Title of Regulation: 2VAC5-340. Rules and Regulations for the Enforcement of the Virginia Weights and Measures Law (amending 2VAC5-340-140, 2VAC5-340-170, 2VAC5-340-180).

Statutory Authority: § 3.2-5607 of the Code of Virginia.

Effective Date: March 4, 2009.

Agency Contact: Robert E. Bailey, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1274, FAX (804) 786-1571, TTY (800) 828-1120, or email robert.bailey@vdacs.virginia.gov.

Summary:

The amendments update citations to reflect the recodification of Title 3.1 to Title 3.2 of the Code of Virginia, which became effective October 1, 2008.

2VAC5-340-140. Food products.⁸

A. Berries and Small Fruits. Shall be offered and exposed for sale and sold by weight or by volume in open measure containers having capacities per subdivision 1 or 2 of this subsection and when sold by volume, the containers shall be deemed not to be packages for labeling purposes.

1. Inch-Pound Capacities - ½ dry pint, 1 dry pint, or 1 dry quart.

2. Metric Capacities - 250 milliliters, 500 milliliters, or 1 liter.

B. Butter, Oleomargarine, and Margarine.⁹ Shall be offered and exposed for sale and sold by weight per subsection 1 or 2 of this section.

1. Inch-Pound-Weights - ¼ pound, ½ pound, 1 pound, or a multiple of 1 pound.

2. Metric Weights - 125 grams, 250 grams, 500 grams, or a multiple of 500 grams.

C. Flour, Cornmeal, and Hominy Grits. Wheat flour, whole wheat flour, graham flour, self-rising wheat flour, phosphated wheat flour, bromated flour, corn flour, cornmeal, and hominy grits whether enriched or not, shall be packaged, kept, offered, or exposed for sale, or sold only in weights per subdivisions 1 and 2 of this subsection; provided, that inch-pound sizes less than 2 pounds or more than 100 pounds and that metric sizes less than 1 kilogram or more than 50 kilograms shall be permitted.

(a) Inch-Pound Weights - 2, 5, 10, 25, 50, or 100 pounds.

(b) Metric Weights - 1, 2.5, 5, 10, 25, or 50 kilograms. (Section 3.1-952 Weights and Measures Law [repealed]).

D. Meat, Poultry, Fish, and Seafood¹⁰. Shall be sold by weight, except that shellfish may be sold by weight, measure, or count.

1. Combination With Other Foods. When meat, poultry, fish or seafood is combined with some other food element to form a distinctive food product, the quantity representation may be in terms of the total weight of the product or combination, and a quantity representation need not be made for each element.

2. Stuffed Fish, Seafood, Poultry or Meat Products. In the case of ready-to-cook stuffed fish, seafood, poultry, or meat products, the label must show the total net weight of the stuffed fish, seafood, poultry or meat products and the minimum net weight of the fish, seafood, poultry or meat in the product excluding the fish, seafood, meat, or poultry that may be part of the stuffing.

Excluding the poultry or meat that may be part of the stuffing. (Required by the United States Department of Agriculture).

E. Clams, Mussels, Oysters, and other Mollusks.

1. Whole clams, mussels, oysters, and other mollusks in the shell (fresh or frozen) shall be sold by weight (including the weight of the shell, but not including the liquid or ice packed with them), dry measure (e.g., bushel), or count. In addition, size designations may be provided.

2. Whole clams, mussels, oysters, or other mollusks on the half shell (fresh, cooked, smoked, or frozen, with or without sauces or spices added) shall be sold by weight (excluding the weight of the shell) or by count. Size designations may also be provided.

3. Fresh clams, mussels, oysters, or other mollusks removed from the shell and placed in a container shall be sold by fluid volume, with free liquid not to exceed 15% by weight.

4. Processed clams, mussels, oysters, or other mollusks on the half shell (fresh or frozen) shall be sold by net weight excluding the weight of the shell. The term "processed" means removing the meat from the shell and chopping it or cutting it or commingling it with other solid foods.

5. Canned (heat-processed) clams, mussels, oysters, or other mollusks shall be sold by net weight, with free liquid not to exceed 41% by weight for canned oysters.

F. Pickles. The declaration of net quantity of contents on pickles and pickles products, including relishes but excluding one or two whole pickles in a transparent wrapping which may be declared by count, shall be expressed in terms of liquid measure. Sales of pickles from bulk may be by count.

G. Pricing of Bulk Food Commodities. Bulk food commodities or food commodities not in package form and sold by weight shall be priced in terms of whole units of weight and not in common or decimal fractions.

H. Ready-To-Eat Food. The following may be sold by weight, measure, or count:

1. Items sold for consumption on the premises;

2. Items sold as one of three or more different elements, excluding condiments, comprising a ready-to-eat meal sold as a unit, for consumption elsewhere than on the premises where sold;

3. Ready-to-eat chicken parts cooked on the premises but not packaged in advance of sale;

4. Sandwiches and sandwich-like commodities when offered or exposed for sale on the premises where packed or produced and not intended for resale.

⁸ Packages subject to the Federal Fair Packaging and Labeling Act must be labeled in inch-pound units of measure. Metric units may also be declared on the principal display panel and may even appear first.

⁹ Oleomargarine and margarine are not permitted in multiples of one pound, 500 grams, or multiples of 500 grams because Section 407(b)(2) of the Federal Food, Drug, and Cosmetic Act prohibits margarine and oleomargarine packaged in sizes greater than one pound.

¹⁰ See 2VAC5-340-140 for additional requirements for ready-to-eat food.

2VAC5-340-170. General.

A. Presentation of Price. Whenever an advertised, posted, or labeled price per unit of weight, measure, or count for any commodity includes a fraction of a cent, all elements of the fraction shall be prominently displayed, and the numerals expressing the fraction shall be immediately adjacent to, of the same general design and style as, and at least one-half of the height and width of the numerals representing the whole cent. (Weights and Measures Law Section 3.1-949) § 3.2-5631)

B. Allowable Differences: Combination Quantity Declarations. Whenever the method of sale for a bulk or packaged commodity requires the use of a statement, that includes count in addition to weight, measure, or size, the following shall apply to the particular commodity:

1. Beverageware: Pressed and Blown Tumblers and Stemware. The allowable difference between actual and declared capacity shall be:

a. For Inch-Pound:

(1) Plus or minus ¼ fluid ounce for items of five fluid ounce capacity or less;

(2) Plus or minus 5% of the stated capacity for items over five fluid ounce capacity.

b. For Metric:

(1) Plus or minus 10 milliliters for items of 200 milliliter capacity or less;

(2) Plus or minus 5% of the stated capacity for items over 200 milliliter capacity.

C. Machine Vended Commodities. All vending machines dispensing packaged commodities shall indicate:

1. Product identity.

2. Net Quantity.

3. Name, address, and telephone number of responsible party.

The requirements for product identity and net quantity can be met either by display of the package or by information posted on the outside of the machine.

D. Railroad Car Tare Weights. Whenever stenciled tare weights on freight cars are employed in the sale of commodities or the assessment of freight charges, the following conditions and requirements shall apply:

1. Newly or Restenciled Tare Weights. All newly stenciled or restenciled tare weights shall be accurately represented to the nearest 100 pounds for inch-pound units and the nearest 50 kilograms for metric units and the representation shall include the date of weighing.

2. Allowable Differences. The allowable difference between actual tare weight and stenciled tare weight on freight cars in use shall be per subdivision D 2 a or b of this section.

a. Inch-pound allowable difference:

(1) Plus or minus 300 pounds for cars 50,000 pounds or less;

(2) Plus or minus 400 pounds for cars over 50,000 pounds to and including 60,000 pounds;

(3) Plus or minus 500 pounds for cars over 60,000 pounds.

b. Metric allowable difference:

(1) Plus or minus 150 kilograms for cars 25,000 kilograms or less;

(2) Plus or minus 200 kilograms for cars over 25,000 kilograms to and including 30,000 kilograms;

(3) Plus or minus 250 kilograms for cars over 30,000 kilograms.

3. Change of Stenciled Weights. Tare weight determinations for verification or change of stenciled weights shall only be made on properly prepared and adequately cleaned freight cars.

4. Responsibility For Reweighing and Restenciling. Tank cars, covered hopper cars, flat cars equipped with multideck racks, or special superstructure, mechanical refrigerator cars, and house-type cars equipped with special lading protective devices must be reweighed and restenciled only by owners or other authorized representatives:

(a) When car bears no light weight (empty weight) stenciling;

(b) When repairs or alterations result in a change of weight in excess of the permissible lightweight tolerance.

2VAC5-340-180. Exemptions from sealing or marking and/or annual retesting of weights and measures devices.

A. Weights and Measures Specifically Exempted. The weights and measures listed below shall be specifically exempted from the sealing and marking requirements of §§ 3.1-926 3.2-5607 and 3.1-934 3.2-5613 of the Code of Virginia.

B. Annual Retesting Exemption. The weights and measures listed below shall be specifically exempted from the annual retesting requirements of §§ 3.1-926 3.2-5607 and 3.1-928 3.2-5609 of the Code of Virginia, and shall be retested only as required:

1. Vehicle tanks used as measures.*

2. Farm milk tanks.*

3. Liquid measures.*

4. Glass graduates.*

5. Measures containers.*

6. Linear measures.*

7. Dry measures.*

* Whenever an item of this class is damaged, repaired, or modified in any way that affects the accuracy of measurement, it shall not thereafter be used for measurement until it has been officially inspected and reapproved.