Chap. 285.—An ACT to provide for the regulation and control of the manufacture,
sale, advertising of and traffic in certain foods; to define adulterated or mis-
branded food, and to prohibit the manufacture and sale cf and traffic in such
food; to confer upon the Commissioner of Agriculture and [mmigration and the
Board of Agriculture and Immigration certain powers and cluties with respect to
certain foods, and to authorize certain injunctive relief to restrain, and to pro-
vide penalties for, violations of certain provisions of this act. [S B 310]

Approved March 27, 1940

1. Beit enacted by the General Assembly of Virginia, as follows:
Section 1. This act may be known, designated and cited as the
Virginia Food Act. :
Section 2. For the purpose of this act—

(a) The term ‘“‘commissioner’’ means the Commissioner of Agri-
culture and Immigration. The term “board’’ means the Board of
Agriculture and Immigration.

(b) The term “person” includes an individual, partnership,
corporation, and association.

(c) The term ‘‘food’’ means (1) articles used for food or drink
for man or other animals, (2) chewing gum, and (3) articles used for
components of any such article.

(d) The term ‘label’? means a display of written, printed or
graphic matter upon the immediate container of any article; and a
requirement made by or under authority of this act that any word,
statement, or other information appear on the label shall not be con-
sidered to be complied with unless such word, statement, or other
information also appears on the outside container or wrapper, if any
there be, of the retail package of such article, or is easily legible
through the outside container or wrapper.

(e) The term “immediate container’ does not include package
liners.

(f) The term “labeling’’ means all labels and other written,
printed, or graphic matter (1) upon an article or any of its containers
or wrappers, or (2) accompanying such article.

(zg) If an article is alleged to be misbranded because the labeling
is misleading, or if an advertisement is alleged to be false because it
is misleading, then in determining whether the labeling or advertise-
ment is misleading, there shall be taken into account (among other
things) not only representations made or suggested by statement,
word design, device, sound, or in any combination thereof, but also
the extent to which the labeling or advertisement fails to reveal facts
material in the light of such representations or material with respect
to consequences which may result from the use of the article to which
the labeling or advertisement relates under the conditions of use pre-
scribed in the labeling or advertisement thereof or under such condi-
tions of use as are customary or usual.

(h) The term ‘advertisement’? means all representations dis-
seminated in any manner or by any means, other than by labeling,
for the purpose of inducing, or which are likely to induce, directly or
indirectly, the purchase of food.

(i) The term “contaminated with filth” applies 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.

(j) The provisions of this act regarding the selling of food shall
be considered to include the manufacture, production, processing,
packing, exposure, offer, possession, and holding of any such article
for sale; and the sale of any such article; and the supplying of any
such articles in the conduct of any food establishment.

(k) The term “Federal Act’? means the Federal Food, Drug and
Cosmetic Act (Title 21 U. S. C. 301 et seq.; 52 Stat. 1040 et seq.)

(1) For the purposes of this act, “‘butter’’ shall be understood to
mean the food product generally known as “‘butter,’’ which is made
exclusively from milk or cream, or both, with or without common
salt, and with or without coloring matter, and containing not less
than eighty per centum by weight of milk fat, all tolerances having
been allowed for.

Section 3. The following acts and the causing th:reof within the
State of Virginia are hereby prohibited:

(a) The manufacture, sale, or delivery, holding or offering for
sale of any food that is adulterated or misbranded.

(b) The adulteration or misbranding of any food.

(c) The receipt in commerce of any food that 13 adulterated or
misbranded, and the delivery or proffered delivery tl.ereof for pay or
otherwise.

(d) The dissemination of any false advertisement.

(e) The refusal to permit entry or inspection, or to permit the
taking of a sample, as authorized by section fourteen.

(f) The giving of a guaranty or undertaking concerning a food,
which guaranty or undertaking is false, except by a ferson who relied
on a guaranty or undertaking to the same effect signed by, and con-
taining the name and address of the person residing, or having a place
of business, or an agent or representative on whom process may be
served, in the State of Virginia, from or through whom he received
the food in good faith. , *

(g) The alteration, mutilation, destruction, obiiteration, or re-
moval of the whole or any part of the labeling of, or the doing of any
other act with respect to a food, if such act is done ‘while such article
is held for sale and results in such article being misbranded.

(h) Forging, counterfeiting, simulating, or falsely representing, or
without proper authority using any mark, stamp, tzg, label, or other
identification device authorized or required by regulations promulgated
under the provisions of this act. |

Section 4. In addition to the remedies hereinafter provided the
commissioner is hereby authorized to apply to any court of record
having general chancery jurisdiction in this State for, and such court
shall have jurisdiction upon hearing and for cause shown, to grant a
temporary or permanent injunction restraining any person from
violating any provision of section three; irrespective of whether or
not there exists an adequate remedy at law; but whenever it appears
to the satisfaction of the court in the case of a newspaper, magazine,
periodical, or other publication, published. at regular intervals, (1)
that restraining the dissemination of a false advertisement in any
particular issue of such publication would delay the delivery of such
issue after the regular time therefor, and (2) that stch delay would be
due to the method by which the manufacture and distribution of such
publication is customarily conducted by the publisher in accordance
with sound business practice, and not to any methoc. or device adopted
for the evasion of this section or to prevent or delay the issuance of
an injunction or restraining order with respect to such false advertise-
ment or any other advertisement, the court shall exclude such issue
from the operation of the restraining order or injunction.

Section 5. (a) Any person who knowingly violates any of the
provisions of section three shall be guilty of a misdemeanor and shall
on conviction thereof be punished in the manner provided by law for
the punishment of misdemeanors.

(b) No person shall be subject to the penalties of subsection (a)
of this section, for having violated section three (a) or (c) if he es-
tablishes a guaranty or undertaking signed by, and containing the
name and address of, the person residing, or having a place of business,
or an agent or representative on whom process may be served, in the
State of Virginia, from or through whom he received in good faith
the article, to the effect that such article is not adulterated or mis-
branded within the meaning of this act, designating this act.

(c) No publisher, radio-broadcast licensee, or agency or medium
for the dissemination of an advertisement, except the manufacturer,
packer, distributor, or seller of the article to which a false advertise-
ment relates, shall be liable under this section by reason of the dis-
semination by him of such false advertisement, unless he has refused,
on the request of the commissioner to furnish the name and post
office address of the manufacturer, packer, distributor, seller or ad-
vertising agency, residing in the State of Virginia who caused him
to disseminate such advertisement.

Section 6. Whenever the commissioner acting through any of
his authorized agents shall find in any room, building, vehicle of
transportation or other structure, any meat, seafood, poultry, vege-
table, fruit or other perishable articles of food, which are unsound, or
contain any filthy, decomposed or putrid substance, or that may be
poisonous or deleterious to health or otherwise unsafe, the same being
hereby declared to be a nuisance, the commissioner acting through
any of his authorized agents, shall forthwith condemn or destroy the
same, or in any other manner render the same unsalable as human
food.

Section 7. It shall be the duty of each attorney for the Com-
monwealth, to whom the commissioner reports any violation of this
act, to cause appropriate proceedings to be instituted in the proper
courts without delay and to be prosecuted in the manner required
by law. Before any violation of this act is reported to any such
attorney for the institution of a criminal proceeding, the person
against whom such proceeding is contemplated shall be given appro-
priate notice and an opportunity to present his views before the
commissioner or his designated agent, either orally or in writing, in
person or by attorney, with regard to such contemplated proceeding.

Section 8. Nothing in this act shall be construed as requiring the
commissioner to report for the institution of proceedings under this
act, minor violations of this act, whenever he believes that the public
interest will be adequately served in the circumstances by a suitable
written notice or warning.

Section 9. Whenever in the judgment of the commissioner such
action will promote honesty and fair dealing in the interest of con-
sumers, the board shall promulgate regulations fixing and establishing
for any food or class of food a reasonable definition and standard of
identity, and/or reasonable standard of quality and/or fill of con-
tainer, and/or tolerances or limits of variability. Ia prescribing a
definition and standard of identity for any food or «lass of food in
which optional ingredients are permitted, the boarcl shall, for the
purpose of promoting honesty and fair dealing in the interest of
consumers, designate the optional ingredients which shall be named
on the label. The definitions and standards. so promulgated may
conform so far as practicable to the definitions and stendards promul-
gated by the Secretary of the United States Departmient of Agricul-
ture under authority conferred by section four huncred and one of
the Federal act.

Section 10. A Food Shall Be Deemed to Be Adulterated.—

(a) (1) If it bears or contains any poisonous or deleterious sub-
stance which may render it injurious to health; but .n case the sub-
stance is not an added substance such food shall nct be considered
adulterated under this clause if the quantity of such sibstance in such
food does not ordinarily render it injurious to health; or (2) if it bears
or contains any added poisonous or added deleterious substance
which is unsafe within the meaning of section twe ve; or (3) if it
consists in whole or in part of a diseased, contaminated, filthy, putrid
or decomposed substances, or if it is otherwise unfit for food; or (4) if
it has been produced, prepared, packed or held under insanitary con-
ditions whereby it may have become contaminate1 with filth, or
whereby it may have been rendered diseased, unwholesome or in-
jurious to health; or (5) if it is the product of a diseased animal or an
animal which has died otherwise than by slaughter, or that has been
fed upon the uncooked offal from a slaughterhouse; or (6) if its con-
tainer is composed, in whole or in part, of any poisoncus or deleterious
substance which may render the contents injurious tc health.

(b) (1) If any valuable constituent has been in whole or in part
omitted or abstracted therefrom; or (2) if any substance has been
substituted wholly or in part therefor; or (3) if damzge or inferiority
has been concealed in any manner; or (4) if any substance has been
added thereto or mixed or packed therewith so as to increase its bulk
or weight, or reduce its quality or strength or make it appear better
or of greater value than it is.

(c) If it is confectionery and it bears or contairs any alcohol or
non-nutritive article or substance except harmless coloring, harmless
flavoring, harmless resinous glaze not in excess of fcur-tenths of one
per centum, harmless natural gum, and pectin; provided, that this
paragraph shall not apply to any confectionery by reason of its con-
taining less than one-half of one per centum by volume of alcohol
derived solely from the use of flavoring extracts, or to any chewing
gum by reason of its containing harmless non-nutritive masticatory
substances.

(d) If it bears or contains a coal-tar-color other than one from a
batch which has been certified by the United States Department of
Agriculture.

Section 11. A Food Shall Be Deemed to Be Misbranded.—

(a) If its labeling is false or misleading in any particular.

(b) If it is offered for sale under the name of another food.
(c) If it is an imitation of another food, unless its label bears, in
type of uniform size and prominence, the word, imitation, and im-
mediately thereafter, the name of the food imitated.

(d) If its container is so made, formed, or filled as to be mis-
leading.

(e) If in package form, unless it bears a label containing (1) the
name and place of business of the manufacturer, packer, or distri-
butor; (2) the name of the article; (3) an accurate statement of the
quantity of the contents in terms of weight, measure, or numerical
count; Provided, that under clause (3) of this paragraph reasonable
variations shall be permitted, and exemptions as to small packages
shall be established, by regulations prescribed by the board.

(f) If any word, statement, or other information required by or
under authority of this act to appear on the label or labeling is not
prominently placed thereon with such conspicuousness (as compared
with other words, statements, designs, or devices, in the labeling) and
in such terms as to render it likely to be read and understood by the
ordinary individual under customary conditions of purchase and use.

(g) If it purports to be or is represented as a food for which a
definition and standard of identity has been prescribed by regulations
as provided by section nine, unless (1) it conforms to such definition
and standard, and (2) its label bears the name of the food specified in
the definition and standard, and, in so far as may be required by such
regulations, the common names of optional ingredients (other than
spices, flavoring, and coloring) present in such food.

(h) Ifit purports to be or is represented as—

(1) A food for which a standard of quality has been prescribed
by regulations as provided by section nine and its quality falls
below such standard unless its label bears, in such manner and
form as regulations specify, a statement that it falls below such
standards; or

(2) A food for which a standard or standards of fill of con-
tainer have been prescribed by regulations as provided by section
nine, and it falls below the standard of fill of container applicable
thereto, unless its label bears, in such manner and form as such
regulations specify, a statement that it falls below such standard.

(i) If it is not subject to the provisions of paragraph (g) of this
section, unless its label bears (1) the common or usual name of the
food, if any there be, and (2) in case it is fabricated from two or more
ingredients, the common or usual name of each ingredient; except
that spices, flavorings, and colorings, other than those sold as such,
may be designated as spices, flavorings, and colorings, without naming
each; provided, that to the extent that the commissioner believes that
compliance with the requirements of clause (two) of this paragraph
is impractical or results in deception or unfair competition, exemp-
tions shall be established by the said commissioner; provided further
that the requirements of clause (2) of this paragraph shall not apply
to any carbonated beverages, ingredients of which have been fully
and correctly disclosed to the extent prescribed by said clause (2) to
the commissioner in an affidavit.

(j) If it purports to be or is represented for specizl dietary uses,
unless its label bears such information concerning its vilamin, mineral,
and other dietary properties as the board determines to be, and by
regulations prescribes, as, necessary in order fully to inform purchasers
as to its value for such uses.

(k) If it bears or contains any artificial flavoring, artificial color-
ing, or chemical preservative, unless it bears labelirg stating that
fact; provided that to the extent that the commissioner believes that
compliance with the requirements of this paragraph is impracticable,
exemptions shall be established by the commissioner; provided, that
the provisions of this paragraph and of paragraph (s:) and (i) with
respect to artificial colorings shall not apply in the case of butter,
cheese or ice cream.

Section 12. Any poisonous or deleterious substance added to any
food except where such substance is required in the prcduction thereof
or cannot be avoided by good manufacturing practice, shall be deemed
to be unsafe for purposes of the application of claus: (2) of section
ten (a); but when such substance is so required or cannct be so avoided,
the board shall promulgate regulations limiting the quantity therein
or thereon to such extent as it finds necessary for the protection of
public health, and any quantity exceeding the limits so fixed shall
also be deemed to be unsafe for purposes of the application of clause
(2) of section ten (a). While such a regulation is in effect limiting
the quantity of any such substance in the case of any food, such food
shall not, by reason of bearing or containing any added amount of
such substance, be considered to be adulterated witlin the meaning
of clause (1) section ten (a) if such added amount is not in excess of
the limits fixed by the board as hereinabove provided. In determining
the quantity of such added substance to be tolerated in or on different
articles of food, the board shall take into account the extent to which
the use of such substance is required or cannot be avoided in the
production of each such article, and the other ways in which the con-
sumer may be affected by the same or other poisono is or deleterious
substances.

Section 13. (a) The authority to promulgate rezulations for the
efficient enforcement of this act is hereby vested in the board, unless
specially conferred on the commissioner. The board is hereby au-
thorized to make the regulations promulgated under ‘:his act conform,
in so far as practicable with those promulgated under the Federal Act.

(b) Hearings authorized or required by this act shall be conducted
by the commissioner or such officer, agent, or employee as he may
designate for the purpose.

Section 14. The commissioner, acting through his duly authorized
agents, shall have free access at all reasonable hours to any factory,
warehouse, or establishment in which foods are mznufactured, pro-
cessed, packed, or held for introduction into commerce, or to enter
any vehicle being used to transport or hold such foods in commerce,
or any store, restaurant or other place in which food 1s being olered
for sale, for the purpose:

(1) of inspecting such factory, warehouse, establishment, or
vehicle to determine if any of the provisions of this act are being
violated; and

(2) of securing samples or specimens of any food after paying or
offering to pay for such sample. It shall be the duty of the commis-
sioner to make or cause to be made examinations of samples secured
under the provisions of this section to determine whether or not any
provision of this act is being violated.

Section 15. The commissioner shall cause to be published from
time to time reports summarizing all judgments, decrees, and court
orders which have been rendered under this act, including the nature
of the charge and the disposition thereof, and shall also publish results
of analyses of samples of foods, with the names of the manufacturers
or sponsors, and also of the persons from whom the samples were
obtained.

Section 16. If any provision of this act is declared unconstitu-
tional or the applicability thereof to any person or circumstances is
held invalid, the constitutionality of the remainder of the act and
applicability thereof to other persons and circumstances shall not be
affected thereby.