SENATE BILL 654

47th legislature - STATE OF NEW MEXICO - second session, 2006

INTRODUCED BY

Gerald P. Ortiz y Pino

AN ACT

RELATING TO FOOD; BANNING THE USE OF THE ARTIFICIAL SWEETENER ASPARTAME IN FOOD PRODUCTS; MAKING AN APPROPRIATION.

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

     Section 1. [NEW MATERIAL] LEGISLATIVE FINDINGS.--

          A. The legislature finds it is imperative for the public health, safety and welfare to declare that aspartame and its derivative compounds, in all of their trade names, are poisonous and deleterious food additives due to their neurotoxic and carcinogenic metabolites.

          B. The legislature finds federal authorities have not intended to or expressed an intention to occupy and preempt areas of concern regarding the prohibition of toxic, neurotoxic, carcinogenic, poisonous or deleterious food additives, and therefore the legislature may prohibit the sale of products containing aspartame and its derivative compounds in order to protect and ensure the public health, safety and welfare.

     Section 2. 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. "aspartame" means the artificial sweetener with the technical name L-aspartyl-L-phenylalanine methyl ester;

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

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

          [C.] D. "division" means the department of environment;

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

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

          [F.] G. "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.] H. "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.] I. "immediate container" does not include package liners;

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

          [L.] M. "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.] N. 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.] O. "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 3. Section 25-2-3 NMSA 1978 (being Laws 1951, Chapter 169, Section 3) is amended to read:

     "25-2-3. PROHIBITED ACTS.--The following acts and the causing thereof within the state [of New Mexico] are [hereby] prohibited:

          [(a)] A. the manufacture, sale or delivery or holding or offering for sale of any food that is adulterated or misbranded;

          [(b)] B. the adulteration or misbranding of any food;

          [(c)] C. the receipt in commerce of any food that is adulterated or misbranded and the delivery or proffered delivery [thereof] of the adulterated or misbranded food for pay or otherwise;

          [(d)] D. the sale, delivery for sale, holding for sale or offering for sale of any article in violation of Section [12] 25-2-12 NMSA 1978;

          [(e)] E. the dissemination of any false advertisement;

          [(f)] F. the refusal to permit entry or inspection or to permit the taking of a sample as authorized by Section [16] 25-2-16 NMSA 1978;

          [(g)] G. the giving of a guaranty or undertaking, which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by and containing the name and address of the person residing in the state [of New Mexico] from whom [he] the person received the food in good faith;

          [(h)] H. the removal or disposal of a detained or embargoed article in violation of Section [6] 25-2-6 NMSA 1978;

          [(i)] I. the alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food if [such] the act is done while [such] the article is held for sale and results in [such] the article being misbranded;

          [(j)] J. forging, counterfeiting, simulating or falsely representing or without proper authority using any mark, stamp, tag, label or other identification device authorized or required by [regulations] rules promulgated under the provisions of [this] the New Mexico Food Act; and

          K. the manufacture, sale or delivery or holding or offering for sale of any food containing any amount of aspartame and its derivative compounds in any of their trade names."

     Section 4. APPROPRIATION.--One hundred thousand dollars ($100,000) is appropriated from the general fund to the office of the attorney general for expenditure in fiscal year 2007 to enforce the provisions of this act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2007 shall revert to the general fund.

     Section 5. APPLICABILITY.--The provisions of this act shall not apply to food products located within the state on July 1, 2006.

     Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2006.

- 7 -