§ 16-X — Dairy promotion act

* § 16-x. Dairy promotion act. 1. Declaration of policy. (a) It is\nhereby declared that the mission of the corporation is to promote a\nvigorous and growing state economy. In implementing this mission, the\ncorporation has undertaken a vigorous campaign to market the state's\nassets and, by carrying out the provisions of this section, would\nfurther this mission by promoting the state's dairy industry.\n (b) It is further declared that the continued existence of the state\ndairy industry, and the continued production of milk on the farms of\nthis state, is of vast economic importance to the state and to the\nhealth and welfare of the inhabitants thereof; that it is essential, in\norder to assure such continued production of milk and its handling and\ndistribution, that prices to producers be such as to return reasonable\ncosts of production, and at the same time to assure an adequate supply\nof milk and dairy products to consumers at reasonable prices; and to\nthese ends it is essential that consumers and others be adequately\ninformed as to the dietary needs and advantages of milk and dairy\nproducts and as to the economies resulting from the use of milk and\ndairy products, and to command for milk and dairy products, consumer\nattention and demand consistent with their importance and value. It is\nfurther declared that continued decline in the consumption of fluid milk\nand some other dairy products will jeopardize the production of adequate\nsupplies of milk and dairy products because of increasing surpluses\nnecessarily returning less to producers; and that continued adequate\nsupplies of milk and dairy products is a matter of vital concern as\naffecting the health and general welfare of the people of this state. It\nis therefore declared to be the legislative intent and policy of the\nstate:\n (i) To enable milk producers and others in the dairy industry, with\nthe aid of the state, to more effectively promote the consumption of\nmilk and dairy products,\n (ii) To provide methods and means for the development of new and\nimproved dairy products, and to promote their use, and\n (iii) To this end, to eliminate the possible impairment of the\npurchasing power of the milk producers of this state and to assure an\nadequate supply of milk for consumers at reasonable prices.\n 2. Definitions. As used in this section the following terms shall have\nthe following meanings:\n (a) "President" means the president of the corporation.\n (b) "Dairy products" means milk and products derived therefrom, and\nproducts of which milk or a portion thereof is a significant part.\n (c) "Producer" means any person in this state who is engaged in the\nproduction of milk or who causes milk to be produced for any market in\nthis or any other state.\n (d) "Advisory board" means the persons appointed by the commissioner\nfrom nominations from producers to assist the president in administering\na dairy promotion order.\n (e) "Milk dealer" means any person who purchases or handles or\nreceives or sells milk, including individuals, partnerships,\ncorporations, cooperative associations, and unincorporated cooperative\nassociations.\n (f) "Dairy promotion order" means an order issued by the president,\npursuant to the provisions of this section.\n (g) "Cooperative" means an association or federation or cooperative of\nmilk producers organized under the laws of New York state, or any other\nstate, having agreements with their producer members to market, bargain\nfor or sell the milk of such producers, and is actually performing one\nor more of these services in the marketing of the milk produced by their\nmembers, through the cooperative or through a federation of milk\ncooperatives in which the cooperative has membership.\n (h) "State" means the state of New York.\n (i) "Department" means the New York state department of agriculture\nand markets.\n (j) "Commissioner" means the commissioner of the New York state\ndepartment of agriculture and markets.\n 3. Powers and duties of the president. (a) The president shall\nadminister and enforce the provisions of this section. In order to\neffectuate the declared policy of this section the president, in\nconsultation with the commissioner and producers, may, after due notice\nand hearing, make and issue a dairy promotion order, or orders.\n (b) Such order or orders shall, in consultation with the commissioner\nand producers, be issued and amended or terminated in accordance with\nthe following procedures:\n (i) Before any such order may become effective it must be approved by\nfifty-one per centum of the producers of milk voting in the referendum\nfor the area to be regulated by such order. Such referendum shall not\nconstitute valid approval unless fifty-one per centum of all milk\nproducers for the area to be regulated vote in the referendum. Producers\nmay vote by individual ballot or through their cooperatives in\naccordance with the following procedures:\n (A) Cooperatives may submit written approval of such order within a\nperiod of one hundred twenty days after the president has announced a\nreferendum on a proposed order, for such producers who are listed and\ncertified to the president as members of such cooperative; provided,\nhowever, that any cooperative before submitting such written approval\nshall give at least sixty days prior written notice to each producer who\nis its member, of the intention of the cooperative to approve such\nproposed order, and further provide that if such cooperative does not\nintend to approve such proposed order, it shall likewise give written\nnotice to each such producer who is its member, of its intention not to\napprove of such proposed order.\n (B) Any producer may obtain a ballot from the president so that he or\nshe may register his or her own approval or disapproval of the proposed\norder.\n (C) A producer who is a member of a cooperative which has notified him\nor her of its intent to approve or not to approve of a proposed order,\nand who obtains a ballot and with such ballot expresses his or her\napproval or disapproval of the proposed order, shall notify the\npresident as to the name of the cooperative of which he or she is a\nmember, and the president shall remove such producer's name from the\nlist certified by such cooperative.\n (D) In order to ensure that all milk producers are informed regarding\na proposed order, the president shall notify all milk producers that an\norder is being considered and that each producer may register his or her\napproval or disapproval with the president either directly or through\nhis or her cooperative.\n (E) The president shall consult with the milk producers and establish\na referendum advisory committee to assist and advise him or her in the\nconduct of the referendum. Such committee shall review referendum\nprocedures and the tabulation of results, and shall advise the president\nof its findings. The final certification of the referendum results shall\nbe made by the president. The committee shall be selected by the\ncommissioner in consultation with the president, and shall consist of\nnot less than three members, none of whom shall be persons directly\naffected by the promotion order being voted upon. Two members shall be\nrepresentatives of general farm organizations which are not directly\naffected by the order being voted upon. The members of the committee\nshall not receive a salary but shall be entitled to actual and\nreasonable expenses incurred in the performance of their duties.\n (ii) The president, in consultation with the commissioner, may, and\nupon written petition of not less than ten per centum of the producers\nin the area, either as individuals or through cooperative\nrepresentation, shall, call a hearing to amend or terminate such order,\nand any such amendment or termination shall be effective only upon\napproval of fifty-one per centum of the producers of milk for the area\nregulated participating in a referendum vote as provided pursuant to\nthis paragraph.\n (c) The president, consulting with and seeking the advice and consent\nof the advisory board, shall administer and enforce any such dairy\npromotion order while it is in effect, for the purpose of:\n (i) Encouraging the consumption of milk and dairy products by\nacquainting consumers and others with the advantages and economy of\nusing more of such products,\n (ii) Protecting the health and welfare of consumers by assuring an\nadequate supply of milk and dairy products,\n (iii) Providing for research programs designed to develop new and\nimproved dairy products,\n (iv) Providing for research programs designed to acquaint consumers\nand the public generally with the effects of the use of milk and dairy\nproducts on the health of such consumers,\n (v) Carrying out, in other ways, the declared policy and intent of\nthis section.\n 4. Provisions of dairy promotion orders. Any dairy promotion order or\norders may contain, among others, any or all of the following:\n (a) Provision for levying an assessment against all producers subject\nto the regulation for the purpose of carrying out the provisions of such\norder and to pay the cost of administering and enforcing such order. In\norder to collect any such assessments, provision shall be made for each\nmilk dealer who receives milk from producers to deduct the amount of\nassessment from moneys otherwise due to producers for the milk so\ndelivered. The rate of such assessment shall not exceed two percent per\nhundredweight of the gross value of the producers' milk, and there may\nbe credited against any such assessment the amounts per hundredweight\notherwise paid by any producer covered by the order by voluntary\ncontribution or otherwise pursuant to any other federal or state milk\nmarket order for any similar research promotion or advertising program.\nNotwithstanding the provisions of paragraph (b) of subdivision three of\nthis section, the president, upon written petition of no less than\ntwenty-five percent of producers in the area, either as individuals or\nthrough cooperative representation, and in consultation with the\ncommissioner, may call a hearing for the sole purpose of establishing a\nnew rate of assessment hereunder and may submit a proposed change in the\nrate of assessment to the producers for acceptance or rejection without\notherwise affecting the order. The producers in the area may vote on the\nproposed rate either as individuals or through cooperative\nrepresentation. Notwithstanding the foregoing provisions of this\nparagraph and of paragraph (b) of subdivision three of this section, or\nthe provisions of any order promulgated pursuant to this section, the\nrate of assessment, for any period during which a dairy products\npromotion and research order established pursuant to the federal dairy\nand tobacco adjustment act of 1983 is in effect, shall not be less than\nan amount equal to the maximum credit which producers participating in\nthis state's dairy products promotion or nutrition education programs\nmay receive pursuant to subdivision (g) of Sec. 113 of said federal act.\n (b) Provision for payments to organizations engaged in campaigns by\nadvertisements or otherwise, including participation in similar regional\nor national plans or campaigns to promote the increased consumption of\nmilk and dairy products, to acquaint the public with the dietary\nadvantages of milk and dairy products and with the economy of their\ninclusion in the diet and to command, for milk and dairy products,\nconsumer attention consistent with their importance and value.\n (c) Provision for payments to institutions or organizations engaged in\nresearch leading to the development of new or improved dairy products or\nresearch with respect to the value of milk and dairy products in the\nhuman diet.\n (d) Provision for requiring records to be kept and reports to be filed\nby milk dealers with respect to milk received from producers and with\nrespect to assessments on the milk of such producers.\n (e) Provision for the auditing of the records of such milk dealers for\nthe purpose of verifying payment of producer assessments.\n (f) Provision for an advisory board pursuant to subdivision 10 of this\nsection.\n (g) Provision for the president to retain money collected under any\nmarketing order issued pursuant to this section, to defray the costs and\nexpenses in the administration thereof.\n (h) Such other provisions as may be necessary to effectuate the\ndeclared policies of this section.\n 5. Matters to be considered. In carrying out the provisions of this\nsection and particularly in determining whether or not a dairy promotion\norder shall be issued, the president, in consultation with the\ncommissioner, shall take into consideration, among others, facts\navailable to him or her with respect to the following:\n (a) The total production of milk in the area and the proportion of\nsuch milk being utilized in fluid form and in other products,\n (b) The prices being received for milk by producers in the area,\n (c) The level of consumption per capita for fluid milk and of other\ndairy products,\n (d) The purchasing power of consumers,\n (e) Other products which compete with milk and dairy products and\nprices of such products.\n 6. Interstate orders for compacts. The commissioner is authorized to\nconfer and cooperate with the legally constituted authorities of other\nstates and of the United States with respect to the issuance and\noperation of joint and concurrent dairy promotion orders or other\nactivities tending to carry out the declared intent of the act. The\ncommissioner may join with such other authorities in conducting joint\ninvestigations, holding joint hearings and issuing joint or concurrent\norder or orders complementary to those of the federal government and the\npresident, after consulting with the commissioner, shall have the\nauthority to employ or designate a joint agent or joint agencies to\ncarry out and enforce such joint, concurrent or supplementary orders.\n 7. Prior assessments. Prior to the effective date of any dairy\npromotion order as provided in this section, the president, in\nconsultation with the commissioner, may require that cooperative\nassociations which have petitioned for such an order and that have\napproved of the issuance of such an order, to deposit with the president\nsuch amounts as he or she may deem necessary to defray the expense of\nadministering and enforcing such order until such time as the\nassessments as herein before provided are adequate for that purpose.\nSuch funds shall be received, deposited and disbursed by the president\nin the same manner as other funds received by him or her pursuant to\nthis section and the president shall reimburse those who paid these\nprior assessments from other funds received by him or her pursuant to\nthis section.\n 8. Status of funds. Any moneys collected under any market order issued\npursuant to this section shall not be deemed to be state or corporation\nfunds and shall be deposited in a bank or other depository of the\ncorporation, approved by the president, allocated to each dairy\npromotion order under which they were collected, and shall be disbursed\nby the president only for the necessary expenses incurred by the\npresident with respect to each separate order, all in accordance with\nthe rules and regulations of the president. All such expenses shall be\nsubject to audits by the state comptroller. Any moneys remaining in such\nfund allocable to a particular order, after the termination of such\norder and not required by the president to defray the expenses of\noperating such order, may in the discretion of the president be refunded\non a pro-rata basis to all persons from whom assessments therefor were\ncollected; provided, however, that if the president finds that the\namounts so refundable are so small as to make impracticable the\ncomputation and refunding of such moneys, the president may use such\nmoneys to defray the expenses incurred by him or her in the\npromulgation, issuance, administration or enforcement of any other\nsimilar dairy promotion order or in the absence of any other such dairy\npromotion order, the president may pay such moneys to any organization\nor institution as provided in paragraph (b) or (c) of subdivision four\nof this section.\n 9. Budget. The commissioner, in consultation with the president, shall\nprepare a budget for the administration and operating costs and expenses\nincluding advertising and sales promotion when required in any dairy\npromotion order executed hereunder and to provide for the collection of\nsuch necessary fees or assessments to defray costs and expenses, in no\ncase to exceed two percent per hundredweight of the gross value of milk\nmarketed by producers in the area covered by the order.\n 10. Advisory board. (a) Any dairy promotion order issued pursuant to\nthis section shall provide for the establishment of an advisory board to\nadvise and assist the president in the administration of such order. The\npresident shall administer and enforce any such dairy promotion order\nwhile it is in effect, consulting with the advisory board and seeking\nits advice and consent. This board shall consist of not less than five\nmembers and shall be appointed by the commissioner from nominations\nsubmitted by producers marketing milk in the area to which the order\napplies. Nominating procedure, qualification, representation, and size\nof the advisory board shall be prescribed in the order for which such\nboard was appointed.\n (b) No member of an advisory board shall receive a salary but shall be\nentitled to his or her actual and reasonable expenses incurred while\nperforming his or her duties as authorized in this section.\n (c) The duties and responsibilities of the advisory board shall be\nprescribed by the president, in consultation with the commissioner, and\nhe or she shall specifically delegate to the advisory board, by\ninclusion in the dairy promotion order the following duties and\nresponsibilities:\n (i) The recommendation to the president of administrative rules and\nregulations relating to the order.\n (ii) Recommending to the president such amendments to the order as\ndeemed advisable.\n (iii) The preparation and submission to the commissioner, in\nconsultation with the president, of an estimated budget required for the\nproper operation of the order.\n (iv) Recommending to the president methods for assessing producers and\nmethods for collecting the necessary funds.\n (v) Assisting the president in the collection and assembly of\ninformation and data necessary for the proper administration of the\norder.\n (vi) The performance of such other duties in connection with the order\nas the president shall designate.\n 11. Rules and regulations; enforcement. (a) The president may, with\nthe advice and consent of the advisory board, make and issue such rules\nand regulations as may be necessary to effectuate the provisions and\nintent of this section and to enforce the provisions of any dairy\npromotion order, all of which shall have the force and effect of law.\n (b) The president, in consultation with the commissioner may institute\nsuch action at law or in equity as may appear necessary to enforce\ncompliance with any provision of this section, or any rule or\nregulation, or dairy promotion order committed to his or her\nadministration, and may apply for relief by injunction if necessary to\nprotect the public interest without being compelled to allege or prove\nthat an adequate remedy at law does not exist. Such application shall be\nmade to the supreme court in any district or county provided in the\ncivil practice law and rules, or to the supreme court in the third\njudicial district.\n 12. Cooperation by the department. The president may request and\nreceive, within ninety days of such request from the department such\nassistance, information and cooperation as may be necessary for the\ncorporation to provide services with respect to the administration of\nthe procedures set forth for the issuance, termination or amendment of\nany dairy promotion order and/or the administration of any such order.\nThe corporation shall retain an amount equal to the expenses incurred by\nthe corporation in performing its duties pursuant to this section and\nreimburse the department an amount equal to the expenses incurred by the\ndepartment in supplying such services, subsequent to submission and\naudit of a voucher therefor. Such reimbursement shall not exceed the\ntotal amount of funds collected by the corporation pursuant to this\nsection less the reasonable expenses incurred by the corporation in\nperforming its duties pursuant to this section.\n 13. Indemnification. The state shall defend, indemnify and hold\nharmless the corporation, its directors, officers, and employees, from\nand against any and all claims, demands, causes of action, damages,\ncosts and expenses whatsoever arising directly or indirectly from, or\nrelating to, the administration of a dairy promotion order issued or\nadministered pursuant to this section. In connection with the foregoing,\nthe corporation shall give the state (a) prompt written notice of any\naction, claim or threat of suit, (b) the opportunity to take over,\nsettle or defend such action, claim or suit at the state's sole expense,\nand (c) assistance in the defense of any such action at the expense of\nthe state.\n 14. Contractual provisions. The corporation may contract for services\nwith respect to the implementation of this section in accordance with\nthe corporation's policies, procedures and guidelines. Notwithstanding\nsection 2879 of the public authorities law or any other law to the\ncontrary, any such contract may be procured by the corporation on a\nsole-source basis, and shall not be subject to competitive bid or\ncompetitive request for proposal requirements.\n * NB Repealed July 31, 2026\n