Milk, Cream and Other Milk Products; Containers

Del. Code tit. 3, ch. 31

in effect

Del. Code tit. 3, § 3101 Standard measure for milk or cream; sale by butterfat content.

No milk, skim milk or cream shall be sold, offered for sale, or demanded from any wholesale or retail seller thereof, at any other standard of measurement than that known as the liquid or wine measure containing 231 cubic inches to the gallon. This section shall not apply to the sale of milk, skim milk or cream by weight or percentage of butterfat.

Del. Code tit. 3, § 3102 Unlawful sales of milk or cream; penalty.

Whoever violates § 3101 of this title shall be fined not less than $25 nor more than $100, or imprisoned not less than 10 nor more than 30 days, or both.

Del. Code tit. 3, § 3103 Permit for receiving milk or cream; exceptions.

Every creamery, shipping station, milk factory, cheese factory, ice cream factory, milk condensary or person receiving, buying and paying for milk or cream regardless of the method of settlement, shall be required to hold a permit for each and every place where milk or cream is received by weight or measure. This chapter shall not apply to individuals buying milk or cream for private use, or to producers buying milk in emergencies to make up their regular supply, or to persons buying from dealers already holding a permit, or to hotels, restaurants, boardinghouses, railroad dining cars, retail stores or drugstores. The permit shall be issued by the Department of Agriculture to such creamery, shipping station, milk factory, cheese factory, ice cream factory, milk condensary or person upon the filing of such information as may be required by the Department of Agriculture. The permit shall be valid for a term of 1 calendar year and may be revoked by the Department of Agriculture for any violation of the provisions of this chapter. This permit issued hereunder shall be posted in plain view in the station for which it is issued.

Del. Code tit. 3, § 3104 Definition of condensed, evaporated and concentrated milk.

For the purpose of this chapter, condensed, evaporated and concentrated milk is defined as the product resulting from the evaporation of a considerable portion of the water from the fresh clean lacteal secretion, colostrum free, obtained by the complete milking of cows properly fed and kept, the product to contain, when made from whole milk or from milk with adjustment, if necessary, of the ratio of fat to nonfat solids by the addition or by the abstraction of cream without added sugars all tolerances allowed, at least 25.5% of milk solids and not less than 7.8% of milk fat. The sum of the percentage of milk fat and total milk solids shall be not less than 33.7% when made from whole milk with added sugars to contain at least 8% of milk fat all tolerances allowed and when made from skimmed milk to contain at least 20% of milk solids all tolerances allowed.

Del. Code tit. 3, § 3105 Sale of condensed, evaporated or concentrated milk.

No person, by himself or herself or by his or her agents, servants or employees, shall manufacture, sell or exchange or have in possession with intent to sell or exchange any condensed, evaporated or concentrated milk which does not conform at least to the minimum standards set forth in § 3104 of this title, and when contained in hermetically sealed cans does not bear stamped or labeled thereon the name and address of the manufacturer thereof.

Del. Code tit. 3, § 3106 Sales of milk or cream under fictitious, coined, or trade names.

No person, by himself or herself or by his or her agents, servants or employees, shall manufacture, sell or exchange or have in possession with intent to sell or exchange any milk, cream or skimmed milk whether or not condensed, evaporated, concentrated, powdered, dried or desiccated to or with which has been added, blended or compounded any fats or oils other than milk fats either under the name of the products or articles or the derivatives thereof if labeled or sold under any fictitious, coined or trade names whatsoever.

Del. Code tit. 3, § 3107 Penalty for violating § 3104, 3105 or 3106.

Whoever violates § 3104, 3105, or 3106 of this title shall be fined not less than $50 nor more than $100, or imprisoned not less than 30 nor more than 60 days, or both.

Del. Code tit. 3, § 3108 Enforcement of chapter.

(a) The Department of Agriculture shall enforce this chapter, and may make such proper rules and regulations as are necessary for such enforcement. (b) Nothing in subsection (a) of this section shall prevent any individual from prosecuting any person for violating any of the provisions of this chapter.

Del. Code tit. 3, § 3109 Mastitis analysis of milk samples; appropriations; allocations.

The sum of $9,000 shall be included in the general appropriation bill which is presented to each biennial General Assembly, and appropriated therein to the Department of Agriculture to defray the expenses of a full-time field man to take and collect milk samples to be analyzed for bacteria of mastitis significance. Of each such sum so appropriated, the sum of $3,600 shall be allocated to salaries and wages, the sum of $200 shall be allocated to office and laboratory supplies, and the sum of $700 shall be allocated to travel expenses, for each fiscal year of the biennium. Such sums shall be paid by the State Treasurer upon warrants duly approved by the proper officers of the Department of Agriculture.

Del. Code tit. 3, § 3111 Babcock test requirement.

No person or his or her agents or servants engaged in the business of buying milk or cream on the basis of, or in any manner with reference to, the amount or percentage of butterfat contained therein, shall take, collect or use for testing purposes an unfair or an inaccurate sample, or underread, overread or erroneously manipulate the test commonly known as the “Babcock test” used for determining the percentage of such fat in said milk or cream, or falsify the record thereof, or make the “Babcock” reading except when the fat has a temperature of 135 degrees to 145 degrees Fahrenheit, or use for such test quantities other than 17.6 cubic centimeters in the case of milk and 9 grams or 18 grams in the case of cream. In all tests of cream, the cream shall be weighed and not measured into the test bottle.

Del. Code tit. 3, § 3112 Licensed tester.

Every person or agent or servant thereof engaged in the business of receiving or buying milk or cream on the basis of, or in any way with reference to, the amount of butterfat contained therein, or on the basis of tests made for official inspection or public records as determined by the “Babcock test” shall have the test or tests made only by a licensed tester who shall be responsible for the same and who shall keep a proper and permanent record of all tests made and a copy of such record shall be kept by the owner or manager of the plant.

Del. Code tit. 3, § 3113 Qualifications and duties of licensed tester; fee; renewal of license.

For the purpose of this subchapter, a licensed tester is any person who, having furnished satisfactory evidence of good character and having passed a satisfactory examination in milk and cream testing conducted by the Department of Agriculture or its agents, has received a certificate of proficiency from the Department. Each applicant for examination for a certificate shall pay a fee of $3.45 to the Department of Agriculture or its agents. The Department shall issue a certificate of proficiency in the name of the approved applicant and under a serial number. The Department upon receipt of this certificate of proficiency, together with the payment of a fee of $3.45, shall issue a license to the applicant good for 1 calendar year. This license shall be renewed annually without further examination at the discretion of the Department upon the payment of a fee of $3.45. Each certified tester shall post the certified tester’s license in plain view in the testing room in which the certified tester is employed. The Department shall revoke the license for failure to post it as above required or for any other just cause.

Del. Code tit. 3, § 3114 Licensed weigher and sampler; qualifications and duties; fee; renewal of license.

(a) Every person engaged in the business of buying milk or cream on the basis of, or in any way with reference to, the amount of butterfat contained therein or on the basis of tests made for official inspection or public record shall have the samples taken for testing purposes either by a licensed tester or by a person licensed or certified to weigh and sample milk and cream. (b) For the purpose of this subchapter, a person certified to weigh and sample milk or cream is any person who, having furnished satisfactory evidence of good character and having passed a satisfactory examination in weighing and sampling milk and cream conducted by the Department of Agriculture or its agents, has received a certificate of proficiency from the Department. (c) Each applicant for an examination for such certificate shall pay a fee of $1.75 to the Department. The Department shall issue a certificate of proficiency in the name of the approved applicant and under a serial number. The Department of Agriculture upon receipt of this certificate of proficiency, together with the payment of a fee of $3.45, shall issue a license to the applicant good for 1 calendar year. This license shall be renewed annually without further examination at the discretion of the Department of Agriculture upon the payment of $3.45. (d) Each licensed weigher and sampler shall post his or her license in plain view in the plant in which he or she is employed. The Department of Agriculture may revoke the license for failure to post it as above mentioned or for any other just cause.

Del. Code tit. 3, § 3115 Frequency of testing, holding, retesting and reporting.

(a) Any person or milk plant or agent thereof in the State or out of the State engaged in the business of buying milk on the basis of percentage of butterfat contained therein shall make a test of the milk at least once every 16 days. The milk purchased from each milk producer shall be represented by a composite sample taken from the entire delivery of each of the several lots purchased from the milk producer and shall cover a period of not more than 16 days. A composite sample shall contain a preservative and it shall contain aliquot parts from each lot of milk collected. The preservative must be capable of keeping the composite sample in suitable condition for testing for a period of at least 30 days. Each composite sample shall be held in an airtight bottle, to be labeled with the name or number of the milk producer. (b) After the composite samples have been tested, their residues shall be held intact and in a suitable condition for retesting for a period of 15 days. (c) All milk producers shall be notified within 5 days after the close of the period giving such producer the results of the butterfat test on the composite sample. If the producer desires a retest, such request shall be made directly to the milk plant or through the field man within 24 hours after the receipt of the butterfat test. The retest shall be made immediately and reported to the producer. (d) The Department of Agriculture may at any time require out-of-state milk plants to deliver 1 or all composite samples to the Department of Agriculture laboratories for retesting purposes. An alternative shall be for the out-of-state milk plant to grant the Department of Agriculture or its agents permission to enter its plant for the purpose of taking samples for rechecking purposes. If the composite sample should in some manner be destroyed during the period and it becomes necessary to use fresh samples as the basis of settlement at least 3 fresh samples shall be taken from 3 separate deliveries of milk. (e) Reports of all butterfat tests shall be made to the Department of Agriculture at the close of each testing period. If butterfat tests vary more than 0.02% from one testing period to the next testing period, a retest shall be made and reported. (f) The Secretary of the Department of Agriculture may, by written permission, grant any person or milk plant or agent thereof engaged in the business of buying milk on the basis of percentage of butterfat contained therein the right to use a fresh sample method as approved by the Secretary.

Del. Code tit. 3, § 3116 Percentage of fat used as basis of payment.

No percentage of fat ascertained from a sample containing milk or cream that has been so treated as to cause it to test lower or higher than the test of the milk or cream from which it was taken shall be used as a basis of payment for milk or cream purchased or sold.

Del. Code tit. 3, § 3117 Approved weight or measure or butterfat test as basis of payment.

(a) No person purchasing or selling milk or cream or both by weight or measure or butterfat test, and no agent or servant of any such person, shall use as a basis of payment for such purchase any weight or measure or butterfat test other than the approved weight or measure or butterfat test of the milk or cream purchased or sold. (b) Only procedures approved by the Association of Official Analytical Chemists or the American Public Health Association and adopted or prescribed by the State Department of Agriculture may be used. The Babcock test or the automated light scattering method for determining fat content of raw unhomogenized milk are hereby adopted as procedures for the determination of the fat content of milk as a basis of payment to producers.

Del. Code tit. 3, § 3118 Butterfat statement given producers; contents.

(a) Every person or agent or servant thereof purchasing or receiving milk or cream from the producer thereof for manufacturing purposes or for reselling the same shall, at each time of payment to the producer for milk or cream, or where the producer of milk or cream is selling the same to the purchaser or receiver by or through a cooperative association or other agency and the payment thereof is being made by the purchaser or receiver to the cooperative or other agency, at the time the purchaser or receiver makes each payment to the cooperative association or other agency, give each producer delivering milk a statement showing the amount delivered daily during the time for which payment is made and the average per centum butterfat test of same, provided payment is made on the basis of the butterfat content. (b) The statement shall contain the name or number of the producer or seller of the milk or cream, the date of delivery thereof, and the amount delivered. The statement shall be given in the terms of the unit used as a basis for determining the value thereof. A purchaser or receiver may, in lieu of the monthly statement of weights, give daily to the producer or to the producer’s agent at the time of delivery of milk or cream to the purchaser or receiver, a written statement of the amount of milk or cream received or purchased.

Del. Code tit. 3, § 3119 Authority to enter premises and examine books, records and testing apparatus.

The Department of Agriculture or its agents may enter the premises and examine the books, the records and testing apparatus of any person, for the purpose of carrying out this subchapter.

Del. Code tit. 3, § 3120 Violations and penalties.

(a) Whoever violates this subchapter, except § 3111 of this title, shall be fined not less than $10 nor more than $50, or imprisoned not less than 10 nor more than 30 days, or both. (b) Whoever violates § 3111 of this title shall be fined not less than $100 nor more than $1,000, or imprisoned not more than 9 months.

Del. Code tit. 3, § 3121 Persons responsible for violations.

For violation of any of this subchapter proceedings may be instituted against the owner or manager who is responsible for the business transacted, together with the certified tester or the person weighing and sampling, and either or all of them shall be held equally responsible.

Del. Code tit. 3, § 3122 Payment of fines and other money; disposition.

All fines and penalties received for violations of this subchapter and all moneys received in compliance with this subchapter shall be paid to the Department of Agriculture or its agents and shall thereafter be paid into the State Treasury for the use of the State.

Del. Code tit. 3, § 3123 Purchase of milk or cream by state institutions.

Whenever a state institution purchases milk or cream pursuant to competitive bids based on the butterfat contents of the milk or cream supplied or to be supplied pursuant to such bid or bids, the tests to determine the butterfat contents thereof shall be made pursuant to and in compliance with the testing requirements provided under this subchapter. Whenever any bid has been accepted by any state institution to supply milk or cream or both of a required percentage of butterfat, the successful bidder shall be deemed to be in compliance with the requirements of the bid whenever any tests of the milk or cream shall be made, and such tests to determine the amount of the butterfat in such milk or cream or both shall be made pursuant to and in compliance with the provisions of this subchapter. The successful bidder shall not be required to satisfy any other tests made by any other sources than those prescribed under this subchapter.

Del. Code tit. 3, § 3131 Approved testing glassware and utensils.

No person purchasing milk or cream and paying for the same on the basis of the percentage of butterfat contained therein shall, if the percentage of butterfat is ascertained by the “Babcock test,” use any test glassware except standard Babcock test glassware and weights which have been previously inspected and approved by the Department of Agriculture. If the proportion of butterfat is determined by any method other than the “Babcock test” no utensil or instrument shall be used in the determination until the same has been inspected and approved by the Department of Agriculture.

Del. Code tit. 3, § 3132 Specifications for standard Babcock testing glassware.

The term “standard Babcock testing glassware” applies to glassware and weights complying with the following specifications: (1) Standard milk test bottles. — Graduation. — The total per centum graduation shall be 8. The graduated portion of the neck shall have a length of not less than 63.5 millimeters (2 ½ inches). The graduation shall represent whole percent, .5 percent, and tenths percent. The tenths percent graduation shall not be less than 3 millimeters in length; the .5 percent graduations shall be 1 millimeter longer than the tenths percent graduation, projecting 1 millimeter to the left. The whole percent graduations shall extend at least one-half way around the neck to the right and projecting 2 millimeters to the left of the tenths percent graduations. Each percent graduation shall be numbered, the number being placed on the left of the scale. The error at any point of the scale shall not exceed .1 percent. Neck. — The neck shall be cylindrical, and the cylindrical shape shall extend for at least 9 millimeters below the lowest and above the highest graduation mark. The top of the neck shall be flared to a diameter of not less than 10 millimeters. Bulb. — The capacity of the bulb up to the junction of the neck shall not be less than 45 cubic centimeters. The shape of the bulb may be either cylindrical, or conical with the smallest diameter at the bottom. If cylindrical, the outside diameter shall be between 34 and 36 millimeters; if conical, the outside diameter of the base shall be between 31 and 33 millimeters and the maximum diameter between 35 and 37 millimeters. Charge. — The charge of the bottle shall be 18 grams. Height. — The total height of the bottle shall be between 150 and 165 millimeters (5 ⅞ and 6 ½ inches). (2) Standard cream test bottles. — Three types of bottles shall be accepted as standard cream test bottles; a 50 percent, 9 gram, short-neck bottle; a 50 percent, 9 gram, long-neck bottle; and a 50 percent, 18 gram, long-neck bottle. Fifty percent, 9 gram, short-neck bottles: Graduation. — The total percent graduation shall be 50. The graduated portion of the neck shall have a length of not less than 63.5 millimeters (2 ½ inches). The graduation shall represent 5 percent, 1 percent, and .5 percent. The 5 percent graduation shall extend at least half way around the neck to the right. The .5 percent graduation shall be at least 3 millimeters in length, and the 1 percent graduation shall have a length intermediate between the 5 percent and the .5 percent graduations. Each 5 percent graduation shall be numbered, the number being placed on the left of the scale. The error at any point of the scale shall not exceed .5 percent. Neck. — The neck shall be cylindrical, and the cylindrical shape shall extend at least 9 millimeters below the lowest, and 9 millimeters above the highest graduation mark. The top of the neck shall be flared to a diameter of not less than 10 millimeters. Bulb. — The capacity of the bulb up to the junction of the neck shall not be less than 45 cubic centimeters. The shape of the bulb may be either cylindrical, or conical, with the smallest diameter at the bottom. If cylindrical, the outside diameter shall be between 34 and 36 millimeters; if conical, the outside diameter of the base shall be between 31 and 33 millimeters, and the maximum diameter between 35 and 37 millimeters. Charge. — The charge of the bottle shall be 9 grams. All bottles shall bear on top of the neck, above the graduations, in plainly legible characters, a mark defining the weight of the charge to be used (9 grams). Height. — The total height of the bottle shall be between 150 and 165 millimeters (5 ⅞ and 6 ½ inches), which is the same as standard milk test bottles. Fifty percent, 9 grams, long-neck bottles: The same specifications in every detail as specified for the 50 percent, 9 grams, short-neck bottle, shall apply for the long-neck bottle, with the exception, however, that the total height of this bottle shall be between 210 and 235 millimeters (8 ¼ and 8 ⅞ inches), and that the total length of the graduation shall not be less than 120 millimeters. Fifty percent, 18 grams, long-neck bottles: The same specifications in every detail as specified for the 50 percent, 9 grams, long-neck bottles, except that the charge of the bottle shall be 18 grams. All bottles shall bear, on the top of the neck, above the graduation, in plainly legible characters, a mark defining the weight of the charge to be used (18 grams). (3) The standard Babcock pipette. — Total length of pipette, not more than 330 millimeters (13 ¼ inches). Outside diameter of suction tube, 6 to 8 millimeters. Length of suction tube, 130 millimeters. Outside diameter of delivery tube, 4.5 to 5.5 millimeters. Length of delivery tube, 100 to 120 millimeters. Distance of graduation mark above bulb, 30 to 60 millimeters. Nozzle, straight. Delivery, 17.6 cubic centimeters of water at 20° Centigrade in 5 to 8 seconds. (4) Standard weights. — The standard weights shall be of 9 grams and 18 grams denominations.

Del. Code tit. 3, § 3133 Inspection and marking of Babcock test bottles.

(a) Every person, or agent thereof, engaged in the business of buying milk or cream on the basis of, or in any manner with reference to, the amount of percentage of butterfat contained therein, as determined by the “Babcock test,” shall use standard “Babcock” bottles, pipettes, and weights, as defined in § 3132 of this title. All Babcock test bottles, pipettes, and weights, so used, shall have been inspected for accuracy by the Department of Agriculture, or its proper officer or agent, and shall be legibly and indelibly marked by the Department of Agriculture, or its inspectors of weights and measures, with the letters “S. G. D.” (Standard Glassware Delaware). (b) No Babcock bottle, pipette, or weight, shall be used for a test unless examined and marked by the inspectors of weights and measures. No person or agent shall use any other than standard test bottles, pipettes and weights, which have been examined and marked as provided in this section, to determine the amount of fat in milk or cream bought on the butterfat basis as determined by the Babcock test.

Del. Code tit. 3, § 3134 Violations and penalties.

Whoever violates this subchapter shall be fined not less than $10 nor more than $50, and shall pay the costs of prosecution.

Del. Code tit. 3, § 3141 Registration of markings on containers.

(a) Any person engaged in manufacturing, bottling or selling milk, cream or other dairy products in bottles, boxes, tins, cans or other receptacles or containers, with such person’s name or names or other mark or marks, or device or devices, branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bottles, boxes, tins, cans or other receptacles or containers used by such person in the same or delivery of milk, cream or other dairy products, may file in the office of the Secretary of State a description of the name or names, marks or devices so used by such person, and cause such description to be printed once a week for 2 weeks successively in a newspaper published in the county in which the principal office or place of business of the owner shall be located. (b) Upon legal proof being furnished the Secretary of State, a certificate shall be issued by the Secretary of State which certificate shall be competent evidence in any court of law of the State of the right of such person to the absolute use of such bottles, boxes, tins, cans, or other receptacles or containers, with such devices marked thereon, and of the publication and registration of the same. If such person has obtained a certificate from the Secretary of State and thereafter retires from business, such person shall have the right to legally transfer the certificate to such person’s successor in the business.

Del. Code tit. 3, § 3142 Use of registered containers.

(a) No person shall fill with milk, cream or other dairy products, or other beverages, oils, compounds or mixtures, any bottles, boxes, tins, cans or other receptacles or containers, marked or distinguished by or with any name, mark or device, of which a description has been filed and published as provided for in this subchapter; or deface, erase, obliterate, cover up, or otherwise remove or conceal, any such name, mark or device thereon; or sell, buy, give, take, retain, or break, mutilate or destroy, or otherwise dispose of, or traffic in the same; without the written consent of the owner or owners thereof being first obtained. (b) The fact of any person other than the rightful owner or owners thereof using any such bottles, boxes, tins, cans, or other receptacles or containers for the sale or storage therein of any milk, cream or other dairy products, or other beverages, oils, compounds or mixtures, without the written consent of such owner or owners, of which a description of the names, marks, or devices thereon has been filed and published in the manner provided for in this subchapter; or the buying, selling, using, disposing of, destroying, retaining, or trafficking in such bottles, boxes, tins, cans, or other receptacles or containers, by any person other than the owner or owners thereof, without written consent; or having possession, by any junk dealer or other dealer in secondhand articles, of any bottles, boxes, tins, cans, or other receptacles or containers, of which a description of the names, marks, or devices thereon has been filed and published without written consent, shall be prima facie evidence of the unlawful use, retention, possession of, or trafficking in such bottles, boxes, tins, cans, or other receptacles or containers.

Del. Code tit. 3, § 3143 Deposits on containers.

The requiring, taking, or accepting of any deposit upon the delivery of any bottle, box, tin, can or other receptacles or containers, the name, mark, or device upon which has been filed and published as provided for in this subchapter, shall not constitute a sale thereof, either optional or otherwise.

Del. Code tit. 3, § 3144 Confiscation by owner of unlawfully used containers.

The owner or proprietor, or his or her or its agent or agents, may take possession of any bottles, boxes, tins, cans, or other receptacles or containers, used in violation of this subchapter, whether the receptacles or containers be full or partly full of any liquid, beverage or other substance, or empty, and shall not be liable in damages therefor, or for any trespass arising out of taking possession. Should the party or parties having possession of the receptacles or containers refuse to empty the same of the contents contained therein immediately, upon notice and demand by the owner or proprietor, or his or her or its agent or agents, then the owner, proprietor or agent may empty the receptacles or containers and shall not be liable therefor.

Del. Code tit. 3, § 3145 Sterilization of bottles.

Glass bottles used in the sale and delivery of milk, cream and other dairy products shall be sterilized before each and every filling, and shall not be used by the owner or owners thereof, or by any other person for any other purpose whatsoever.

Del. Code tit. 3, § 3146 Violations and penalties.

Whoever violates this subchapter shall be fined not more than $10 for each offense, unless a different penalty is prescribed by the section violated.

Del. Code tit. 3, § 3147 Jurisdiction of offenses.

Justices of the peace shall have jurisdiction of offenses under this subchapter.

Del. Code tit. 3, § 3148 Appeals; bond; time for taking.

Any person convicted of violating this subchapter shall have the right of an appeal to the Court of Common Pleas upon giving bond with surety satisfactory to the justice of the peace or judge before whom such person was convicted. The appeal shall be taken and bond given within 5 days from the time of conviction.

Del. Code tit. 3, § 3149 §§ 3149, 3150. Jurisdiction of offenses; appeals; bond; time for taking [Transferred].

Transferred.

Del. Code tit. 3, § 3161 Requirement of bond; amount.

(a) No milk dealer or handler shall purchase, acquire or receive on consignment or otherwise milk from producers unless the milk dealer or handler has filed with the Department of Agriculture a corporate surety, individual surety, or collateral bond, approved by such Department. (b) Except as otherwise herein provided, the bond required by subsection (a) of this section shall be in a sum equal to the value of the highest aggregate amount of milk purchased, acquired or received by the dealer or handler from producers in any 1 month during the preceding calendar year, which value shall be computed according to such milk dealer’s or handler’s posted prices for such month, and shall not in any event exceed $100,000. (c) The bond required by subsection (a) of this section shall be upon a form prescribed by the Department of Agriculture, conditioned for the payment by the milk dealer or handler of all amounts due, including amounts due under this subchapter and the orders of such Department, for milk purchased or otherwise acquired from producers by the milk dealer or handler during the license year, upon such terms and conditions as the Department may prescribe. (d) In the case of a milk dealer or handler who pays producers in full each week for milk purchased, acquired or received by the milk dealer or handler from such producers, the bond required by subsection (a) of this section shall be in a sum equal to 50 percent of the value of the highest aggregate amount of milk purchased, acquired or received by the dealer or handler from producers in any 1 month during the preceding calendar year, which value shall be computed according to such milk dealer’s or handler’s posted prices for such month, and shall not in any event exceed $50,000.

Del. Code tit. 3, § 3162 Computation of amount; milk from another state.

Milk purchased, acquired or received by a milk dealer or handler from producers outside the State and sold or distributed by such dealers or handlers as fluid milk within the State, shall be included in computing the amount of such dealer’s or handler’s bond, except where such dealer or handler has filed a bond for the protection of such producers within the state wherein the milk is purchased, acquired or received or with such producers. In such computation, the amount due for such milk shall be determined according to any applicable official prices or any lawful contract price.

Del. Code tit. 3, § 3163 Filing by dealer not engaged in business during preceding year.

A milk dealer or handler purchasing or acquiring or receiving or intending to purchase, acquire or receive milk from producers, but not so engaged during any month of the preceding calendar year, shall file a bond in a reasonable sum to be fixed by the Department of Agriculture, and within the time for filing his or her application such dealer or handler shall request the Department to fix such sum.

Del. Code tit. 3, § 3164 Time of filing; period effective.

(a) The bond required in this subchapter shall be filed with the dealer’s or handler’s application for a license, and shall be filed within the time for filing such application. (b) The bond shall become effective upon its being filed with the Department of Agriculture for the entire license year, or for that part of the license year in which the milk dealer or handler became engaged in the milk business. Any bond filed with the Department shall become effective upon being filed, whether or not it is approved by the Department, and shall no longer be of effect during the license year only when it has been replaced by a bond approved by the Department to be substituted therefor. The bond required in this subchapter shall be an obligation independent of the granting of a license and shall remain in full force and effect for and during the license year designated, as long as the dealer or handler purchases or receives milk from producers or is indebted to pay producers for any milk delivered during said license year, whether or not a license is granted the milk dealer or handler or a license granted the milk dealer or handler remains in force. (c) The Department of Agriculture shall determine within a reasonable time after the close of a license year which milk dealers or handlers have paid all amounts protected by their bonds filed with the Department, and if the Department finds that all amounts protected by the bond of a milk dealer or handler have been paid, it shall thereafter return the bond for said past license year to each such milk dealer or handler.

Del. Code tit. 3, § 3165 Surety requirements.

(a) A corporate surety bond shall be executed to the State by the milk dealer, as principal, and by a corporate surety company. The Department of Agriculture shall have no power to reject any corporate surety bond which is so executed by a corporate surety company authorized to do business in this State as surety. (b) An individual surety bond shall be executed to the State by the milk dealer, as principal, and by 1 or more individuals, as surety or sureties, who shall have sole title to real estate, the fair valuation of which, free and clear, or in excess of all encumbrances, shall be at least equal to the amount of the bond. (c) A collateral bond shall be executed to the State by the milk dealer, as principal, shall set forth therein the collateral posted with such bond, and shall have attached thereto the collateral properly assigned and transferred to the State. The collateral posted with such bond shall be cash in an amount equal to the amount of the bond; or such bond shall be secured by an actual deposit with the Department of Agriculture, or with a bank, bank and trust company, or national bank within the State, of money to the full amount of the bond; or by securities to such amount, consisting of interest-bearing obligations of the United States government, of this State, or of any political subdivision of this State, or by any other security or securities approved by the Department of Agriculture. The security or securities deposited therewith shall constitute a trust fund for producers from whom the dealer purchases milk.

Del. Code tit. 3, § 3166 Substitutions.

The Department of Agriculture may grant to any milk dealer or handler the authority to substitute for any bond, surety or any collateral, another bond, surety or other collateral, provided that such other bond, surety, or collateral meets all the requirements of this subchapter.

Del. Code tit. 3, § 3167 Financial statement; acceptance in lieu of surety.

(a) A milk dealer or handler shall, from time to time, when required by the Department of Agriculture, make and file with such Department a verified statement of his or her disbursements, or of any other facts in connection with his or her business, during a period to be prescribed by the Department, which financial statement shall contain the names of the producers from whom milk was purchased, acquired, received or handled on consignment or otherwise, the amount due to the producers, and any other relevant facts required by the Department pertinent to the dealer or handler or the dealer’s or handler’s surety or sureties. (b) In lieu of, and notwithstanding any and all provisions contained in this subchapter to the contrary, and in particular any and all provisions requiring a milk dealer or handler to file a corporate surety, or individual surety, or collateral bond, the Department of Agriculture may accept of and from any milk dealer or handler who has been continuously engaged in such business in this State for a period of 7 years prior thereto a complete current financial statement of all the assets and liabilities of such dealer or handler, verified under oath by such dealer or handler or an authorized agent thereof; which financial statement shall be in such form and in such detail as the Department prescribes from time to time. (c) Whoever wilfully falsifies any such financial statement, in whole or in part, is guilty of making a false written statement in violation of § 1233 of Title 11 and shall be punished accordingly. (d) If the Department of Agriculture determines from the financial statement that the fair net worth of the milk dealer or handler is at least equal to the amount of corporate surety, or individual surety, or collateral bond which such milk dealer or handler would otherwise be required to file, the Department may accept such milk dealer’s or handler’s bond and financial statement without requiring any corporate or individual surety thereon or collateral to be posted therewith.

Del. Code tit. 3, § 3168 Increase of bond.

If it appears from the dealer’s or handler’s financial statement, or from facts otherwise ascertained by the Department of Agriculture, that the bond afforded to producers selling, supplying or making available on consignment or otherwise milk to such milk dealer or handler does not adequately protect such producers, the Department may require such milk dealer or handler to procure an additional surety, or to give an additional bond or additional security for the collateral bond, in a sum to be determined by the Department, which: (1) Shall not exceed more than 50 percent of the value of the highest aggregate amount of milk purchased, acquired or received on consignment or otherwise by the dealer or handler from producers in any 1 month during the preceding or current year, which value shall be computed according to the prices applicable; or (2) Shall be a sum not exceeding by more than 50 percent the amount found to be due and owing producers by such dealer on a particular date determined by the Department, whichever sum is greater, but the total increase shall not in any event exceed $50,000. In the case of a milk dealer or handler who pays producers in full each week for milk purchased, acquired or received or handled on consignment or otherwise by the milk dealer or handler from such producers, any increase required hereunder shall not exceed more than 25 percent of such value or amount, but the total increase in any event shall not exceed $25,000.

Del. Code tit. 3, § 3169 Decrease in bond.

The Department of Agriculture may grant a reduction of the bond or the collateral, or release an additional surety, if it appears that owing to a decrease in the milk purchased, received or handled by the dealer or handler, or to other causes, a bond in a lesser amount or with fewer sureties will protect producers selling, supplying or making available milk to such milk dealer or handler.

Del. Code tit. 3, § 3170 Bonds, collateral, etc., deposited with State Treasurer.

All bonds, together with any moneys, or securities given as collateral therefor, received by the Department of Agriculture from milk dealers pursuant to the provisions of this subchapter, shall be transmitted by the Department to the State Treasurer for safekeeping subject to withdrawal in whole or in part at any time by the Department.

Del. Code tit. 3, § 3171 Income from collateral.

The milk dealer or handler shall be entitled to all moneys received by the State Treasurer as interest or dividends upon any security or securities deposited by such milk dealer or handler with the Department of Agriculture and transmitted by the Department to the State Treasurer for safekeeping, in accordance with this subchapter. The milk dealer or handler shall not be entitled to interest or dividends if there is on file with the Department a valid unpaid claim of a producer against the milk dealer or handler, based on milk sold, supplied or made available by such producer to the milk dealer or handler.

Del. Code tit. 3, § 3172 Suit upon bond.

The Department of Agriculture may sue on the bond on behalf of producers. Suit may be brought in the name of the State upon relation of the Department of Agriculture or of the Attorney General, in such manner as debts are by law recoverable.

Del. Code tit. 3, § 3173 Order of Department of Agriculture.

If, by valid formal order refusing, suspending or revoking a license, after hearing with due notice to all those liable on the bond, the Department of Agriculture has found a milk dealer or handler to be indebted thereunder, such order and the findings of fact in support thereof shall be conclusive evidence of the amount due under such bond in a suit thereon by the Department, unless an appeal therefrom is pending and a supersedeas granted.

Del. Code tit. 3, § 3174 Distribution of proceeds of bond or collateral.

The Department of Agriculture shall prescribe the procedure for the payment, out of the proceeds of any bond or collateral required by this subchapter, of the amounts found due to producers or handlers or dealers, based on sales or deliveries of milk by them to a milk dealer or handler who has posted a bond or collateral. If the proceeds of a bond or of collateral which has been posted by a milk dealer or handler shall be insufficient to pay in full the amounts due to producers who have sold or supplied milk to such milk dealer or handler, the moneys available shall be divided pro rata among such producers.

Del. Code tit. 3, § 3175 Statement of purpose [For application of this section, see 84 Del. Laws, c. 434, § 4].

This subchapter establishes the permitting, testing, and inspection requirements applicable to the sale and distribution of fresh milk, raw milk, and products derived from raw milk that are intended for human consumption. Raw milk sold or distributed by a raw milk permit holder in compliance with this subchapter is exempt from the Milk Code.

Del. Code tit. 3, § 3176 Definitions [For application of this section, see 84 Del. Laws, c. 434, § 4].

For purposes of this subchapter: (1) “Consumer” means an individual who purchases or acquires fresh milk from a producer, or who purchases or acquires raw milk or a product derived from raw milk from a producer holding a permit issued under § 3178 of this title. (2) “Department” means the Department of Agriculture. (3) “Fresh milk” means milk offered for sale to the public that meets the requirements under § 3177(a) of this title. (4) “Milk Code” means the State of Delaware Milk Code in 16 DE Admin. Code 4461. (5) “Permit holder” means a producer holding a raw milk permit issued under § 3178 of this title. (6) “Producer” means a dairy farmer who files an Internal Revenue Service Schedule F form with the United States Department of Agriculture and who owns or operates a dairy in this State. (7) “Raw milk” means fresh milk that is unprocessed, unpasteurized, and unhomogenized, and that is derived from a cow, sheep, or goat.

Del. Code tit. 3, § 3177 Labeling of fresh and raw milk [For application of this section, see 84 Del. Laws, c. 434, § 4].

(a) A container of milk may be labeled as “fresh” only if the milk has not been dehydrated, rehydrated, or reconstituted in whole or in part and does not contain caseins, casein products, or caseinates other than those caseins, casein products, or caseinates which occur naturally. (b) A container of raw milk or the packaging of a product derived from raw milk must include a prominent label stating that raw milk is unprocessed, unpasteurized, and unhomogenized and may contain harmful bacteria.

Del. Code tit. 3, § 3178 Raw milk permit [For application of this section, see 84 Del. Laws, c. 434, § 4].

(a) The Department shall establish a raw milk permit. A raw milk permit allows a raw milk permit holder to sell or distribute raw milk or products derived from raw milk directly to a consumer within this State under the conditions listed in § 3179 of this title. (b) The Department shall issue a raw milk permit to an applicant after the Department has received, reviewed, and approved a permit application from the applicant. A raw milk permit is valid for 1 year, unless revoked or suspended by the Department, and may be renewed. (c) The Department may revoke or suspend a permit for failure to comply with this subchapter. The process for suspending or revoking a permit must comply with the administrative procedures under subchapter III of Chapter 101 of Title 29.

Del. Code tit. 3, § 3179 Actions authorized and required by a raw milk permit [For application of this section, see 84 Del. Laws, c. 434, § 4].

(a) It is unlawful for raw milk or products derived from raw milk to be sold or distributed in this State other than by a raw milk permit holder or by an individual under the direct supervision of a raw milk permit holder, such as an employee. (b) A permit holder or an individual under the direct supervision of the raw milk permit holder may sell, offer for sale, or distribute raw milk or products derived from raw milk if all of the following conditions are met: (1) The sale or distribution is made directly to a consumer and not for resale. (2) A sign issued by the Department is posted conspicuously at the point of sale or distribution stating that raw milk and products derived from raw milk do not provide the protection of pasteurization and may contain harmful bacteria. (3) A prominent label stating that raw milk and products derived from raw milk are unprocessed, unpasteurized, and unhomogenized and may contain harmful bacteria is placed on the outside of the container or package in which the raw milk or product derived from raw milk is sold or distributed. (c) A raw milk permit holder must do all of the following in order to sell or distribute raw milk or products derived from raw milk: (1) Comply with all applicable laws and regulations of this State. (2) Maintain the health and welfare of the herd and the safety procedures of the raw milk operation in compliance with the standards established by the Department. (3) Submit to inspection under subsection (d) of this section to ensure compliance with this subchapter. (4) Prepare a raw milk risk management plan that covers sanitation, handling, and testing methods. (5) Comply with testing, temperature, training, and disposal requirements as determined by the Department. (d) The Department shall conduct inspections to ensure a permit holder’s compliance with this subchapter.

Del. Code tit. 3, § 3180 Penalty [For application of this section, see 84 Del. Laws, c. 434, § 4].

Whoever violates this subchapter shall be assessed a civil penalty of $1,000 per instance.

Del. Code tit. 3, § 3181 Regulatory authority and enforcement [For application of this section, see 84 Del. Laws, c. 434, § 4].

The Department, in consultation with the Department of Health and Social Services, shall adopt regulations to administer and enforce this subchapter. The Department will consider the size and scale of dairy operations in this State when developing regulations.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title3/c031/sc01/index.htmlFetched: 10/4/2026