CHAPTER 39-1
ENFORCEMENT POWERS AND GENERAL PROVISIONS
39-1-1 Administration of chapters by Department of Agriculture and Natural Resources--General enforcement powers.
39-1-1.1 Division of Legal and Regulatory Services functions.
39-1-2 Disposition of fees received.
39-1-3 Source of payment for expenses of enforcement.
39-1-4 Promulgation of rules--Enforcement.
39-1-5 Standards for foods--Conformity to federal standards--Nonconforming foods deemed adulterated or misbranded.
39-1-6 Distribution of bulletins containing standards, definitions, rules, and regulations--Payment of cost.
39-1-7 Prohibited contracts void--Action on contract prohibited.
39-1-8 Violation of title as misdemeanor.
39-1-9 Responsibility of employer for act or omission of agent or employee.
39-1-10 Access to premises and vehicles--Inspections, samples, and analyses.
39-1-11 Assistance to be rendered--Refusal of assistance as violation.
39-1-12 Interference with official performance of duty as misdemeanor.
39-1-13 Inspections and reports required of police officers--Payment of expenses.
39-1-14 Contraband articles subject to condemnation.
39-1-15 Seizure or quarantine of contraband articles--Tagging and marking--Removal as petty offense.
39-1-16 Petition to court for condemnation of seized or quarantined articles--Hearing and order.
39-1-17 Preemption of local regulation of certain seed, commercial fertilizer, commercial feed, animal remedies, and pesticide.
39-1-1. Administration of chapters by Department of Agriculture and Natural Resources--General enforcement powers.
The Department of Agriculture and Natural Resources through its secretary, and such other agents and employees as it may assign thereto shall be in general charge of the administration and enforcement of chapters 39-1, 39-6 to 39-8, inclusive, 39-11, 39-14, 39-15 and 39-18, except in cases where a different intention plainly appears. It shall have and may exercise all of its general powers and duties of visitation, inspection, examination, access to property and places therefor, prosecution, rule and regulation making, requiring cooperation and aid of other agencies of government, for the purpose of administering and enforcing the provisions of this title, as the same are prescribed in Title 38 or as specifically prescribed in this title and as otherwise prescribed by law.
Source: SL 1925, ch 115, ch III, art V, § 1; SL 1935, ch 97, § 8; SL 1937, ch 102, § 2; SDC 1939, § 22.0101; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-1.1. Division of Legal and Regulatory Services functions.
The Division of Legal and Regulatory Services of the Department of Public Safety shall perform the functions previously performed by the Department of Agriculture pursuant to chapters 39-4 and 39-13, except the authority to regulate bottled water quality which the Department of Agriculture and Natural Resources shall perform.
Source: SL 1973, ch 2, § 54; SL 1979, ch 5, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2004, ch 17, § 278; SL 2015, ch 277 (Ex. Ord. 15-1), § 39, eff. Apr. 20, 2015; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
39-1-2. Disposition of fees received.
All fees received by the secretary of agriculture and natural resources or the Division of Commercial Inspection and Licensing pursuant to the provisions of this title shall be paid into the state treasury, as provided in this code, to the credit of the general fund.
Source: SL 1917, ch 242, § 20; RC 1919, § 7801; SDC 1939, § 22.0108; SL 2004, ch 17, § 279; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-3. Source of payment for expenses of enforcement.
All salaries and expenses necessary to the enforcement of this title by the Department of Agriculture and Natural Resources or the Division of Commercial Inspection and Licensing shall be paid out of funds appropriated for the maintenance of the Department of Agriculture and Natural Resources.
Source: SL 1917, ch 242, § 20; RC 1919, § 7801; SDC 1939, § 22.0108; SL 2004, ch 17, § 280; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-4. Promulgation of rules--Enforcement.
The secretary of agriculture and natural resources may, except as provided by § 39-1-1.1, adopt such rules as may be necessary for the proper and effective enforcement of this title. All such rules shall become effective in conformity with chapter 1-26. The failure to obey any rule of the secretary of agriculture and natural resources adopted pursuant to this section may be enforced by proper legal procedure in court.
The secretary of agriculture and natural resources may adopt such rules as may be necessary for the proper and effective enforcement relating to bottled water quality. All such rules shall become effective in conformity with chapter 1-26. The failure to obey any rule of the secretary of agriculture and natural resources adopted pursuant to this section may be enforced by proper legal procedure in court.
Source: SL 1917, ch 242, § 3; RC 1919, § 7793; SDC 1939, § 22.0102; SL 1949, ch 81, § 1; SDC Supp 1960, § 22.0102 (1); SL 1987, ch 29, § 67; SL 2015, ch 277 (Ex. Ord. 15-1), § 40, eff. Apr. 20, 2015; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 51, eff. Apr. 19, 2021.
39-1-5. Standards for foods--Conformity to federal standards--Nonconforming foods deemed adulterated or misbranded.
The secretary of agriculture and natural resources or the secretary of public safety, when performing the functions described in § 39-1-1.1, may, when in his judgment such action will promote honesty and fair dealing in the interest of consumers, adopt rules establishing for any food, under its common or usual name so far as practicable, a reasonable standard of identity and purity. If a standard for a food has been established by the administrator of the Federal Food, Drug, and Cosmetic Act of 1938, the secretary of agriculture and natural resources or the secretary of public safety shall adopt that standard for this state. The standards shall become effective in conformity with chapter 1-26. An article of food which does not conform to such standards is adulterated or misbranded as the case may be.
Source: SDC 1939, § 22.0102 as added by SL 1949, ch 81, § 1; SDC Supp 1960, § 22.0102 (1); SL 1987, ch 29, § 68; SL 2004, ch 17, § 281; SL 2015, ch 277 (Ex. Ord. 15-1), § 41, eff. Apr. 20, 2015; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 51, eff. Apr. 19, 2021.
39-1-6. Distribution of bulletins containing standards, definitions, rules, and regulations--Payment of cost.
Bulletins containing standards, definitions, rules, and regulations promulgated pursuant to §§ 39-1-4 and 39-1-5 together with such information relating to the products regulated by the provisions of this title as shall be calculated to promote the public health and safety may be distributed from time to time by the Department of Agriculture and Natural Resources or the Division of Commercial Inspection and Licensing to the newspapers of the state, to all persons dealing in the products to which they relate, and to any citizen of this state, upon application therefor, the cost of which shall be paid out of funds appropriated for maintenance of the department or the division.
Source: SL 1917, ch 242, § 3; RC 1919, § 7794; SDC 1939, § 22.0102; SL 1949, ch 81, § 1; SDC Supp 1960, § 22.0102 (2); SL 2004, ch 17, § 282; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-7. Prohibited contracts void--Action on contract prohibited.
All contracts for the sale of any product in violation of the provisions of this title shall be void; no action shall be maintained in any court for the purchase price or value of any product the sale of which is thereby prohibited; nor shall any person be liable for the price or value of any product furnished in violation of any of its provisions.
Source: SL 1917, ch 242, § 22; RC 1919, § 7803; SDC 1939, § 22.0106.
39-1-8. Violation of title as misdemeanor.
Any person who violates any provision of this title, for which a penalty is not expressly provided, is guilty of a Class 1 misdemeanor.
Source: SL 1913, ch 285, § 18; RC 1919, § 7802; SDC 1939, § 22.9901; SL 1977, ch 190, § 346.
39-1-9. Responsibility of employer for act or omission of agent or employee.
For the purposes of this title, the act or omission of any officer, agent, or other person acting for or employed by any individual, corporation, limited liability company, association, or partnership within the scope of office, agency, or employment shall be deemed to be the act or omission of such individual, corporation, limited liability company, association, or partnership as well as of such person.
Source: SL 1917, ch 242, § 9; RC 1919, § 7804; SDC 1939, § 22.0107; SL 1994, ch 351, § 92.
39-1-10. Access to premises and vehicles--Inspections, samples, and analyses.
The secretary of agriculture and natural resources, the secretary of public safety, and their assistants, for the purpose of obtaining information regarding suspected violations of the law and in order to enforce the provisions of this title, shall have access to all buildings and premises where any product governed by this title is or may be manufactured, stored, held, prepared, served, sold, or delivered, and to all cars, carriages, wagons, trucks, or other vehicles used in the transportation or delivery of any such product. They shall also have authority to inspect any barrel, case, package, bottle, box, can, carton, or other container and to open the same and take samples therefrom for analysis, upon payment of the market price thereof, and have the same analyzed to ascertain whether or not the contents of such container comply with the requirements of this title.
Source: SL 1917, ch 242, § 17; RC 1919, § 7795; SDC 1939, § 22.0103; SL 2004, ch 17, § 283; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-11. Assistance to be rendered--Refusal of assistance as violation.
All proprietors, clerks, bookkeepers, or other persons in any way dealing in any product governed by this title and all express agents and all employees of railroads or other common carriers shall render to the secretary of agriculture and natural resources, the secretary of public safety, and their authorized assistants all aid within their power in discovering any such products which may be suspected of being in violation of this title, and all records appertaining thereto. Any refusal or neglect on the part of such proprietors, clerks, bookkeepers, or other persons in any way dealing in any such product, or any express agent or employee of a railroad or other common carrier, to render such friendly aid shall be a violation of this title and shall be punishable as provided in § 39-1-8.
Source: SL 1917, ch 242, § 17; RC 1919, § 7795; SDC 1939, § 22.0103; SL 2004, ch 17, § 284; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-12. Interference with official performance of duty as misdemeanor.
Any person who in any manner hinders, obstructs, or interferes with the secretary of agriculture and natural resources, the secretary of public safety, or any one of their deputies, inspectors, or employees, in the performance of any duty under the provisions of this title, is guilty of a Class 2 misdemeanor.
Source: SL 1917, ch 242, § 23; RC 1919, § 7800; SDC 1939, § 22.9902; SL 1977, ch 190, § 347; SL 2004, ch 17, § 285; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-13. Inspections and reports required of police officers--Payment of expenses.
The secretary of agriculture and natural resources, the secretary of public safety, or their agents or assistants by written or oral notice may require any police officer to inspect any place or product subject to the supervision of such secretary of agriculture and natural resources or secretary of public safety under the provisions of this title, to determine whether its provisions are being complied with and to report the result of such inspection in accordance with the rules of the Department of Agriculture and Natural Resources or of the division. All actual and necessary expenses, if any, incurred in connection with such inspection shall be paid by the civil township, county, or municipality in which it is made.
Source: SL 1913, ch 215, § 3; SL 1913, ch 238, § 23; SL 1915, ch 215, § 23; RC 1919, § 7798; SDC 1939, § 22.0104; SL 1949, ch 81, § 2; SDC Supp 1960, § 22.0104 (1); SL 1992, ch 60, § 2; SL 2004, ch 17, § 286; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-14. Contraband articles subject to condemnation.
Any article of food or drug which is adulterated, misbranded, or otherwise illegal is hereby declared contraband and subject to condemnation and disposal as provided in §§ 39-1-15 and 39-1-16.
Source: SDC 1939, § 22.0104 as added by SL 1949, ch 81, § 2; SDC Supp 1960, § 22.0104 (2).
39-1-15. Seizure or quarantine of contraband articles--Tagging and marking--Removal as petty offense.
The secretary of agriculture and natural resources, the secretary of public safety, and their agents and inspectors, with or without the assistance of the officers specified in § 39-1-13, have power and authority to seize or quarantine by tagging or otherwise suitably marking any food or drug which is, or which is suspected of being, contraband material as defined in § 39-1-14; and for this purpose they and their agents and inspectors shall be vested with police powers. Such tag or marking shall be notice to all persons not to remove or otherwise molest marked or tagged material until given permission by the secretary of agriculture and natural resources, the secretary of public safety, or a court. Any person who removes or otherwise molests any article of food or drug tagged or marked as provided by this section without the permission or consent of the secretary of agriculture and natural resources, the secretary of public safety, or a court, commits a petty offense.
Source: SDC 1939, § 22.0104 as added by SL 1949, ch 81, § 2; SDC Supp 1960, § 22.0104 (2), (3); SL 1977, ch 190, § 348; SL 2004, ch 17, § 287; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
39-1-16. Petition to court for condemnation of seized or quarantined articles--Hearing and order.
Any person or officer seizing or quarantining contraband material pursuant to § 39-1-15 shall, within five days, petition the circuit court for the county in which such contraband material is found for condemnation of the material. The court shall thereupon make an order fixing a time and place of hearing and providing for reasonable notice thereof to the person in whose possession such contraband material was found. Upon hearing, the court shall determine whether such article of food or drug is in fact adulterated, misbranded, or otherwise illegal. If the court shall determine that such article is adulterated, misbranded, or otherwise illegal, it shall order that the same be condemned and destroyed or otherwise disposed of as the court shall direct.
Source: SDC 1939, § 22.0104 as added by SL 1949, ch 81, § 2; SDC Supp 1960, § 22.0104 (2).
39-1-17. Preemption of local regulation of certain seed, commercial fertilizer, commercial feed, animal remedies, and pesticide.
The provisions of South Dakota law and rules preempt any local legislation adopted by any political subdivision of the state that is related to the production, use, advertising, sale, distribution, storage, transportation, formulation, packaging, labeling, certification, registration, application, planting, or disposal of seed as defined in § 38-12A-1, commercial fertilizer as defined in § 38-19-1, commercial feed as defined in § 39-14-39, animal remedies as defined in § 39-18-1, and pesticide as defined in § 38-20A-1. No political subdivision may adopt or continue in effect any such local legislation regardless of whether a statute or a rule adopted by the state specifically preempts the local legislation. Local legislation in violation of this section is void and unenforceable. For purposes of this section, the term, local legislation, means any ordinance, motion, resolution, amendment, regulation, or rule adopted by a political subdivision of the state.
Nothing in this section preempts or otherwise limits the authority of any county or municipality to adopt and enforce zoning regulations, fire codes, building codes, or waste disposal restrictions.
Source: SL 2006, ch 210, § 1.
