The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5546

August 16, 1979

DEPARTMENT OF AGRICULTURE:

Regulation of food processors

HEALTH:

Regulation by municipal health department

FOOD PROCESSORS:

Regulation of

The Department of Agriculture may delegate to certified local health departments the administration and enforcement of 1978 PA 328.

Certified health departments may not impose additional inspection fees.

1978 PA 328 does not regulate the construction of facilities to house food processors.

The Honorable Gary G. Corbin

State Senator

P.O. Box 30036

Lansing, Michigan 48909

Dear Senator Corbin:

You have requested my opinion on three questions regarding the Food Processing Act of 1977, 1978 PA 328; MCLA 289.801 et seq; MSA 12.895(1) et seq. Your questions, which will be addressed and answered in seriatim, are as follows:

1. May a local health department assess a reasonable fee for services rendered to food processors in the form of an attached or additional inspection fee under local authority and regulation?

2. May a local health department require submission of plans on new construction for food processors or impose other reasonable requirements not covered in existing state law or rule?

3. May a local health department require a new construction permit from food processors?

1978 PA 328, supra, authorizes the Department of Agriculture to license and regulate those persons engaged in the business of processing food or drink for human consumption. However, this authority and responsibility for the enforcement of the requirements of the Act may be delegated to a local health department provided it meets the criteria established by rule by the Department of Agriculture. 1978 PA 328, supra, Sec. 6. As to the licensing of food processors, 1978 PA 328, supra, Sec. 3(3) provides:

'The fee for a license is $15.00 for each year or portion of a year. The fee shall be retained by any certified health department or in an area where there is no certified health department by the department. Fees collected shall be used for administrative and enforcement needs of this act.' (Emphasis supplied)

An analysis of the legislative history of this provision reveals that the intent of the Legislature was to prescribe that the $15.00 fee as the sole fee to be imposed for the administration and enforcement of 1978 PA 328. This is evidenced by the fact that in the original legislative proposal House Bill 4546, the language of Sec. 3(3) merely provided:

'The fee for a license is $15.00 for each year or a portion of a year.'

This language was subsequently amended to read in its present form through action taken by the Senate on June 16, 1978. 1978 Senate Journal, p 1482. The addition of the last two sentences to Sec. 3(3), especially the concluding sentence, underscores the intention of the Legislature to establish the $15.00 fee as the full rate to be imposed for both the administration and processing of licenses and the enforcement and regulatory actions required to be taken under 1978 PA 328, supra. Admittedly, the fact that 1978 PA 328, supra, limits the Department of Agriculture solely to a $15 annual license fee does not necessarily mean that a certified local health department, pursuant to local authority, cannot impose additional inspection fees. To ascertain whether a local health department may in fact assess additional fees it must first be determined whether the State under 1978 PA 328, supra, has preempted the field of regulation with regard to food processors.

In People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977) rehearing denied, 402 Mich 954 (1977), cert den, 435 US 1008, ---- LEd 2d ----; ---- S Ct ---- (1978), the Michigan Supreme Court set forth the following guidelines stating that preemption is said to occur:

'First, where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, that is no doubt that municipal regulation is preempted. Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).

'Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich 623; 189 NW2d 318 (1971).

'Third, the pervasiveness of the state regulatory scheme may support a finding of preemption. Grand Haven v Grover's Cooperative Dairy Co, 330 Mich 694, 702; 48 NW2d 362 (1951); In re Lane, 58 Cal 2d 99; 22 Cal Rptr 857; 372 P2d 897 (1962); Montgomery County Council v Montgomery Ass'n, Inc 274 MD 52; 325 A2d 112, 333 A2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer preemption, it is a factor which should be considered as evidence of preemption.

'Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest.' People v Llewellyn, supra, 401 Mich at 323-324; 257 NW2d at 905.

It is clear that the present question falls within the first and fourth categories since a local health department may only receive the authority to enforce the provisions of 1978 PA 328, supra, and the regulations promulgated pursuant thereto, relate to food through certification by the Department of Agriculture, Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich 694, 702; 48 NW2d 362 (1951). Since the Department of Agriculture has no authority under 1978 PA 328, supra, Sec. 3(3) to assess additional inspection charges, it follows that a certified local health department likewise lacks the power to impose additional inspection fees.

Therefore, in answer to your first question, a local health department is barred from imposing any additional or attached inspection fees under local authority and regulation because the State under 1978 PA 328, supra, has preempted the field of regulation with regard to food processors and, further, that 1978 PA 328, Sec. 3(3) supra evidences a legislative intent that the $15.00 license fee is to be the sole fee imposed.

In answer to your second and third questions, since the State has preempted the field of regulation as to the activities of food processors in the processing, packing, canning, preserving, freezing, fabricating, storing, selling or the offering for sale of food and drink for human consumption, a certified local health department may only impose and enforce those regulations and rules which have been promulgated by the Department of Agriculture and would be prohibited from imposing any additional requirements with regard to the above activities.

1978 PA 328, supra, does not address the question of the regulation of the construction of facilities to house food processors. Thus, supervision of such construction is not preempted by 1978 PA 328, supra.

It is my opinion, therefore, that 1978 PA 328, supra, does not regulate the construction of facilities to house food processors.

Frank J. Kelley

Attorney General