherwise unfit for food.

(viii) It has been produced, prepared, packed, or held under

insanitary conditions in which it may have become contaminated with

filth or in which it may have been rendered diseased, unwholesome,

or injurious to health.

(ix) It is the product of a diseased animal or an animal that

has died other than by slaughter or that has been fed uncooked

garbage or uncooked offal from a slaughterhouse.

(x) Its container is composed, in whole or in part, of any

poisonous or deleterious substance that may render the contents

injurious to health.

(xi) A valuable constituent has been in whole or in part

omitted or abstracted from the food; a substance has been

substituted wholly or in part for the food; damage or inferiority

has been concealed in any manner; or a substance has been added to

the food or mixed or packed with the food so as to increase its

bulk or weight, reduce its quality or strength, or make it appear

better or of greater value than it is.

(xii) It is confectionery and has partially or completely

imbedded in it any nonnutritive object except in the case of any

nonnutritive object if, as provided by rules, the object is of

practical functional value to the confectionery product and would

not render the product injurious or hazardous to health; it bears

or contains any alcohol other than alcohol not in excess of 1/2 of

1% by volume derived solely from the use of flavoring extracts; or

it bears or contains any nonnutritive substance except a

nonnutritive substance such as harmless coloring, harmless

flavoring, harmless resinous glaze not in excess of 4/10 of 1%,

harmless natural wax not in excess of 4/10 of 1%, harmless natural

gum and pectin or to any chewing gum by reason of its containing

harmless nonnutritive masticatory substances which is in or on

confectionery by reason of its use for some practical functional

purpose in the manufacture, packaging, or storage of such

confectionery if the use of the substance does not promote

deception of the consumer or otherwise result in adulteration or

misbranding in violation of the provisions of this act. For the

purpose of avoiding or resolving uncertainty as to the application

of this subdivision, the director may issue rules allowing or

prohibiting the use of particular nonnutritive substances.

(xiii) It is or bears or contains any color additive that is

unsafe within the meaning of subparagraph (v).

(xiv) It has been intentionally subjected to radiation, unless

the use of the radiation was in conformity with a rule or exemption

under this act or a regulation or exemption under the federal act.

(xv) It is bottled water that contains a substance at a level

higher than allowed under this act.

(b) "Advertisement" means a representation disseminated in any

manner or by any means, other than by labeling, for the purpose of

inducing, or which is likely to induce, directly or indirectly, the

purchase of food.

production facility or similar food establishment that finishes a

raw commodity and is integral to the agricultural production of,

and is located at, a farm. An agricultural use operation is not

considered a food processing plant or retail processing operation

for purposes of personal or real property but must meet those same

standards and licensing requirements as prescribed in this act.

(d) "Bed and breakfast" means a private residence that offers

sleeping accommodations to transient tenants in 14 or fewer rooms

for rent, is the innkeeper's residence in which the innkeeper

resides while renting the rooms to transient tenants, and serves

breakfasts, or other meals in the case of a bed and breakfast

described in section 1107(n)(ii), at no extra cost to its transient

tenants. A bed and breakfast is not considered a food service

establishment if exempt under section 1107(n)(ii) or (iii).

(e) "Color additive" means a dye, pigment, or other substance

made by process of synthesis or similar artifice or extracted,

isolated, or otherwise derived, with or without intermediate or

final change of identity from a vegetable, animal, mineral, or

other source, or when added or applied to a food or any part of a

food is capable alone or through reaction with other substance of

imparting color to the food. Color additive does not include any

material that is exempt or hereafter is exempted under the federal

act. This subdivision does not apply to any pesticide chemical,

soil or plant nutrient, or other agricultural chemical solely

because of its effect in aiding, retarding, or otherwise affecting,

directly or indirectly, the growth of other natural physiological

process of produce of the soil and thereby affecting its color,

whether before or after harvest. Color includes black, white, and

intermediate grays.

(f) "Contaminated with filth" means contamination applicable

to any food not securely protected from dust, dirt, and, as far as

may be necessary by all reasonable means, from all foreign or

injurious contaminations.

(g) "Continental breakfast" means the serving of only non-

potentially-hazardous food such as a roll, pastry or doughnut,

fruit juice, or hot beverage, but may also include individual

portions of milk and other items incidental to those foods.

(h) "Cottage food operation" means a person who produces or

packages cottage food products only in a kitchen of that person's

primary domestic residence within this state.

(i) "Cottage food product" means a food that is not

potentially hazardous food as that term is defined in the food

code. Examples of cottage food product include, but are not limited

to, jams, jellies, dried fruit, candy, cereal, granola, dry mixes,

vinegar, dried herbs, and baked goods that do not require

temperature control for safety. Cottage food product does not

include all potentially hazardous food regulated under 21 CFR 113

and 114, examples of which include, but are not limited to, meat

and poultry products; salsa; milk products; bottled water and other

beverages; and home-produced ice products. Cottage food product

also does not include canned low-acid fruits or acidified

vegetables and other canned foods except for jams, jellies, and

preserves as defined in 21 CFR 150.

(j) ~~(h)~~ "Critical violation" or "critical item" means a

violation of the food code that the director determines is more

likely than other violations to contribute to food contamination,

illness to humans, or environmental health hazard.

(k) "Domestic residence" means a single-family dwelling or an

area within a rental unit where a single person or family actually

resides. Domestic residence does not include either of the

following:

(i) A group or communal residential setting within any type of

structure.

(ii) An outbuilding, shed, barn, or other similar structure.

Enacting section 1. This amendatory act does not take effect

unless House Bill No. 5280 of the 95th Legislature is enacted into

law.