W. Va. Code R. § 61-4C-12

Current through Register Vol. XLII, No. 1, January 3, 2025

Section 61-4C-12 - Enforcement Policy

12.1. The commissioner may assess a violation of W. Va. Code, §§ 9-11A-1 et seq. or of this rule against the manufacturer, distributor and/or retailer of a dairy product or an imitation dairy product. Violations may be assessed cumulatively by standard of identity, standard of identity and container size, sampling location or by distributor depending upon the sampling scenario.

12.2. Whenever one of the last five consecutive official product samples taken on separate days within a one-year period are found to be adulterated or misbranded, the commissioner shall send a written "First Notice" to the manufacturer, distributor or retailer, whichever is appropriate. This notice shall notify the manufacturer, distributor or retailer of the violation of W. Va. Code, §§ 19-11A-1 et seq. or of this rule and the enforcement policy established by this section of the rule.

12.2.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of a First Notice to the manufacturer, distributor or retailer, but shall not collect product samples before the lapse of 7 days from the sending of a First Notice.

12.3. Whenever two of the last five (5) consecutive official product samples taken on separate days within a one-year period are found to be adulterated or misbranded, the commissioner shall send a written "Second Notice" to the manufacturer, distributor or retailer, whichever is appropriate.

12.3.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of a Second Notice to the manufacturer, distributor or retailer, but shall not collect product samples before the lapse of seven (7) days from the sending of a Second Notice.

12.4. Whenever three of the last five (5) consecutive official product samples taken on separate days within a one-year period are found to be adulterated or misbranded the commissioner shall send a written "Third Notice" to the manufacturer, distributor or retailer, whichever is appropriate.

12.4.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of the Third Notice to the manufacturer, distributor or retailer, but shall not collect additional product samples before the lapse of seven (7) days from the date of sending of the Third Notice.

12.5. Whenever an antibiotic or pesticide residue test is found to be above tolerance, the commissioner shall notify the manufacturer and/or distributor immediately of this fact and shall begin an investigation to determine the cause of the residue. The commissioner shall require that any person found to be responsible for the residue shall correct the cause of the residue prior to the resumption of the manufacturing or distribution of the product.

12.6. A person who performs a recall by voluntarily removing product from sale and distribution in an effective manner so as to limit the potential harm to the health and well-being of the public may be eligible for exemptions from the normal enforcement policy. The commissioner shall consider the facts of each case when making a decision on an exemption.

12.7. The commissioner may apply the enforcement policy in a liberal manner in cases where all official product sample results that involve a product in the form actually sold to the public have been found to be in conformance with W. Va. Code, §§ 19-11A-1 et seq. or this rule.

12.8. The commissioner may suspend the standard enforcement policy in cases where such action is necessary to protect the public's health, safety or welfare.

12.9. The commissioner may consider resamples necessary to determine that the non-violative status is being maintained.

12.10. The commissioner may take other action as considered necessary in order to carry out the provisions of W. Va. Code §§ 19-11A-1 et seq. and these rules.

W. Va. Code R. § 61-4C-12