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CHAPTER 39-4

ADULTERATED AND MISBRANDED FOODS

39-4-1      Food defined.
39-4-2      Conditions constituting adulteration of food .
39-4-3      Ingredients constituting adulteration of confectionery.
39-4-3.1      Confection or candy containing less than one-half of one percent alcohol by weight permitted.
39-4-3.2      Alcoholic beverage licensee permitted to sell confection or candy containing one-half of one percent alcohol by weight or more.
39-4-3.3      Off-sale delivery licensee permitted to deliver confection or candy containing one-half of one percent alcohol by weight or more.
39-4-4      Unlawful food additives--Prohibited use as misdemeanor.
39-4-5      Labeling required for preservatives added--Violation as misdemeanor.
39-4-6      Repealed.
39-4-7      False or misleading information in package or label constituting misbranding.
39-4-8      Imitation or unauthorized use of distinctive name as misbranding.
39-4-9      Deception as to place of origin as misbranding--Reuse of original package.
39-4-10      Failure to list narcotics in label as misbranding.
39-4-11      Quantity and packer to be shown in label--Variation and tolerances.
39-4-12      Franchised beverages exempt from quantity labeling requirement--Statement required of manufacturer or distributor.
39-4-13      False labeling as to ingredients as misbranding.
39-4-14      Additional labeling required for special dietary foods.
39-4-14.1      Repealed.
39-4-15      Exemption of articles marketed under distinctive name--Compounds, imitations, and blends.
39-4-16      Disclosure of trade formulas not required.
39-4-17      Exemption of articles intended for export.
39-4-18      Manufacture of adulterated or misbranded food as misdemeanor.
39-4-19      Transportation of adulterated or misbranded foods as misdemeanor.
39-4-20      Reliance by dealer on guaranty by wholesaler or manufacturer--Contents of guaranty.
39-4-21      Seizure and condemnation of adulterated or misbranded food--Release on bond--Jury trial.
39-4-22      Donation of food--Immunity from civil and criminal liability.
39-4-23      Distribution of food without charge by charitable or nonprofit organization--Immunity.
39-4-24      Food not readily marketable--Immunity provisions applicable--Regulation.
39-4-25      Definitions.


     39-4-1.   Food defined. The word "food" as used in this title shall include all substances used as food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound, and all substances or ingredients to be added to foods for any purpose. For the purposes of this chapter, the word "food" specifically includes bottled water for sale to the public, the quality of which is regulated by the secretary of environment and natural resources as provided for under this chapter.

Source: SL 1905, ch 114, § 6; SL 1907, ch 151, § 6; SL 1909, ch 163, § 4; SL 1911, ch 252, § 1; SL 1917, ch 242, § 4; RC 1919, § 7807; SDC 1939, § 22.0401; SL 2015, ch 277 (Ex. Ord. 15-1), § 42, eff. Apr. 20, 2015.


     39-4-2.   Conditions constituting adulteration of food. For the purposes of this title food shall be deemed to be adulterated:
             (1)      If any substance has been mixed and packed with it so as to reduce, lower, or injuriously affect its quality or strength;
             (2)      If any substance has been substituted wholly or in part for it;
             (3)      If any valuable constituent thereof has been wholly or in part abstracted;
             (4)      If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed;
             (5)      If it contain any poisonous or otherwise deleterious ingredient, added or natural, which may render it injurious to health: provided that when in the preparation of food products for shipment they are preserved by an external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise before eating, and directions for the removal of such preservative shall be plainly and conspicuously printed on the label of the package, the provisions of this chapter shall be construed as applying only when such products are ready for consumption;
             (6)      If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or of any portion of any animal unfit for food, whether manufactured or not; or if it is the product of a portion of a diseased animal or of an animal which has been fed upon the uncooked offal from a slaughterhouse or other substance unfit for animal food, or of one that has died otherwise than by slaughter; or
             (7)      If in the manufacture, sale, distribution, transportation, or in the offering or exposing for sale, distribution, or transportation, it is not at all times securely protected from all filth, flies, dust, contamination, or other unclean, unhealthful, or insanitary conditions.

Source: SL 1885, ch 64, § 1; CL 1887, § 2246; SL 1899, ch 89, § 26; RPolC 1903, § 2929; SL 1905, ch 114, § 7; SL 1907, ch 151, § 7; SL 1909, ch 163, § 5; SL 1917, ch 242, § 5; RC 1919, § 7808; SDC 1939, § 22.0402 (2).


     39-4-3.   Ingredients constituting adulteration of confectionery. For the purposes of this title a confectionery is deemed adulterated if it contains:
             (1)      Terra alba, barytes, talc, paraffin, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health; or
             (2)      Any narcotic drug.

Source: SL 1909, ch 163, § 5; SL 1917, ch 242, § 5; RC 1919, § 7808; SDC 1939, § 22.0402 (1); SL 2018, ch 245, § 4, eff. Mar. 9, 2018.


     39-4-3.1.   Confection or candy containing less than one-half of one percent alcohol by weight permitted. A person may sell or offer for sale any confection or candy that contains less than one-half of one percent alcohol by weight. If the confection or candy contains more than one-half of one percent alcohol by weight, the confection or candy is deemed adulterated for the purposes of this title.

Source: SL 2018, ch 245, § 1, eff. Mar. 9, 2018.


     39-4-3.2.   Alcoholic beverage licensee permitted to sell confection or candy containing one-half of one percent alcohol by weight or more. A licensee pursuant to subdivision 35-4-2(4), (6), (11), (12), or (16) may sell or offer for sale any confection or candy made on the licensed premises containing one half of one percent alcohol by weight or more.

Source: SL 2018, ch 245, § 2, eff. Mar. 9, 2018.


     39-4-3.3.   Off-sale delivery licensee permitted to deliver confection or candy containing one-half of one percent alcohol by weight or more. Any licensee pursuant to subdivision 35-4-2(23) may deliver any confection or candy containing one half of one percent alcohol by weight or more, pursuant to § 39-4-3.2.

Source: SL 2018, ch 245, § 3, eff. Mar. 9, 2018.


     39-4-4.   Unlawful food additives--Prohibited use as misdemeanor. It is a Class 1 misdemeanor for any person to manufacture, sell, offer, or expose for sale any food product to which has been added any borax, paraffin, boric acid, formaldehyde, salicylic acid, abrastol, beta naphtol, dulcin, glucin, fluorine compound, formic acid, or other injurious or unhealthful substance or any derivative thereof. It is a Class 1 misdemeanor to sell or offer for sale any meat or meat product to which has been added any sulphurous acid or any salt of the same or any substance capable of producing such acid or salt thereof.

Source: SL 1905, ch 114, § 33; SL 1917, ch 242, § 16; RC 1919, § 7818; SDC 1939, § 22.0411; SL 1977, ch 190, § 357; SL 1980, ch 275.


     39-4-5.   Labeling required for preservatives added--Violation as misdemeanor. All food products which contain any preservative, other than those substances specifically mentioned in § 39-4-4, which may be permitted by the rules and regulations provided for in § 39-1-4 shall be plainly and conspicuously labeled to show the presence and amount of such preservative. A violation of this section is a Class 1 misdemeanor.

Source: SL 1917, ch 242, § 16; RC 1919, § 7818; SDC 1939, § 22.0411; SL 1977, ch 190, § 358.


     39-4-6.   Repealed by SL 1977, ch 190, § 359


     39-4-7.   False or misleading information in package or label constituting misbranding. The term "misbranded" as used in this chapter, shall apply to all substances used as food or which enter into the composition of food, the package, or label of which shall bear any statement, design, or device regarding such substance or the ingredients contained therein which shall be false, deceptive, or misleading in any particular, and to any food product which is falsely branded as to the state, territory, or country in which it is manufactured or produced.

Source: SL 1905, ch 114, § 8; SL 1907, ch 151, § 8; SL 1909, ch 163, § 6; SL 1911, ch 13; SL 1917, ch 242, § 6; RC 1919, § 7809; SL 1923, ch 193; SDC 1939, § 22.0403.


     39-4-8.   Imitation or unauthorized use of distinctive name as misbranding. For the purpose of this title a food product shall be deemed to be misbranded if it be an imitation of or offered for sale under the distinctive name of any other food product.

Source: SL 1905, ch 114, § 8; SL 1907, ch 151, § 8; SL 1909, ch 163, § 6; SL 1911, ch 13; SL 1917, ch 242, § 6; RC 1919, § 7809 (1); SL 1923, ch 193; SDC 1939, § 22.0403 (1).


     39-4-9.   Deception as to place of origin as misbranding--Reuse of original package. For the purpose of this title a food product shall be deemed to be misbranded if it be so labeled or branded as to deceive or mislead the purchaser, or purport to be a foreign product when not so, or if the contents of the package as originally put up shall have been removed in whole or in part and other contents shall have been placed in such package.

Source: SL 1905, ch 114, § 8; SL 1907, ch 151, § 8; SL 1909, ch 163, § 6; SL 1917, ch 242, § 6; RC 1919, § 7809 (2); SL 1923, ch 193; SDC 1939, § 22.0403 (2).


     39-4-10.   Failure to list narcotics in label as misbranding. For the purpose of this title a food product shall be deemed to be misbranded if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substance contained therein.

Source: SL 1907, ch 151, § 35; SL 1909, ch 163, § 6; SL 1911, ch 13; SL 1917, ch 242, § 6; RC 1919, § 7809 (2); SL 1923, ch 193; SDC 1939, § 22.0403 (2).


     39-4-11.   Quantity and packer to be shown in label--Variation and tolerances. For the purpose of this title a food product shall be deemed to be misbranded if in package form and the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count, together with the name and address of the real manufacturer or jobber or other person responsible for placing the product upon the market; however, reasonable variations as to the quantity of the contents of package shall be permitted, and tolerance and exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of § 39-1-4.

Source: SL 1907, ch 151, § 35; SL 1909, ch 163, § 6; SL 1911, ch 13; SL 1917, ch 242, § 6; RC 1919, § 7809 (3); SL 1923, ch 193; SDC 1939, § 22.0403 (3); SL 1966, ch 65.


     39-4-12.   Franchised beverages exempt from quantity labeling requirement--Statement required of manufacturer or distributor. In the case of beverages that are manufactured, distributed, and sold under a franchise or trademark name indicated thereon, whereby the person, firm, or corporation owning the franchise or trademark has control over the distribution, such beverages may be exempt from § 39-4-11, if a certified statement is filed with the Division of Commercial Inspection and Licensing, on forms provided for that purpose, stating the name and address of the manufacturer or distributor, the list of each ingredient, and a statement signed by the manufacturer or distributor that they assume all responsibility and liability for the product named, which is being sold, or offered for sale, under such name within the area of the state designated, designating the area by municipalities and communities, in compliance with this chapter.

Source: SDC 1939, § 22.0403 (3) as added by SL 1966, ch 65; SL 1992, ch 60, § 2; SL 2004, ch 17, § 288.


     39-4-13.   False labeling as to ingredients as misbranding. For the purpose of this title a food product shall be deemed to be misbranded if the package containing it, or its label, shall bear any statement, design, or device regarding the ingredients or the substance contained therein, which statement, design, or device shall be false or misleading in any particular.

Source: SL 1907, ch 151, § 35; SL 1909, ch 163, § 6; SL 1911, ch 13; SL 1917, ch 242, § 6; RC 1919, § 7809 (4); SL 1923, ch 193; SDC 1939, § 22.0403 (4).


     39-4-14.   Additional labeling required for special dietary foods. In addition to the provisions of §§ 39-4-8 to 39-4-13, inclusive, a food shall also be deemed to be misbranded if it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, or other dietary properties as necessary in order fully to inform purchasers as to its value for such uses; and unless (if the food be one for which a definition and standard of identity has been adopted, or if the food be produced by replacing one or more essential and commonly accepted ingredients by other ingredients), its label shall show the name of the substitute or substitutes and state what ingredient or ingredients have been replaced, and unless the label shall bear, clearly and conspicuously, the following statement: "For special dietary use only." As used in this section the term "food" means "food" as defined in § 39-4-1.

Source: SDC 1939, § 22.0410 as amended by SL 1949, ch 81, § 3; SL 1953, ch 89.


     39-4-14.1.   Repealed by SL 1988, ch 319


     39-4-15.   Exemption of articles marketed under distinctive name--Compounds, imitations, and blends. An article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases:
             (1)      In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with the statement of the place where said article has been manufactured or produced;
             (2)      In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word "compound," "imitation," or "blend," as the case may be, together with a statement of the character and constituents thereof, is plainly stated on the package in which it is offered for sale; provided that the term "blend," as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only.

Source: SL 1905, ch 114, § 9; SL 1907, ch 151, § 9; SL 1909, ch 163, § 6; SL 1917, ch 242, § 6; RC 1919, § 7809 (5), (6); SL 1923, ch 193; SDC 1939, § 22.0403 (4).


     39-4-16.   Disclosure of trade formulas not required. Nothing in this chapter shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods, which contain no unwholesome ingredients, to disclose their trade formulas, except insofar as the provisions of this chapter, or the rules and regulations of the Division of Commercial Inspection and Licensing may require to secure freedom from adulteration or misbranding.

Source: SL 1907, ch 151, § 35; SL 1909, ch 163, § 6; SL 1917, ch 242, § 6; RC 1919, § 7809 (6); SL 1923, ch 193; SDC 1939, § 22.0403; SL 2004, ch 17, § 289.


     39-4-17.   Exemption of articles intended for export. No article shall be deemed to be misbranded or adulterated within the meaning of this chapter when intended for export to any foreign country and prepared and packed according to the specifications or directions of the foreign purchaser, if no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which such article is intended to be shipped; but if such article shall be in fact sold, or kept for sale, or offered for sale, for use, or consumption in this state then it shall be subject to all the provisions of this chapter.

Source: SL 1909, ch 163, § 2; SL 1917, ch 242, § 2; RC 1919, § 7806; SDC 1939, § 22.0407.


     39-4-18.   Manufacture of adulterated or misbranded food as misdemeanor. It is a Class 2 misdemeanor for any person to manufacture any article of food which is adulterated or misbranded within the meaning of this chapter.

Source: PenC 1877, § 453; CL 1887, § 6654; SL 1899, ch 89, § 28; RPolC 1903, § 2931; SL 1909, ch 163, § 1; SL 1917, ch 242, § 1; RC 1919, § 7805; SDC 1939, §§ 22.0406, 22.9904; SL 1977, ch 190, § 360.


     39-4-19.   Transportation of adulterated or misbranded foods as misdemeanor. The transportation or shipment from any point within this state to any other point within this state of any article of food which is adulterated or misbranded, within the meaning of this chapter, is prohibited, and any person who shall ship or transport or deliver for shipment or transportation from any point within this state to any other point within this state, or who shall receive at any point within this state from any other point within this state and having so received shall deliver in original, unbroken packages, or offer to deliver to any person any such article so adulterated or misbranded, or any person selling or keeping for sale, or offering for sale in this state, any such adulterated or misbranded foods, is guilty of a Class 2 misdemeanor.

Source: SL 1909, ch 163, § 2; SL 1911, ch 252, § 1; SL 1917, ch 242, § 2; RC 1919, § 7806; SDC 1939, §§ 22.0407, 22.9905; SL 1977, ch 190, § 361.


     39-4-20.   Reliance by dealer on guaranty by wholesaler or manufacturer--Contents of guaranty. Whenever any dealer shall have received a guaranty, signed by the wholesaler, jobber, manufacturer, or other person, residing within the United States, from whom he purchased the food product, to the effect that the same is not adulterated or misbranded as defined in this chapter, he shall not be liable to prosecution under this chapter, unless he shall have knowledge or notice of the falsity of such guaranty, but the person making such guaranty shall be subject to the fines and penalties which otherwise would attach to such dealer. Such guaranty must contain the name and post office address of the wholesaler, jobber, manufacturer, or person from whom the food product was purchased; provided that any product which is evidently unfit for consumption must not be sold or offered for sale though the dealer may possess the guaranty provided for in this section.

Source: SL 1909, ch 163, § 7; SL 1913, ch 215, § 5; SL 1917, ch 242, § 7; RC 1919, § 7810; SDC 1939, § 22.0404.


     39-4-21.   Seizure and condemnation of adulterated or misbranded food--Release on bond--Jury trial. Any food product that is adulterated or misbranded within the meaning of this chapter, and is being transported from one point within this state to another point within this state or, having been so transported, remains unloaded, unsold, or in the original unbroken packages, and any such adulterated or misbranded product which is sold, kept for sale, or offered for sale in this state, shall be liable to be proceeded against by an action in the circuit court for the county where the same is found and seized for condemnation; and if such product be condemned as adulterated or misbranded or of a poisonous or deleterious character, within the meaning of this chapter, the same shall be disposed of by destruction or sale as the circuit court may direct, and the proceeds thereof, if sold, less the legal costs and charges shall be paid into the state treasury for the use of the public schools; provided that upon the payment of the costs and charges of such action for condemnation and the execution and delivery of a good and sufficient bond to the effect that such product shall not be sold or otherwise disposed of contrary to the laws of this state or the United States, or any state, territory, district, or insular possession of the United States, the court may direct that such product be delivered to the owner thereof. In any such action for condemnation either party may demand a trial by jury of any issue of fact joined in any such case, and all such actions shall be brought in the name of the State of South Dakota.

Source: SL 1909, ch 163, § 8; SL 1917, ch 242, § 8; RC 1919, § 7811; SDC 1939, § 22.0405.


     39-4-22.   Donation of food--Immunity from civil and criminal liability. The good-faith donor of any perishable food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization for free distribution, or a gleaner of any perishable food apparently fit for human consumption, is not subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional conduct of the donor or gleaner.

Source: SL 1981, ch 288, § 1.


     39-4-23.   Distribution of food without charge by charitable or nonprofit organization--Immunity. A bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human consumption, and distributes it at no charge, is not subject to criminal penalty or civil damages resulting from the condition of the food unless an injury results from the gross negligence, recklessness, or intentional conduct of the organization.

Source: SL 1981, ch 288, § 2.


     39-4-24.   Food not readily marketable--Immunity provisions applicable--Regulation. Sections 39-4-22 to 39-4-25, inclusive, include the good-faith donation of perishable food not readily marketable due to appearance, freshness, grade, surplus, or other considerations but does not restrict the authority of any appropriate agency to regulate or ban the use of such food for human consumption.

Source: SL 1981, ch 288, § 3.


     39-4-25.   Definitions. Terms, as used in §§ 39-4-22 to 39-4-24, inclusive, mean:
             (1)      "Gleaner" a person that harvests for free distribution an agricultural crop that has been donated by the owner;
             (2)      "Perishable food" any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition. The term includes, but is not limited to, fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits, or vegetables and foods that have been packaged, canned, refrigerated, or frozen.

Source: SL 1981, ch 288, § 4.


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