ASSEMBLY, No. 2179
STATE OF NEW JERSEY
INTRODUCED JANUARY 29, 2018
Assemblyman GARY S. SCHAER
District 36 (Bergen and Passaic)
Assemblyman ERIC HOUGHTALING
District 11 (Monmouth)
Prohibits the sale of adulterated candy in New Jersey.
CURRENT VERSION OF TEXT
As reported by the Assembly Consumer Affairs Committee on June 11, 2018, with amendments.
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.
(1) any entity that manufactures or otherwise produces candy or causes candy to be manufactured or produced anywhere that 1[such] the1 manufacturer intends to be sold in this State, including candy intended to be sold in the United States through an importer; 1[or]1
(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. 1[No] A1 person shall 1not1 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 1in the State1 the candy identified in the certification of compliance 1[in the State]1, 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. 1Any 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.1 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.
1f. 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.1
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 1[State] Department of the1 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 1next1 following 1the date of1 enactment, except that the Commissioner 1of Health1 may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act.