[Adopted 8-5-2008 by L.L. No. 7-2008]
This article shall be known as "The Rockland County Expired Food Sale Act of 2008."
Currently, if a consumer buys an item that has expired but remains stocked on store shelves, the vendor, according to a recent decision by the New York State Court of Appeals, cannot be charged with having committed wrongdoing. That Court's decision conflicts with previous rulings that allowed for a broader application of the term "deceptive trade practice." These rulings did not limit the term to instances of intentional fraud, but instead only required plaintiffs to prove that an act or practice was misleading and harmful to them. Consumers should be able to buy a product from a store shelf and know that it is safe. This legislation will ensure that stores are vigilant in removing unsafe, expired goods from their shelves, and, if offered for sale, the consumers will be made aware of that fact and allowed to make an informed decision.
As used in this article, the following terms shall have the meanings indicated:
ENFORCING AGENCY
The Rockland County Office of Consumer Protection, the Rockland County Department of Health, or any other department as designated by the Rockland County Executive.
EXPIRATION DATE
The date listed on the item after which the goods decline in quality, freshness, efficacy or utility.
MERCHANT
A person who deals in goods of the kind or otherwise by his or her occupation holds himself or herself out as having knowledge or skill particular to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his or her employment of an agent or broker or other intermediary who by his or her occupation holds himself or herself out as having such knowledge or skill.
NONPERISHABLE GOODS
All other goods that contain expiration dates, including, but not limited to, canned goods, over-the-counter medications and other nonprescription medications.
PERISHABLE GOODS
Those goods, such as meats, fowl, fish and seafood, eggs, milk and milk products, and other items that decline rapidly in quality both over a relatively short period of time and when not refrigerated, or both. It shall include fruits or vegetables packaged for sale, but shall not include fruits or vegetables that a customer may pick and choose individually.
RETAIL or RETAIL SALE
A sale to a consumer or to any person for any purpose other than for resale.
SELL or OFFER TO SELL
The act of selling, displaying or offering goods for retail sale.
All perishable goods are required to have plainly and conspicuously marked on the top cover or principal panel of their containers, or any label affixed thereto, a statement that they are not to be sold after a clearly specified date. The only date which shall be affixed to the product is the date of the final day of sale and shall consist of the month and the day.
No merchant shall offer perishable goods for retail sale after their expiration date, except for fruits and vegetables, which may be sold after their expiration date, provided that such goods are segregated, clearly and conspicuously marked, and offered at a reduction from the customary selling price at which identical unexpired goods are offered for sale.
No merchant shall offer nonperishable goods for retail sale after their expiration date, unless such goods are segregated, clearly and conspicuously marked, and offered at a reduction from the customary selling price at which identical unexpired goods are offered for sale.
A. 
Any failure to comply with § 267-12 or 267-13 of this article shall subject the violator to the following civil penalties to be collected by an enforcing agency pursuant to rules and regulations drafted by and for the Rockland County Office of Consumer Protection:
(1) 
For a first violation, a civil penalty of up to $250 may be imposed.
(2) 
For a second violation, a civil penalty not exceeding $500.
(3) 
For a third and subsequent violations, a civil penalty not exceeding $1,000.
B. 
Any failure to comply with § 267-14 of this article shall subject the violator to the following civil penalties to be collected by an enforcing agency pursuant to rules and regulations drafted by and for the Rockland County Office of Consumer Protection:
(1) 
For a first violation, a civil penalty of up to $100 may be imposed.
(2) 
For a second violation, a civil penalty not exceeding $200.
(3) 
For a third and subsequent violation, a civil penalty not exceeding $500.
C. 
Each day or part of a day during which any person shall fail to comply with the provisions of this article shall constitute a separate violation of this article.
D. 
In addition to any other fine or punishment pursuant to this section, the enforcing agency may order the offending merchant to immediately remove the expired items from the shelves and from public view.
This article shall be null and void on the day that statewide or federal legislation goes into effect, incorporating either the same or substantially similar provisions as are contained in this article, or in the event that a pertinent state or federal administrative agency issues and promulgates regulations preempting such action by the County of Rockland. The Rockland County Legislature may determine via mere resolution whether or not identical or substantially similar statewide legislation has been enacted for the purposes of triggering the provisions of this section.