39-8-1      Definition of terms.
39-8-2      Administration of chapter.
39-8-3      Construction standards for plants.
39-8-4      Sanitation standards for plant operations.
39-8-5      Labeling of containers of dessert mix.
39-8-6      Units of sale and minimum weight of frozen desserts--Tolerances.
39-8-7      Containers labeled as to quantity.
39-8-8      Labeling of desserts sold in packages.
39-8-9      Exemption from labeling requirements of containers filled in presence of purchaser.
39-8-10      Standards of identity, quality, and fill of container.
39-8-11      Conditions constituting adulteration of dessert or mix.
39-8-12      Conditions constituting misbranding of dessert or mix.
39-8-13      Manufacture, sale, or possession of adulterated or misbranded dessert or mix as misdemeanor.
39-8-14      Violation of chapter or regulations as misdemeanor.
39-8-15      Citation of chapter.

39-8-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Distributor," any person not a frozen dessert manufacturer that purchases such products in final package form from a frozen dessert manufacturer for resale;

(2)    "Frozen dessert manufacturer," any person who manufactures, or processes, any mix as frozen desserts for distribution or sale;

(3)    "Frozen dessert plant," any place or premises where frozen desserts or mix are manufactured, or processed, for distribution or sale;

(4)    "Frozen desserts," any clean frozen or partially frozen combination of two or more of the following: milk or milk products, eggs or egg products, sugars, water, fruit, or fruit juices, candy, nut meats, or other harmless and wholesome food products, flavors, color, harmless stabilizer, and shall be deemed to include, ice cream, ice milk, frozen custard, milk sherbet, ices, and other similar products;

(5)    "Milk and milk products," used in mix or frozen desserts shall be from cow's milk and include milk, cream, frozen cream, plastic cream, fluid skim milk, butter, sweetened and unsweetened condensed skim milk, powdered whole milk, powdered skim milk, sweet cream buttermilk, sweet cream condensed buttermilk, and sweet cream powdered buttermilk, or any of these products from which lactose has been wholly or partially removed;

(6)    "Mix," the unfrozen combination of all ingredients of a frozen dessert with or without fruits, fruit juices, candy, nut meats, flavor, or harmless color;

(7)    "Pasteurization," "pasteurized," and similar terms shall be taken to refer to the process of heating every particle of mix to one hundred fifty-five degrees Fahrenheit and holding at such temperature for thirty minutes, or to one hundred seventy-five degrees Fahrenheit and holding at such temperature continuously for twenty-five seconds in approved and properly operated equipment. Nothing in this definition disbars any other process which has been demonstrated to be equally efficient and is approved by the secretary of agriculture and natural resources;

(8)    "Person," includes individual, partnership, limited liability company, corporation, and association.

Source: SL 1909, ch 296, § 2; RC 1919, § 7905; SL 1925, ch 136; SL 1931, ch 133, § 1; SL 1933, ch 161, § 1; SL 1937, ch 198, § 2; SDC 1939, § 22.0603; SL 1941, ch 94; SL 1947, ch 95, § 1; SL 1951, ch 104, § 1; SL 1965, ch 104, § 3 (a) to (h); SL 1994, ch 351, § 94; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.

39-8-2. Administration of chapter.

This chapter shall be administered by the secretary of agriculture and natural resources of the State of South Dakota, hereinafter referred to as the secretary.

Source: SL 1937, ch 198, § 11; SDC 1939, § 22.0602; SL 1965, ch 104, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-3. Construction standards for plants.

The secretary of agriculture and natural resources shall promulgate rules pursuant to chapter 1-26 to establish minimum standards of construction for frozen dessert plants concerning:

(1)    Floors, walls, ceilings;

(2)    Doors and windows;

(3)    Lighting and ventilation;

(4)    Toilet and lavatory facilities;

(5)    Water supply;

(6)    Separation and partitioning of rooms for carrying on the several handling, processing, and storage functions.

Source: SL 1965, ch 104, § 6; SL 1986, ch 326, § 62; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-4. Sanitation standards for plant operations.

The secretary of agriculture and natural resources shall promulgate rules pursuant to chapter 1-26 to establish minimum standards of sanitation for the operation of a frozen dessert plant concerning:

(1)    Washing, cleaning, maintenance, and condition of floors, walls, and ceilings of all rooms directly connected with the handling, processing, and storage of frozen desserts, and the equipment used therein, including mobile equipment used in transportation of frozen dessert products;

(2)    Health and cleanliness of personnel;

(3)    Cleanliness and sanitation of surrounding premises;

(4)    Disposal of all waste and sewage material;

(5)    Insect and rodent control.

Source: SL 1933, ch 161, § 6; SL 1937, ch 198, § 8; SDC 1939, § 22.0606; SL 1965, ch 104, § 7; SL 1986, ch 326, § 63; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-5. Labeling of containers of dessert mix.

All containers of frozen dessert mix shall be conspicuously labeled as to the contents of the container, the name and address of the manufacturer or distributor.

Source: SL 1965, ch 104, § 4 (d).

39-8-6. Units of sale and minimum weight of frozen desserts--Tolerances.

Frozen desserts sold in other than individual serving devices, shall be sold in terms of gallons, quarts, or pints weighing not less than four and one-half pounds per gallon, or less than thirty-six ounces per one-half gallon, or less than nine ounces per pint. If the average weight of ten units, e.g. ten quarts, or any lot of frozen dessert of the same brand and flavor equals or exceeds the minimum weight established for such units by this section, the requirements shall be deemed to have been met; provided, no individual unit shall be more than five percent of the required unit weight under the minimum weight established for such units.

Source: SDC 1939, § 22.0604 as added by SL 1951, ch 104, § 2; SL 1965, ch 104, § 4 (a).

39-8-7. Containers labeled as to quantity.

All packages and final delivery containers for frozen desserts shall be labeled with the size of the container in terms of pints, quarts, or gallons. All packages containing less than one pint shall be labeled with the volume of the container in terms of net fluid ounces.

Source: SL 1937, ch 198, § 9; SDC 1939, § 22.0609; SL 1965, ch 104, § 4 (a).

39-8-8. Labeling of desserts sold in packages.

Frozen desserts sold in package form as final delivery containers shall be labeled with:

(1)    Name of the product;

(2)    The name and address of the manufacturer or distributor and the word manufacturer or distributor whichever is applicable;

(3)    The size of the container in terms of pints, quarts, or gallons. Containers of less than one pint shall be in terms of net fluid ounces.

Source: SL 1933, ch 161, § 4; SL 1937, ch 198, §§ 6, 9; SDC 1939, §§ 22.0608, 22.0609; SL 1951, ch 104, § 3; SL 1965, ch 104, § 4 (b).

39-8-9. Exemption from labeling requirements of containers filled in presence of purchaser.

Packages and final delivery containers of frozen dessert as identified under this chapter which are filled in the presence of the purchaser at retail shall be exempted from the labeling requirements of §§ 39-8-7 and 39-8-8.

Source: SL 1965, ch 104, § 4 (c).

39-8-10. Standards of identity, quality, and fill of container.

The secretary of agriculture and natural resources shall promulgate rules pursuant to chapter 1-26 fixing standards of identity, standards of quality, and standards for fill of container for frozen desserts concerning:

(1)    Ice cream and label statement of optional ingredients;

(2)    Frozen custard, french ice cream, french custard ice cream, and label statement of optional ingredients;

(3)    Ice milk and label statement of optional ingredients;

(4)    Fruit sherbets and label statement of optional ingredients;

(5)    Water ices and label statement of optional ingredients;

(6)    Quiescently frozen confections, quiescently frozen dairy confections, and label statement of optional ingredients.

Source: SL 1937, ch 198, § 3; SDC 1939, § 22.0604; SL 1951, ch 104, § 2; SL 1965, ch 104, § 5; SL 1986, ch 326, § 64; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-11. Conditions constituting adulteration of dessert or mix.

A frozen dessert or mix shall be deemed adulterated for purposes of this chapter:

(1)    If it bears or contains any poisonous or deleterious substance which may render it injurious to health;

(2)    If any valuable constituent has been in whole or in part omitted or abstracted therefrom or if any substance has been substituted in part or in whole;

(3)    If it does not conform with the definitions, standards, or other requirements as set forth for the same in this chapter or by rule promulgated pursuant to chapter 1-26.

Source: SL 1937, ch 198, § 10; SDC 1939, § 22.0611; SL 1947, ch 95, § 3; SL 1965, ch 104, § 3 (i); SL 1986, ch 326, § 65.

39-8-12. Conditions constituting misbranding of dessert or mix.

A frozen dessert or mix shall be deemed misbranded for purposes of this chapter:

(1)    If its labeling is false or misleading in any manner;

(2)    If it is offered for sale under the name of another food;

(3)    If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

(4)    If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, caloric, and other dietary properties as the secretary of agriculture and natural resources determines to be necessary in order to fully inform purchasers as to its value for such uses;

(5)    If it does not conform with the definitions, standards, or other requirements as set forth in this chapter or rules promulgated pursuant to chapter 1-26 for frozen desserts.

Source: SL 1937, ch 198, § 10; SDC 1939, § 22.0611; SL 1947, ch 95, § 3; SL 1965, ch 104, § 3 (j); SL 1986, ch 326, § 66; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-13. Manufacture, sale, or possession of adulterated or misbranded dessert or mix as misdemeanor.

It is a Class 2 misdemeanor for any person to manufacture, freeze, sell, offer or expose for sale, or have in possession with intent to sell, any frozen dessert or mix which is adulterated or misbranded.

Source: SL 1937, ch 198, § 10; SDC 1939, § 22.0611; SL 1947, ch 95, § 3; SL 1965, ch 104, § 8; SL 1977, ch 190, § 372.

39-8-14. Violation of chapter or regulations as misdemeanor.

Any person who violates any of the provisions of this chapter or the rules and regulations issued thereunder, or who impedes, obstructs, hinders, or prevents the secretary of agriculture and natural resources or his duly authorized agent in performance of his duty in connection with the provisions of the chapter, is guilty of a Class 2 misdemeanor.

Source: SL 1933, ch 161, § 10; SL 1937, ch 198, § 12; SDC 1939, § 22.9912; SL 1965, ch 104, § 9; SL 1977, ch 190, § 373; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

39-8-15. Citation of chapter.

This chapter shall be known as the "South Dakota Frozen Desserts Law."

Source: SL 1965, ch 104, § 1.