A1236

An Act concerning the sale of adulterated candy and supplementing Title 24 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

“Adulterated candy” means any candy, either with or without a wrapper, which contains, is composed of, or is made with lead, mercury, or cadmium which has been intentionally introduced as a chemical element during manufacturing or distribution, as opposed to naturally occurring levels of any of those elements. “Adulterated candy” also means any candy with a wrapper that contains, is composed of, or is made with, lead, mercury, or cadmium.

“Candy” means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings, either with or without a wrapper, in the form of bars, drops, or pieces, and includes the wrapper used to hold or cover the bars, drops, or pieces. “Candy” does not include any preparation containing flour or requiring refrigeration.

“Commissioner” means the Commissioner of Health.

“Department” means the Department of Health.

“Manufacturer" means:

(1) any entity that manufactures or otherwise produces candy or causes candy to be manufactured or produced anywhere that the manufacturer intends to be sold in this State, including candy intended to be sold in the United States through an importer;

(2) the first purchaser anywhere that intends to resell in the United States candy manufactured anywhere that the original manufacturer or maker does not intend to be sold in the United States; or

(3) any entity that becomes a successor of an entity described in paragraph (1) or (2).

“Wrapper” means a container, packaging material, or packaging component that comes in contact with candy and is specifically manufactured for the purposes of marketing, protecting, or handling candy, including, but not limited to, paper cellophane, plastic container, stick handle, spoon, small pot, squeeze tube, or similar device, or any interior or exterior ink, label, dye, or pigment. “Wrapper” does not include any part of packaging materials from which lead, mercury, or cadmium will not leach.

2. a. A person shall not sell or offer to sell adulterated candy in the State.

b. The sum of the concentration levels of lead, mercury, or cadmium naturally occurring in any candy that is allowed to be sold or offered for sale in this State shall not exceed 100 parts per million by weight (0.01%). Any candy that is composed of, or is made with lead, mercury, or cadmium that is naturally occurring and exceeds 100 parts per million by weight (0.01%) shall be considered adulterated candy as defined in this act.

3. a. Every manufacturer shall submit to the department a written certification attesting that a candy listed in the certification is not adulterated and is in compliance with the requirements of subsection b. of section 2 of this act.

b. If the manufacturer reformulates or creates a new candy, the manufacturer shall submit to the department a new or amended certification of compliance attesting that the new or reformulated candy is not adulterated and is in compliance with the provisions of this act.

c. Copies of a certification of compliance or a new or amended certification of compliance shall be kept on file by the manufacturer and shall be provided to every distributor and retailer who sells or offers to sell in the State the candy identified in the certification of compliance, and to members of the public, upon request.

4. a. The department shall have the right to enter the premises of a manufacturer, distributor, or retailer at which candy is manufactured, stored, sold, or offered for sale in the State in order to determine compliance with the provisions of this act, or any rule or regulation adopted pursuant thereto. The department may, at any time during normal business hours and upon presentation of appropriate credentials, conduct inspections, including the taking of samples of candy for the purpose of testing the candy. The department may be required to purchase any candy for which a sample is sought at a retail establishment, if requested to do so by the retailer.

b. Whenever the commissioner finds that adulterated candy is being stored, sold, or offered for sale on the premises in violation of the provisions of this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an order requiring the distributor or retailer, as the department deems appropriate, to remove or arrange for the removal of the adulterated candy from the premises and to make it unavailable for purchase, and directing that the distributor or retailer return the entire inventory of adulterated candy to the manufacturer from which it was obtained, at the cost of the manufacturer.

c. All samples of candy taken from the premises of a manufacturer, distributor, or retailer for the purpose of testing pursuant to subsection a. of this section shall constitute a single violation pursuant to section 5 of this act.

5. a. A manufacturer who knowingly sells or offers to sell adulterated candy in violation of section 2 of this act shall be liable to a civil penalty not to exceed $10,000 for a first offense, and to a civil penalty not to exceed $25,000 for each subsequent offense, provided that in no case shall the penalty against the manufacturer exceed $100,000 during a 30-day period.

b. A distributor or retailer who knowingly sells or offers to sell adulterated candy in violation of section 2 of this act shall be liable to a civil penalty not to exceed $1,000 for a first offense, and to a civil penalty not to exceed $5,000 for each subsequent offense, provided that in no case shall the penalty against the distributor or retailer exceed $25,000 during a 30-day period.

c. In addition to any penalty prescribed by law, any manufacturer who knowingly submits a false certification or a false new or amended certification of compliance in violation of section 3 of this act shall be liable to a civil penalty not to exceed $75,000 for a first offense, and to a civil penalty not to exceed $250,000 for each subsequent offense.

d. Any civil penalty imposed pursuant to subsections a. through c. of this section shall be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction of proceedings for the enforcement of the penalty provided by this section.

e. In addition to any other remedy provided by law, the commissioner or Attorney General may file an action in Superior Court for a violation of this act, including petitioning for injunctive relief or to recover any costs or damages suffered by the State because of a violation of this act, including enforcement costs relating to the specific violation and attorney’s fees. Each violation of this act or any rule or regulation adopted pursuant thereto constitutes a separate civil violation for which the commissioner may obtain relief.

f. Nothing in this act shall be construed to impose liability on news media that accept or publish advertising that may otherwise be subject to the provisions of this act.

6. The department may, in accordance with a fee schedule adopted as a rule or regulation, establish and charge fees to defray the cost of compliance, monitoring, inspection, sampling, testing, and enforcement activities required by this act.

7. There is established in the Department of the Treasury, a separate, nonlapsing fund to be known as the “Reduction of Adulterated Candy Enforcement Fund.” The fund shall be the depository for all penalties received pursuant to section 5 of this act, and all fees collected pursuant to section 6 of this act, and any interest earned thereon. Unless otherwise specifically provided by law, monies in the fund shall be utilized exclusively by the department to administer and enforce the provisions of this act, or any rule or regulation adopted pursuant thereto.

8. The Commissioner of Health shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary for the implementation of this act.

9. This act shall take effect on the first day of the sixth month next following the date of enactment, except that the Commissioner of Health may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act.

STATEMENT

This bill prohibits selling or offering to sell adulterated candy in this State.

The bill defines “adulterated candy” to mean any candy, either with or without a wrapper, containing, composed of, or made with lead, mercury, or cadmium intentionally introduced as a chemical element during manufacturing or distribution, as opposed to naturally occurring levels of any of those elements, and any candy with a wrapper that contains, is composed of, or is made with, lead, mercury, or cadmium. “Candy” is defined to mean a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings, in the form of bars, drops, or pieces, and includes the wrapper used to hold or cover the bars, drops, or pieces. Preparations containing flour or requiring refrigeration would not be considered candy under the bill.

Candy composed of, or made with, lead, mercury, or cadmium that is naturally occurring and exceeds 100 parts per million by weight (0.01%) would be considered adulterated candy. The sum of the concentration levels of lead, mercury, or cadmium naturally occurring in any candy that is allowed to be sold or offered for sale in this State would not exceed 100 parts per million by weight (0.01%).

Under the provisions of the bill, a manufacturer would be required to: submit to the Department of Health (DOH) a written certification, or a new or amended certification if the manufacturer reformulates or creates a new candy, attesting that the candy listed in the certification is not adulterated and is in compliance with the requirements of the bill; and keep copies of certifications of compliance and new or amended certifications on file, and provide the copies to every distributor and retailer who sells or offers to sell candy in the State, and to members of the public, upon request.

The provisions of the bill give the DOH the right to enter the premises of a manufacturer, distributor, or retailer at which candy is manufactured, stored, sold, or offered for sale in order to determine compliance with the provisions of the bill. The DOH would be allowed to, at any time during normal business hours and upon presentation of appropriate credentials: conduct inspections, including taking samples of candy for testing purposes; and purchase any sample of candy at a retail establishment, if requested to do so by the retailer.

Whenever the Commissioner of Health finds that adulterated candy is being stored, sold, or offered for sale in violation of the provisions of the bill, the commissioner may issue an order requiring the distributor or retailer to: cause the adulterated candy to be removed from the premises and made unavailable for purchase; and return the entire inventory of adulterated candy to the manufacturer from which it was obtained, at the manufacturer’s expense.

All samples of candy taken for the purpose of testing to determine compliance would constitute a single violation of the provisions of the bill.

Under the bill’s provisions, a manufacturer who knowingly sells or offers to sell adulterated candy in violation of the bill would be liable to a civil penalty not to exceed $10,000 for a first offense, and a penalty not to exceed $25,000 for each subsequent offense. Penalties against a manufacturer could not exceed $100,000 during a 30-day period.

A distributor or retailer who knowingly sells or offers to sell adulterated candy in violation of the bill would be liable to a civil penalty not to exceed $1,000 for a first offense, and a penalty not to exceed $5,000 for each subsequent offense. Penalties against a distributor or retailer could not exceed $25,000 during a 30-day period.

A manufacturer who knowingly submits a false certification of compliance or a false new or amended certification of compliance would be liable to a civil penalty not to exceed $75,000 for a first offense, and a penalty not to exceed $250,000 for each subsequent offense.

Civil penalties imposed under the provisions of the bill are to be collected pursuant to the “Penalty Enforcement Law of 1999.”

The commissioner or Attorney General may file an action in Superior Court for a violation of the provisions of the bill, including petitioning for injunctive relief or to recover any costs or damages incurred by the State in connection with a civil violation. Each violation of the provisions of the bill will constitute a separate violation for which the commissioner may obtain relief.

The bill does not impose liability on news media that accept or publish advertising that may fall within the scope of the bill.

The bill also establishes a separate, nonlapsing fund known as the “Reduction of Adulterated Candy Enforcement Fund” in the Department of the Treasury. The fund would be the depository for all penalties received pursuant to the bill, and all fees collected by the DOH to defray the cost of compliance, monitoring, inspection, sampling, testing, and enforcement activities required under the bill. The monies in the fund, and any interest earned, would be used by the DOH to administer and enforce the provisions of the bill, unless otherwise specified by law.