SENATE BILL 5
55th legislature - STATE OF NEW MEXICO - first special session, 2021
INTRODUCED BY
Cliff R. Pirtle
AN ACT
RELATING TO AGRICULTURE; ENACTING THE FOOD ACCESSIBILITY ACT; EXEMPTING CERTAIN FOOD SALES FROM LICENSURE, REGULATION AND INSPECTION REQUIREMENTS; ALLOWING THE ACQUISITION OF MEAT PURSUANT TO OWNERSHIP OF AN ANIMAL SHARE; DIRECTING THE ESTABLISHMENT OF A STATE MEAT INSPECTION PROGRAM; EXEMPTING MEAT FROM THE GROSS RECEIPTS TAX AND GOVERNMENTAL GROSS RECEIPTS TAX; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 4 of this act may be cited as the "Food Accessibility Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Food Accessibility Act:
A. "animal share" means an ownership interest in an animal or herd of animals that entitles the owner of the animal share to receive a share of meat from the animal or herd;
B. "commercial food establishment" means a place or area of an establishment that is a wholesale or retail business where foods, drugs, devices, cosmetics or other goods are displayed for sale, manufactured, processed, packaged, held or stored, but does not mean a farmers market, a restaurant or a transaction directly between a producer and informed end consumer;
C. "farmers market" means a common facility or area where several vendors may gather on a regular, recurring basis to sell a variety of fresh fruits and vegetables, locally grown farm products and other items directly to consumers;
D. "home consumption" means food consumed within a private home;
E. "homemade food" or "homemade food product" means a food or drink that is prepared or processed by a producer in a private home kitchen that is not licensed, regulated or inspected;
F. "informed end consumer" means a person who is the last person to purchase the product, who does not resell the product and who has been informed that the product is not licensed, regulated or inspected;
G. "non-potentially hazardous food" means a food or beverage that, when stored under normal conditions without refrigeration, will not support the rapid and progressive growth of microorganisms that cause food infections or food intoxications, including pickled fruits and vegetables, spices, teas, dehydrated produce, nuts, seeds, honey, jams, jellies, preserves, fruit butters, candies, fruit empanadas, tortillas and baked goods;
H. "potentially hazardous food" means a food or beverage that requires time or temperature control for safety, including for limiting pathogenic microorganism growth or toxin formation, including foods requiring refrigeration, dairy products, quiches, pizzas, frozen doughs, meat and cooked vegetables and beans;
I. "process" means the operations a producer performs in the making or treatment of the producer's food or drink products;
J. "producer" means a person who grows, harvests, prepares or processes food or drink products on the person's owned or leased property, who does not produce more than two hundred fifty thousand individual food or drink products annually and whose gross revenue from the sale of the food or drink products does not exceed two hundred fifty thousand dollars ($250,000) annually; and
K. "transaction" means the exchange of buying and selling.
SECTION 3. [NEW MATERIAL] HOMEMADE FOOD PRODUCTS-- REQUIREMENTS FOR SALE.--
A. Except as provided in this section, homemade food products produced, sold and consumed in compliance with the Food Accessibility Act are exempt from state or local government licensure, permitting, inspection, packaging and labeling requirements.
B. Transactions pursuant to the Food Accessibility Act shall:
(1) be directly between a seller of a homemade food product and an informed end consumer. The seller of a homemade food product consisting of non-potentially hazardous food may be the producer of the product, the producer's agent or a third-party vendor, including a commercial food establishment. The seller of a homemade food product consisting of potentially hazardous food shall be the producer of the product or the producer's agent;
(2) be only for home consumption;
(3) occur only in New Mexico;
(4) not involve interstate commerce; and
(5) not involve the sale of meat or meat products, with the following exceptions:
(a) the sale of poultry and poultry products; provided that: 1) the producer slaughters not more than one thousand poultry of the producer's own raising during any one calendar year; 2) the producer does not engage in buying or selling poultry products other than those produced from poultry of the producer's own raising; and 3) the poultry product is not adulterated or misbranded as to be dangerous or fraudulent within the meaning of the New Mexico Food Act;
(b) the sale of portions of live animals before slaughter for future delivery to an informed end consumer; provided that the processing of the animals is done in a state or federally licensed processing facility;
(c) the sale of domestic rabbit meat;
(d) the sale of farm-raised fish; and
(e) the acquisition of meat pursuant to an animal share.
C. A seller of homemade food pursuant to the Food Accessibility Act shall inform the consumer that the homemade food has not been inspected and shall display a sign at the point of sale indicating that the homemade food was produced or processed in a private home kitchen that is not subject to licensure, regulation or inspection and that the food has not been inspected. The sign shall be at a minimum twenty inches by twenty inches in size.
D. For sales of non-potentially hazardous food at a commercial food establishment, the food shall be clearly and prominently labeled with the following: "This food was produced or processed in a private home kitchen that is not subject to state licensure, regulation or inspection and may contain allergens.". If a commercial food establishment where homemade food is sold offers for sale a food product that was inspected or produced in a licensed facility, the commercial food establishment shall comply with rules adopted by the department of environment that shall require:
(1) that homemade food not be displayed or offered for sale on the same shelf or display as food produced in a licensed facility;
(2) that the retail space for homemade foods be physically separated from other products with a separate door and separate cash register or point of sale;
(3) that each separate retail space include signs or other markings clearly indicating which spaces are offering inspected items for sale and which spaces are offering uninspected items for sale;
(4) separation of coolers, freezers and warehouse or other storage areas to prohibit the intermingling of inspected and uninspected products; and
(5) any other requirements specified by the department of environment to ensure that the sale of homemade food is made to an informed end consumer.
E. If a report of food-borne illness is made to the department of environment, the department may immediately suspend the sale of a homemade food without prior notice to the seller if the department determines, after inspection, that the homemade food or the conditions of the sale of the homemade food present a substantial danger of illness, serious physical harm or death to consumers. A suspension action taken by the department is effective when communicated to the homemade food seller or any employee or agent of the seller and shall continue in effect until the unsafe condition is abated by the seller.
SECTION 4. [NEW MATERIAL] ANIMAL SHARES.--
A. A person may acquire meat from a farmer or rancher pursuant to an animal share if:
(1) the meat is:
(a) received from the farm or ranch where an animal or herd subject to the animal share is located;
(b) received by or on behalf of the owner of an animal share; and
(c) obtained from the particular animal or herd subject to the animal share;
(2) the slaughter is conducted pursuant to all applicable laws and regulations;
(3) a prominent warning statement that the meat has not been inspected is delivered with the meat or is displayed on a label affixed to the meat packaging; and
(4) information describing the standards used by the farm or ranch with respect to herd health and the processing of meat from the herd is provided to the owner of the animal share by the farmer or rancher.
B. An animal share shall be created by a written contract between the owner of the animal share and a farmer or rancher and shall include a bill of sale for an ownership interest in the animal or herd that entitles the owner of the animal share to receive a share of meat from the animal or herd.
C. A person who acquires meat pursuant to this section shall not commercially sell or redistribute the meat.
D. A farmer or rancher shall not publish any statement that implies approval or endorsement by the New Mexico department of agriculture or the New Mexico livestock board of meat delivered pursuant to this section unless otherwise provided for in law or administrative rule.
SECTION 5. Section 7-9-18 NMSA 1978 (being Laws 1969, Chapter 144, Section 11, as amended) is amended to read:
"7-9-18. EXEMPTION--GROSS RECEIPTS TAX AND GOVERNMENTAL GROSS RECEIPTS TAX--AGRICULTURAL PRODUCTS.--
A. Exempted from the gross receipts tax and from the governmental gross receipts tax are the receipts from selling livestock and receipts of growers, producers, trappers or nonprofit marketing associations from selling livestock, live poultry, [unprocessed] agricultural products, hides or pelts. Persons engaged in the business of buying and selling wool or mohair or of buying and selling livestock or meat on their own account are producers for the purposes of this section.
B. Receipts from selling dairy products at retail are not exempted from the gross receipts tax.
C. As used in this section, "livestock" means all domestic or domesticated animals that are used or raised on a farm or ranch, including the carcasses thereof, and also includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae upon any land in New Mexico; provided that for the purposes of Chapter 77, Article 9 NMSA 1978, "animals" or "livestock" have the meaning defined in that article. "Animals" or "livestock" does not include canine or feline animals. For the purpose of the rules governing meat inspection, wild animals, poultry and birds used for human consumption shall also be included within the meaning of "animals" or "livestock"."
SECTION 6. Section 25-1-2 NMSA 1978 (being Laws 1977, Chapter 309, Section 2, as amended) is amended to read:
"25-1-2. DEFINITIONS.--As used in the Food Service Sanitation Act:
A. "agency" or "division" means the department of environment;
B. "board" means the environmental improvement board;
C. "employee" means any individual employed in a food service establishment who transports food or food containers, who handles food during storage, preparation or serving, who comes in contact with any utensils or who is employed in a room in which food is stored, prepared or served;
D. "food" means any solid or liquid substance intended for human consumption by eating or drinking;
E. "general public" includes beneficiaries of governmental feeding programs and private charitable feeding programs and residents and employees of institutions that provide meals to their residents and employees either with or without direct payment to the institution by the residents or employees;