Section 65G of Chapter 94 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out lines 5 through 8, inclusive, and inserting in place thereof the following:- 

            “Frozen desserts”, the foods which conform to the definitions and standards of identity for frozen desserts of the United States Food and Drug Administration contained in 21 CFR Part 135, and the foods, defined by regulations of the Department, for which there are no federal definitions and standards.  The term also includes, but is not limited to, any quiescently frozen confection, quiescently frozen dairy confection, frozen dietary dessert and frozen dietary dairy dessert.

SECTION 2.  Section 65G is hereby further amended by striking out lines 11 through 19, inclusive. 

SECTION 3.  Chapter 94 is hereby further amended by striking out sections 65H, 65I, 65J and 65K and inserting in place thereof the following four sections:-

            Section 65H.  Every person within the commonwealth manufacturing frozen dessert mix and/or manufacturing frozen desserts for sale at wholesale shall obtain a license from the department.   Such person shall make application on a form prescribed by the department, and with the application shall tender the proper fee.  The application shall state that the applicant will manufacture such products only from pure and wholesome ingredients and only under sanitary conditions; shall show the location of each plant; and the name of the brand or brands, and the trade or corporation name or names, if any, under which the products are to be sold.  Each license shall apply to one place of business only, and shall expire two years from the date of issue.  The department shall send a copy of each license to the board of health of the city or town in which each licensee is located.

  Every person manufacturing within the commonwealth frozen desserts for sale at retail shall obtain a license from the board of health of each city or town in which he manufactures or proposes to manufacture frozen desserts.  Such person shall file with each board of health an application for a license for the year commencing with the following March first, and with the application shall tender the proper fee.  Such application shall state that the applicant will manufacture such products only from pure and wholesome ingredients and only under sanitary conditions; shall show the location of each plant in the city or town at which the frozen desserts are to be manufactured; and the name of the brand or brands, and the trade or corporation name or names, if any, under which the frozen desserts are to be sold.  Each license shall apply to one place of business only.

 No person manufacturing frozen desserts in his home for the sole use of his family, servants and guests shall be required to obtain any license under section 65I.  No farmer selling frozen desserts directly to consumers, which are manufactured by him, whereof the milk or cream or other milk product is the product only of his own cows, shall be required to obtain any license under section 65I. 

            Section 65I.  The department or the local board of health, as the case may be, if satisfied that the plant referred to in an application for a license is maintained in accordance with the standards of sanitation prescribed in the rules and regulations promulgated by the department, may grant a license to any suitable applicant.  No license  shall be issued if any statement in the application is false or misleading, or if the brand name or any label or advertisement of the frozen dessert or of the frozen dessert mix referred to in the application gives a false indication of its origin, character, composition or place of manufacture, or is otherwise false or misleading in any particular. 

  No person shall engage within the commonwealth in the business of manufacturing frozen dessert mix or manufacturing frozen desserts for sale at wholesale without a license to do so from the department.  No person required to be licensed shall engage within the commonwealth in the business of manufacturing frozen desserts for sale at retail without a license to do so from the board of health of the city or town where the  plant is or is to be located.  No person shall sell or exchange, deliver, advertise, or offer or expose for sale or exchange, or attempt to deliver, or have in his possession with intent to do so, any frozen dessert or frozen dessert mix unless the manufacturer thereof is the holder of a license then in full force.  No person shall manufacture, sell or exchange, or offer or expose for sale or exchange, or deliver, or attempt to deliver, or have in his possession with intent to do so, any frozen dessert or frozen dessert mix not conforming to the regulations adopted by the department under section 65U, or manufactured, sold, exchanged and/or delivered in violation of any provision of sections 65M or 65N. The superior court shall have jurisdiction to enjoin any violation of this paragraph or to take such other action as equity and justice may require. 

Section 65J.  Subject to the requirements of chapter 30A, the department may refuse to issue or renew, suspend or revoke any license issued by it if (1) any statement in the application or in any other documentation submitted to the department is determined to be false or misleading; (2) the applicant or licensee has been convicted of a crime relating to the manufacturing, storage, distribution or sale of frozen desserts or frozen dessert mix, or relating to the processing, storage, distribution or sale of any other food;  (3) the applicant or licensee has failed to comply with any applicable provision of this chapter or any applicable rule or regulation; or (4) the applicant or licensee refuses to admit representatives of the department at any reasonable time for purposes of inspection. The commissioner may, without a prior hearing, suspend a license if he finds that the licensee  is operating his business in a manner which is endangering or may cause imminent danger to the public health. In every case of suspension of a license without a prior hearing, the licensee shall be promptly afforded an opportunity for such hearing.

After notice to the holder of a license by mail or otherwise and opportunity to be heard, a local board of health may refuse to issue or renew, suspend or revoke a license issued by said local board of health for any of the reasons set forth in the preceding paragraph, or for the reason that the applicant or licensee refuses to admit representatives of the local board of health at any reasonable time for purposes of inspection.  The board may, without a prior hearing, suspend a license if it finds that the licensee is operating his business in a manner which is endangering or may cause imminent danger to the public health.  In every case of suspension of a license without a prior hearing, the licensee shall be promptly afforded an opportunity for such hearing.

  Section 65K.  Any person aggrieved by a decision of a local board of health in refusing to grant or to renew, or in revoking or suspending, a license, may, within 15 days after the entry of such decision, bring a petition in the supreme judicial court for a writ of certiorari to correct errors of law therein, and the provisions of section four of chapter 249 shall, except as herein provided, apply to said petition.  No costs shall be allowed against the local board of health unless the court finds that it acted with gross negligence or in bad faith. 

Any person aggrieved by a decision of the department in refusing to issue or renew, or in revoking or suspending, a license may seek judicial review in accordance with the provisions of chapter 30A.

SECTION 4.  Section 65M of Chapter 94 is hereby amended by striking out section 65M and inserting in place thereof the following:-

Section 65M.  All milk, cream and milk products used in the manufacture of frozen desserts and every particle of every frozen dessert mix shall be pasteurized in accordance with rules and regulations of the department.

SECTION 5.  Section 65Q of Chapter 94 is hereby amended in line 12 by inserting, after the word “shipped.” the following two sentences:-  Such rules and regulations may provide administrative penalties for the violation of any provision of sections 65G through 65N  inclusive, or of any rule or regulation promulgated hereunder, not to exceed $500 for any single violation.  Each day that a violation continues shall constitute a separate violation.

SECTION 6.  Chapter 94 is hereby amended by striking out section 65R and inserting in place thereof the following section:-

  Section 65R.  Whoever violates any provision of sections 65G to 65Q, inclusive, or of any rule or regulation made under authority thereof, shall be punished for the first offense by a fine of not more than $500, and for a subsequent offense by a fine of not less than $500 nor more than $1000.

SECTION 7.  Section 65S of Chapter 94 is hereby amended by striking out in line 1 the words “and permits”.

SECTION 8.  Section 65S of Chapter 94 is hereby further amended by striking out the sentence beginning in line 5 and inserting in place thereof the following sentence:-  License for wholesale manufacturer of frozen desserts and/or manufacturer of frozen dessert mix.

 SECTION 9.  Sections 65L, 65O, 65P and 65T of Chapter 94 are hereby repealed.

SECTION 10.  Section 60 of Chapter 94 is hereby amended by striking out in lines 3 and    4, the words “except subsections (c) to (e), inclusive, of section sixty-five P,”.