2015 New York Laws
AGM - Agriculture & Markets
Article 21-AA - (Agriculture & Markets) DAIRY PROMOTION ACT
258-AA - Declaration of policy.

 258-aa. Declaration  of policy.   (a) It is hereby declared that the
  dairy industry is a paramount agricultural industry of this  state,  and
  is  an  industry  affecting the health and welfare of the inhabitants of
  the state; that the continued existence of the dairy  industry  and  the
  continued  production  of  milk  on  the  farms of this state is of vast
  economic importance to the state and to the health and  welfare  of  the
  inhabitants  thereof;  that  it  is  essential,  in order to assure such
  continued production of milk and its  handling  and  distribution,  that
  prices to producers be such as to return reasonable costs of production,
  and  at  the  same  time  assure  an  adequate  supply of milk and dairy
  products to consumers at reasonable prices; and  to  these  ends  it  is
  essential  that  consumers  and  others be adequately informed as to the
  dietary needs and advantages of milk and dairy products and  as  to  the
  economies  resulting  from  the  use  of milk and dairy products, and to
  command for milk and  dairy  products,  consumer  attention  and  demand
  consistent with their importance and value.  It is further declared that
  continued  decline in the consumption of fluid milk and some other dairy
  products will jeopardize the production of adequate supplies of milk and
  dairy products because of  increasing  surpluses  necessarily  returning
  less  to  producers;  and  that  continued adequate supplies of milk and
  dairy products is a matter of vital concern as affecting the health  and
  general welfare of the people of this state. It is therefore declared to
  be the legislative intent and policy of the state:
(1)  To  enable  milk producers and others in the dairy industry, with
  the aid of the state, to more effectively  promote  the  consumption  of
  milk and dairy products,
(2)  To  provide  methods  and  means  for  the development of new and
  improved dairy products, and to promote their use, and
(3) To this end, eliminate the possible impairment of  the  purchasing
  power  of  the  milk  producers  of this state and to assure an adequate
  supply of milk for consumers at reasonable prices.
(b) Definitions. As used in this act the following  terms  shall  have
  the following meanings:
(1)  "Commissioner"  means the commissioner of agriculture and markets
  of the state of New York.
(2) "Dairy products" means milk and products  derived  therefrom,  and
  products of which milk or a portion thereof is a significant part.
(3)  "Producer"  means  any person in this state who is engaged in the
  production of milk or who causes milk to be produced for any  market  in
  this or any other state.
(4)  "Advisory  board" means the persons appointed by the commissioner
  from  nominations  from  producers  as  herein  defined  to  assist  the
  commissioner in administering a dairy promotion order.
(5)  "Milk  dealer"  means  any  person  who  purchases  or handles or
  receives   or   sells   milk,   including   individuals,   partnerships,
  corporations,  cooperative  associations, and unincorporated cooperative
  associations.
(6) "Dairy promotion order" means an order issued by the commissioner,
  pursuant to the provisions of this act.
(7) "Cooperative" means an association or federation or cooperative of
  milk producers organized under the laws of New York state, or any  other
  state,  having agreements with their producer members to market, bargain
  for or sell the milk of such producers, and is actually  performing  one
  or more of these services in the marketing of the milk produced by their
  members,  through  the  cooperative  or  through  a  federation  of milk
  cooperatives in which the cooperative has membership.
(c) Powers and duties of the commissioner.

(1) The commissioner shall administer and enforce  the  provisions  of
  this  act, and shall have and may exercise any or all the administrative
  powers conferred upon the head of a department. In order  to  effectuate
  the  declared  policy of this act the commissioner may, after due notice
  and hearing, make and issue a dairy promotion order, or orders.
(2)  Such order or orders shall be issued and amended or terminated in
  accordance with the following procedures:
(a) Before any such order may become effective it must be approved  by
  fifty-one  per  centum of the producers of milk voting in the referendum
  for the area to be regulated by such order. Such  referendum  shall  not
  constitute  valid  approval  unless  fifty-one  per  centum  of all milk
  producers for the area to be regulated vote in the referendum. Producers
  may  vote  by  individual  ballot  or  through  their  cooperatives   in
  accordance with the following procedures:
(i)  Cooperatives  may  submit written approval of such order within a
  period of one hundred twenty days after the commissioner has announced a
  referendum on a proposed order, for such producers who  are  listed  and
  certified  to the commissioner as members of such cooperative, provided,
  however, that any cooperative before submitting  such  written  approval
  shall give at least sixty days prior written notice to each producer who
  is  its  member,  of  the  intention  of the cooperative to approve such
  proposed order, and further provide that if such  cooperative  does  not
  intend  to  approve  such proposed order, it shall likewise give written
  notice to each such producer who is its member, of its intention not  to
  approve of such proposed order.
(ii) Any producer may obtain a ballot from the commissioner so that he
  may register his own approval or disapproval of the proposed order.
(iii)  A  producer who is a member of a cooperative which has notified
  him of its intent to approve or not to approve of a proposed order,  and
  who  obtains  a  ballot  and  with such ballot expresses his approval or
  disapproval of the proposed order, shall notify the commissioner  as  to
  the  name  of  the  cooperative  of  which  he  is  a  member,  and  the
  commissioner shall remove such producer's name from the  list  certified
  by such cooperative.
(iv) In order to insure that all milk producers are informed regarding
  a  proposed order, the commissioner shall notify all milk producers that
  an order is being considered and that each  producer  may  register  his
  approval or disapproval with the commissioner either directly or through
  his cooperative.
(v)  The  commissioner  may appoint a referendum advisory committee to
  assist and advise him in the conduct of the referendum.  Such  committee
  shall  review  referendum  procedures and the tabulation of results, and
  shall advise the commissioner of its findings. The  final  certification
  of  the  referendum  results  shall  be  made  by  the commissioner. The
  committee shall consist of not less than three  members,  none  of  whom
  shall  be  persons  directly affected by the promotion order being voted
  upon. Two members shall be representatives of general farm organizations
  which are not directly affected by  the  order  being  voted  upon.  The
  members  of  the  committee  shall  not  receive  a  salary but shall be
  entitled to actual and reasonable expenses incurred in  the  performance
  of their duties.
(b)  The  commissioner may, and upon written petition of not less than
  ten per centum of the producers in the area, either  as  individuals  or
  through  cooperative  representation,  shall, call a hearing to amend or
  terminate such order, and any such amendment  or  termination  shall  be
  effective only upon approval of fifty-one per centum of the producers of
  milk  for  the  area  regulated  participating  in  a referendum vote as
  provided pursuant to paragraph two of subdivision (c) of this section.

(3) The commissioner shall  administer  and  enforce  any  such  dairy
  promotion order while it is in effect, for the purpose of:
(a)  Encouraging  the  consumption  of  milk  and  dairy  products  by
  acquainting consumers and others with  the  advantages  and  economy  of
  using more of such products,
(b)  Protecting  the  health  and  welfare of consumers by assuring an
  adequate supply of milk and dairy products,
(c) Providing for  research  programs  designed  to  develop  new  and
  improved dairy products,
(d) Providing for research programs designed to acquaint consumers and
  the  public  generally  with  the  effects  of the use of milk and dairy
  products on the health of such consumers,
(e) Carrying out, in other ways, the declared  policy  and  intent  of
  this act.
(d) Provisions of dairy promotion orders. Any dairy promotion order or
  orders may contain, among others, any or all of the following:
(1)  Provision for levying an assessment against all producers subject
  to the regulation for the purpose of carrying out the provisions of such
  order and to pay the cost of administering and enforcing such order.  In
  order  to collect any such assessments, provision shall be made for each
  milk dealer who receives milk from producers to  deduct  the  amount  of
  assessment  from  moneys  otherwise  due  to  producers  for the milk so
  delivered. The rate of such assessment shall not exceed two per cent per
  hundredweight of the gross value of the producers milk, and there may be
  credited against any  such  assessment  the  amounts  per  hundredweight
  otherwise  paid  by  any  producer  covered  by  the  order by voluntary
  contribution or otherwise pursuant to any other federal  or  state  milk
  market  order for any similar research promotion or advertising program.
  Notwithstanding the provisions of paragraph two of  subdivision  (c)  of
  this  section,  the  commissioner, upon written petition of no less than
  twenty-five per cent of producers in the area, either as individuals  or
  through  cooperative  representation,  may  call  a hearing for the sole
  purpose of establishing a new  rate  of  assessment  hereunder  and  may
  submit  a proposed change in the rate of assessment to the producers for
  acceptance or rejection  without  otherwise  affecting  the  order.  The
  producers  in  the  area  may  vote  on  the  proposed  rate  either  as
  individuals or through cooperative representation.  Notwithstanding  the
  foregoing   provisions  of  this  paragraph  and  of  paragraph  two  of
  subdivision (c)  of  this  section,  or  the  provisions  of  any  order
  promulgated  pursuant  to  this section, the rate of assessment, for any
  period during which  a  dairy  products  promotion  and  research  order
  established  pursuant to the federal dairy and tobacco adjustment act of
  1983 is in effect, shall not be less than an amount equal to the maximum
  credit which producers participating  in  this  state's  dairy  products
  promotion  or  nutrition  education  programs  may  receive  pursuant to
  subdivision (g) of Sec. 113 of said federal act.
(2) Provision for payments to organizations engaged  in  campaigns  by
  advertisements or otherwise, including participation in similar regional
  or  national  plans or campaigns to promote the increased consumption of
  milk and dairy  products,  to  acquaint  the  public  with  the  dietary
  advantages  of  milk  and  dairy  products and with the economy of their
  inclusion in the diet and to  command,  for  milk  and  dairy  products,
  consumer attention consistent with their importance and value.
(3) Provision for payments to institutions or organizations engaged in
  research leading to the development of new or improved dairy products or
  research  with  respect  to  the value of milk and dairy products in the
  human diet.

(4) Provision for requiring records to be kept and reports to be filed
  by milk dealers with respect to milk received from  producers  and  with
  respect to assessments on the milk of such producers.
(5) Provision for the auditing of the records of such milk dealers for
  the purpose of verifying payment of producer assessments.
(6) Provision for an advisory board as hereinafter indicated.
(7)  Such  other  provisions  as  may  be  necessary to effectuate the
  declared policies of the act.
(e) Matters to be considered. In carrying out the provisions  of  this
  act  and  particularly  in  determining whether or not a dairy promotion
  order shall be issued, the commissioner shall take  into  consideration,
  among others, facts available to him with respect to the following:
(1)  The  total  production  of milk in the area and the proportion of
  such milk being utilized in fluid form and in other products,
(2) The prices being received for milk by producers in the area,
(3) The level of consumption per capita for fluid milk  and  of  other
  dairy products,
(4) The purchasing power of consumers,
(5)  Other  products  which  compete  with milk and dairy products and
  prices of such products.
(f) Interstate orders for compacts. The commissioner is authorized  to
  confer  and  cooperate with the legally constituted authorities of other
  states and of the  United  States  with  respect  to  the  issuance  and
  operation  of  joint  and  concurrent  dairy  promotion  orders or other
  activities tending to carry out the declared intent of the act.  He  may
  join  with  such  other  authorities in conducting joint investigations,
  holding joint hearings and issuing joint or concurrent order  or  orders
  complementary  to  those  of  the  federal government and shall have the
  authority to employ or designate a joint  agent  or  joint  agencies  to
  carry out and enforce such joint, concurrent or supplementary orders.
(g)  Prior  assessments.  Prior  to  the  effective  date of any dairy
  promotion order as provided in this act, the  commissioner  may  require
  that  cooperative  associations  which have petitioned for such an order
  and who have approved of the issuance of such an order, to deposit  with
  the  commissioner  such  amounts  as he may deem necessary to defray the
  expense of administering and enforcing such order until such time as the
  assessments as herein before provided are  adequate  for  that  purpose.
  Such   funds   shall   be  received,  deposited  and  disbursed  by  the
  commissioner in the same manner as other funds received by him  pursuant
  to  this  article  and  the  commissioner shall reimburse those who paid
  these prior assessments from other funds received  by  him  pursuant  to
  this article.
(h)  Status  of  funds.  Any  moneys  collected under any market order
  issued pursuant to this article shall not be deemed to  be  state  funds
  and  shall  be  deposited  in  a bank or other depository in this state,
  approved by the commissioner and the  state  comptroller,  allocated  to
  each dairy promotion order under which they were collected, and shall be
  disbursed  by  the commissioner only for the necessary expenses incurred
  by the  commissioner  with  respect  to  each  separate  order,  all  in
  accordance  with the rules and regulations of the commissioner. All such
  expenses shall be audited by the state comptroller at least annually and
  within thirty days after the completion thereof  the  state  comptroller
  shall  give  a copy thereof to the commissioner. Any moneys remaining in
  such fund allocable to a particular order, after the termination of such
  order and not required by the commissioner to  defray  the  expenses  of
  operating  such  order,  may  in  the  discretion of the commissioner be
  refunded on a pro-rata  basis  to  all  persons  from  whom  assessments
  therefor  were  collected;  provided,  however, that if the commissioner

  finds  that  the  amounts  so  refundable  are  so  small  as  to   make
  impracticable   the  computation  and  refunding  of  such  moneys,  the
  commissioner may use such moneys to defray the expenses incurred by  him
  in  the  promulgation,  issuance,  administration  or enforcement of any
  other similar dairy promotion order or in the absence of any other  such
  dairy  promotion  order,  the  commissioner  may  pay such moneys to any
  organization or institution as provided in  paragraphs  (2)  or  (3)  of
  subdivision (d) of this section.
(i)   Budget.   The  commissioner  shall  prepare  a  budget  for  the
  administration and operating costs and  expenses  including  advertising
  and  sales promotion when required in any dairy promotion order executed
  hereunder and to provide for the collection of such  necessary  fees  or
  assessments  to  defray costs and expenses, in no case to exceed two per
  cent per hundredweight of the gross value of milk marketed by  producers
  in the area covered by the order.
(j) Advisory board.
(1)  Any  dairy  promotion order issued pursuant to this article shall
  provide for the establishment of an advisory board to advise and  assist
  the  commissioner  in the administration of such order. This board shall
  consist of not less than five members and  shall  be  appointed  by  the
  commissioner  from  nominations submitted by producers marketing milk in
  the  area  to   which   the   order   applies.   Nominating   procedure,
  qualification,  representation,  and size of the advisory board shall be
  prescribed in the order for which such board was appointed.
(2) No member of an advisory board shall receive a salary but shall be
  entitled to his actual and reasonable expenses incurred while performing
  his duties as authorized herein.
(3) The duties and responsibilities of the  advisory  board  shall  be
  prescribed  by  the commissioner and he may specifically delegate to the
  advisory board, by inclusion in the dairy promotion order, all or any of
  the following duties and responsibilities:
(a) The recommendation to the commissioner of administrative rules and
  regulations relating to the order.
(b) Recommending to the commissioner such amendments to the  order  as
  seem advisible.
(c) The preparation and submission to the commissioner of an estimated
  budget required for the proper operation of the order.
(d)  Recommending  to the commissioner methods for assessing producers
  and methods for collecting the necessary funds.
(e) Assisting the commissioner  in  the  collection  and  assembly  of
  information  and  data  necessary  for  the proper administration of the
  order.
(f) The performance of such other duties in connection with the  order
  as the commissioner shall designate.
(k) Rules and regulations enforcement.
(1)  Rules  and regulations. The commissioner may, with the advice and
  assistance of  the  advisory  board,  make  and  issue  such  rules  and
  regulations  as may be necessary to effectuate the provisions and intent
  of this article and to enforce the provisions  of  any  dairy  promotion
  order, all of which shall have the force and effect of law.
(2)  Enforcement. The commissioner may institute such action at law or
  in equity as  may  appear  necessary  to  enforce  compliance  with  any
  provision of this article, or any rule or regulation, or dairy promotion
  order  committed  to  his  administration,  and in addition to any other
  remedy under article three of this chapter or otherwise, may  apply  for
  relief by injunction if necessary to protect the public interest without
  being  compelled  to allege or prove that an adequate remedy at law does
  not exist. Such application shall be made to the supreme  court  in  any

  district  or  county  provided in the civil practice law or rules, or to
  the supreme court in the third judicial district.