2004 House Bill text for HB0303

HOUSE BILL 303

46th legislature - STATE OF NEW MEXICO - second session, 2004

INTRODUCED BY

Max Coll

AN ACT

RELATING TO HEALTH; CREATING THE DEPUTY SECRETARY FOR NUTRITION AND THE NUTRITION AND FOOD SAFETY DIVISION IN THE DEPARTMENT OF ENVIRONMENT; PROVIDING FOR THE INTERDICTION OF CERTAIN FOODS, FOOD ADDITIVES AND FOOD PROCESSES TO PROTECT FOOD CONSUMED BY NEW MEXICANS; ALLOWING THE LEGISLATURE TO DETERMINE THAT FOOD IS ADULTERATED OR MISBRANDED UNDER THE NEW MEXICO FOOD ACT, THE MEAT INSPECTION ACT, THE NEW MEXICO DAIRY PRODUCT ACT AND OTHER FOOD-RELATED ACTS BECAUSE OF CARCINOGENS, NEUROTOXINS AND OTHER DELETERIOUS COMPOUNDS; PROVIDING A HIGHER STANDARD FOR FOOD AND FOOD PROCESSES THAN THAT ALLOWED BY THE FEDERAL GOVERNMENT; CREATING A COUNCIL; PROVIDING DUTIES; CREATING A FUND; REQUIRING NUTRITION COURSES IN PUBLIC SCHOOLS; REQUIRING NUTRITION EDUCATION FOR PHYSICIANS AND OTHER HEALTH CARE PRACTITIONERS LICENSED IN NEW MEXICO; REQUIRING STUDIES; RECONCILING MULTIPLE AMENDMENTS TO SECTION 74-1-8 NMSA 1978 (BEING LAWS 1971, CHAPTER 277, SECTION 11, AS AMENDED BY LAWS 2000, CHAPTER 86, SECTION 2 AND LAWS 2000, CHAPTER 96, SECTION 2); AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING APPROPRIATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Nutrition Act".

Section 2. [NEW MATERIAL] FINDINGS AND PURPOSE.--

A. The legislature finds that federal authorities through regulation and legislation have not intended to or expressed an intention to occupy and preempt the matters addressed in this act and, therefore, there remains authority available to the legislature for regulation as it sees necessary to protect and ensure public health and safety for all New Mexicans.

B. The purpose of the Nutrition Act is to improve the quality of food grown in, produced in or imported into New Mexico or exported from New Mexico; to limit or label additives to food that are carcinogenic, neurotoxic or otherwise deleterious; to investigate and identify processes that when applied to foods are harmful to human health; and to educate New Mexico citizens in good nutritional choices.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Nutrition Act:

A. "council" means the nutrition council;

B. "department" means the department of environment;

C. "deputy secretary" means the deputy secretary for nutrition in the department;

D. "division" means the nutrition and food safety division of the department; and

E. "secretary" means the secretary of environment.

Section 4. [NEW MATERIAL] DEPUTY SECRETARY FOR NUTRITION--APPOINTMENT.--The "deputy secretary for nutrition" is created in the department. The deputy secretary shall be appointed by the secretary, with the governor's approval, and serve at the pleasure of the secretary.

Section 5. [NEW MATERIAL] DEPUTY SECRETARY FOR NUTRITION--DUTIES.--

A. The deputy secretary shall, at the direction of the secretary:

(1) oversee department efforts on nutrition, food safety and food service sanitation and coordinate related efforts in other divisions and field offices of the department;

(2) serve as departmental liaison with other state agencies, including the department of health, children, youth and families department, public education department, corrections department, New Mexico livestock board, New Mexico department of agriculture and organic commodity commission, in the development and implementation of nutrition and food safety programs and in the inspection duties of any agencies that involve livestock, food and food production; and

(3) convene the council and seek its advice, recommendations and assistance as he deems appropriate.

B. The deputy secretary shall recommend to the secretary any list of foods, food additives or food processes that the division and the council have determined should be interdicted or required to be clearly labeled because of carcinogens, neurotoxins or other deleterious compounds. If the secretary agrees with the determination of the division and council, the foods, food additives or food processes shall be included in the nutrition and food safety standards.

Section 6. [NEW MATERIAL] NUTRITION AND FOOD SAFETY DIVISION--POWERS AND DUTIES.--

A. The "nutrition and food safety division" is created in the department to:

(1) enforce the provisions of the Nutrition Act, the New Mexico Food Act and other nutrition, food and food safety acts for which it has been given responsibility; and

(2) develop and implement nutrition and food safety programs to ensure the nutritional health of New Mexico's citizens and the safety of their food.

B. The division shall:

(1) examine New Mexico's food and food supply to identify those foods, food additives and food processes that should be interdicted or clearly labeled because of carcinogens, neurotoxins or other deleterious compounds; (2) in conjunction with the New Mexico department of agriculture, examine pesticides, herbicides, carcinogens and other deleterious and harmful substances and toxic or potentially toxic compounds that should be banned from or clearly identified in all food grown in, sold in or imported into New Mexico;

(3) in coordination with the New Mexico department of agriculture and the New Mexico livestock board, inspect any food production facility, grocery store, dairy establishment, feed lot or growing field to obtain samples for testing;

(4) study ways to improve the operations of state government relating to nutrition programs and the provision of nutrition services to the citizens of the state;

(5) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of nutrition programs with the objective of improving the operations and efficiency of the administration;

(6) develop nutrition education programs for food stamp recipients;

(7) in consultation with experts and the affected state agencies, develop nutrition programs for residents, patients or inmates of all state institutions and in public schools, colleges and universities;

(8) in conjunction with the department of health, develop public education programs and campaigns on health, nutrition and ideal weight maintenance; and (9) consult with the university of New Mexico school of medicine to ensure that its nutrition curricula train medical students in basic nutrition and how to prevent and treat nutritional diseases.

Section 7. [NEW MATERIAL] NUTRITION AND FOOD SAFETY STANDARDS.--In carrying out the provisions of Section 6 of the Nutrition Act, the department, in consultation with the council, the environmental improvement board, the New Mexico department of agriculture, the attorney general's office and scientific experts, may by rule establish standards for nutrition and food safety that are more stringent than those established by the federal government pursuant to the Federal Food, Drug and Cosmetic Act, the Federal Meat Inspection Act, the federal Poultry Products Inspection Act or other federal food and food safety acts. Nutrition and food safety standards adopted and promulgated by the department pursuant to the Nutrition Act shall be binding on all departments of state government in the regulation of food and food safety.

Section 8. [NEW MATERIAL] NUTRITION INSPECTORS.--The division shall employ "nutrition inspectors", who shall inspect food production facilities, feed lots, growing fields and wholesale and retail food facilities for compliance with the Nutrition Act and rules promulgated in accordance with that act. The division may contract with the scientific laboratory of the department, a state university or private laboratory to examine and conduct biochemical analyses of foods grown or sold in New Mexico.

Section 9. [NEW MATERIAL] NUTRITION COUNCIL--CREATED--MEMBERSHIP.--

A. The "nutrition council" is created, composed of the following members:

(1) the assistant attorney general for consumer protection;

(2) the deputy secretary;

(3) the secretary of public education or his designee;

(4) the secretary of health or his designee; and

(5) the following members appointed by the governor, who serve at the pleasure of the governor:

(a) one pediatrician;

(b) one internist or family practitioner;

(d) one toxicologist;

(e) one doctorate-level biochemist;

(f) one licensed nutritionist;

(g) one farmer;

(h) one rancher;

(i) one faculty member of the university of New Mexico school of medicine;

(j) one dentist; and

(k) one public member who is appointed on the basis of active involvement in the area of nutrition.

B. Members of the council who are not paid by taxpayer funds may receive per diem and mileage expenses pursuant to the Per Diem and Mileage Act, but shall receive no other compensation, perquisite or allowance.

C. The council shall annually elect a chairman and vice chairman. The council shall meet at the call of the chairman, a majority of the members or the deputy secretary. The division shall serve as staff to the council.

Section 10. [NEW MATERIAL] COUNCIL--DUTIES.--The council shall:

A. review the decisions of the division on matters of nutrition, including what constitutes "deleterious", "carcinogenic" and "toxic or potentially toxic";

B. advise the division and the deputy secretary on areas of concern such as:

(1) the effect of food additives, specifically carcinogens and neurotoxins, on pregnant women, neonates and preschool-age children;

(2) the incidence of diabetes on Indian pueblos and reservations;

(3) the effects of food-induced hyperactivity and attention deficit disorders in children resulting from their ingestion of monosodium glutamate and excitotoxins;

(4) obesity in all age groups; and

(5) other areas deemed important by the secretary or the legislature for division or council focus;

C. make recommendations on the ways to improve nutrition in New Mexico;

D. assist the division in developing and disseminating educational materials on nutrition and on toxic or potentially toxic additives to foods and processes that result in food toxicity;

E. through the public education department, advise public school districts on the development of nutrition courses that are grade specific and that use texts in the field of nutrition, preventive cardiology, preventive oncology and preventive toxicology for New Mexico secondary school students;

F. develop a nutrition questionnaire to be sent to every student in New Mexico that will be used by the division to build a nutrition database; and

G. investigate the quality of public school lunch programs on a district-by-district basis and, upon a finding that a program contains deleterious additives, shall recommend to the school district and the secretary of public education that the use of those additives be discontinued and the sources of food for the school lunch program be improved.

Section 11. [NEW MATERIAL] FUND CREATED.--The "nutrition fund" is created in the state treasury. The fund shall consist of appropriations, gifts, grants, donations, bequests and settlements and awards from court cases filed in the name of the state against food growers or processors. Money in the fund shall not be transferred to any other fund at the end of a fiscal year. Money in the fund is appropriated to the board of regents of the university of New Mexico for the school of medicine for nutrition and health-related research and education. Expenditures shall be made on warrant of the secretary of finance and administration on vouchers signed by the deputy secretary or his designated representative. In order to free the university from any influences by corporations and their lobby groups, all gifts and contributions to the fund shall be scrutinized by the council.

Section 12. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] NUTRITION AND HEALTH COURSES.--The department shall adopt and promulgate minimum standards and benchmarks for grade-specific nutrition and health courses."

Section 13. Section 22-13-1 NMSA 1978 (being Laws 2003, Chapter 153, Section 57) is amended to read:

"22-13-1. SUBJECT AREAS--MINIMUM INSTRUCTIONAL AREAS REQUIRED--ACCREDITATION.--

A. The [state board] department shall require public schools to address [state board-approved] department-approved academic content and performance standards when instructing in specific [state board-required] department-required subject areas as provided in this section. A public school or school district failing to meet these minimum requirements shall not be accredited by the [state board] department.

B. All first, second and third grade classes shall provide daily instruction in reading and language arts skills, including phonemic awareness, phonics and comprehension, and mathematics.

C. All first, second and third grade classes shall provide instruction in art, music and a language other than English.

D. In fourth through eighth grades, instruction that meets academic content and performance standards shall be provided in the following subject areas:

(1) reading and language arts skills, with an emphasis on writing and editing for at least one year and an emphasis on grammar and writing for at least one year;

(2) mathematics;

(3) language other than English;

(4) communication skills;

(5) science;

(6) art;

(7) music;

(8) social studies;

(9) New Mexico history;

(10) United States history;

(11) geography; [and]

(12) physical fitness; and

(13) nutrition and health.

E. In fourth through eighth grades, school districts shall offer electives that contribute to academic growth and skill development and provide career and technical education."

Section 14. Section 22-13-1.1 NMSA 1978 (being Laws 1986, Chapter 33, Section 5) is amended to read:

"22-13-1.1. GRADUATION REQUIREMENTS.--

A. At the end of the eighth grade or during the ninth grade, each student shall prepare an individual program of study for grades nine through twelve. The program of study shall be signed by a student's parent.

B. Successful completion of a minimum of [twenty-three] twenty-four units aligned to the state academic content and performance standards shall be required for graduation. These units shall be as follows:

(1) four units in English, with major emphasis on grammar and literature;

(2) three units in mathematics, at least one of which is equivalent to the algebra 1 level or higher;

(3) two units in science, one of which shall have a laboratory component; provided, however, that with students entering the ninth grade beginning in the 2005-2006 school year, three units in science shall be required, one of which shall have a laboratory component;

(4) three units in social science, which shall include United States history and geography, world history and geography, and government and economics;

(5) one unit in physical education or other physical activity;

(6) one unit in communication skills or business education, with a major emphasis on writing and speaking and that may include a language other than English; [and]

(7) one unit in nutrition and health; and

[(7) nine] (8) eight elective units and [eight] seven elective units for students entering the ninth grade in the 2005-2006 school year that meet [state board] department content and performance standards. Student service learning shall be offered as an elective.

C. Final examinations shall be administered to all students in all classes offered for credit.

D. A student shall not receive a high school diploma who has not passed a state graduation examination in the subject areas of reading, English, math, writing, science, nutrition and health and social science. The state graduation examination on social science shall include a section on the constitution of the United States and the constitution of New Mexico. If a student exits from the school system at the end of grade twelve without having passed a state graduation examination, he shall receive an appropriate state certificate indicating the number of credits earned and the grade completed. If within five years after a student exits from the school system he takes and passes the state graduation examination, he may receive a high school diploma.

E. The [state board] department may establish a policy to provide for administrative interpretations to clarify curricular and testing provisions of the Public School Code."

Section 15. Section 25-2-1 NMSA 1978 (being Laws 1951, Chapter 169, Section 1) is amended to read:

"25-2-1. SHORT TITLE.--[This Act] Chapter 25, Article 2 NMSA 1978 may be cited as the "New Mexico Food Act"."

Section 16. Section 25-2-2 NMSA 1978 (being Laws 1951, Chapter 169, Section 2, as amended) is amended to read:

"25-2-2. DEFINITIONS.--For the purpose of the New Mexico Food Act:

A. "board" means the [environmental improvement board] division;

B. "dairy establishment" means a milk processing or milk producing facility;

C. "division" means the nutrition and food safety division of the department of environment;

D. "director" means the [secretary of environment or his authorized representative] director of the division;

E. "person" includes an individual, partnership, corporation and association;

F. "food" means:

(1) articles used for food or drink for man or animals;

(2) chewing gum; and

(3) articles used for components of food or drink or chewing gum for man or animals;

G. "label" means a display of written, printed or graphic matter upon the immediate container of any article. A requirement made by or under authority of the New Mexico Food Act that any word, statement or other information appear on the label shall not be considered to be complied with unless such word, statement or other information also appears on the outside container or wrapper, if any, of the retail package of such article or is easily legible through the outside container or wrapper;

H. "immediate container" does not include package liners;

I. "labeling" means all labels and other written, printed or graphic matter:

(1) upon an article or any of its containers or wrappers; or

(2) accompanying such article;

J. if an article is alleged to be misbranded because the labeling is misleading or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences [which] that may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement [thereof] or under such conditions of use as are customary or usual;

K. "advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or [which] that are likely to induce, directly or indirectly, the purchase of food;

L. "contaminated with filth" applies to any food not securely protected from dust, dirt and, so far as may be necessary by all reasonable means, [from] all foreign or injurious contaminations, or any food found to contain any dust, dirt, foreign or injurious contamination or infestation; M. the provisions shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession and holding of any such article and the supplying or applying of any such articles in the conduct of any food establishment; and

N. "federal act" means the Federal Food, Drug and Cosmetic Act, [21 USC § 301 et seq.] the Federal Meat Inspection Act [21 USC § 601 et seq.] and the federal Poultry

Products Inspection Act [21 USC § 451 et seq]."

Section 17. Section 25-2-9 NMSA 1978 (being Laws 1951, Chapter 169, Section 9, as amended) is amended to read:

"25-2-9. PROMULGATION OF DEFINITIONS AND STANDARDS BY THE [BOARD] DIVISION.--

A. Whenever in the judgment of the [board] division such action will promote honesty and fair dealing in the interest of consumers, the [board] division shall promulgate [regulations] rules fixing and establishing for any food or class of food a reasonable definition and standard of identity or reasonable standard of quality or fill of container or any combination of such requirements. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the [board] division shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients [which] that shall be named on the label. [The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under the authority of the federal act.]

B. In promulgating [regulations] rules pursuant to this section, the [board] division shall follow the procedures set forth in Section 74-l-9 NMSA l978."

Section 18. Section 25-2-10 NMSA 1978 (being Laws 1951, Chapter 169, Section 10, as amended) is amended to read:

"25-2-10. WHEN FOOD DEEMED ADULTERATED.--A food shall be deemed to be adulterated:

(1) if it bears or contains any poisonous or deleterious substance [which] that may render it injurious to health, but, in case the substance is not an added substance, [such] the food shall not be considered adulterated under this [clause] paragraph if the quantity of [such] the substance in [such good] the food does not ordinarily render it injurious to health; [or]

(2) if it bears or contains any added poisonous or added deleterious substance [which] that is unsafe within the meaning of Section [13 (54-1-13); or] 25-2-13 NMSA 1978;

(3) if it consists in whole or in part of a diseased, contaminated, filthy, impure or infested ingredient, putrid or decomposed substance or if it is otherwise unfit for food; [or]

(4) if it has been produced, prepared, packed or held under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered diseased, unwholesome or injurious to health; [or]

(5) if it is the product of a diseased animal or an animal [which] that has died otherwise than by slaughter or that has been fed upon the [uncooked] offal from a slaughterhouse; or

(6) if its container is composed in whole or in part of any poisonous or deleterious substance [which] that may render the contents injurious to health;

(1) if any valuable constituent has been, in whole or in part, omitted or abstracted therefrom; [or]

(2) if any substance has been substituted wholly or in part therefor; [or]

(3) if damage or inferiority has been concealed in any manner; or

(4) if any substance has been added [thereto] or mixed or packed [therewith] with the food so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is;

C. if it is a confectionery and it bears or contains any alcohol or non-nutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths [of one per centum (4/10%)] percent, harmless natural gum and pectin; provided that this [paragraph] subsection shall not apply to any confectionery by reason of its containing less than two and [one quarter per centum] one-fourth percent by weight of alcohol derived solely from the use of flavoring extracts or to any chewing gum by reason of its containing harmless non-nutritive masticatory substances;

D. if it bears or contains a coal-tar color other than one from a batch [which] that has been certified under authority of the federal act; or

E. if it has been found by the department of environment to include carcinogens, neurotoxins or other deleterious compounds."

Section 19. Section 25-2-11 NMSA 1978 (being Laws 1951, Chapter 169, Section 11) is amended to read:

"25-2-11. WHEN FOOD DEEMED MISBRANDED.--A food shall be deemed to be misbranded if:

[(a) if] A. its labeling is false or misleading in any particular;

[(b) if] B. it is offered for sale under the name of another food;

[(c) if] C. it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;

[(d) if] D. its container is so made, formed or filled as to be misleading;

[(e) if] E. in package form, unless it bears a label containing:

(1) the name and place of business of the manufacturer, packer or distributor; or

(2) an accurate statement of the quantity of the contents in terms of weight, measure or numerical count; provided that under [clause (2) of] this paragraph reasonable variations shall be permitted and exemptions as to small packages shall be established by [regulations] rules prescribed by the [board] division;

[(f) if] F. any word, statement or other information required by or under authority of [this] the New Mexico Food Act to appear on the label or labeling is not prominently placed [thereon] on the label 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] person under customary conditions of purchase and use;

[(g) if] G. it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by [regulations] rules as provided by Section [9] 25-2-9 NMSA 1978 unless:

(1) it conforms to such definition and standard; and

(2) its label bears the name of the food specified in the definition and standard and, insofar as may be required by such [regulations] rules, the common names of optional ingredients, other than spices, flavoring and coloring, present in such food;

[(h) if] H. it purports to be or is represented as:

(1) a food for which a standard of quality has been prescribed by [regulations] rules as provided by Section [9] 25-2-9 NMSA 1978 and its quality falls below [such] that standard unless its label bears in such manner and form as [such regulations] the rules specify a statement that it falls below [such] the standard; or

(2) a food for which a standard [or standards] of fill of container [have] has been prescribed by [regulation] rule as provided by Section [9] 25-2-9 NMSA 1978 and it falls below the standard of fill of container applicable [thereto] to it, unless its label bears in such manner and form as [such regulations] the rules specify a statement that it falls below [such] the standard;

[(i) if] I. it is not subject to the provisions of [paragraph (g)] Subsection G of this section, unless it bears labeling clearly giving:

(1) the common or usual name of the food, if any [there be]; and

(2) in case it is fabricated from two or more ingredients, the common or usual name of each [such] ingredient, except that spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each; provided that to the extent that compliance with the requirements of [clause (2) of] this paragraph is impractical or results in deception or unfair competition, exemptions shall be established by [regulations] rules promulgated by the [board] division; and provided further that the requirements of [Clause (2) of] this paragraph shall not apply to [any] a carbonated beverage, the ingredients of which have been fully and correctly disclosed in an affidavit filed with the [board] division;

[(j) if] J. it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the [board] division determines to be, and by [regulations prescribed] rule prescribes as, necessary in order to fully inform purchasers as to its value for such uses;

[(k) if] K. it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this [paragraph] subsection is impracticable, exemptions shall be established by [regulations] rules promulgated by the [board] division; or

L. it does not bear labeling required by the nutrition and food safety standards of the division because its contents include carcinogens, neurotoxins or other deleterious compounds."

Section 20. Section 25-3-7 NMSA 1978 (being Laws 1969, Chapter 89, Section 2, as amended) is amended to read:

"25-3-7. DEFINITIONS.--As used in the Meat Inspection Act:

A. "board" means the New Mexico livestock board or, where appropriate, its executive director;

B. "health board" means the [health and] department of environment [department of the state];

C. "chief" means the chief veterinary meat inspector;

D. "meat" means the edible flesh of poultry, birds or animals as usually sold for human consumption and includes livestock, poultry and livestock and poultry products;

E. "livestock product" or "poultry product" means any product capable of use as human food [which] that is wholly or partially made from meat and is not specifically exempted by [regulation] rule of the board;

F. "prepared" means slaughtered, canned, salted, stuffed, rendered, boned, cut up or otherwise manufactured or processed;

G. "federal acts" means the Federal Meat Inspection Act, 34 Stat. 1260, as amended by the Wholesome Meat Act, 81 Stat. 584 and the federal Poultry Products Inspection Act, 71 Stat. 441, as amended by the Wholesome Poultry Products Act, 82 Stat. 791;

H. "pesticide chemical", "food additive", "color additive" and "raw agricultural commodity" [shall] have the same meanings for the Meat Inspection Act as for the Federal Food, Drug and Cosmetic Act, 52 Stat. 1040, as amended;

I. "adulterated" means the term applied to any meat if:

(1) [if] it bears or contains any poisonous or deleterious substance [which] that may render it injurious to health [provided that any substance not added to meat shall not be considered adulterating if the quantity of the substance is insufficient to ordinarily render it injurious to health] as prescribed by the board or state law;

(2) [if] it bears or contains, by reason of administration of any substance to the meat, any added poisonous or added deleterious substance [other than a color additive, a food additive or a pesticide chemical in or on a raw agricultural commodity, any of which may] that in the board's judgment [make such article] or by state law makes the meat unfit for human food;

(3) [if] it is in whole or in part a raw agricultural commodity and bears or contains a pesticide chemical [which] that is unsafe [within the meaning of Section 408 of the Federal Food, Drug and Cosmetic Act] as determined by the New Mexico department of agriculture or state law;

(4) [if] it bears or contains any food additive [which] that is unsafe [within the meaning of Section 409 of the Federal Food, Drug and Cosmetic Act] as determined by state law;

(5) [if] it bears or contains any color additive [which] that is unsafe [within the meaning of Section 706 of the Federal Food, Drug and Cosmetic Act] as determined by state law; provided that [an article which] meat that is not otherwise deemed adulterated under [Paragraphs] this paragraph or Paragraph (3) or (4) [or (5)] of this [section] subsection shall be deemed adulterated if use of the pesticide chemical, food additive or color additive in or on [such article] meat is prohibited by [regulation of the board] the nutrition and food safety standards of the department of environment;

(6) [if] it consists in whole or in part of any filthy, putrid or decomposed substance or is for any other reason unsound, unhealthful, unwholesome or otherwise unfit for human food;

(7) [if] it has been prepared, packed or held under [unsanitary] insanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered injurious to health;

(8) [if] it is in whole or in part the product of an animal, including poultry, [which has] that died otherwise than by slaughter;

(9) [if] its container is composed in whole or in part of any poisonous or deleterious substance [which] that may render the contents injurious to health;

(10) [if] it has been intentionally subjected to radiation unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to Section 409 of the Federal Food, Drug and Cosmetic Act;

(11) [if] any valuable constituent has been, in whole or in part, omitted or abstracted [therefrom] or if any substance has been substituted wholly or in part [therefor] or if damage or inferiority has been concealed in any manner or if any substance has been added [thereto] or mixed or packed [therewith] with the meat so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is; or

(12) [if] it is margarine containing animal fat and any of the raw material used [therein] consisted in whole or in part of any filthy, putrid or decomposed substance;

J. "misbranded" means the term applied to meat:

(1) if its labeling is false or misleading in any particular;

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

(3) if it is an imitation of another food, unless its label bears in type of uniform size and prominence the word "imitation" and immediately thereafter the name of the food being imitated;

(4) if its container is so made, formed or filled as to be misleading;

(5) unless it bears a label showing:

(a) the name and place of business of the manufacturer, packer or distributor; and

(b) an accurate statement of the quantity of the product in terms of weight, measure or numerical count; provided that the board may make [regulations] rules exempting small meat packages, meat not in containers and other reasonable variations;

(6) if any word, statement or other information required by or under the Meat Inspection Act or the nutrition and food safety standards of the department of environment to appear on the label or other labeling is not prominently placed [thereon] on the label with such conspicuousness, as compared with other words, statements, designs or devices in the labeling, and is not stated in such terms as to render it likely to be read and understood by the ordinary [individual] person under customary conditions of purchase and use;

(7) if it purports to be or is represented as a food for which a definition and standard of [identify] identity or composition has been prescribed by the [regulations] rules of the board under Section [5 of the Meat Inspection Act] 25-3-13 NMSA 1978 or the nutrition and food safety standards of the department of environment, unless:

(a) it conforms to [such] the definition and standard; and

(b) its label bears the name of the food specified in the definition and standard and, insofar as may be required by [such regulations] the rules, the common names of optional ingredients, other than spices, flavoring and coloring, present in [such] the food;

(8) if it purports to be or is represented as a food for which a standard [or standards] of fill of container [have] has been prescribed by [regulations] rules of the board under Section [5 of the Meat Inspection Act] 25-3-13 NMSA 1978 and it falls below the standard of fill of container applicable [thereto], unless its label bears in such manner and form as [such regulations] the rules specify a statement that it falls below [such] standard;

(9) if it is not subject to the provisions of Paragraph (7) of this subsection unless its label bears:

(a) the common or usual name of the food, if any [there be]; and

(b) in case it is fabricated from two or more ingredients, the common or usual name of each [such] ingredient, except that spices, flavorings and colorings may, when authorized by the board and not in conflict with the nutrition and food safety standards of the department of environment, be designated as spices, flavorings and colorings without naming each; provided that to the extent that compliance with the requirements of this paragraph [(9) (b)] is impracticable or results in deception or unfair competition, exemptions [shall] may be established by [regulations] rules promulgated by the board;

(10) if it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the board, after consultation with the [secretary of agriculture of the United States] nutrition and food safety division of the department of environment, determines to be, and by [regulations] rules prescribes as, necessary in order to fully inform purchasers as to its value for such uses;

(11) if it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this paragraph [(11)] is impracticable, exemptions [shall] may be established by [regulations] rules promulgated by the board in conformance with the nutrition and food safety standards of the department of environment; or

(12) if it fails to bear directly thereon and on its containers, as the board may by [regulations] rules prescribe, the official inspection legend and establishment number of the establishment where the product was prepared and, unrestricted by any of the foregoing, such other information as the board may require in [such regulations] the rules to [assure] ensure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the article in a wholesome condition;

K. "livestock" means any cattle, sheep, swine, goats, horses, asses, mules, [or] other equines, rabbits, bison, camelids, farmed cervidae, antelope and other exotic or game animal, whether live or dead;

L. "poultry" means any wild or domesticated bird, whether live or dead, including ratites; and

M. "official establishment" means any establishment licensed by the board at which inspection of the slaughter of livestock or poultry or the preparation of meat food products is maintained under the provision of the Meat Inspection Act."

Section 21. Section 25-7A-10 NMSA 1978 (being Laws 1993, Chapter 188, Section 10) is amended to read:

"25-7A-10. DAIRY PRODUCTS--ADULTERATED.--A dairy product shall be deemed to be adulterated if:

A. it bears or contains any poisonous or deleterious substance that may render it injurious to health [but, in case the substance is not an added substance, the dairy product shall not be considered adulterated under this subsection if the quantity of the substance in the dairy product does not ordinarily render it injurious to health] as prescribed by the board or the nutrition and food safety standards of the department of environment;

B. it bears or contains any added poisonous or added deleterious substance that is unsafe within the meaning of Section [13 of the New Mexico Dairy Product Act] 25-7A-13 NMSA 1978 or the nutrition and food safety standards of the department of environment;

C. it consists in whole or in part of a diseased, contaminated, filthy, impure or infested ingredient, putrid or decomposed substance or is otherwise unfit for food;

D. it has been produced, prepared, packed or held under [unsanitary] insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered diseased, unwholesome or injurious to health;

E. it is the product of a diseased animal or an animal that has died otherwise than by slaughter or that has been fed upon the [uncooked] offal from a slaughterhouse;

F. its container is composed in whole or in part of any poisonous or deleterious substance that may render the contents injurious to health;

G. any valuable constituent has been, in whole or in part, omitted or abstracted therefrom;

H. any substance has been substituted wholly or in part therefor;

I. damage or inferiority has been concealed in any manner;

J. any substance has been added or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is; [or]

K. it bears or contains a coal-tar color [other than one from a batch that has been certified under authority of the federal act]; or

L. it has been found by the department of environment to include carcinogens, neurotoxins or other deleterious compounds."

Section 22. Section 25-7A-11 NMSA 1978 (being Laws 1993, Chapter 188, Section 11) is amended to read:

"25-7A-11. MISBRANDED DAIRY PRODUCT.--A dairy product within a dairy establishment shall be deemed to be misbranded if:

A. its labeling is false or misleading in any particular manner;

B. it is offered for sale under the name of another dairy product;

C. it is an imitation of another dairy product, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the dairy product imitated;

D. its container is so made, formed or filled as to be misleading;

E. it is in package form, unless it bears a label containing:

(1) the name and place of business of the manufacturer, packer or distributor; or

(2) an accurate statement of the quantity of the contents in terms of weight, measure or numerical count; provided that under this paragraph reasonable variations shall be permitted and exemptions as to small packages shall be established by [regulations] rules prescribed by the board;

F. any word, statement or other information required by or under authority of the New Mexico Dairy Product Act to appear on the label or labeling is not prominently placed 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] person under customary conditions of purchase and use;

G. it purports to be or is represented as a dairy product for which a definition and standard of identity has been prescribed by [regulations] rules as provided by Section [9 of the New Mexico Dairy Product Act] 25-7A-9 NMSA 1978, unless:

(1) it conforms to such definition and standard; and

(2) its label bears the name of the dairy product specified in the definition and standard and, insofar as may be required by such [regulations] rules, the common names of optional ingredients, other than spices, flavoring and coloring, present in such dairy product;

H. it purports to be or is represented as:

(1) a dairy product for which a standard of quality has been prescribed by [regulations] rules as provided by Section [9 of the New Mexico Dairy Product Act] 25-7A-9 NMSA 1978 or the nutrition and food safety standards of the department of environment and its quality falls below that standard, unless its label bears in such manner and form as the [regulations] rules or standards specify a statement that it falls below the standard; or

(2) a food for which a standard of fill of container has been prescribed by [regulation] rule as provided by Section [9 of the New Mexico Dairy Product Act] 25-7A-9 NMSA 1978 and it falls below the standard of fill of container applicable to it, unless its label bears in such manner and form as the [regulations] rules specify a statement that it falls below the standard;

I. it is not subject to the provisions of Subsection G of this section, unless it bears labeling clearly giving:

(1) the common or usual name of the dairy product, if any; and

(2) in case it is fabricated from two or more ingredients, the common or usual name of each ingredient, except that spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each unless otherwise provided by the nutrition and food safety standards of the department of environment; provided that to the extent that compliance with the requirements of this paragraph is impracticable or results in deception or unfair competition, exemptions shall be established by [regulations] rules promulgated by the board, in accordance with those standards;

J. it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the board determines to be, and by [regulations] rules prescribes as, necessary in order to fully inform purchasers as to its value for such uses; and

K. it bears or contains any artificial flavoring, artificial coloring or chemical preservative allowable pursuant to the nutrition and food safety standards of the department of environment, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this subsection is impracticable, exemptions shall be established by [regulations] rules promulgated by the board."

Section 23. A new section of the Nursing Practice Act is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for certified nurse practitioners and clinical nurse specialists."

Section 24. A new section of the Dental Health Care Act is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for dentists."

Section 25. A new section of the Medical Practice Act is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for physicians and physician assistants."

Section 26. A new section of the Professional Psychologist Act is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for psychologists."

Section 27. A new section of the Counseling and Therapy Practice Act is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for counselors and therapists."

Section 28. A new section of Chapter 61, Article 10 NMSA 1978 is enacted to read:

"[NEW MATERIAL] NUTRITION EDUCATION MANDATORY.--The board shall establish by rule requirements for mandatory nutrition education for osteopathic physicians."

Section 29. Section 74-1-8 NMSA 1978 (being Laws 1971, Chapter 277, Section 11, as amended by Laws 2000, Chapter 86, Section 2 and also by Laws 2000, Chapter 96, Section 2) is amended to read:

"74-1-8. BOARD--DUTIES.--

A. The board is responsible for environmental management and consumer protection. In that respect, the board shall promulgate rules and standards in the following areas:

[(1) food protection;

(2)] (1) water supply, including a capacity development program to assist water systems in acquiring and maintaining technical, managerial and financial capacity in accordance with Section 1420 of the federal Safe Drinking Water Act and rules authorizing imposition of administrative penalties for enforcement;

[(3)] (2) liquid waste, including exclusive authority to establish on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services and to implement and administer an inspection and permitting program for on-site liquid waste systems;

[(4)] (3) air quality management as provided in the Air Quality Control Act;

[(5)] (4) radiation control and establishment of license, registration and other related fees not to exceed fees charged by the United States nuclear regulatory commission for similar licenses as provided in the Radiation Protection Act;

[(6)] (5) noise control;

[(7)] (6) nuisance abatement;

[(8)] (7) vector control;

[(9)] (8) occupational health and safety as provided in the Occupational Health and Safety Act;

[(10)] (9) sanitation of public swimming pools and public baths;

[(11)] (10) plumbing, drainage, ventilation and sanitation of public buildings in the interest of public health;

[(12)] (11) medical radiation, health and safety certification and standards for radiologic technologists as provided in the Medical Radiation Health and Safety Act;

[(13)] (12) hazardous wastes and underground storage tanks as provided in the Hazardous Waste Act; and

[(14)] (13) solid waste as provided in the Solid Waste Act.

B. Nothing in Subsection A of this section imposes requirements for the approval of subdivision plats in addition to those required elsewhere by law. Nothing in Subsection A of this section preempts the authority of any political subdivision to approve subdivision plats.

C. Administrative penalties collected pursuant to Paragraph [(2)] (1) of Subsection A of this section shall be deposited in the water conservation fund.

D. Radiation license, registration and other related fees shall be deposited in the radiation protection fund.

[D.] E. On-site liquid waste system fees shall be deposited in the liquid waste fund."

Section 30. TEMPORARY PROVISION--UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE FOOD ADDITIVES AND PESTICIDES STUDIES.--The obstetrics, neonatology and pediatrics departments of the university of New Mexico school of medicine shall conduct a study on the precise medical effects of food additives on pregnant women, fetuses and children under the age of five and a study on the effects of living near or working in fields of farms spraying pesticides, herbicides and insecticides.

Section 31. APPROPRIATIONS.--

A. Three million four hundred thousand dollars ($3,400,000) is appropriated from the general fund to the department of environment for expenditure in fiscal year 2005 for staff, equipment and furnishings for the deputy secretary for nutrition and the nutrition and food safety division of the department of environment and for the per diem and mileage expenses of the nutrition council. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

B. One million five hundred thousand dollars ($1,500,000) is appropriated from the general fund to the nutrition fund for expenditure in fiscal year 2005 and subsequent fiscal years to carry out the provisions of the Nutrition Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

C. Four hundred thousand dollars ($400,000) is appropriated from the general fund to the public education department for expenditure in fiscal years 2005 and 2006 to employ nutritionists to assist school districts in the public schools. Any unexpended or unencumbered balance remaining at the end of fiscal year 2006 shall revert to the general fund.

D. Three hundred thousand dollars ($300,000) is appropriated from the general fund to the board of regents of the university of New Mexico for expenditure in fiscal years 2005 through 2007 to perform the studies provided for in Section 30 of this act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2007 shall revert to the general fund.