Chapter 635 — Nonalcoholic Beverages

 

2013 EDITION

 

NONALCOHOLIC BEVERAGES

 

FOOD AND OTHER COMMODITIES

 

635.015     Definitions

 

635.025     Short title; enforcement by department

 

635.027     License required for manufacture of nonalcoholic beverage; exceptions

 

635.030     License application; fee; term; rules

 

635.040     Refusal, suspension or revocation of license

 

635.045     Rulemaking authority of department relating to nonalcoholic beverage business

 

635.055     Standards for rules of department; conformity with federal rules

 

635.991     Criminal penalties

 

635.995     Civil penalties; rules; hearing; disposition of moneys

 

635.010 [Repealed by 1967 c.154 §9]

 

      635.015 Definitions. As used in this chapter:

      (1) “Department” means the State Department of Agriculture.

      (2) “Nonalcoholic beverage manufacturing business” or the “business of a nonalcoholic beverage manufacturer” means the operations and business of and the owner or operator thereof, who manufactures, makes bottles, handles, distributes, holds for sale, or sells soda or soda waters, mineral waters, carbonated beverages and other nonalcoholic drinks or beverages otherwise known as soft drinks, except those that are exempt as not covered as provided in ORS 635.027 or those exempted by the department. [1967 c.154 §1]

 

      635.020 [Repealed by 1967 c.154 §9]

 

      635.025 Short title; enforcement by department. This chapter, which may be cited as the Oregon Nonalcoholic Beverage Plant Law, shall be enforced and carried out by the State Department of Agriculture. [1967 c.154 §2]

 

      635.027 License required for manufacture of nonalcoholic beverage; exceptions. (1) Except as otherwise provided in this chapter, no person shall operate or engage in the business of a nonalcoholic beverage manufacturer without first obtaining and thereafter maintaining a license, or renewal thereof, from the State Department of Agriculture. No license is required of a person who:

      (a) Sells nonalcoholic drink or beverage products in or from their original containers at wholesale or retail.

      (b) Mixes or sells nonalcoholic products in the usual course of business at a soda fountain.

      (c) Engages in the nonalcoholic beverage manufacturing business in a building and uses machinery, equipment and all facilities that have been approved and licensed by the department for use in the processing of fluid milk to be labeled with “grade ‘A’ “ pursuant to ORS chapter 621.

      (2) The provisions of subsection (1) of this section do not exempt any person, or the business of the person, from the application of any other provisions of this chapter. [1967 c.154 §3; 2005 c.22 §447]

 

      635.030 License application; fee; term; rules. (1) Any person desiring to or who does engage in the business of a nonalcoholic beverage manufacturer shall apply to the State Department of Agriculture for a license for each plant operated by such person. The application shall be in such form and contain such information as the department may prescribe.

      (2) The department may adopt rules establishing license fee schedules for nonalcoholic beverage manufacturers. The department may determine the license fee for a manufacturer based upon the annual gross sales by the manufacturer. In establishing the amount of the license fee for a manufacturer, the department shall use the annual gross sales by that manufacturer within Oregon during the prior calendar year or, if the manufacturer maintains sales records on a fiscal basis, the prior fiscal year. If the manufacturer applying for an original license or for a renewal license cannot provide the annual gross sales for a full calendar year, the department shall base the fee on estimated annual gross sales by the manufacturer. If a manufacturer whose previous year’s fee was determined using an estimated gross sales figure applies for renewal of that license, the fee for the previous license year shall be adjusted to reflect the actual gross sales by the manufacturer.

      (3) Except as provided in this subsection, the department may not adopt a rule under this section to establish a license fee that is more than three percent higher than the license fee charged during the preceding year for a manufacturer having the same volume of gross sales. When adopting a rule establishing a license fee, notwithstanding the three percent limit, the department may round the fee amount to the next higher whole dollar amount. Fee schedules adopted under this section may not increase the amount of the same license fee more frequently than once each year.

      (4) Licenses issued under this section shall expire on June 30 next following the date of issuance or on such date as may be specified by department rule. The department shall collect a license fee for each license and for each renewal of a license. The fee shall be remitted by the department to the State Treasurer. The State Treasurer shall place all moneys received under this section in the Department of Agriculture Service Fund. Moneys from fees imposed under this section are continuously appropriated to the department for the purpose of administering and enforcing the provisions of this chapter. [Amended by 1955 c.666 §1; 1967 c.154 §4; 1979 c.183 §4; 1979 c.499 §35; 1985 c.353 §5; 1991 c.632 §10; 2005 c.735 §§15,16; 2005 c.755 §52; 2007 c.768 §§41,42; 2012 c.64 §17]

 

      Note: The amendments to 635.030 by section 44, chapter 64, Oregon Laws 2012, become operative July 1, 2019. See section 45, chapter 64, Oregon Laws 2012. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      635.030. (1) Any person desiring to or who does engage in the business of a nonalcoholic beverage manufacturer shall apply to the State Department of Agriculture for a license for each plant operated by such person. The application shall be in such form and contain such information as the department may prescribe.

      (2) The department may adopt rules establishing license fee schedules for nonalcoholic beverage manufacturers. The department may determine the license fee for a manufacturer based upon the annual gross sales by the manufacturer. In establishing the amount of the license fee for a manufacturer, the department shall use the annual gross sales by that manufacturer within Oregon during the prior calendar year or, if the manufacturer maintains sales records on a fiscal basis, the prior fiscal year. If the manufacturer applying for an original license or for a renewal license cannot provide the annual gross sales for a full calendar year, the department shall base the fee on estimated annual gross sales by the manufacturer. If a manufacturer whose previous year’s fee was determined using an estimated gross sales figure applies for renewal of that license, the fee for the previous license year shall be adjusted to reflect the actual gross sales by the manufacturer.

      (3) The department may not adopt or enforce a rule under this section establishing a license fee that is higher than the license fee charged for the license year that began July 1, 2018, for a nonalcoholic beverage manufacturer having the same volume of gross sales. Fee schedules adopted under this section may not increase the amount of the same license fee more frequently than once each year.

      (4) Licenses issued under this section shall expire on June 30 next following the date of issuance or on such date as may be specified by department rule. The department shall collect a license fee for each license and for each renewal of a license. The fee shall be remitted by the department to the State Treasurer. The State Treasurer shall place all moneys received under this section in the Department of Agriculture Service Fund. Moneys from fees imposed under this section are continuously appropriated to the department for the purpose of administering and enforcing the provisions of this chapter.

 

      635.040 Refusal, suspension or revocation of license. The State Department of Agriculture may refuse to issue, suspend or revoke any license for failure to comply with this chapter, or regulations promulgated thereunder. [Amended by 1961 c.425 §19]

 

      635.045 Rulemaking authority of department relating to nonalcoholic beverage business. After public hearing and under the provisions of ORS chapter 183, in connection with and covering all of the operations and the business of a nonalcoholic beverage manufacturer, and the beverage and drink products covered by ORS 635.015 to 635.030 and 635.045 to 635.991, the State Department of Agriculture is authorized to promulgate rules relating to:

      (1) Definitions, standards of identity, marking, labeling, advertising, branding or tagging of such drink and beverage products.

      (2) The subject matters set forth in ORS 616.700 (1).

      (3) Storage, handling and use of ingredients which will be or are a part of the drink and beverage products.

      (4) Other subject matters set forth in ORS chapter 616, ORS 632.275 to 632.290, 632.450 to 632.490 and 632.900 to 632.985 and other provisions reasonably necessary to insure that the products are sanitary and healthful. [1967 c.154 §5; 1983 c.740 §237]

 

      635.050 [Repealed by 1967 c.154 §9]

 

      635.055 Standards for rules of department; conformity with federal rules. In carrying out the intent and purpose of ORS 635.045, the State Department of Agriculture, in addition to taking into consideration the desires and needs of the nonalcoholic beverage manufacturing industry and the evidence and testimony received at a public hearing, shall take into consideration the laws and rules of this state, other states and the federal government. Unless there is substantial evidence and testimony to the contrary, the department shall, as far as is reasonable and practical, make its rules conform to, and not be more restrictive than, the rules of the federal Food and Drug Administration or other federal enforcement agency. [1967 c.154 §6; 1999 c.59 §187]

 

      635.060 [Repealed by 1955 c.666 §5]

 

      635.061 [1955 c.666 §4; repealed by 1967 c.154 §9]

 

      635.070 [Repealed by 1967 c.154 §9]

 

      635.080 [Repealed by 1967 c.154 §9]

 

      635.090 [Repealed by 1967 c.154 §9]

 

      635.100 [Repealed by 1967 c.154 §9]

 

      635.110 [Amended by 1955 c.666 §2; repealed by 1967 c.154 §9]

 

      635.120 [Repealed by 1967 c.154 §9]

 

      635.130 [Repealed by 1955 c.666 §5]

 

      635.140 [Repealed by 1967 c.154 §9]

 

      635.150 [Repealed by 1967 c.154 §9]

 

      635.160 [Repealed by 1967 c.154 §9]

 

      635.170 [Repealed by 1967 c.154 §9]

 

      635.180 [Repealed by 1967 c.154 §9]

 

      635.990 [Repealed by 1967 c.154 §9]

 

      635.991 Criminal penalties. Violation of any provision of this chapter is a Class B misdemeanor. [1967 c.154 §8; 2011 c.597 §257]

 

      635.995 Civil penalties; rules; hearing; disposition of moneys. (1) In addition to any penalty available under ORS 561.190 or 635.991, the State Department of Agriculture may impose a civil penalty for a violation of this chapter or of rules or regulations adopted under this chapter. For the purposes of this section, each day a violation continues after the period of time established for compliance shall be considered a separate violation unless the department finds that a different period of time is more appropriate to describe a specific violation event.

      (2) The department may adopt rules establishing a schedule of civil penalties that may be imposed under this section. Civil penalties imposed under this section may not exceed $10,000 for each violation.

      (3) When the department imposes a civil penalty under subsection (1) of this section, the department shall impose the penalty in the manner provided by ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the date of mailing or personal service of the notice of civil penalty.

      (4) Moneys received by the department from civil penalties imposed under this section shall be deposited in the General Fund to the credit of the Department of Agriculture Account. [2009 c.175 §26]

CHAPTERS 636 TO 644 [Reserved for expansion]

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