Sec 3-2612. Adulteration; penalties payable to customer; hearing; definitions

A. With respect to the level of aflatoxin present, if the examination of labeling or the analysis of an official sample of any whole cottonseed, commercial feed or customer-formula feed shows mislabeling pursuant to section 3-2610 as determined by the director or adulteration pursuant to section 3-2611 as determined by the director, the following provisions shall apply:

1. The customer is entitled to a refund from the seller of the purchase price of the lot upon return of any delivered and unused portion of that lot. The customer may cancel the order for undelivered whole cottonseed, commercial feed or customer-formula feed without penalty or damages.

2. A penalty in an amount equal to twice the selling price of the whole cottonseed, commercial feed or customer-formula feed shall be assessed, whether or not payment for that lot has actually been made.

B. All penalties assessed under this section shall be paid by the seller to the customer of the whole cottonseed, commercial feed or customer-formula feed within thirty days of the date of notice from the director to the seller by certified return receipt mail. The seller or the seller's representative shall obtain a receipt from the customer and promptly forward a copy to the director. If the customer cannot be found, the amount of the penalty shall be paid to the department for deposit, pursuant to sections 35-146 and 35-147, in the state general fund.

C. The director shall designate as an official sample a sample taken by a customer or the customer's representative if the director is satisfied that the sample has been taken in accordance with the method of sampling established pursuant to section 3-2605, subsection B.

D. Any person who is adversely affected by a decision of the director under this section may request a hearing pursuant to title 41, chapter 6, article 10.

E. For purposes of this section:

1. "Analysis" means analysis performed in accordance with the methods of testing established pursuant to section 3-2605, subsection B.

2. "Customer" means the ultimate purchaser, whether or not payment has actually been made if some or all of the whole cottonseed, commercial feed or customer-formula feed has been delivered to the purchaser or the purchaser's representative.