Mo. Code Regs. tit. 2 § 90-38.010

Current through Register Vol. 49, No. 21, November 1, 2024.

Section 2 CSR 90-38.010 - Definitions

PURPOSE: This regulation provides definitions of words or terms (except in those instances where the context clearly indicates otherwise) used in the regulations of this chapter as required by section 416.460, RSMo.

(1) The Act means the Unfair Milk Sales Practices Act, sections 416.410-416.560, RSMo (1986).

(2) The director is the director of the Department of Agriculture. Under Missouri state government reorganization, the Office of Commissioner of Agriculture has been replaced with the Office of the Director of the Department of Agriculture.

(3) Person means any individual, partnership, corporation, cooperative, public body, political subdivision or any legal entity of any kind.

(4) Processor means any person engaged in the business of processing or packing bulk milk or other materials into milk products, and includes persons who sell, at retail, milk processed by themselves.

(5) Distributor means any person other than a bulk milk handler engaged in the business of transferring title within the state to milk products for a consideration where the milk is to be sold for resale or further processing. The following criteria will be among those considered in determining if a distributor is operating as an independent business entity, and is required to obtain a distributor's license under this Act:

(A) Takes legal title to and possession of milk products and conveys title to customers or accounts;

(B) Exercises own judgment and discretion as to all aspects of business including products price and pricing policies; and

(C) Obtains customers and accounts, collects for merchandise sold and absorbs any loss for returned merchandise, faulty merchandise excluded. Persons who are commissioned salesmen, truck drivers or independent haulers for a processor and who are not free and independent business entities shall not be considered distributors under this Act and will not be licensed as such regardless of their designation by processor. Accordingly, all persons who are commissioned salesmen, drivers or independent haulers for a processor will be considered agents of that processor and that person's conduct will be imputed to and be the responsibility of the processor.

(6) Nonprocessing retailer means any person engaged in the business of transferring title to consumers of milk products not processed by him/her directly. A retailer who sells both products processed by him/herself and products processed by others shall be deemed a processor with regard to those products processed by him/herself, and a nonprocessing retailer with regard to those products by others.

(7) Milk product purchaser means any person who purchases milk products, including processors, distributors, retailers, nonprofit organizations and consumers, except persons who purchase milk for charitable purposes or for unemployment relief agencies. Public school districts, agencies and institutions of Missouri and its political subdivisions are included within the definition of milk product purchaser. The word customer, as used in these rules, refers to any milk product purchaser.

(8) Cost to the bulk milk handler means the price paid dairy farmers for the milk, plus receiving plant charge or a reasonable charge to cover all cost of operating his/her own receiving plant, plus transportation costs to the point of delivery to the purchaser.

(9) Dock cost for fluid milk means the cost of the raw milk plus the processor's cost for processing fluid milk placed on the dock at his/her processing plant, ready for sale or delivery. In the absence of specific evidence, dock cost shall be presumed to be the cost of the raw milk plus four cents (4[CENT]) per quart, eight cents (8[CENT]) per half-gallon and sixteen cents (16[CENT]) per gallon

(10) Transportation cost shall include the cost of loading a truck or other delivery vehicle and driving the truck or other vehicle from the distribution point to the several points of purchase, appropriately prorated among the various purchasers of the milk products on the truck.

(11) Delivery cost includes all costs of unloading the truck and stacking the milk products in the dairy case or storage case of the purchaser.

(12) Milk products include market milk, pasteurized milk, including low-fat milk, vitamin D milk, homogenized milk, flavored milk or flavored milk drinks, sweet cream, whipped cream, homogenized cream, including half-and-half, skim milk, buttermilk and cultured buttermilk.

(13) Discount means an amount, whether computed as a percentage of the value of milk products purchased or otherwise, which is deducted from an invoice price permitting the purchaser to discharge his/her liability to the seller for a sum smaller than the invoice price of the milk products.

(14) Rebate means an amount whether computed as a percentage of the value of milk products purchased or otherwise, which is paid or credited by a seller to a purchaser of milk products after the purchaser has bought and paid for those milk products.

(15) Central billing means the billing to one (1) location or the payment from one (1) location for the sale of milk products delivered to more than one (1) location. Central billing includes, but is not limited to, the billing to the central office of a business which owns or operates more than one (1) store or restaurant, the billing to the central office of an association made up of separately-owned grocery stores and grocery chains and the billing to a jobber who purchases milk to be delivered to more than one (1) grocery store or restaurant.

(16) Equipment includes dairy display cases, dairy storage coolers, ice cream display cases, ice cream storage cases, display cases and storage cases for meats, frozen foods, produce, and other food and food products, dairy serving equipment, milk vending equipment and other types of equipment used for the storage, display for sale or serving of any dairy product, including ice cream, or any food product; refrigeration equipment, whether used in conjunction with the previously listed equipment or otherwise; and any other item used in the furnishing or operation of the business of any milk product purchaser.

(17) Invoice price is the price of a milk product quoted or billed to a customer prior to or contemporaneously with sale or delivery of the milk product, that is, the monetary amount charged for a particular milk product in a specific sized and type of container, stated as an amount of money per unit.

(18) Business day means any day except Saturday, Sunday or legal holiday.

(19) Cost to the retailer means the actual price paid by the retailer plus the retailer's cost of doing business. The retailer's cost of doing business shall include all direct and indirect cost allocable to the storage display and sale of milk products. In the absence of specific evidence the cost of doing business shall be presumed to be eight percent (8%) of the invoice price and this cost shall be calculated to the nearest half cent (1/2[CENT]) per sales unit.

2 CSR 90-38.010

AUTHORITY: section 416.460, RSMo Supp. 1993.* This rule was previously filed as 2 CSR 40-3.010. Original rule filed Nov. 26,1975, effective Dec. 10, 1975. Amended: Filed Sept. 14, 1977 effective Jan. 1, 1978. Amended: Filed July 10, 1984, effective Oct. 11, 1984.

*Original authority 1959, amended 1993.