§ 37-101 — 37-112. Enforcement of food and drug laws. [Repealed.]

§ 37-113. Short title.

This act may be cited as the Idaho Food, Drug and Cosmetic Act.

§ 37-114. Definitions. — For the purpose of this act

1. The term “board” means the state board of health and welfare and “director” means the director of the department of health and welfare.
2. The term “person” includes individual, partnership, corporation, and association;
3. The term “food” means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article;
4. The term “drug” means (1) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them, and (2) articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (3) articles (other than food) intended to affect the structure or any function of the body of man or other animals, and (4) articles intended for use as a component of any article specified in clause (1), (2) or (3), but does not include devices or their components, parts or accessories;
5. The term “device” (except when used in paragraph (k) of this section and in section [sections] 37-115(g), 37-123(f), 37-127(b) and 37-130(c), Idaho Code) means instruments, apparatus and contrivances, including their components, parts and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals;
6. The term “cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance, and (2) articles intended for use as a component of any such articles, except that such term shall not include soap;
7. The term “official compendium” means the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them;
8. The term “label” means a display of written, printed or graphic matter upon the immediate container of any article, and a requirement made by or under authority of this act that any word, statement, or other information appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if there be any, of the retail package of such article, or is easily legible through the outside container or wrapper;
9. The term “immediate container” does not include package liners;
10. The term “labeling” means all labels and other written, printed or graphic matter (1) upon an article or any of its containers or wrappers, or (2) accompanying such article;
11. If an article is alleged to be misbranded because the labeling is misleading, or if an advertisement is alleged to be false because it is misleading, then, in determining whether the labeling or advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual;
12. The term “advertisement” means all representations disseminated in any manner or by any means other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food, drugs, devices, or cosmetics;
13. The representation of a drug in its labeling or advertisement, as an antiseptic shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or such other use as involves prolonged contact with the body;
14. The term “new drug” means (1) any drug the composition of which is such that such drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety of drugs, as safe for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or (2) any drug the composition of which is such that such drug, as a result of investigations to determine its safety for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions;
15. The term “contaminated with filth” applies to any food, drug, device, or cosmetic not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminations;
16. The provisions of this act regarding the selling of food, drugs, devices, or cosmetics, shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession, and holding of any such article for sale, and the sale, dispensing, and giving of any such article and the supplying or applying of any such articles in the conduct of any food, drug, or cosmetic establishment.
17. The term “federal act” means the Federal Food, Drug and Cosmetic Act (Title 21 U.S.C. 301 et seq.; 52 Stat. 1040 et seq.).

§ 37-115. Prohibited acts.

The following acts and the causing thereof within the state of Idaho are hereby prohibited:

1. The manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded;
2. The adulteration or misbranding of any food, drug, device, or cosmetic;
3. The receipt in commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise;
4. The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of section 37-124 or 37-127[, Idaho Code];
5. The dissemination of any false advertisement;
6. The refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by section 37-133[, Idaho Code];
7. The giving of a guaranty or undertaking which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of, the person residing in the state of Idaho from whom he received in good faith the food, drug, device, or cosmetic;
8. The removal or disposal of a detained or embargoed article in violation of section 37-118[, Idaho Code];
9. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if such act is done while such article is held for sale and results in such article being misbranded;
10. Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by regulations promulgated under the provisions of this act;
11. The using, on the labeling of any drug or in any advertisement relating to such drug, of any representation or suggestion that an application with respect to such drug is effective under section 37-128[, Idaho Code], or that such drug complies with the provisions of such section.

§ 37-116. Injunctions authorized.

In addition to the remedies hereinafter provided the director is hereby authorized to apply to the district court for, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of section 37-115, Idaho Code, irrespective of whether or not there exists an adequate remedy at law.

§ 37-117. Violations — Penalty — Exceptions.

1. 1. Any person who intentionally adulterates a drug that is held for sale or distribution, or that is to be administered or dispensed, shall be guilty of a felony and shall, upon conviction thereof, be subject to imprisonment for not more than fifteen (15) years or a fine of not more than fifty thousand dollars ($50,000), or both. (1)(a) Any person who intentionally adulterates a drug that is held for sale or distribution, or that is to be administered or dispensed, shall be guilty of a felony and shall, upon conviction thereof, be subject to imprisonment for not more than fifteen (15) years or a fine of not more than fifty thousand dollars ($50,000), or both.
   2. Any health care provider who, with knowledge that a drug has been adulterated, permits that drug to be administered or dispensed to a person shall be guilty of a felony and shall, upon conviction thereof, be subject to imprisonment for not more than fifteen (15) years, or a fine of not more than fifty thousand dollars ($50,000), or both. For the purposes of this subsection, the term “health care provider” shall be defined as any person licensed in this state to prescribe, dispense, conduct research with respect to, or administer drugs in the course of professional practice and any unlicensed person, who, as part of such person’s employment or profession, provides health care services.
   3. The determination of whether or not a drug has been adulterated shall be made in accordance with the provisions of section 37-126, Idaho Code.
2. Any person who violates any of the provisions of this act or of rules promulgated by the board of health and welfare thereunder or who interferes with the director of the department of health and welfare or the personnel of the department in the administration of this act shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than six (6) months or a fine of not more than five hundred dollars ($500), or both such imprisonment and fine, but if the violation is committed after a conviction of such person under this section has become final, such person shall be subject to imprisonment for not more than one (1) year, or a fine of not more than one thousand dollars ($1000), or both such imprisonment and fine.
3. No person shall be subject to the penalties of subsection (2) of this section, for having violated section 37-115 (a) or (c), Idaho Code, if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the state of Idaho from whom he received in good faith the article, to the effect that such article is not adulterated or misbranded within the meaning of this act, designating this act.
4. No publisher, radio broadcast licensee, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this section by reason of the dissemination by him of such false advertisement, unless he has refused, on the request of the director to furnish him the name and post-office address of the manufacturer, packer, distributor, seller, or advertising agency, residing in the state of Idaho who causes him to disseminate such advertisement.

§ 37-117A. Reporting and disclosure requirements for employment related adulteration or misappropriation of certain drugs.

1. When the employment of a health care provider has been terminated, either voluntarily or involuntarily, for adulteration or misappropriation of controlled substances, as defined in chapter 27, title 37, Idaho Code, the employer shall, within thirty (30) days of the termination, furnish written notice of the termination, described herein as “notice of termination,” to the health care provider’s professional licensing board of the state of Idaho, which shall include a description of the controlled substance adulteration or misappropriation involved in the termination. An employer who in good faith provides such information shall not be held civilly liable for the disclosure or the consequences of providing the information. There is a rebuttable presumption that an employer is acting in good faith when the employer provides such information. The presumption of good faith is overcome only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with deliberate intent to mislead. For the purposes of this section, “actual malice” means knowledge that the information was false or given with reckless disregard of whether the information was false. For the purposes of this section, the term “health care provider” means any person licensed by a professional licensing board of the state of Idaho whose license permits the health care provider to dispense or administer controlled substances. For the purposes of this section, “employer” means a person or entity licensed under chapter 18, title 54, Idaho Code, or chapter 13, title 39, Idaho Code, who employs a health care provider or providers.
2. A professional licensing board that receives a notice of termination from an employer pursuant to subsection (1) of this section shall maintain the notice of termination for the health care provider. The notice of termination shall be subject to disclosure in accordance with the provisions of subsection (3) of this section.
3. Any prospective employer of a health care provider shall, before hiring such health care provider, request in writing that the health care provider’s professional licensing board furnish the prospective employer any notice of termination maintained by the board with respect to the health care provider. The prospective employer shall maintain the confidentiality of such information and shall not disclose it to any other person or entity without the prior written approval of the health care provider or as required by law, court order or the rules of civil procedure. The professional licensing board shall require, as a condition of furnishing the notice of termination, that the prospective employer file a written request for the health care provider’s notice of termination, stating under oath that the request for the notice of termination is made for a bona fide hiring purpose, that the request is made pursuant to the provisions of this section, and that the prospective employer will not disclose the information to any other person or entity without the prior written approval of the health care provider or as required by law, court order or rules of civil procedure. In the event that the prospective employer discloses the information in the notice of termination to any other person or entity in violation of the provisions of this section, and unless the disclosure is required by law, court order or the rules of civil procedure, the health care provider may pursue a civil cause of action against the prospective employer for a breach of the health care provider’s right of privacy. Upon receipt of a request made in accordance with this section for a health care provider’s notice of termination, the professional licensing board shall furnish the notice of termination to the prospective employer. The professional licensing board shall not be held liable for the correctness or completeness of the information contained in the notice of termination and shall include a disclaimer statement on all released information, attesting that the information has not been verified by the professional licensing board. An employer who obtains a notice of termination from the appropriate professional licensing board as provided in this section shall not be held civilly liable for hiring or contracting with a health care provider who the employer in good faith believes has been rehabilitated from drug abuse, absent the employer’s gross negligence or reckless conduct. (4) Notices of termination submitted hereunder shall be maintained and available to employers as set forth above for fifteen (15) years from the date of receipt by the professional licensing board.

§ 37-118. Tagging and detention of article or product suspected of being adulterated or misbranded — Embargo and condemnation under certain conditions and by certain procedures.

1. Whenever a duly authorized agent of the director finds or has probable cause to believe, that any food, drug, device, or cosmetic is adulterated, or so misbranded as to be dangerous or fraudulent, within the meaning of this act, he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or embargoed, and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It shall be unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission.
2. When an article detained or embargoed under subsection (a) of this section has been found by such agent to be adulterated, or misbranded, he shall petition the probate court or district court in the county in whose jurisdiction the article is detained or embargoed for a libel for condemnation of such article. When such agent has found that an article so detained or embargoed is not adulterated or misbranded, he shall remove the tag or other marking.
3. If the court finds that a detained or embargoed article is adulterated or misbranded, such article shall, after entry of the decree be destroyed at the expense of the claimant thereof, under the supervision of such agent, and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of such article or his agent; provided, that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decree and after such costs, fees and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the director. The expense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article on representation to the court by the director that the article is no longer in violation of this act, and that the expenses of such supervision have been paid.
4. Whenever the director or any of its authorized agents shall find in any room, building, vehicle of transportation or other structure, any meat, sea food, poultry, vegetable, fruit or other perishable articles which are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, the director or its authorized agent, shall forthwith condemn or destroy the same, or in any other manner render the same unsaleable as human food.
5. Whenever the director or its duly authorized agent shall find, or have probable cause to believe, that any food, drug, device or cosmetic is offered or exposed for sale, or held in possession with intent to distribute or sell, or is intended for distribution or sale in violation of any provision of this act, whether it is in the custody of a common carrier or any other person, the director may affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, in violation of this act, and has been embargoed. Within seven (7) days after an embargo has been placed upon any article, the embargo shall be removed by the director or a summary proceeding for the confiscation of the article shall be instituted by the director. No person shall remove or dispose of such embargoed article by sale or otherwise without the permission of the director or agent; or after summary proceedings have been instituted, without permission from the court. If the embargo shall be removed by the director or by the court, neither the director nor the state shall be held liable for damages because of such embargo in the event that the court shall find that there was probable cause for the embargo.
6. Such proceeding shall be by complaint, verified by affidavit, which may be made on information and belief in the name of the director or agent against the article to be confiscated.
7. The complaint shall contain: (1) a particular description of the article, (2) the name of the place where the article is located, (3) the name of the person in whose possession or custody the article was found, if such name be known to the person making the complaint or can be ascertained by reasonable effort, and (4) a statement as to the manner in which the article is adulterated or misbranded or the characteristics which render its distribution or sale illegal.
8. Upon the filing of the verified complaint, the court shall issue a warrant directed to the proper officer to seize and take in his possession the article described in the complaint and bring the same before the court who issued the warrant and to summon the person named in the warrant, and any other person who may be found in possession of the article, to appear at the time and place therein specified.
9. Any such person shall be summoned by service of a copy of the warrant in the same manner as a summons issuing out of the court in which the warrant has been issued.
10. The hearing upon the complaint shall be at the time and place specified in the warrant, which time shall not be less than five (5) days or more than fifteen (15) days from the date of issuing the warrant, but, if the execution and service of the warrant has been less than three (3) days before the return of the warrant, either party shall be entitled to a reasonable continuance. Upon the hearing the complaint may be amended.
11. Any person who shall appear and claim the food, drug, device, or cosmetic seized under the warrant shall be required to file a claim in writing.
12. If, upon the hearing, it shall appear that the article was offered or exposed for sale, or was in possession with intent to distribute or sell, or was intended for distribution or sale, in violation of any provision of this act, it shall be confiscated and disposed of by destruction or sale as the court may direct, but no such article shall be sold contrary to any provision of this act. The proceeds of any sale, less the legal costs and charges, shall be paid into the state treasury.

§ 37-119. Prosecutions of violations — Right of party to notice and presentation of views prior to prosecution.

It shall be the duty of each county prosecuting attorney to whom the director or his agent reports any punishable violation of this act (including, but not limited to, rules and regulations) to cause appropriate proceedings to be instituted in the proper court without delay and to be prosecuted in the manner required by law. Before any violation of this act is reported to the county prosecuting attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the director or his designated agent, either orally or in writing, in person, or by attorney, with regard to such contemplated proceeding.

§ 37-120. Report of minor violations.

Nothing in this act shall be construed as requiring the director to report for the institution of proceedings under this act, minor violations of this act, whenever the director believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

§ 37-121. Promulgation of reasonable standards by board.

Whenever in the judgment of the board such action will promote honesty and fair dealing in the interest of consumers, the board shall promulgate regulations fixing and establishing for any food or class of food a reasonable definition and standard of identity, and/or reasonable standard of quality and/or fill of container. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the board shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under authority of the federal act.

§ 37-122. Food deemed adulterated. — A food shall be deemed to be adulterated

1. 1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2) if it bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of section 37-125[, Idaho Code]; or (3) if it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health; or (5) if it is the product of a diseased animal or an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse; or (6) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health. (a) (1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2) if it bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of section 37-125[, Idaho Code]; or (3) if it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health; or (5) if it is the product of a diseased animal or an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse; or (6) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.
2. 1. If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or (2) if any substance has been substituted wholly or in part therefor; or (3) if damage or inferiority has been concealed in any manner; or (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is. (b) (1) If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or (2) if any substance has been substituted wholly or in part therefor; or (3) if damage or inferiority has been concealed in any manner; or (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is.
3. If it is confectionery and it bears or contains any alcohol or non-nutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one per centum (.4%), harmless natural gum, and pectic; Provided, that this paragraph shall not apply to any confectionery by reason of its containing less than one-half of one per centum (.5%) by volume of alcohol derived solely from the use of flavoring extracts, or to any chewing gum by reason of its containing harmless non-nutritive masticatory substances.
4. If it bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.

§ 37-123. Food deemed misbranded. — A food shall be deemed to be misbranded

1. If its labeling is false or misleading in any particular.
2. If it is offered for sale under the name of another food.
3. If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word, imitation, and, immediately thereafter, the name of the food imitated.
4. If its container is so made, formed, or filled as to be misleading.
5. If in package form, unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, that under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the board.
6. If any word, statement, or other information required by or under authority of this act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
7. If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by section 37-121[, Idaho Code], unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard, and, in so far as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food.
8. If it purports to be or is represented as — (1) A food for which a standard of quality has been prescribed by regulations as provided by section 37-121[, Idaho Code], and its quality falls below such standard unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or (2) A food for which a standard or standards of fill of container have been prescribed by regulation as provided by section 37-121[, Idaho Code], and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard.
9. If it is not subject to the provisions of paragraph (g) of this section, unless it bears labeling clearly giving (1) the common or usual name of the food, if any there be, and (2) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; Provided, that, to the extent that compliance with the requirements of clause (2) of this paragraph is impractical or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the board.
10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the board determines to be, and by regulations prescribed, as, necessary in order to fully inform purchasers as to its value for such uses. (k) If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; Provided, that to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the board.

§ 37-124. Contamination of food with microorganisms — Permit regulations — Access to factory.

1. Whenever the director finds after investigation that the distribution in Idaho of any class of food may, by reason of contamination with microorganisms during manufacture, processing, or packing thereof in any locality, be injurious to health, and that such injurious nature cannot be adequately determined after such articles have entered commerce, he then, and in such case only, shall prescribe regulations providing for the issuance, to manufacturers, processors, or packers of such class of food in such locality, of permits to which shall be attached such conditions governing the manufacture, processing, or packing of such class of food, for such temporary period of time, as may be necessary to protect the public health; and after the effective date of such regulations, and during such temporary period, no person shall introduce or deliver for introduction into commerce any such food manufactured, processed or packed by any such manufacturer, processor, or packer unless such manufacturer, processor, or packer holds a permit issued by the director as provided by such regulations.
2. The director is authorized to suspend immediately upon notice any permit issued under authority of this section if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended shall be privileged at any time to apply for the reinstatement of such permit, and the director shall, immediately after prompt hearing and an inspection of the establishment, reinstate such permit if it is found that adequate measures have been taken to comply with and maintain the conditions of the permit, as originally issued or as amended.
3. Any officer or employee duly designated by the director shall have access to any factory or establishment, the operator of which holds a permit from the director for the purpose of ascertaining whether or not the conditions of the permit are being complied with, and denial of access for such inspection shall be ground for suspension of the permit until such access is freely given by the operator.

§ 37-125. Poisonous or deleterious substance — Regulations as to use.

Any poisonous or deleterious substance added to any food except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice, shall be deemed to be unsafe for purposes of the application of clause (2) of section 37-122(a)[, Idaho Code]; but when such substance is so required or cannot be so avoided, the board shall promulgate regulations limiting the quantity therein or thereon to such extent as the board finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of clause (2) of section 37-122(a)[, Idaho Code]. While such a regulation is in effect limiting the quantity of any such substance in the case of any food, such food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated within the meaning of clause (1) section 37-122(a)[, Idaho Code]. In determining the quantity of such added substance to be tolerated in or on different articles of food, the board shall take into account the extent to which the use of such substance is required or cannot be avoided in the production of each such article and the other ways in which the consumer may be affected by the same or other poisonous or deleterious substances.

§ 37-126. Drugs or devices deemed adulterated.

A drug or device shall be deemed to be adulterated:

1. 1. If it consists in whole or in part of any filthy, putrid, or decomposed substance; or (2) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been contaminated with filth, or whereby it may have been rendered injurious to health; or (3) if it is a drug and its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or (4) if it is a drug and it bears or contains, for purposes of coloring only, a coal-tar color other than one from a batch certified under the authority of the federal act. (a) (1) If it consists in whole or in part of any filthy, putrid, or decomposed substance; or (2) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been contaminated with filth, or whereby it may have been rendered injurious to health; or (3) if it is a drug and its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or (4) if it is a drug and it bears or contains, for purposes of coloring only, a coal-tar color other than one from a batch certified under the authority of the federal act.
2. If it purports to be or is represented as a drug the name of which is recognized in an official compendium, and its strength differs from, or its quality or purity falls below, the standard set forth in such compendium. Such determination as to strength, quality or purity shall be made in accordance with the tests or methods of assay set forth in such compendium or in the absence of or inadequacy of such tests or methods of assay, these prescribed under authority of the federal act. No drug defined in an official compendium shall be deemed to be adulterated under this paragraph because it differs from the standard of strength, quality, or purity therefor set forth in such compendium, if its difference in strength, quality, or purity from such standard is plainly stated on its label. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States it shall be subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia. Nothing in this subsection shall be deemed to prohibit a change in the strength, quality or purity of a drug, if the change is made by or pursuant to the orders of a practitioner prescribing the drug for the purpose of administering the drug to a patient.
3. If it is not subject to the provisions of subsection (b) of this section and its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess. Nothing in this subsection shall be deemed to prohibit a change in the strength, quality or purity of a drug, if the change is made by or pursuant to the orders of the practitioner prescribing the drug for the purpose of administering the drug to a patient.
4. If it is a drug and any substance has been: (1) mixed or packed therewith so as to reduce its quality or strength; or (2) substituted wholly or in part therefor. Nothing in this subsection shall be deemed to prohibit a change in the strength, quality or purity of a drug, if the change is made by or pursuant to the orders of the practitioner prescribing the drug for the purpose of administering the drug to a patient.

§ 37-127. Drugs or devices deemed misbranded. — A drug or device shall be deemed to be misbranded

1. If its labeling is false or misleading in any particular.
2. If in package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; Provided, that under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the board.
3. If any word, statement, or other information required by or under authority of this act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
4. If it is for use by man and contains any quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marihuana [marijuana], morphine, opium, paraldehyde, peyete [peyote], or sulphonmethane, or any chemical derivative of such substance, which derivative has been by the board after investigation, found to be, and by regulations under this act, designated as habit forming, unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement “Warning — May be habit forming.”
5. If it is a drug and is not designated solely by a name recognized in an official compendium unless its label bears (1) the common or usual name of the drug, if such there be; and (2), in case it is fabricated from two (2) or more ingredients, the common or usual name of each active ingredient, including the kind and quantity or proportion of any alcohol, and also including, whether active or not, the name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acotphenetidin, amidapyrine, anti-pyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis glucosines, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of any substances, contained therein: Provided, that to the extent that compliance with the requirements of clause (2) of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the board.
6. Unless its labeling bears (1) adequate directions for use; and (2) such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users: Provided, that where any requirement of clause (1) of this paragraph, as applied to any drug or device, is not necessary for the protection of the public health, the board shall promulgate regulations exempting such drug or device from such requirements.
7. If it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled as prescribed therein: Provided, that the method of packing may be modified with the consent of the board. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be subject to the requirements of the United States Pharmacopoeia with respect to packaging and labeling unless it is labeled and offered for sale as a homoeopathic [homeopathic] drug, in which case it shall be subject to the provisions of the Homoeopathic [Homeopathic] Pharmacopoeia of the United States, and not to those of the United States Pharmacopoeia.
8. If it has been found by the board to be a drug liable to deterioration, unless it is packaged in such form and manner, and its label bears a statement of such precautions, as the board shall by regulations require as necessary for the protection of public health. No such regulation shall be established for any drug recognized in an official compendium until the board shall have informed the appropriate body charged with the revision of such compendium of the need for such packaging or labeling requirements and such body shall have failed within a reasonable time to prescribe such requirements.
9. 1. If it is a drug and its container is so made, formed, or filled as to be misleading; or (2) if it is an imitation of another drug; or (3) if it is offered for sale under the name of another drug. (i) (1) If it is a drug and its container is so made, formed, or filled as to be misleading; or (2) if it is an imitation of another drug; or (3) if it is offered for sale under the name of another drug.
10. If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.
11. If it is a drug sold at retail and quantity of aminopyrine, barbituric acid, cinchophen, dinitrophenol, sulfanilamide or their derivatives, or any other drug which has been found by the board to be dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof, and so designated by the board in a regulation adopted; unless it is sold on a written prescription signed by a member of the medical, osteopathic, chiropodial, dental, or veterinary profession who is licensed by law to administer such drug, and its label bears the name and place of business of the seller, the serial number and date of such prescription, and the name of such member of the medical, osteopathic, chiropodial, dental, or veterinary profession.
12. A drug sold on a written prescription signed by a member of the medical, osteopathic, chiropodial, dental, or veterinary profession (except a drug sold in the course of the conduct of a business of selling drugs pursuant to diagnosis by mail) shall be exempt from the requirements of this section if — (1) such member of the medical, osteopathic, chiropodial, dental, or veterinary profession is licensed by law to administer such drug, and (2) such drug bears a label containing the name and place of business of the seller, the serial number and date of such prescription, and the name of such member of the medical, osteopathic, chiropodial, dental, or veterinary profession.

§ 37-129. Cosmetics deemed adulterated. — A cosmetic shall be deemed to be adulterated — (a) If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling or advertisement thereof, or under such conditions of use as are customary or usual. Provided, that this provision shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: “Caution

This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness,” and the labeling of which bears adequate directions for such preliminary testing. For the purposes of this paragraph (e) the term “hair dye” shall not include eyelash dyes or eyebrow dyes.

(b) If it consists in whole or in part of any filthy, putrid, or decomposed substance.

(c) If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.

(d) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.

(e) If it is not a hair dye and it bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.

§ 37-130. Cosmetics deemed misbranded. — A cosmetic shall be deemed to be misbranded

1. If its labeling is false or misleading in any particular.
2. If in package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, that under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the board.
3. If any word, statement, or other information required by or under authority of this act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
4. If its container is so made, formed, or filled as to be misleading.

§ 37-131. False advertising.

1. An advertisement of a food, drug, device, or cosmetic shall be deemed to be false if it is false or misleading in any particular.
2. For the purpose of this act the advertisement of a drug or device representing it to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright’s disease, cancer, carbuncles, cholecytitis, diabetes, diptheria [diphtheria], dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infection, smallpox, tuberculosis, tumors, typhoid, uremia, venereal disease, shall also be deemed to be false, except that no advertisement not in violation of subsection (a) shall be deemed to be false under this subsection if it is disseminated only to members of the medical, osteopathic, chiropodial, dental, or veterinary professions, or appears only in the scientific periodicals of these professions, or is disseminated only for the purpose of public-health education by persons not commercially interested, directly or indirectly, in the sale of such drugs or devices: Provided, that whenever the board determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named above, the board shall by regulation authorize the advertisement of drugs having curative or therapeutic effect for such disease, subject to such conditions and restrictions as the board may deem necessary in the interests of public health: Provided, that this subsection shall not be construed as indicating that self-medication for diseases other than those named herein is safe or efficacious.

§ 37-132. Regulations by board — Hearings — Notice.

1. The authority to promulgate regulations for the efficient enforcement of this act is hereby vested in the board. The board is hereby authorized to make the regulations promulgated under this act conform, in so far as practicable with those promulgated under the federal act.
2. Hearings authorized or required by this act shall be conducted by the board or such officer, agent, or employee as the board may designate for the purpose.
3. Before promulgating any regulations contemplated by section 37-121; 37-123(j); 37-124; 37-127(d), (f), (g), (h), and (k), or 37-131(b)[, Idaho Code], the board shall give appropriate notice of the proposal and of the time and place for a hearing. The regulation so promulgated shall become effective on a date fixed by the board (which date shall not be prior to 30 days after its promulgation). Such regulation may be amended or repealed in the same manner as is provided for its adoption, except that in the case of a regulation amending or repealing any such regulation the board, to such an extent as it deems necessary in order to prevent undue hardship, may disregard the foregoing provisions regarding notice, hearing, or effective date.

§ 37-133. Inspection of establishments — Examination of specimens — Reports — Receipt for samples.

The director or his duly authorized agent shall have free access at all reasonable hours to any factory, warehouse, or establishment in which foods, drugs, devices, or cosmetics are manufactured, processed, packed, or held for introduction into commerce, or to enter any vehicle being used to transport or hold such foods, drugs, devices, or cosmetics in commerce, for the purpose: (1) of inspecting such factory, warehouse, establishment, or vehicle to determine if any of the provisions of this act are being violated, and (2) to secure samples or specimens of any food, drug, device, or cosmetic after paying or offering to pay for such sample. It shall be the duty of the director to make or cause to be made examinations of samples secured under the provisions of this section to determine whether or not any provision of this act is being violated.

1. Upon the completion of any inspection of a factory, warehouse, or other establishment and prior to leaving the premises, the director or his duly authorized agent making the inspection shall give to the owner, operator, or agent in charge, a report in writing setting forth any condition or practice observed by him which in his judgment indicates that any food, drug, device, or cosmetic in the establishment (1) consists in whole or in part of any filthy, putrid, or decomposed substances; or (2) has been prepared, packed, or held in unsanitary condition whereby it may have become contaminated with filth or whereby it may be rendered injurious to health.
2. If the director or his duly authorized agent making any such inspection of any warehouse, factory, or other establishment has obtained any samples in the process of the inspection, upon completion of the inspection and prior to his leaving the premises, he shall give to the owner, operator, or agent in charge, a receipt describing the samples obtained.
3. Whenever in the course of any such inspection of the factory, or other establishment where food is manufactured, processed, or packed, the director or his duly authorized agent making the inspection obtains a sample of any such food and if analysis is made of such sample for the purpose of determining whether such food consists in whole or part of any filthy, putrid or decomposed substance, or is otherwise unfit for food, a copy of the results of such analysis shall be sent promptly to the owner, operator, or agent in charge.

§ 37-134. Publication of reports by director — Dissemination of information.

1. The director may cause to be published from time to time reports summarizing all judgments, decrees, and court orders which have been rendered under this act, including the nature of the charge and the disposition thereof.
2. The director may also cause to be disseminated such information regarding food, drugs, devices, and cosmetics as the board deems necessary in the interest of public health and the protection of the consumer against fraud. Nothing in this section shall be construed to prohibit the director from collecting, reporting, and illustrating the results of the investigations of the director.

§ 37-201 — 37-216. Manufacture or sale of adulterated or misbranded articles prohibited — Distribution of free samples prohibited — Inspectors’ right of access — Standards established — Disposition of fines. [Repealed.]

§ 37-217. Sale of tainted food a misdemeanor. [Repealed.]

§ 37-218 — 37-222. Baking powders and vinegars, regulation. [Repealed.]

§ 37-223. Nonfat dry milk solids, defatted milk solids and milk defined. [Repealed.]

§ 37-301. Statement of purpose.

It is hereby declared to be the policy of the legislature of the state of Idaho that the public interest requires that all dairy products produced, distributed, offered for sale or sold in Idaho meet minimum standards of sanitary condition, quality, identity, classification and grade. To accomplish this purpose, the director of the department of agriculture shall inspect dairy products, dairy farms, production facilities and processing facilities, issue permits and enforce minimum standards in accordance with the provisions of this chapter.

§ 37-302. Inspections.

1. It shall be the duty of the director of the department of agriculture to cause to be visited as frequently as it may deem necessary all dairies supplying dealers and consumers with milk, and inspect the same to ascertain and certify sanitary conditions and milk quality. A copy of the inspection report shall be left with the owner and such information given as will assist the producer to improve the sanitary conditions or remedy such defects as the inspection report indicates. A copy of the inspection report shall be kept on file in the office of the director.
2. The director of the department of agriculture is hereby authorized and directed to designate any agent to inspect, examine and test any or all dairy products in accordance with rules as the department may prescribe; and to ascertain and certify the grade, classification, quality or sanitary condition thereof and other pertinent facts as the department may require. The director or agent of the department of agriculture of the state of Idaho shall make sanitary inspection of milk, cream, butter and dairy products of any kind whatsoever, intended for human consumption, and of containers, utensils, equipment, buildings, premises or anything whatsoever employed in the production, handling, storing, processing or manufacturing of dairy products or that would affect the purity of the products. Inspections, examinations and tests shall be made to meet the requirements of the laws of the state and of the United States for the sale of the products or their transportation in both intrastate and interstate commerce. Any agent designated by the director to make inspections shall have the right for that purpose to enter any premises and buildings where milk, cream, butter or dairy products shall be produced, stored, processed or manufactured.
3. Whenever an inspection of any dairy product is made by the department of agriculture, or whenever permanent or temporary inspectors or employees are used by the department for the purpose of enforcing or promulgating an inspection or sanitary program for any dairy product, the department is authorized to fix, assess and collect or cause to be collected from the dairy processors, fees or assessments for services when they are performed by employees or agents of the department, the fees to be on a uniform basis in an amount reasonably necessary to cover the cost of such inspection and the administration of the department of agriculture dairy inspection program; provided however, that the department shall so adjust the fees to be collected under this section as to meet the expenses necessary for this inspection service only, all of the fees to be used for this purpose alone; and provided further, that in no event shall the fees or assessments exceed four (4) mills per pound of butterfat produced by any dairyman in Idaho or received by processors. All such fees and moneys collected or received by the department, its employees or agents under this act shall be deposited in the dairy industry and inspection fund, which fund is hereby created. All moneys coming into the fund are hereby appropriated to the department of agriculture to be used in the inspection required by law to be made of the dairy industry and dairy products. The fees and assessments accrued in any given month are due and payable no later than the twentieth day of the following month.

§ 37-303. Standards and rules.

1. The director of the department of agriculture is hereby authorized to promulgate and enforce reasonable rules as may be necessary or desirable to establish standards and to carry out its functions and the intent and purposes of this chapter.
2. All milk or cream utilized in the manufacture of dairy products and all manufactured dairy products produced, distributed, offered for sale, or sold in Idaho shall meet the requirements established by this chapter, of federal law, and rules or regulations promulgated or adopted pursuant to state or federal law.
3. The following standards concerning the sanitation of milk and cream are hereby established:
   1. The term “processor” means any individual, partnership, association or corporation doing business in the state of Idaho that produces, purchases, obtains or uses in the state of Idaho any milk or cream for use in the manufacture of butter, cheese, evaporated milk, frozen desserts, frozen novelties, edible dry milk or other dairy products. The term “processor” shall not include any individual, partnership, association or corporation that produces, purchases, obtains or uses milk or cream for his or its own consumption. The term “producer” means any person, firm or corporation who owns or controls one (1) or more cows, goats, sheep or water buffalo, a part or all of the milk from which is sold or offered for sale to a processor.
   2. No processor shall purchase or obtain in any manner, or use in any manner, for the sale or manufacture of any dairy products as provided in paragraph (a) of this subsection, any unacceptable milk or cream as herein defined.
   3. The processor shall, for the purpose of determining the acceptability or unacceptability of milk or cream, cause all milk or cream to be tested and graded according to the standards herein defined before purchase, acquisition or use in any manner. Provided however, that where the processor customarily purchases the milk or cream of any person regularly engaged in the production thereof, the processor is required to test milk and cream of such producer not less than once each month by the approved bacteria tests and approved mastitic tests, or other tests as may be prescribed by the director of the department of agriculture. When milk or cream from any producer is found unacceptable as a result of required testing, the processor shall thereafter test the milk or cream of the producer daily by the same test until it is found to be acceptable. Each processor shall retain for at least one (1) year at the place where milk or cream is received, a record of such tests in the form and of the content that shall be prescribed by the department of agriculture and shall exhibit the record at the place where the same is kept whenever requested to do so by the producer or the department and shall permit copies thereof to be taken.
   4. Milk and dairy product quality standards and standards of identity will be established by rules promulgated by the department.
   5. Any milk, cream or dairy product that is unclean, unwholesome or unfit for human consumption, as determined by the department, shall be rejected as unacceptable.

§ 37-304. Permit issuance and revocation.

1. The director or the director’s authorized agent shall issue a permit authorizing the sale of milk for human consumption to all dairy farms that meet the standards and requirements of this chapter, and rules promulgated pursuant to this chapter.
2. The director or his agent may issue a permit to sell milk for human consumption to a new or expanding dairy farm only upon presentation to the director by the new or expanding dairy farm of the following:
   1. A certified letter, supplied by the board of county commissioners, certifying the new or expanding dairy farm’s compliance with applicable county livestock ordinances; and
   2. Evidence that a valid water right exists to supply adequate water for the new or expanding dairy farm; or
   3. A copy of an application for a permit to appropriate water that has been filed with the Idaho department of water resources and which, if approved, will supply adequate water for the dairy farm; or
   4. A copy of an application to change the point of diversion, place, period and nature of use of an existing water right that has been filed with the Idaho department of water resources and which, if approved, will supply adequate water for the dairy farm.
3. As used in this section:
   1. “Animal units” shall be as defined in rule by the director.
   2. “Expanding dairy farm” means an existing, legally permitted dairy farm that increases, or applies to increase, its existing animal units beyond the number for which it is permitted under applicable county livestock ordinances or increases, or applies to increase, the waste containment system.
   3. “New dairy farm” means a dairy farm constructed after the effective date of this act.
4. Whenever, under any law of this state or rule, the director of the department of agriculture or his agent is required to inspect dairy farms for compliance with rules prescribed by the department, or determine the sanitary condition of anything referred to in section 37-303, Idaho Code, or the purity of milk, cream, butter or other dairy products intended for human consumption, the director shall make or cause to be made an examination and inspection and shall report his findings and conclusions. When the issuance or the revoking of any license or permit by the department of agriculture is required to be made after an inspection involving milk quality, sanitary conditions and purity for human consumption of any milk, cream, butter or other dairy products, the issuance or revocation of license or permit shall be based upon the report or reports so made by the director.

§ 37-305. Enforcement.

The director of the department of agriculture may bring civil actions to enjoin violations of this chapter or rules promulgated to implement the provisions of this chapter.

§ 37-306. Department to cooperate with other agencies.

The department of agriculture is hereby authorized to advise and assist and to cooperate with the federal government or any of its agencies, other departments, agencies and institutions of this state, counties, school districts, and municipalities and other public and private welfare agencies, in the exercise of any of the powers and duties of the department under this chapter.

§ 37-307. Milk haulers and tanks — Definitions.

As used in this act, unless the context clearly requires otherwise, the following definitions are adopted:

1. “Milk hauler” means the operator of a transportation tank and may be an employee or the owner of the equipment.
2. “Farm tank” means a tank used to cool, store or cool and store milk prior to transportation to the processing plant.
3. “Transportation tank,” “bulk tank” and “feeder tank” mean tanks used to transport milk from a farm to a processing plant.
4. “Chlorine” means chlorine, or other type of sanitizer approved by the director of the department of agriculture.

§ 37-308. Standards for transportation tanks.

The following standards are hereby adopted relating to transportation tanks:

1. The transportation tank and accessories in the milk handling operation shall comply with the requirements of the 3A sanitary standards symbol administrative council, 3A standards for transportation tanks existing at the time of the passage of this act.
2. Suitable facilities, including hot and cold running water, detergent, brushes, sanitizers and sanitizing equipment, a concrete floor with proper drainage and waste disposal, shall be provided for washing and sanitizing of transportation tanks. Unless the truck is to be used within a few hours of the washing operation the sanitizing of the tank shall be omitted until just before the tank truck is to be used. During the interim, the tank truck shall be protected from contamination by closing port holes, etc. Since the tank truck may be sanitized on a different date and at a different time from the cleaning and washing operation, a tag shall provide space for recording this information. The washing, sanitizing and maintenance of the transportation tank and accessories shall be the responsibility of the processor or milk hauler. The department of agriculture shall be informed in writing designating the person responsible for the cleaning, sanitizing and maintenance of the transportation tank.
3. The transportation tank and all accessories shall be thoroughly rinsed after each usage, and shall be thoroughly cleaned and sanitized daily and the tank tagged and sealed with a tag attached indicating that the tank has been washed, sanitized or washed and sanitized. This tag shall also contain the name of the person doing the work and the date on which the work was done. The tag shall be removed by the hauler at his first pickup and retained at the receiving plant for a minimum of thirty (30) days.
4. Single length, durable, nontoxic, flexible milk conductor tubing shall be used for conveying milk from the farm tank to the transportation tank. The inside diameter of milk conductor tubing shall not be less than one and three-eighths (1 3/8) inches. If two (2) lengths of tubing are used, they shall be connected either by the use of sanitary couplings or a piece of 3A sanitary tubing with clamps which can be removed without tools. The connections between the pump and the vehicle tank, and between the pump and the milk conductor tubing shall remain assembled, except when dismantled for cleaning. The open end of the milk tubing shall be capped with an approved protective cap at all times, except when loading or unloading. The outlet valve, milk pump and the milk conductor tubing and samples shall be enclosed in a properly drained, insulated, dust-tight cabinet.
5. The transportation tank and the accessories shall be used for no other purpose than the handling of milk unless such other use is approved by the department of agriculture.

§ 37-309. Standards for milk haulers.

The following standards are hereby adopted relating to milk haulers and to the operation of transportation tanks:

1. All milk haulers must possess a permit issued by the state department of agriculture. All milk haulers shall be subject to such examination and abilities as the department of agriculture may prescribe by rule or regulation in order to receive and retain such permit. The fee for the permit shall be twenty-five dollars ($25.00). The permit shall be valid for three (3) years and must be renewed by December 31 of the third year.
2. The milk line shall be passed through a special port opening through the milk house wall with care to prevent contact with the ground or floor of the milk house. The port opening shall be closed when not in use.
3. It shall be the responsibility of the milk hauler to assure that in the event the processor washes and sanitizes the truck the operation has been adequately performed, and that prior to use the tank truck has been properly sanitized. In the event it is the milk hauler’s responsibility to sanitize the tank truck, it shall be done with a chlorine solution of proper strength.
4. The milk hauler’s hands shall be washed immediately before gauging the milk.
5. The milk shall be observed and checked for abnormalities or adulterations, and all abnormal or adulterated milk shall be rejected.
6. The milk volume in the farm tank shall be determined in a sanitary manner.
7. The milk in the farm tank shall be thoroughly agitated. Milk samples for analysis shall be taken in a sanitary manner into properly identified sterile containers. All sampling shall follow standard methods.
8. After the milk is pumped to the transportation tank the milk conductor tubing shall be capped and returned to the vehicle storage cabinet. Care shall be taken to prevent soiling of the milk line by contact with the milk house floor, operator’s hands or the ground.
9. The milk hauler shall rinse the farm tank and accessories free of milk with clean water immediately after emptying.
10. The milk hauler shall be responsible for proper use of the transportation tank and accessories.

§ 37-310. Standards for quality control of milk samples.

The following standards are hereby adopted relating to quality control of milk samples taken from tanks:

1. As often as is deemed necessary, the department of agriculture may take samples for analysis from each farm tank or each transportation tank.
2. All milk samples taken from farm tanks or transportation tanks shall be taken in a sanitary manner in accordance with standard methods. Samples for bacteriological analysis shall be properly iced and transported in accordance with standard methods, thirty-two (32) to forty (40) degrees Fahrenheit.
3. The department of agriculture shall have access to all records maintained by the receiving plant relating to butterfat, temperature and bacteriological sampling and any other samples of bulk farm tank milk.
4. Milk samples for analysis shall be available on the farm tank pickup truck at all times during the collection period and delivery to the plant, as required by the department of agriculture.

§ 37-311. Reports of volumes purchased.

All milk processors, cooperatives and organizations that procure milk from Idaho dairy farms or process milk received from other states shall, by the twentieth day of the following month in which the milk was produced or processed, provide a full and accurate account of the amount of milk purchased and the volume of dairy products processed to the department of agriculture pursuant to procedures established by the department.

§ 37-312. Butter and whey butter — Definitions and qualities.

Butter is the product made by gathering the fat of fresh or ripened milk or cream into a mass, which also contains a small portion of other milk constituents, with or without salt or a harmless coloring matter. Butter shall be clean and non-rancid and shall contain not less than eighty percent (80%) of butterfat. Whey butter or whey cream butter is the food product made by gathering the fat of fresh or ripened whey cream separated from cheese whey and formed into a mass, which also contains a small portion of other milk constituents, with or without salt or a harmless coloring matter. Whey butter shall be clean and non-rancid and shall contain not less than eighty percent (80%) butterfat. The term butter includes whey butter and whey cream butter.

§ 37-313. Butter grades.

The grades of butter shall comply with the United States department of agriculture’s 1989 “Standards for Grades of Butter.” “Undergrade” butter is butter scoring less than 90 under this standard. It is hereby declared to be unlawful to sell, or offer for sale any butter within the state of Idaho unless the wrappers and containers in which said butter is packaged are conspicuously labeled as to grades. Any butter that scores less than 90 and is sold or offered for sale within the state of Idaho must be conspicuously labeled with the words “undergrade butter” upon the wrappers and container in which said butter is packaged.

§ 37-314. Improperly graded butter.

Butter that fails to meet the grade labeled on the butter container may be rejected. Butter that has been rejected due to failure to meet the standard may be relabeled, regraded or reprocessed if authorized by the department of agriculture.

§ 37-315. Advertising substitutes for dairy products.

It shall be unlawful for any person, firm or corporation to make use of the words milk, cream, butter, cheese, creamery, dairy, churn, cow, the name of any dairy breed or any pictorial representation of any of these terms in connection with the sale, offering for sale or advertisement of any substance designed to be used as a so-called substitute for milk, cheese, butter or any other dairy products.

§ 37-316. Food products made to resemble dairy products — Definitions.

As used in sections 37-315 and 37-318, Idaho Code:

1. “Dairy product” includes:
   1. Milk, skim milk, milk fat, cream, sour cream, lowfat milk and nonfat milk used in fluid, concentrated or dry form.
   2. Cheese. All varieties including asiago, blue, brick, caciocavallo, cheddar, colby, cook cheese, cottage, cream, washed curd, edam, gammelost, gorgonzola, gouda, granular and grated, gruyere, hard, limburger, monterey, monterey jack, mozzarella, scamorze, muenster, neufchatel, nuworld, parmesan, reggiano, pasteurized, blended and processed cheeses, pasteurized cheese spreads, provolone, pasta filata, romano, roquefort, samsoe, sapsago, semi-soft and skim milk, spiced, swiss and emmentaler as described in 21 CFR, part 133.
   3. Butter as defined in section 37-312, Idaho Code.
   4. Ice cream, frozen custard, ice milk, sherbet as defined in 21 CFR, part 135, frozen yogurt dessert mix, frozen yogurt dessert, frozen lowfat and nonfat yogurt dessert, dietetic or dietary frozen dessert, lowfat or nonfat frozen dairy dessert, and milk shake base as defined in state department of agriculture dairy rules or regulations.
   5. Any manufactured food which:
      1. Uses milk or a milk ingredient as the principal or characterizing constituent of the food product;
      2. Does not contain ingredients added for the purpose of replacing milk or milk ingredients;
      3. Does not contain milk-derived ingredients at levels in excess of those permitted in similar standardized dairy products;
      4. Does not contain any vegetable-derived ingredients unless the ingredients are used as carriers or function as stabilizers or emulsifiers; and
      5. Has no standard of identity recognized by any federal or state of Idaho law, rule or regulation as a dairy product.
2. “Milk ingredient” includes milk, skim milk, milk fat, cream, sour cream, lowfat milk and nonfat milk used in fluid, concentrated or dry form.
3. “Milk derived ingredient” includes buttermilk, whey, modified whey products, casein, lactose, lactalbumins and lactoglobulins used in fluid, concentrated or dry forms.
4. “Artificial dairy product” means any food manufactured or labeled so as to purport to resemble the identity, intended use, composition, physical and sensory properties of a dairy product as defined in subsection (1) of this section.
5. For the purpose and within the meaning of this act, an “artificial dairy product” shall not include a “dairy product” as defined in this section or any other manufactured food which has a federal or state of Idaho standard of identity as a food product. Food products made to resemble those food products other than dairy products in this subsection, are exempt from the labeling requirements of this chapter.

§ 37-317. Quality standards for food products made to resemble dairy products.

Quality standards (e.g., bacteria, coliform, etc.) for food products made to resemble dairy products shall be at least the equivalent of the established quality standards of the dairy product resembled.

§ 37-318. License requirements for manufacturers of food products made to resemble dairy products.

1. It is unlawful to engage in the manufacture of food products resembling dairy products, unless a license for the current calendar year for each separate plant or place used for such business is issued by the director of the Idaho department of agriculture.
2. Applications for a license shall be in the form which shall be prescribed by the director of the Idaho department of agriculture.
3. The application shall be accompanied by a fee of one hundred dollars ($100). The fee shall be prorated on a monthly basis for any licensee that commences operations after the first quarter in any calendar year whether or not such plant was licensed during the preceding calendar year.
4. Plant licenses are not required if the plant is located in a state other than Idaho.
5. The director of the Idaho department of agriculture shall issue to each applicant that meets the requirements of this section, a license which entitles the applicant to manufacture, sell, or distribute food products resembling dairy products for the then current calendar year for which the license is issued, unless the license is sooner revoked or suspended.
6. The license shall expire at the end of each calendar year.
7. It is unlawful for any person to sell any food product resembling dairy products which has been produced in a plant that is in an unsanitary condition.
8. The manufacture of food products resembling dairy products under unhealthful or unsanitary conditions or which violate the provisions of sections 37-315 through 37-318, Idaho Code, and rules or regulations adopted pursuant thereto, shall be grounds for revocation or suspension of such license.

§ 37-319. Penalty — Enforcement.

1. Any person, firm or corporation, violating the provisions of sections 37-315 through 37-318, Idaho Code, or any part or provision of any of said sections, shall be guilty of a misdemeanor and punishable by a fine not exceeding two hundred dollars ($200) or imprisonment in the county jail not exceeding six (6) months or by both such fine and imprisonment.
2. In addition, any products not in compliance with the provisions of sections 37-315 through 37-318, Idaho Code, shall be subject to seizure and disposition in accordance with an appropriate court order or rule adopted by the director of the department of agriculture.

§ 37-320. Skimmed milk

Standard. [Repealed.]

§ 37-321. Skim milk

Manufacturers may handle wholesale. [Repealed.]

§ 37-322. Standard for cream. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 19, effective July 1, 2014.

§ 37-323. Weight of milk. [Repealed.]

§ 37-324. Penalty for violations. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 20, effective July 1, 2014.

§ 37-325. [Amended and Redesignated.]

§ 37-326. Standards for dairy products. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 22, effective July 1, 2014.

§ 37-327. Sale of cheese containing foreign substances unlawful. [Repealed.]

§ 37-328. Fraudulent sale of imitation butter unlawful — Regulations pertaining to sale of colored oleomargarine or margarine

Misadvertising of oleomargarine or margarine unlawful. [Repealed.]

§ 37-329. Use of imitation butter in eating houses

Required to post notices. [Repealed.]

§ 37-330. Penalty for violating sections 37-325 through 37-329. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 23, effective July 1, 2014.

§ 37-331. Process butter

Restrictions on sale. [Repealed.]

§ 37-332. [Amended and Redesignated.]

§ 37-332a. [Amended and Redesignated.]

§ 37-332b. [Amended and Redesignated.]

§ 37-332c. Butter graders — Employment — Notice to department — Chief grader — Responsibility of graders — Change of graders — Notice to department — Responsibility of manufacturer for wrapper

Revocation of privilege of using grade emblem. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 27, effective July 1, 2014.

§ 37-332d. Licensing of butter graders — Examination — Duration

Fees. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 28, effective July 1, 2014.

§ 37-332e. Revocation or suspension of license. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 29, effective July 1, 2014.

§ 37-332f. Enforcement of act by department

Rules and regulations. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 30, effective July 1, 2014.

§ 37-332g. Violations of statute — Misdemeanor

Punishment. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 31, effective July 1, 2014.

§ 37-332h. License fees, disposition, use. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 32, effective July 1, 2014.

§ 37-333. Weight of butter. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 33, effective July 1, 2014.

§ 37-334. [Amended and Redesignated.]

§ 37-334a. [Amended and Redesignated.]

§ 37-334b. Label requirements for food products made to resemble dairy products. [Repealed.]

§ 37-334c. Ingredient and nutritional values. [Repealed.]

§ 37-334d. [Amended and Redesignated.]

§ 37-334e. [Amended and Redesignated.]

§ 37-334f. Registration requirements for food products made to resemble dairy products. [Repealed.]

§ 37-335. [Amended and Redesignated.]

§ 37-336. Oleomargarine — Purchase for public institutions unlawful

Exception. [Repealed.]

§ 37-337. Penalty for violating section 37-336. [Repealed.]

§ 37-338. Department of agriculture to administer act. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 39, effective July 1, 2014.

§ 37-339. Breed name of dairy cattle carried on label of milk and milk products

Policy. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 40, effective July 1, 2014.

§ 37-340. Use of breed name on label unlawful unless derived exclusively from registered dairy herds

Permit. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 41, effective July 1, 2014.

§ 37-341. Administration and enforcement of act. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 42, effective July 1, 2014.

§ 37-342. Violations of §§ 37-339 through 37-343 a misdemeanor. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 43, effective July 1, 2014.

§ 37-343. Injunction proceedings additional remedy for violations. [Repealed.]

Repealed by S.L. 2014, ch. 275, § 44, effective July 1, 2014.

§ 37-401. Inspections, examinations and tests by department of agriculture — Dairy farms — Nutrient management plans required — Certain evidence required.

1. The director of the department of agriculture is hereby authorized and directed to designate any agent to inspect, examine and test any or all dairy products in accordance with rules as the department may prescribe; and to ascertain and certify the grade, classification, quality or sanitary condition thereof and other pertinent facts as the department may require. The director or agent of the department of agriculture of the state of Idaho shall make sanitary inspection of milk, cream, butter and dairy products of any kind whatsoever, intended for human consumption, and of containers, utensils, equipment, buildings, premises or anything whatsoever employed in the production, handling, storing, processing or manufacturing of dairy products or that would affect the purity of the products. Inspections, examinations and tests shall be made to meet the requirements of the laws of the state and of the United States for the sale of the products or their transportation in both intrastate and interstate commerce. Any agent designated by the director to make inspections shall have the right for that purpose to enter any premises and buildings where milk, cream, butter or dairy products shall be produced, stored, processed or manufactured.
2. Acting in accord with rules of the department, the director or agent of the department shall review plans and specifications for construction of new, modified or expanded waste systems and inspect any dairy farm to ascertain and certify sanitary conditions, waste systems and milk quality.
3. The director or agent shall issue a permit authorizing the sale of milk for human consumption to all dairy farms that meet the requirements of this chapter, and rules promulgated pursuant to this chapter.
4. All dairy farms shall have a nutrient management plan approved by the department. The nutrient management plan shall cover the dairy farm site and other land owned and operated by the dairy farm owner or operator. Nutrient management plans submitted to the department by the dairy farm shall include the names and addresses of each recipient of that dairy farm’s livestock waste, the number of acres to which the livestock waste is applied and the amount of such livestock waste received by each recipient. The information provided in this subsection shall be available to the county in which the dairy farm, or the land upon which the livestock waste is applied, is located. If livestock waste is converted to compost before it leaves the dairy farm, only the first recipient of the compost must be listed in the nutrient management plan as a recipient of livestock waste from the dairy farm. Existing dairy farms shall submit a nutrient management plan to the department on or before July 1, 2001.
5. Any new dairy farms or dairy farms that change owners or operators shall have an approved nutrient management plan on file with the department prior to the issuance of the milk permit for that dairy. The nutrient management plan shall be implemented upon approval of the plan by the department. (6) The director or his agent may issue a permit to sell milk for human consumption to a new or expanding dairy farm only upon presentation to the director by the new or expanding dairy farm of:
   1. A certified letter, supplied by the board of county commissioners, certifying the new or expanding dairy farm’s compliance with applicable county livestock ordinances; and
   2. Evidence that a valid water right exists to supply adequate water for the new or expanding dairy farm; or
   3. A copy of an application for a permit to appropriate water that has been filed with the Idaho department of water resources and which, if approved, will supply adequate water for the dairy farm; or
   4. A copy of an application to change the point of diversion, place, period and nature of use of an existing water right that has been filed with the Idaho department of water resources and which, if approved, will supply adequate water for the dairy farm.

(7) As used in this section:

(a) “Animal units” shall be as defined in rule by the director.

(b) “Expanding dairy farm” means an existing, legally permitted dairy farm that increases, or applies to increase, its existing animal units beyond the number for which it is permitted under applicable county livestock ordinances or increases, or applies to increase, the waste containment system.

(c) “New dairy farm” means a dairy farm constructed after the effective date of this act.

(8) The nutrient management plan, and all information generated by the dairy as a result of such plan, shall be deemed to be trade secrets, production records or other proprietary information, shall be kept confidential and shall be exempt from disclosure pursuant to section 74-107, Idaho Code.

§ 37-402. Standards, rules and regulations.

The following standards, rules and regulations concerning the sanitation of milk and cream are hereby established:

1. The term “processor” as used herein shall mean any individual, partnership, association, or corporation doing business in the state of Idaho that produces, purchases, obtains or uses in the state of Idaho any milk or cream for use in the manufacture of butter, cheese, evaporated milk, frozen desserts, frozen novelties, edible dry milk, or other dairy products. The term “processor” shall not include any individual, partnership, association or corporation which produces, purchases, obtains, or uses milk or cream for his or its own consumption. The term “producer” as used in this act shall mean any person, firm or corporation who owns or controls one or more cows a part or all of the milk from which is sold or offered for sale to a processor.
2. No processor shall purchase or obtain in any manner, or use in any manner, for the sale or manufacture of any of the above named dairy products any unacceptable milk or cream as herein defined.
3. The processor shall, for the purpose of determining the acceptability or unacceptability of milk or cream, cause all milk or cream to be tested and graded according to the standards herein defined before purchase, acquisition, or use in any manner, provided, however, that where the processor customarily purchases the milk or cream of any person regularly engaged in the production thereof, the processor is required to test milk and cream of such producer not less than once each month by the standard sediment test approved bacteria test and an approved mastitic test, or such other test as may be prescribed by the director of the department of agriculture and when milk or cream from any such producer is found unacceptable as a result of either test, the processor shall thereafter test the milk or cream of such producer daily by the same test until it is found to be acceptable. Each such processor shall retain for at least one (1) year at the place where such milk or cream is received a record of such tests in the form and of the content which shall be prescribed by the department of agriculture and shall exhibit such record at the place where the same is kept whenever requested to do so by the producer or the department and shall permit copies thereof to be taken.
4. Milk or cream is unacceptable which does not meet the standards and comply with the regulations promulgated by the director under this act.
5. Any milk or cream which is unclean, unwholesome or unfit for human consumption, as determined by the department, shall be rejected as unacceptable.
6. When any milk or cream is rejected as unacceptable it shall be the duty of the director or his agent to notify all processors in the immediate area, giving the producer’s name and address.
7. Following receipt of such notification no processor shall purchase, obtain or use milk or cream from such producer until notified by the director or his agent that milk or cream from such producer is acceptable or until the milk or cream of such producer has subsequently been found to be acceptable for ten (10) consecutive days after testing the same in the manner hereinabove described.

§ 37-403. Basis for issuance or revocation of licenses or permits.

Whenever, under any law of this state or rule, the director of the department of agriculture or any agent is required to inspect dairy farms and dairy waste systems for compliance with rules prescribed by the department, or determine the sanitary condition of anything referred to in section 37-401, Idaho Code, or the purity of milk, cream, butter, or other dairy products intended for human consumption, the director shall make or cause to be made an examination and inspection and shall report his findings and conclusions. When the issuance or the revoking of any license or permit by the department of agriculture is required to be made after an inspection involving waste systems, milk quality, and sanitary conditions and purity for human consumption of any milk, cream, butter, or other dairy products, the issuance or revocation of license or permit shall be based upon the report or reports so made by the director. The duration of such revocation shall be determined by the director. For violations regarding waste systems the department shall allow the dairy farm’s milk to be processed, provided the milk meets quality standards. The value of the milk sold by the violator during the revocation shall be remitted to the county where the violation occurred for deposit in the county current expense fund. The amount remitted to the county current expense fund shall be less processor expenses associated with the procurement of the milk.

§ 37-404. Coloring when unfit for human consumption.

Whenever the director of the department of agriculture or his agent finds any milk, cream or other dairy products unacceptable for human consumption under the foregoing, he shall color the same with a harmless edible dye so that it may thereafter be identified as having been condemned for human consumption.

§ 37-405. Department may make rules and orders.

The department of agriculture is hereby invested with authority to make rules and orders as may be necessary or desirable for carrying out its various functions and the intent and purpose of this act.

§ 37-406. Department to cooperate with other agencies.

The department of agriculture is hereby authorized to advise and assist and to cooperate with the federal government or any of its agencies, other departments, agencies and institutions of this state, counties, school districts, and municipalities, and other public and private welfare agencies, in the exercise of any of the powers and duties of the department.

§ 37-407. Fees and assessments to be collected from dairy processors.

Whenever an inspection of any dairy product is made by the department of agriculture, or whenever permanent or temporary inspectors or employees are used by said department for the purpose of enforcing or promulgating an inspection or sanitary program for any dairy product, the department is authorized to fix, assess and collect or cause to be collected from the dairy processors, fees or assessments for such services when they are performed by such employees or agents of the department, such fees to be on a uniform basis in an amount reasonably necessary to cover the cost of such inspection and the administration of the department of agriculture dairy inspection program; provided, however, that the department shall so adjust the fees to be collected under this section as to meet the expenses necessary for this inspection service only, all of said fees to be used for this purpose alone; and provided further, that in no event shall the fees or assessments exceed four (4) mills per pound of butterfat produced by any dairyman in Idaho or received by processors. All such fees and moneys collected or received by the department, its employees or agents under this act shall be deposited in the “dairy industry and inspection account” which account is hereby created. All moneys coming into said account are hereby appropriated to the department of agriculture to be used in the inspection required by law to be made of the dairy industry and dairy products. The fees and assessments accrued in any given month are due and payable no later than the twentieth day of the following month.

§ 37-408. Penalty for violations.

Anyone failing to comply with any of the provisions of this chapter or any standards, rules or orders promulgated hereunder shall be guilty of a misdemeanor and upon conviction shall be subject to a fine not exceeding two hundred dollars ($200) or imprisonment in the county jail not to exceed three (3) months, or by both a fine and imprisonment. The director of the department of agriculture may bring civil actions to enjoin violation of this chapter or the standards, rules or orders promulgated thereunder.

§ 37-409. Milk haulers and tanks — Definitions.

As used in this act, unless the context clearly requires otherwise, the following definitions are adopted:

1. The term “milk hauler” is the operator of a transportation tank and may be an employee or the owner of the equipment.
2. The term “farm tank” is a tank used to cool and/or store milk prior to transportation to the processing plant.
3. The terms “transportation tank,” “bulk tank” and “feeder tank” mean tanks used to transport milk from a farm to a processing plant.
4. The term “chlorine” shall mean chlorine, or other type of sanitizer approved by the director of the department of agriculture.

§ 37-410. Standards for holding and cooling tanks.

The following standards are hereby adopted relating to farm holding and/or cooling tanks:

1. Each producer desiring to install a farm holding and/or cooling tank shall obtain approval from the director of the department of agriculture of the state of Idaho or his duly authorized representative, and shall furnish the following information to said director:
2. The milk house and/or milk room shall have a concrete floor of smooth finish easily cleanable.
3. Farm tanks and all equipment used in connection therewith shall comply with the Sanitary Standards Symbol Administrative Council, 3A standards in effect at the time of the passage of this act.
4. The farm tank shall be located in the milk room so as to provide not less than thirty-six inches (36″) clearance on all working sides of the tank, provided, however, that in the case of producers using tanks at the time of the enactment of this act clearances as specified above may be waived by the director if the producer demonstrates his ability to keep the interior and exterior surfaces of the tank and the walls and floors of the milk house in a clean condition. All tanks shall be located so as to provide at least six (6) inches of clearance between the floor and bottom of tanks, except that a four (4) inch minimum clearance is acceptable if the bottom slopes upward at least six (6) inches in a horizontal distance of twelve (12) inches. Remote compressors which are located in milk rooms shall be so installed as to be easily cleanable. Floor drains shall be trapped and shall not be located under the farm tank.
5. A fixed, properly encased opening not less than six (6) inches above the floor of the milk house or the outside loading platform, whichever is higher, shall be provided in an exterior wall of the milk house on the side closest to the tank outlet to accommodate the milk conductor tubing used to pump the milk from the farm tank to the truck [transportation] tank. Such openings shall not be less than six (6) inches or more than eight (8) inches in size and shall be provided with a flat, tight, self-closing device.
6. When electricity is the motive power for the milk transport tank milk pump, a lock type electrical connection with ground and weatherproof type receptacle located on the outside of the building with a switch box located on the inside of the building shall be provided.
7. Water for washing farm tanks shall be from an approved supply and shall be under pressure. Hoses for washing the milk house and the bulk tank shall be used for no other purpose and be stored on a rack convenient to the bulk tank. An automatic hot water storage tank (pressure type) shall be provided and shall be not less than thirty (30) gallons capacity and equipped with a thermostat capable of maintaining water temperature at least 140° Fahrenheit. Extra capacity, higher temperature, or both shall be provided for CIP installations, off peak heating, and milk house heating or other hot water usages. Gas heaters, if used, shall be properly vented.
8. Adequate evenly distributed artificial light, not placed directly over the tank, shall be provided and shall be so located that cleaning will be easily accomplished. Adequate lighting may be obtained by providing two (2) one hundred fifty (150) watt flood lamps about one (1) foot from the ends of the tank and a one hundred (100) watt bulb over the wash vats. I. Farm tanks shall be protected from overhead contamination.

1. Tank make, model, and capacity.
2. A sketch (approximately to scale) of the milk room floor plan showing location of tank, outlet of tank, wall opening for milk conductor tubing, other milk house equipment and access area for tank truck approach.

J. All outside openings shall be screened and self-closing doors shall open outward.

K. The truck approach shall be properly graded and surfaced to prevent pooling of water at the point of loading. Adequate artificial light shall be provided to illuminate this area to facilitate loading during hours when natural light is insufficient. This area shall be provided with a concrete slab or an asphalt surface of sufficient size to effectively protect the milk conducting hose from contamination.

L. Cleaning and bactericidal treatment shall conform to regulations adopted by the department of agriculture. Farm tanks shall be thoroughly cleaned after each use, and then prior to the next milking exposed to two hundred (200) parts per million (1,000,000) of residual chlorine. In cases where farm tanks are equipped with removable drop pipes, a vat large enough and low enough for the washing and sanitizing of this equipment shall be provided. Chemical sprayers are recommended for sanitizing farm tanks and if utilized, shall be used for no other purpose.

M. Indicating thermometers on all farm tanks shall be kept in proper operating condition. The driver shall possess an accurate approved type thermometer to enable him to check the indicating thermometers of the farm bulk tanks. The department of agriculture, using an approved type thermometer, shall check, periodically, the indicating thermometer on farm bulk tanks to determine its accuracy.

N. Abnormal milk, adulterated milk and milk containing objectionable odors shall not be added to the farm tank. The sampler and/or tester shall check the milk for abnormalities before pumping the milk to the tank truck. The entire supply of milk in the farm tank shall be rejected if such milk is detected.

O. Bulk cooling tanks shall be designed and equipped with refrigeration to permit the cooling of the milk to 40° Fahrenheit or lower within two (2) hours after each milking, and maintain it at 45° Fahrenheit or below until picked up.

P. All steps necessary shall be employed to prevent the contamination of milk handled through bulk farm pick up. This shall pertain to all phases of this type of milk handling. The bulk farm tank and accessories shall be used for no other purpose than the handling of milk and the operations incident thereto.

§ 37-411. Standards for transportation tanks.

The following standards are hereby adopted relating to transportation tanks:

1. The transportation tank and accessories in the milk handling operation shall comply with the requirements of the Sanitary Standards Symbol Administrative Council, 3A standards for transportation tanks existing at the time of the passage of this act.
2. Suitable facilities, including hot and cold running water, detergent, brushes, sanitizers, and sanitizing equipment, a concrete floor with proper drainage and waste disposal shall be provided for washing and sanitizing of transportation tanks. Unless the truck is to be used within a few hours of the washing operation the sanitizing of the tank shall be omitted until just before the tank truck is to be used. During the interim the tank truck shall be protected from contamination by closing port holes, etc. Since the tank truck may be sanitized on a different date and at a different time from cleaning and washing operation, a tag shall provide space for recording this information. The washing, sanitizing and maintenance of the transportation tank and accessories shall be the responsibility of the processor or milk hauler. The department of agriculture shall be informed in writing designating the person responsible for the cleaning, sanitizing and maintenance of the transportation tank.
3. The transportation tank and all accessories shall be thoroughly rinsed after each usage and shall be thoroughly cleaned and sanitized daily and the tank tagged and sealed with a tag attached indicating that the tank has been washed and/or sanitized. This tag shall also contain the name of the person doing the work and the date on which the work was done. The tag shall be removed by the hauler at his first pickup and shall be retained at the receiving plant for a minimum of thirty (30) days.
4. Single length, durable, non-toxic, flexible milk conductor tubing shall be used for conveying milk from the farm tank to the transportation tank. The inside diameter of milk conductor tubing shall not be less than one and three-eighths (1 3/8) inches. If two (2) lengths of tubing are used, they shall be connected either by the use of sanitary couplings or a piece of 3A sanitary tubing with clamps which can be removed without tools. The connections between the pump and the vehicle tank, and between the pump and the milk conductor tubing shall remain assembled except when dismantled for cleaning. The open end of the milk tubing shall be capped with an approved protective cap at all times except when loading or unloading. The outlet valve, milk pump and the milk conductor tubing and samples shall be inclosed in a properly drained, insulated, dust tight cabinet.
5. The transportation tank and the accessories shall be used for no other purpose than the handling of milk unless such other use is approved by the department of agriculture.

§ 37-412. Standards for milk haulers.

The following standards are hereby adopted relating to milk haulers and to the operation of transportation tanks:

1. All milk haulers must possess a permit issued by the department of agriculture. All milk haulers shall be subject to such examination and abilities as the department of agriculture may prescribe by regulation in order to receive and retain such permit. The fee for the permit shall be twenty-five dollars ($25.00). The permit shall be valid for three (3) years and must be renewed by December 31 of the third year.
2. The milk line shall be passed through a special port opening through the milk house wall with care to prevent contact with the ground or floor of the milk house. The port opening shall be closed when not in use.
3. It shall be the responsibility of the milk hauler to assure that in the event the processor washes and sanitizes the truck the operation has been adequately performed, and that prior to use the tank truck has been properly sanitized. In the event it is the milk hauler’s responsibility to sanitize the tank truck it shall be done with a chlorine solution of proper strength.
4. The milk hauler’s hands shall be washed immediately before gauging the milk.
5. The milk shall be observed and checked for abnormalities or adulterations, and all abnormal or adulterated milk shall be rejected.
6. The milk volume in the farm tank shall be determined in a sanitary manner.
7. The milk in the farm tank shall be thoroughly agitated. Milk samples for analysis shall be taken in a sanitary manner into properly identified sterile containers. All sampling shall follow standard methods.
8. After the milk is pumped to the transportation tank the milk conductor tubing shall be capped and returned to the vehicle storage cabinet. Care shall be taken to prevent soiling of the milk line by contact with the milk house floor, operator’s hands or the ground.
9. The milk hauler shall rinse the farm tank and accessories free of milk with clean water immediately after emptying.
10. The milk hauler shall be responsible for proper use of the transportation tank and accessories.

§ 37-413. Standards for quality control of milk samples.

The following standards are hereby adopted relating to quality control of milk samples taken from tanks:

1. As often as is deemed necessary the department of agriculture may take samples for analysis from each farm tank or each transportation tank.
2. All milk samples taken from farm tanks or transportation tanks shall be taken in a sanitary manner in accordance with standard methods. Samples for bacteriological analysis shall be properly iced and transported in accordance with standard methods (32-40° F).
3. The department of agriculture shall have access to all records maintained by the receiving plant relating to butterfat, temperature, and bacteriological sampling and any other samples of bulk farm tank milk.
4. Milk samples for analysis shall be available on the farm tank pick up truck at all times during the collection period and delivery to the plant, as required by the department of agriculture.
5. The sanitary requirements concerning milk and cream established by section 37-402, Idaho Code, are hereby adopted and shall be applicable hereto.

§ 37-501. Director and deputy director of dairying

Appointment, qualifications and term of office. [Repealed.]

§ 37-502. Inspections of dairy product establishments.

It shall be the duty of the director of the department of agriculture, to make inspections or cause inspections to be made in this state of all places required to be licensed by the provisions of this act, where dairy products are sold, offered for sale, or manufactured in the enforcement of the present dairy laws and all future dairy legislation hereinafter enacted, and to collect statistics on the manufacture and sale of dairy products in Idaho.

§ 37-503. Licenses — Retail vendor excepted — Fees — Posting — Definitions.

Every creamery, milk plant, shipping or cream buying station, milk condensing plant, cheese factory, mix making plant, ice cream factory, reprocessing plant, casein plant, powdered milk plant, or factory of milk products, or other person receiving or purchasing milk or cream in bulk other than a retail vendor of milk on the basis of volume, milk components or milk quality therein, shall annually obtain a license therefor. Such license shall be issued by the department upon being satisfied that the building, places, or premises where such milk or dairy products are to be received or purchased are maintained in a sanitary manner, and that a laboratory or enclosed test room is provided in which to test milk and cream, that ample light is provided therein, and that at all times the room is kept in a clean and sanitary condition, and upon payment of such license fee to the department according to the following schedule:

Milk condensery, one hundred dollars ($100), reprocessing plant, one hundred dollars ($100), creamery, fifty dollars ($50.00), cheese factory, twenty dollars ($20.00), ice cream factory, twenty dollars ($20.00), mix making plant, twenty dollars ($20.00), casein plant, twenty dollars ($20.00), milk powder plant, thirty dollars ($30.00), cream buying or shipping station, fifteen dollars ($15.00). When one (1) or more kinds of dairy products are being manufactured by the same firm on the same premises, this shall be construed to require that a separate license be procured for each kind of product manufactured and sold. The license, when issued, shall be posted in a conspicuous place in the plant for which issued.

The term “creamery” shall mean any place, building or structure wherein milk or cream is manufactured into butter for sale.

The term “milk plant” shall mean any place, building or structure wherein milk is received for bottling, pasteurizing, clarifying or otherwise processing.

The term “shipping or cream buying station” shall mean any place where milk or cream is delivered by the producers to a buyer, not a manufacturer, or to the agent or representative of a manufacturer or processor of dairy products for shipment or transportation to such manufacturer or processor.

The term “milk condensing plant” shall mean any place, building or structure wherein milk is condensed or processed by removing a considerable portion of the water or other milk constituents normally contained therein.

The term “cheese factory” shall mean any place, building or structure wherein milk is manufactured into cheese.

The term “ice cream factory” shall mean any place, building or structure wherein milk or cream, regardless of butterfat content, and with or without other constituents, shall be manufactured into a frozen or semifrozen product for human consumption and for sale at wholesale or retail. This term shall not include “frozen dessert machines.”

The term “frozen dessert machine” shall mean the freezer or other device by which the liquid ingredients for frozen dessert are frozen to a solid or semisolid consistency and are discharged, expelled or drawn off for sale at retail. The term “mix making plant” shall mean any place, building or structure wherein milk or cream, with or without other constituents, shall be mixed or processed for resale to ice cream factories; provided, that any duly licensed ice cream factory may carry on, as a part of its business, the business of mix making plant without being required to pay therefor, additional license for so doing.

The term “reprocessing plant” shall mean any place, building or structure wherein a dairy product is mixed, dried, shredded, packaged or further processed into a dairy product. A reprocessing plant does not include retail stores, restaurants or similar institutions.

The term “casein plant” shall mean any place, building or structure wherein casein is manufactured for sale.

The term “powdered milk plant” shall mean any place, building or structure wherein milk or any product of milk is processed by evaporating or removing therefrom the water or moisture contained therein to a point where the product may be handled as a dry product. A powdered milk plant also includes a facility wherein dry milk products are blended or processed into other milk products.

§ 37-504. Licenses — Duration and revocation.

Licenses shall be issued by the department for the period of one (1) year, fees for which shall be prorated for the appropriate number of months until renewal, and shall expire on December thirty-first of each year issued, and may be revoked by the department after a hearing on ten (10) days’ notice to the licensee, if such licensee shall fail to comply with the provisions of this act. No such license shall be issued, and if issued may be revoked, in the following cases:

1. If there shall be permitted to exist any other cause or thing calculated or tending to render the milk or cream, or any product thereof, used or produced in such manufacturing or processing operations, unclean, impure and unhealthy.
2. If the licensee does not meet rules adopted by the department of agriculture for the processing of grade A and manufacturing grade milk and milk products.

§ 37-505. Reports of licensees.

All buyers of butterfat, cream, milk or other dairy products, required to be licensed by the provisions of this act, shall report to the director of the department of agriculture monthly the number of pounds of each grade of cream, butterfat or other dairy products purchased or manufactured and prices paid.

§ 37-506. Method of testing milk and cream.

All milk and cream purchased or sold in the state of Idaho at a price based upon or determined by the milkfat, protein, lactose, solids nonfat or somatic cell counts thereof, shall be tested by methods approved by the director of the department of agriculture of the state of Idaho. Samples must be taken from every shipment of milk and cream. Accurate thermometers must be provided at all times. Milk and cream samples must be protected and in a tamper-proof place between thirty-three (33) and forty-five (45) degrees Fahrenheit. Such samples may be examined and tested by the department of agriculture at any time. The department of agriculture is authorized to conduct audits of a person’s, corporation’s, cooperative’s or company’s payments for milk or cream to determine if such payments comply with established requirements.

§ 37-507. Statement of milk or cream purchased.

Every person, corporation, cooperative or company that determines the value of any milk or cream received or bought by such person, corporation, cooperative or company on a milk volume, component or somatic cell count basis shall, when paying for such milk or cream, include in every statement or check issued to any patron in payment therefor a statement of the number of pounds of milk, milk components and the average somatic cell counts, if applicable, for which payment is made. Records for such transactions shall be retained by the purchaser of the milk or cream for at least one (1) year from the date the tests were conducted.

§ 37-508. Apparatus to be correct

Penalty. [Repealed.]

§ 37-509. Penalty for violations.

1. Whoever shall violate any of the provisions of this chapter or the rules promulgated hereunder for carrying out any requirements herein specified may be assessed a civil penalty by the department or its duly authorized agent of not more than ten thousand dollars ($10,000) for each offense.
2. Assessment of a civil penalty may be made in conjunction with any other department administrative action.
3. No civil penalty may be assessed unless the person, corporation, cooperative or company charged was given notice and opportunity for a hearing pursuant to the Idaho administrative procedure act.
4. If the department is unable to collect such penalty or if any person, corporation, cooperative or company fails to pay all or a set portion of the civil penalty as determined by the department, it may recover such amount by action in the appropriate district court.
5. Any person, corporation, cooperative or company against whom the department has assessed a civil penalty under the provisions of this section may, within twenty-eight (28) days of the final action by the agency making the assessment, appeal the assessment to the district court of the county in which the violation is alleged by the department to have occurred.
6. Nothing in this chapter shall be construed as requiring the director to report minor violations for prosecution when he believes that the public interest will be best served by suitable warnings or other administrative action.

§ 37-510. Retention of tested samples.

Every operator testing components in milk or cream for the purpose of determining their commercial value when purchased or sold shall keep for the period of forty-eight (48) hours after completing a test a portion sufficient for two (2) tests of each and every sample tested. These samples shall be accessible to the director or his representative at any and all times and legible record of all tests made by the operator of said tests shall be accessible to the department for a period of thirty (30) days following such tests.

§ 37-511. Tester’s and grader’s license — Examination — Licensee’s substitute.

Every person testing or grading milk or cream to determine the milk fat as a basis of fixing the purchase price or to determine the acceptability of such milk or cream shall secure a tester’s license from the department and shall make such tests and grading only by such process as has been approved by the department, and no person shall make such test and grading without such license, and other than by such process. Each applicant for such license shall be required to submit to examination or by actual demonstration show competency in testing and grading cream and milk according to the regulations prescribed by the department. The fee for each licensee shall be twenty-five dollars ($25.00). The license shall be valid for three (3) years and must be renewed by December 31 of the third year. With the approval of the department any licensee may appoint a substitute to act for a period not to exceed fourteen (14) days.

§ 37-512. Testing and grading when purchase-price based on milk fat or butter fat content.

All buyers of cream or milk, who purchase milk or cream at a purchase price based upon or determined by the milk fat or butter fat content thereof, shall maintain at the plant, creamery, station or factory where such milk or cream is being received, a person licensed by the department of agriculture to test and grade milk and cream.

§ 37-513. False tests — Evidence.

No person shall falsely manipulate or misread milk or cream testing apparatus. The writing of a check or payment of money by such person, corporation, cooperative or company for cream or milk shall constitute prima facie evidence that such test was made.

§ 37-514. Testing without license — Separate offenses.

The testing of each lot of milk or cream by an unlicensed person shall constitute a separate offense.

§ 37-515. Fees and fines — Disposition.

Fees and fines collected under the provisions of this act shall be credited and paid into the dairy industry and inspection fund. The department is authorized by rule to set forth parameters relating to payments, refunds or other adjustments whenever the department determines milk or cream component testing fails to meet requirements. The payments or refunds shall be made to the aggrieved party within thirty (30) days.

§ 37-516. Rules for administration — “Department” defined.

The director of the department of agriculture is empowered to prescribe rules and regulations in the administration of this act not inconsistent with its provisions. The term “department,” as used in this act, means the department of agriculture.

§ 37-517. Violation a misdemeanor. [Repealed.]

Repealed by S.L. 2011, ch. 115, § 11, effective July 1, 2011.

§ 37-518. Prosecutions

Duty of prosecuting attorney. [Repealed.]

Repealed by S.L. 2011, ch. 115, § 12, effective July 1, 2011.

§ 37-519. Construction with sanitary and health laws. [Repealed.]

Repealed by S.L. 2011, ch. 115, § 13, effective July 1, 2011.

§ 37-601. Short title.

This chapter shall be known and cited as the “Dairy Environmental Control Act.”

§ 37-602. Legislative findings and purpose.

1. The legislature finds that:
   1. The water resources of the state are among the state’s most valuable natural resources;
   2. Maintaining an ecologically sound and economically viable dairy industry in this state is vital to the Idaho economy;
   3. Dairy environmental management systems that are constructed, operated and maintained in accordance with plans that are approved by the department of agriculture are an effective means of protecting the state’s water resources and providing valuable resources for crop production and other uses;
   4. The department’s authority to review, approve and enforce dairy environmental management plans should be consistent and coordinated with the department of environmental quality’s authorities pursuant to title 39, Idaho Code, to protect state ground and surface waters and to obtain approval from the United States environmental protection agency to implement and administer an Idaho NPDES program governing the discharge of pollutants to the waters of the United States as defined in the federal clean water act;
   5. The state should encourage and promote performance and innovation in the design, construction, operation and maintenance of dairy environmental management systems; and
   6. Adequate funding from the legislature for the department of agriculture is necessary to meet the requirements and accomplish the purposes of this chapter.
2. Therefore, the purpose of this chapter is to authorize the department of agriculture to review, approve and enforce dairy environmental management plans to ensure that dairy environmental management systems are constructed, operated and maintained in a manner that protects the natural resources of the state.

§ 37-603. Authority and duties of director and agency coordination.

1. The director of the department shall be solely responsible for approving and enforcing dairy environmental management plans. The department is authorized to adopt rules to implement the provisions in this chapter.
2. The department shall implement programs to recognize, support and promote performance and innovation in the design, construction, operation and maintenance of dairy environmental management systems. The department shall consult and coordinate with the Idaho dairymen’s association in the implementation of such programs.
3. Nothing in this chapter shall affect the authority of the department of environmental quality to administer and enforce an Idaho NPDES program for dairy farms that discharge pollutants to waters of the United States, including without limitation, the authority to issue permits, access records, conduct inspections and take enforcement action, as set forth in chapter 1, title 39, Idaho Code, and the rules adopted pursuant thereto. The provisions of this chapter do not alter the requirements, liabilities and authorities with respect to or established by an Idaho NPDES program.
4. The director of the department of environmental quality and the director of the department of agriculture shall, as appropriate, establish an agreement relating to the administration of an Idaho NPDES program that recognizes the expertise of the department of agriculture. The director shall have the authority to exercise any other authorities delegated by the director of the department of environmental quality regarding the protection of ground water, surface water and other natural resources associated with dairy farms, and this shall be the authority for the director of the department of environmental quality to so delegate.
5. The director of the department of environmental quality shall consult with the director of the department of agriculture before certifying discharges from dairy farms as provided under 33 U.S.C. section 1341.

§ 37-604. Definitions.

When used in this chapter:

1. “Agricultural stormwater discharge” means a precipitation-related discharge of dairy byproducts from land areas under the control of a dairy farm where the dairy byproducts have been land applied in accordance with an approved nutrient management plan.
2. “Best management practice” means a practice, technique or measure that is determined to be a reasonable precaution, a cost-effective and practicable means of preventing or reducing the discharge of pollutants from a point source or a nonpoint source to a level compatible with environmental goals, including water quality goals and standards.
3. “Certified planner” means a person who has completed nutrient management certification in accordance with the nutrient management standard and is approved by the department.
4. “Dairy byproduct” means solids and liquids associated with dairy animal rearing and milk production including, but not limited to: manure, manure compost, process water, bedding, spilled feed and feed leachate, and livestock carcasses or parts thereof.
5. “Dairy farm” means land owned or operated by a department-permitted grade A or manufacture grade facility where one (1) or more milking cows, sheep or goats are kept, and from which all or a portion of the milk produced thereon is delivered, sold or offered for sale for human consumption.
6. “Dairy environmental management plan” means a plan for managing a dairy environmental management system. The dairy environmental management plan shall consist of dairy storage and containment facilities criteria and a dairy nutrient management plan that are approved by the director.
7. “Dairy environmental management system” means the areas and structures within a dairy farm where dairy byproducts are collected, stored, treated or applied to land. These areas and structures may include corrals, feeding areas, collection systems, conveyance systems, storage ponds, treatment lagoons, evaporative ponds and land application areas.
8. “Dairy nutrient management plan” means a plan prepared in conformance with the nutrient management standard for managing the land application of dairy byproducts that is prepared by a certified planner and approved by the department.
9. “Dairy storage and containment facilities” means the areas and structures within a dairy farm where dairy byproducts are collected, stored or treated in conformance with engineering standards and specifications published by the United States department of agriculture natural resources conservation service or by the American society of agricultural and biological engineers (ASABE), or other equally protective criteria approved by the director. These areas may include corrals, feeding areas, collection systems, conveyance systems, storage ponds, treatment lagoons, evaporative ponds and compost areas.
10. “Department” means the Idaho department of agriculture.
11. “Director” means the director of the Idaho department of agriculture or his designee.
12. “Export” means the delivery of dairy byproducts from a dairy farm to a third party for the third party’s use.
13. “Land application” means spreading on, or incorporating into the soil mantle, dairy byproducts as a soil amendment for agricultural use of nutrients and for other beneficial purposes. (14) “Modification” or “modified” means structural changes and alterations to a dairy storage and containment facility that would require increased storage or containment capacity or alter the function of the waste system.

(15) “National pollutant discharge elimination system” (NPDES) means the point source permitting program established pursuant to section 402 of the federal clean water act.

(16) “Noncompliance” means a practice or condition that does not meet the requirements of a dairy environmental management plan. Noncompliance does not include an upset condition.

(17) “Nutrient management standard” means criteria for managing the land application of nutrients and soil amendments published in the United States department of agriculture, natural resources conservation service, conservation practice standard, nutrient management code 590, or other equally protective criteria approved by the director.

(18) “Person” means any individual, association, partnership, firm, joint stock company, joint venture, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency or instrumentality, or any legal entity that is recognized by law as the subject of rights and duties.

(19) “Process water” means water directly or indirectly used or produced in dairy animal rearing, milk production and environmental management processes including, but not limited to: excess milk; spillage or overflow from watering, washing, spraying or cooling dairy animals; water containing dairy manure; water used in washing, cleaning, or flushing barns, manure pits and other areas involved in the milk production and environmental management processes; water used for dust control; and water that comes into contact with any raw materials, products, or byproducts of the dairy production and environmental management processes.

(20) “Unauthorized discharge” means a discharge of pollutants from a dairy farm to waters of the United States as defined in the federal clean water act that is required to be but is not authorized by an NPDES permit. For purposes of the department’s authorities under this chapter, unauthorized discharge shall not include an upset condition or agricultural stormwater discharge.

(21) “Unauthorized release” means a release of dairy byproducts to ground water or surface waters of the state that are not waters of the United States or beyond land owned or operated by the dairy farm that results from a dairy farm’s failure to comply with its environmental management plan. Unauthorized release shall not include an upset condition, an agricultural stormwater discharge or infiltration from storage and containment facilities that is within engineering standards and specifications published by the United States department of agriculture natural resources conservation service or by the ASABE, or other equally protective criteria approved by the director.

(22) “Upset condition” means precipitation, earthquake, vandalism or other occurrence beyond the control of the dairy farm owner or operator that exceeds criteria for storage and containment facilities and nutrient management in an approved environmental management plan.

§ 37-605. Dairy storage and containment facility design and construction.

1. All dairy storage and containment facilities shall be designed and constructed in accordance with engineering standards and specifications published by the United States department of agriculture natural resources conservation service or by the American society of agricultural and biological engineers, or other equally protective criteria approved by the director. Design, construction, operation and maintenance of storage and containment facilities in accordance with such criteria shall be considered a best management practice that is intended to prevent unauthorized discharges, unauthorized releases, violations of state water quality standards, contamination of ground water and surface water and endangerment to human health and the environment.
2. Each dairy farm shall have storage and containment facilities criteria that are approved by the department and included in the dairy’s environmental management plan. Dairy storage and containment facilities criteria shall be implemented by the dairy farm and enforced by the department to ensure that there is no unauthorized discharge or unauthorized release from the dairy farm. The department’s review and approval of plans under this section shall supersede the department of environmental quality’s implementation of plan and specification review and approval pursuant to section 39-118, Idaho Code.

§ 37-606. Dairy nutrient management plan.

1. Each dairy farm shall have a dairy nutrient management plan that is approved by the department and included in the dairy farm’s environmental management plan. The dairy nutrient management plan shall be implemented by the dairy farm and enforced by the department to prevent unauthorized discharges, unauthorized releases, violations of state water quality standards, contamination of ground water and surface water and endangerment to human health and the environment.
2. The nutrient management plan shall cover the dairy farm site and other land owned and operated by the dairy farm owner or operator to which dairy byproducts may be applied. Nutrient management plans submitted to the department by the dairy farm shall identify each recipient to whom dairy byproducts are exported, the amount exported to each recipient and the number of acres to which they are applied by each recipient. The information provided pursuant to this subsection shall be available to the county in which the dairy farm is located. Only the first recipient of manure compost must be listed in the nutrient management plan.

§ 37-606A. Dairy environmental management plan.

1. Each dairy farm shall comply with the dairy environmental management plan that is approved and on file with the department to prevent unauthorized discharges, unauthorized releases, violations of state water quality standards, contamination of ground water and surface water and endangerment to human health and the environment.
2. The environmental management plan and all information generated by the dairy as a result of such plan shall be deemed to be trade secrets, production records or other proprietary information; shall be kept confidential; and shall be exempt from disclosure pursuant to section 74-107, Idaho Code, unless such plan is a required component of an NPDES permit.

§ 37-607. Inspections.

1. The director or his designee is authorized to enter and inspect any dairy farm to determine compliance with the dairy farm’s environmental management plan. The director shall have access to or copy any records pertaining to the dairy environmental management system to ensure compliance with the dairy environmental management plan.
2. The director shall comply with the biosecurity protocol of the operation so long as the protocol does not inhibit reasonable access to:
   1. Enter and inspect at reasonable times the premises or land application site or sites of a dairy farm;
   2. Review, copy, or review and copy at reasonable times any records that must be kept under conditions of this chapter;
   3. Sample or monitor at reasonable times substances or parameters directly related to compliance with this chapter.
3. All inspections and investigations conducted under the authority of this chapter shall be performed in conformity with section 17, article I, of the constitution of the state of Idaho. The state shall not, under the authority granted by this chapter, conduct warrantless searches of private property in the absence of either consent from the property owner or other authorized person.

§ 37-608. Unauthorized discharges and unauthorized releases.

1. No dairy farm shall cause an unauthorized discharge or an unauthorized release.
2. The department of environmental quality shall be solely responsible and authorized to determine whether the discharge of pollutants from a dairy farm to waters of the United States is required to be authorized by an NPDES permit under chapter 1, title 39, Idaho Code. The provisions of this chapter do not define when a dairy farm is required to obtain an NPDES permit for a discharge, do not exempt a dairy farm from NPDES permitting requirements for such discharges or alter the authority of the department of environmental quality with respect to such discharges. The department shall consult with the department of environmental quality regarding its discovery of unauthorized discharges and any compliance, corrective or other enforcement actions the department has undertaken pursuant to the provisions of this chapter to enable the department of environmental quality to determine whether additional action by the department of environmental quality is warranted.
3. The department shall determine the appropriate corrective, compliance or other enforcement action to be taken with respect to unauthorized releases.

§ 37-609. Noncompliance — Enforcement — Penalties.

1. A dairy farm operating in compliance with its environmental management plan shall not be subject to enforcement action pursuant to this chapter.
2. The department shall address noncompliance with an environmental management plan through corrective actions, compliance schedules or other actions authorized by rules adopted pursuant to this chapter. Dairy farms shall not be subject to fines, corrective actions or compliance schedules under this chapter for upset conditions or agricultural stormwater discharges. The department’s authority to address noncompliance with environmental management plans does not alter the authority of the department of environmental quality with respect to the discharge of pollutants to waters of the United States.
3. For noncompliance conditions or unauthorized releases, the director or his designee shall have the authority to assess a fine of up to ten thousand dollars ($10,000) per occurrence. Civil penalties collected under this subsection shall be remitted to the county where the violation occurred for deposit in the county current expense fund.
4. In any case in which the United States environmental protection agency initiates an enforcement action regarding an alleged violation of the clean water act related to a discharge of pollutants from a dairy farm to waters of the United States, any pending administrative or civil enforcement action initiated by the director relating to the same discharge shall be deemed void. If a compliance order addressing the alleged noncompliance has already been issued by the director, that order shall remain in full force and effect.

§ 37-701. Statement of purpose. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-702. Definitions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-703. Director of department of agriculture to enforce. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-704. Department of Public Health to issue certificates of compliance. [Repealed.]

§ 37-705. Certificate to be renewed annually. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-706. Certificate necessary for labeling as pasteurized. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-707. Standards for equipment and sanitation. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-708. Rules, regulations and standards to be prescribed. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-709. Penalty for violations. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-710. Injunctions against violations. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-711. Separability. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 2, effective July 1, 2014.

§ 37-801. Use of grade terms restricted. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-802. Licenses. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-803. Rules and regulations. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-804. Revocation of licenses. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-805. Definitions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-806. Penalty for violations

Injunctions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-807. Separability. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-808. Policy to improve dairy quality requirements. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-809. Adoption of federal standards for certain dairy products. [Repealed.]

§ 37-810. Administration of act

Publication of grade standards. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-811. Compliance with naming and grading regulations required. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 3, effective July 1, 2014.

§ 37-812. Violations of law misdemeanor. [Repealed.]

§ 37-813. Rules and regulations

Effect. [Repealed.]

§ 37-901 — 37-907. Labels and brands for dairy products. [Repealed.]

§ 37-1001. Discrimination by buying at higher price — Prima facie evidence

Grades of cream. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1002. Discrimination by selling at lower price

Unfair discrimination defined. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1003. Special rebates, collateral contracts, and other devices. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1003a. Definitions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1003b. Unfair and unlawful practices enumerated. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1003c — 37-1003f. Refrigeration facilities — Equipment — Sale — Competitive, conditions — Permissive practices — Collusion or joint participation prohibited. [Repealed.]

§ 37-1004. Penalties. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1005. Duty of director of department of agriculture. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1006. Prosecutions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1007. Person injured may maintain action. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1008. Prohibited contracts void. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1009. Revocation of corporate charter. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1010. Separability. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1011. Definitions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1012. Unlawful marketing practices in connection with sale of dairy products

Exceptions. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1013. Violation a misdemeanor

Penalty. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1014. Enjoining violations — Costs

Damages. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1015. Trade association may maintain action. [Repealed.]

Repealed by S.L. 2014, ch. 284, § 4, effective July 1, 2014.

§ 37-1101. Acquisition of raw milk and raw milk products by owner.

1. The acquisition of raw milk or raw milk products from cows, sheep or goats by an owner of such cows, sheep or goats for use or consumption by the owner or members of the owner’s household shall not constitute the sale or retail sale of raw milk or raw milk products and shall not be prohibited. The acquisition of raw milk or raw milk products from cows, sheep or goats by an owner of a cow share, sheep share or goat share for use or consumption by the owner or members of the owner’s household shall not constitute the sale or retail sale of raw milk or raw milk products and shall not be prohibited provided the following conditions are met:
   1. Unless otherwise permitted by the Idaho state department of agriculture, no more than seven (7) cows, fifteen (15) sheep or fifteen (15) goats may be kept as part of a cow share, sheep share or goat share program.
   2. The owner of a cow share, sheep share or goat share shall receive raw milk or raw milk products directly from the farm or dairy where the cow, sheep, goat or dairy herd is located and the farm or dairy shall be registered pursuant to subsection (2) of this section. A person who is the owner of a cow share, sheep share or goat share in a cow, sheep, goat or dairy herd may receive raw milk or raw milk products on behalf of another owner of the same cow, sheep, goat or dairy herd. A person who is not an owner of a cow share, sheep share or goat share in the same cow, sheep, goat or dairy herd shall not receive raw milk or raw milk products on behalf of the owner of a cow share, sheep share or goat share.
   3. The raw milk or raw milk products are obtained pursuant to the ownership of a cow, sheep, goat, cow share, sheep share or goat share. A cow share, sheep share or goat share is an undivided ownership interest in a cow, sheep, goat or herd of cows, sheep or goats, created by a written contractual relationship between an owner and a farmer that includes a bill of sale, stock certificate or other written evidence satisfactory to the director of the Idaho state department of agriculture of a bona fide ownership interest in the cow, sheep, goat or dairy herd. Such written contractual relationship shall also include boarding terms under which the cow, sheep, goat or dairy herd are boarded, milked and cared for. Such written contractual relationship shall also clearly set forth that the share owner is entitled to receive a share of milk or milk products from the cow, sheep, goat or dairy herd and contain a conspicuous notification that the milk or milk products are raw and not pasteurized.
   4. Information describing the standards used by the farm or dairy with respect to herd health, and in the production of milk from the herd, is provided to the share owner by the farmer together with results of tests performed on the cows, sheep or goats that produced the milk, tests performed on the milk and an explanation of the tests and test results.
   5. A farm or dairy operating a cow share, sheep share or goat share program with more than three (3) cows, seven (7) sheep or seven (7) goats shall test such raw milk or raw milk products at a frequency of at least four (4) separate months during any consecutive six (6) month period. Each batch of raw milk shall test negative for drugs. Milk quality tests and drug tests shall be conducted utilizing testing methods approved by the Idaho state department of agriculture. In no event shall such raw milk or raw milk products contain:
      1. More than fifteen thousand (15,000) bacteria per milliliter;
      2. More than twenty-five (25) coliform per milliliter;
      3. More than five hundred thousand (500,000) somatic cells per milliliter of raw milk from a cow or more than seven hundred fifty thousand (750,000) somatic cells per milliliter of raw milk from a sheep or goat.
   6. Whenever three (3) of the last five (5) consecutive bacteria, coliform, or somatic cell tests exceeds any of the milk quality standards listed in this section, the cow share, sheep share or goat share owners shall be notified and no milk shall be offered for human consumption until such time it meets the standard.
   7. Milk testing positive for drugs shall not be used for human consumption.
   8. All cows, sheep or goats kept as part of a cow share, sheep share or goat share program shall be tuberculosis and brucellosis free and shall be tested for tuberculosis and brucellosis annually.
2. Registration of a farm or dairy as required by subsection (1)(b) of this section shall be accomplished by delivering to the Idaho state department of agriculture a written statement containing:
   1. The name of the farmer, farm or dairy;
   2. A valid, current address of the farmer, farm or dairy; and
   3. A statement that raw milk or raw milk products are being produced at the farm or dairy.
3. No person who obtains raw milk or raw milk products in accordance with this section shall sell such raw milk or raw milk products. Unless otherwise permitted by the Idaho state department of agriculture, it shall be unlawful for an owner of a cow, sheep, goat, cow share, sheep share or goat share to sell, offer for sale or advertise for sale to any person or distribute to any restaurant or food establishment, grocery store or farmers market any raw milk or raw milk products produced as provided herein. Any person who violates the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be subject to a fine not exceeding two hundred dollars ($200) or imprisonment in the county jail not to exceed three (3) months, or by both such fine and imprisonment. The director of the Idaho state department of agriculture may bring civil actions to enjoin violation of the provisions of this section.
4. No producer of raw milk or raw milk products as provided in this section shall publish any statement that implies approval or endorsement by the Idaho state department of agriculture.
5. The Idaho state department of agriculture is charged with the responsibility of administration and enforcement of this chapter and is empowered to promulgate and enforce rules not inconsistent with this chapter.
6. The Idaho state department of agriculture is authorized to issue a hold order to stop the distribution of raw milk or raw milk products when it is deemed necessary to protect human health.

§ 37-1201. Definitions.

For the purpose and within the meaning of this act, the term “frozen desserts and frozen novelties” shall be defined as provided in regulations promulgated by the director of the department of agriculture.

§ 37-1202. Labeling and advertising frozen desserts and frozen novelties.

1. All packages and containers used in the sale and distribution of frozen desserts or frozen novelties shall bear a label. The label shall plainly give the name of the product as defined in regulations promulgated by the director of the department of agriculture, and if a trade or brand name is used, the name of the product shall be in letters at least one-half the size of the letters of such brand or trade name. The label shall also bear the name and address of the manufacturer or distributor.
2. Wherever any frozen desserts or frozen novelties are sold or dispensed over counters, through machines, or in any other manner than in labeled cartons, packages or containers, the seller or dispenser thereof shall in his advertising or his offer to sell or dispense such product plainly display the name of the product as defined in regulations promulgated by the director of the department of agriculture in letters at least one-half of the size of the letters of the trade or brand name. When any frozen dessert or frozen novelty is sold or dispensed, other than in packages or containers, without any advertising or the use of a trade or brand name, the seller or dispenser thereof shall conspicuously display at the counter, machine or place where the product is sold or dispensed, a sign with letters at least four (4) inches high describing the product so sold or dispensed.

§ 37-1203. Violations unlawful.

It shall be unlawful for any person, partnership, firm or corporation to manufacture, dispense, sell or offer to sell any frozen dessert or frozen novelty which does not conform to the standards set forth in this act, and it shall be unlawful to manufacture, sell, offer for sale or dispense such frozen desserts or frozen novelties without having and displaying the appropriate labels and signs required by section 37-1202, Idaho Code. It shall be unlawful to manufacture, sell, offer to sell or dispense any frozen dessert or frozen novelty, whether herein defined or not, unless the same shall conform to one (1) of the definitions or standards herein described.

§ 37-1204. Penalties.

Any person, partnership, firm or corporation violating, or who shall fail to comply with, the preceding sections, or any part, provision, or section thereof, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than ten dollars ($10.00) and not exceeding three hundred dollars ($300.00), or by imprisonment in the county jail for a period of not exceeding six (6) months, or both such fine and imprisonment.

§ 37-1205. Enforcement and duties of department of agriculture.

Enforcement of this act shall be in the department of agriculture of the state of Idaho and it shall be the duty of such department to exercise and supervise and conduct such investigations as may be necessary for the enforcement of this act.

§ 37-1301 — 37-1307. Schedule of fees — Licenses — Disposition of fees and fines — Reports — Violation — Duty of attorney general — Effect. [Repealed.]

§ 37-1401 — 37-1408. Oleomargarine tax — Procedure — Penalties — Regulations. [Repealed.]

§ 37-1501. Terms defined.

The word “eggs” whenever used in this act shall mean and include foreign eggs in the shell, and the words “foreign eggs” shall mean and include eggs produced in any foreign country, and egg products manufactured from eggs produced in any foreign country.

The word “egg products” whenever used in this act shall mean and include egg powder, powdered eggs, dried eggs, liquid frozen eggs, and any other product, by whatsoever trade name designated, manufactured from foreign eggs or any part thereof.

§ 37-1502. Sale when unfit for human food unlawful.

It shall be unlawful for any person to sell, offer or expose for sale, in this state, any eggs or egg products unfit for human food; and for the purpose of this act, an egg shall be deemed unfit for human food when it is addled, putrid, rotten, in whole or in part; when the yolk is stuck to the shell; the inside contains molds, black spots or black rot, heavy blood spots or rings or bloody whites, or an incubated egg as defined in this act; or any material of an unwholesome nature; and egg products shall be deemed unfit for human food when manufactured from eggs unfit for human food.

§ 37-1503. Eggs in the shell.

It shall be unlawful for any person to sell, offer or expose for sale in this state any foreign eggs in the shell, without having stamped on each such egg, in legible type and in durable indelible ink, the words “Foreign Produced Eggs From .t . . .” and the name of the country in which such egg is produced.

§ 37-1504. Eggs other than in the shell and egg products.

It shall be unlawful for any person to sell, offer or expose for sale in this state any foreign eggs in any other from [form] than in the shell, or any egg products manufactured from foreign eggs, without having stamped or printed in legible type in letters two inches (2″) high, in durable paint or ink on the side and on the cover of each container the words “Foreign Produced Eggs From . . . .,” following [followed] by the name of the country in which such eggs were produced, or in which the eggs from which such egg products were manufactured were produced.

§ 37-1505. Serving in restaurants, hotels and other establishments.

It shall be unlawful for any person owning or operating any restaurant, hotel, cafe, coffee shop, or other place where food is served, or any bakery or confectionery shop where food products are sold, to serve or sell any foreign eggs or egg products manufactured from foreign eggs without posting and maintaining in a conspicuous place where the customers entering any such place of business can see it, a placard or sign bearing the words “We Use Foreign Produced Eggs” printed or painted in legible letters not less than two inches (2″) high.

§ 37-1506. Manufacture or sale of food products containing eggs or egg products.

It shall be unlawful for any person manufacturing and/or selling any food products containing eggs or egg products to sell, offer or expose for sale in this state any food products containing foreign eggs, or egg products manufactured from foreign eggs, without having printed on the outside of the wrapper or container of each such food product in legible letters of bold faced type of a size not less than 8-point, the words “Foreign Eggs Used in This Product,” or if such products are sold, offered or exposed for sale in bulk without displaying in a conspicuous place at the point where such food products are offered or exposed for sale, a placard or sign printed in letters two inches (2″) high, and containing the words “Foreign Eggs Used in This Product.”

§ 37-1507. Violation a misdemeanor.

Any person who violates or fails to comply with any of the provisions of this act shall be guilty of a misdemeanor.

§ 37-1508 — 37-1518. Eggs, grades and standards — Licenses — Official seals — Improper designation — Records — Quality — Enforcement of act — Penalty. [Repealed.]

§ 37-1519. Purpose.

The legislature of the state of Idaho recognizes that the candling, storing, grading, packing, selling, peddling, distributing, labeling, dealing in and trading in eggs in the state of Idaho is in the public interest and hereby declares that the provisions of this act are vital to the economy of the state of Idaho and the well being of its citizens.

The purpose of this act is to establish standards of grades for eggs and authorize standards of sanitation, cleanliness and temperature for the handling and storage of eggs for sale in the state of Idaho, and to require compliance with the labeling regulations and the designation of the grade of eggs sold in the state of Idaho.

§ 37-1520. Definitions.

When used in this act:

1. The term “candling” shall refer to the act or function of determining the grade of eggs; and the term “candler” shall refer to the person performing that act or function.
2. The term “carton” shall mean a container containing one (1) dozen eggs.
3. The term “director” shall refer to the director of the department of agriculture.
4. The term “consumer” shall mean a person who purchases eggs or egg products for use as food and not for resale in any form.
5. The term “container” shall mean any carton, case, box, basket, sack, bag or other receptacle.
6. The term “dealer” or “egg handler” shall mean any person who acquires eggs or egg products from a producer or distributor for resale to consumers.
7. The term “distributor” shall refer to any person having possession or control of eggs or egg products for the purpose of candling, grading, packing, selling, peddling, distributing, dealing in or trading in eggs or egg products for resale to a dealer in the state of Idaho, but shall not refer to a producer when engaging in the sale of eggs or egg products to a distributor or when engaging in the sale of eggs directly to a consumer at the place of production.
8. The term “grade” when used as a verb shall mean to classify eggs as to quality and size, and when used as a noun shall mean the classification as to quality and size so established.
9. The term “person” shall include an individual, partnership, corporation, firm, association and agent.
10. The term “producer” shall mean a person engaged in the business of operating or controlling the operation of one or more farms, ranches or establishments on which eggs or egg products are produced in the state of Idaho.
11. The term “sale” or “sell” or “selling” or “sold” shall include sale, offer of sale, display for sale, have in possession for sale, exchange, barter, trade or other dealing.
12. “Intrastate commerce” means any eggs or egg products in intrastate commerce whether such eggs or egg products are intended for sale, held for sale, offered for sale, sold, stored, transported or handled in this state in any manner and prepared for eventual distribution in this state whether at wholesale or retail.

§ 37-1521. Regulations for grades and standards.

The director of the department of agriculture shall issue regulations for the enforcement of this act which regulations shall have the force and effect of law. Such regulations may relate to all phases of inspection and grading of eggs and egg products and to the sanitation and conditions of eggs and egg product production, storage and transportation. In arriving at such regulations the director shall consider all pertinent federal egg and egg product laws and regulations.

§ 37-1522. Licenses.

1. No person shall act as a distributor of eggs in the state of Idaho without first obtaining a license therefor from the director for each physically separate establishment at which such business is conducted.
2. No producer or distributor shall engage in candling eggs for official grade designation in the state of Idaho without first obtaining a license therefor from the director. Each producer or distributor who candles or assigns grades to eggs shall have or designate an individual candler who shall be responsible for making this determination.
3. Each application for a license under this act shall be in writing upon forms prescribed by the director, and shall be accompanied by the annual license fee contemplated in section 37-1523, Idaho Code.
4. Each license shall be in a form prescribed by the director and shall bear the license number assigned to each licensee.
5. The license of a distributor shall be conspicuously displayed and posted at the separate establishment for which that license is issued. The license of an egg candler shall be conspicuously displayed and posted at the place of business where that egg candler is performing those services.
6. The director shall refuse to issue a license to a distributor or egg candler who at the time of application therefor is not complying fully with the regulations and standards adopted, established and prescribed therefor under the provisions of this act; and shall be empowered to revoke or suspend a license issued to a distributor or egg candler upon determination of noncompliance with these regulations and standards or during the period of noncompliance with these regulations and standards.

§ 37-1523. Fees — Renewal.

1. The annual license fee for each physically separate establishment of a distributor shall be twenty dollars ($20.00). The annual license fee for each egg candler shall be five dollars ($5.00). The period for which the license fee is paid and for which the license is issued shall be July first to and including the following June thirtieth, and if the license is issued within that period the license fee shall nevertheless be the full amount above stated. Each license shall be renewed on July first of each year.
2. All license fees, assessments and moneys collected by the director under the provisions of this act shall be placed in a separate fund in the state treasury to be used by the director solely for the purpose of inspection, administration and the enforcement of this act.

§ 37-1523A. Assessments — Exemptions to assessments — Prepayment — Audit.

1. There is hereby levied an assessment not to exceed four (4) mills per dozen eggs (4/10 of a cent per dozen eggs) entering intrastate commerce as prescribed by rules and regulations issued by the director. Such assessment shall be applicable to all eggs entering intrastate commerce in retail cartons. Such assessment shall be paid to the department of agriculture on a monthly basis on or before the 25th day following the month such eggs enter intrastate commerce. The director may require reports by egg handlers, dealers, or distributors along with the payment of the assessment fee. Such reports may include any and all pertinent information necessary to carry out the purpose of this act. The director, may by regulations, require egg container manufacturers to report on a monthly basis on agriculture containers sold to any egg handler, dealer or distributor.
2. The assessment provided in this section shall not apply to:
   1. Sale and shipment to points outside of this state;
   2. Sale to the United States government and its instrumentalities;
   3. Sale to breaking plants for processing into egg products;
   4. Sale to consumers at the place of production or processing;
   5. Sale between egg distributors;
   6. Idaho shell egg producers having three hundred (300) or less hens may sell ungraded shell eggs produced upon their premises to retailers, provided that each carton or other container of ungraded shell eggs sold shall be clearly marked “ungraded” and shall bear the name and address of the Idaho producer.
3. Any egg handler, dealer or distributor may prepay the assessment provided for in subsection (1) of this section by purchasing Idaho state egg seals from the director to be placed on egg containers showing that the proper assessment has been paid. Any carton manufacturer may apply to the director for a permit to place reasonable facsimiles of the Idaho state egg seals to be imprinted on egg containers. The director shall from time to time prescribe rules and regulations governing the affixing of seals and he is authorized to cancel any such permit issued pursuant to this chapter whenever he finds that a violation of the terms of which the permit has been granted has been violated.
4. Every egg handler, dealer or distributor who pays assessments required under the provisions of this section on a monthly basis in lieu of seals shall be subject to audit by the director on an annual basis or more frequently if necessary. Failure to pay assessments when due or refusal to allow an audit may be cause for a suspension or revocation of an egg handler, dealer or distributor’s license. The conditions and assessments applicable to egg handlers, dealers and distributors set forth in section 37-1523, Idaho Code, shall also be applicable to payments to the director for facsimiles of seals placed on egg containers.

§ 37-1524. Statements on container.

1. Each carton or other container in which eggs are being sold or offered for sale by a distributor, egg handler or dealer in the state of Idaho shall bear:
   1. A legible statement of the grade and size of eggs.
   2. A legible statement of the name and address of the distributor by or for whom the eggs were graded and candled.
2. The words “fresh,” “country,” “hennery,” “ranch” or words of similar import shall not be deemed a substitute for official grade designation. Each advertisement of eggs for sale by a dealer shall plainly and conspicuously indicate the official grade and size thereof.

§ 37-1525. Records — Enforcement.

The director is hereby directed and empowered:

1. To administer and enforce the provisions of this act.
2. To require records to be kept. Every distributor and dealer purchasing or selling eggs in the state of Idaho shall keep a record of each purchase and a record of each sale other than to a consumer. Such record may be an invoice or sales slip and shall show the date of such transaction and the name and address of the person with whom such transaction was made. Such records shall be held for a period of at least two (2) years and shall be open for examination by a representative of the director at any reasonable time.
3. To require each person who sells to any retailer, or to any restaurant, hotel, boarding house, baker, or other institution or concern which purchases eggs for serving to guests or patrons thereof or for its use in preparation of any food products for human consumption, candled or graded eggs other than those of his own production sold and delivered on the premises where produced, to furnish that retailer or other purchaser with an invoice covering each such sale, showing the exact grade or quality and the size or weight of the eggs sold, according to the standards prescribed, together with the name and address of the person by whom the eggs were sold.
4. Through authorized representatives to enter and inspect any place or conveyance of a distributor or dealer within the state of Idaho where eggs are candled, stored, packed, delivered for shipment, loaded, shipped, transported or sold, and may inspect all invoices, eggs and the cases and containers thereof and equipment found in such places or conveyances, and may take copies of invoices and representative samples of eggs and the cases and containers thereof found in such places or conveyances for inspection and for the purpose of determining whether or not any provisions of this act have been violated.
5. Through authorized representatives to seize and hold as evidence an advertisement, sign, placard, invoice, case or container of eggs, or such part of any pack, load, lot, consignment or shipment of eggs packed, stored, delivered for shipment, loaded, shipped, transported or sold in violation of any provision of this act, reasonably necessary to establish the fact of such violation.

§ 37-1526. Violation a misdemeanor — Penalties.

Any person convicted of violating any provisions of this act or the rules and regulations issued thereunder or who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent the director or his duly authorized representative in performance of his duty in connection with the provisions of this act, shall be adjudged guilty of a misdemeanor and shall be fined not more than one hundred dollars ($100) for the first violation, and not less than one hundred dollars ($100) or more than three hundred dollars ($300) for a subsequent violation.

§ 37-1527. Director’s discretionary action.

Nothing in this act shall be construed as requiring the director or his representative to report for prosecution or for the institution of seizure proceeding a minor violation of the act when he believes that the public interest will be best served by a suitable warning notice in writing.

Before the director reports a violation for such prosecution, an opportunity shall be given the person in asserted violation to present his understanding of the facts to the director.

§ 37-1528. Duty to prosecute.

It shall be the duty of each prosecuting attorney to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted without delay in a court of competent jurisdiction.

§ 37-1529. Right to injunction.

The director is hereby authorized to apply for and the court to grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this act or any rules or regulations promulgated under this act notwithstanding the existence of other remedies at law, said injunction to be issued without bond.

§ 37-1530. Contracts with federal government.

The director of the department of agriculture may with the approval of the governor contract with any agency or subdivision of the federal government in relation to egg or egg product inspection, and may also receive on behalf of state egg or egg product inspection or for federal egg or egg product inspection, funds from any division or agency of the federal government.

§ 37-1601 — 37-1603. Meat, poultry, eggs and butter — Label requirements — Notice of sale — Penalty. [Repealed.]

§ 37-1604. Sale of imported food products — Label requirements

Definitions. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1605. Administration of act

Inspection and sampling. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1606. Labeling of products containing imported meat. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1607. Injunctive power to enforce law. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1608. Duty of county attorneys. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1609. Rules and regulations. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1610. Penalty. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 1, effective July 1, 2020.

§ 37-1701 — 37-1711. Butchers, meat dealers and meat — Registration and regulation. [Repealed.]

§ 37-1712 — 37-1715. Sale of adulterated sausage prohibited. [Repealed.]

§ 37-1716. Penalty. [Repealed.]

§ 37-1801 — 37-1807. Meat inspection [Repealed.]

§ 37-1808 — 37-1821. Poultry inspection. [Repealed.]

§ 37-1822 — 37-1830. [Reserved.]

§ 37-1901. Definitions. [Repealed.]

§ 37-1902. Inspection requirements

Purpose. [Repealed.]

§ 37-1903. Inspection of animals to be slaughtered. [Repealed.]

§ 37-1904. Post-mortem inspection. [Repealed.]

§ 37-1905. Application of inspection provisions. [Repealed.]

§ 37-1906. Inspection of meat food products

Labeling. [Repealed.]

§ 37-1907. Label on container. [Repealed.]

§ 37-1908. Inspection of sanitary conditions. [Repealed.]

§ 37-1909. Inspection during nighttime. [Repealed.]

§ 37-1910. Prohibitions. [Repealed.]

§ 37-1911. Official marks — Authorization by director

Prohibitions. [Repealed.]

§ 37-1912. Sale or transportation of improperly labeled meat prohibited

Slaughter and preparation in separate establishments. [Repealed.]

§ 37-1913. Inspectors — Appointment

Duties. [Repealed.]

§ 37-1914. Bribery

Penalty. [Repealed.]

§ 37-1915. Exceptions to inspection requirement. [Repealed.]

§ 37-1916. Storage regulations. [Repealed.]

§ 37-1917. Animals not intended as human food. [Repealed.]

§ 37-1918. Records required. [Repealed.]

§ 37-1919. Registration of businesses. [Repealed.]

§ 37-1920. Buying, selling or transporting dead animals

Regulations. [Repealed.]

§ 37-1921. State agency to cooperate with federal authorities. [Repealed.]

§ 37-1922. Refusal of, withdrawal of inspection services. [Repealed.]

§ 37-1923. Detention. [Repealed.]

§ 37-1924. Seizure of contraband — Condemnation — Release and disposal

Right to jury trial. [Repealed.]

§ 37-1925. Jurisdiction. [Repealed.]

§ 37-1926. Forcible interference

Penalty. [Repealed.]

§ 37-1927. Violations of law

Penalties. [Repealed.]

§ 37-1928. Additional powers of director — Hearings — Refusal to attend or testify — False statements — Failure to file reports — Unauthorized disclosure of information

Penalties. [Repealed.]

§ 37-1929. Application of law to federally inspected plants. [Repealed.]

§ 37-1930. State brand board

Powers. [Repealed.]

§ 37-1931. No fee for inspection — Overtime pay

Disposition of fees. [Repealed.]

§ 37-1932. Title of act. [Repealed.]

§ 37-1933 — 37-1935. Penalties — Suspension or failure of licensee to conform to act — Fees. [Repealed.]

§ 37-2001 — 37-2008. Food processing establishments, canning factories and cold storage plants. [Repealed.]

§ 37-2101. Manufacture and storage of ice.

Ice manufactured or stored for human consumption shall be made from pure water, and shall be kept stored in clean places free from all filth, offal, refuse, and polluted waters and separate and removed from contact with animal or vegetable matter, and not in proximity to any cesspool, privy vault or sewer, nor in places where such ice may be subject to contamination from, or in the action of, acids, oils, noxious, offensive or injurious gases, smoke or vapors; and all ice manufactured or stored in violation of this section shall be deemed polluted ice and not fit for human consumption; and it shall be unlawful to sell, offer for sale, or store for sale such polluted ice, for human consumption.

§ 37-2102. Domestic water to be protected.

Any person or persons, corporation or corporations, or officers of a municipality, owning or maintaining any plant or public water system as defined in rules of the department, for the supply to the inhabitants of this state, or any part thereof, of water for domestic purposes shall protect the same and keep it free from all impurities and all other foreign substances which tend to injure the health of the ultimate consumers of such water, whether such impurities or foreign substances are chemical or bacterial. It shall be the duty of any of the persons or corporations owning or maintaining such a plant or public water system to provide notices to the radio and television station serving the area served by the public water system or by direct mail to those persons consuming such water of any acute violations from the standards established by the United States environmental protection agency as soon as possible but in no case later than seventy-two (72) hours. An acute health violation is defined as: (i) any violations specified by the state as posing an acute risk to human health; (ii) violation of the maximum contaminant level for nitrate or nitrite as established by federal regulation; (iii) violation of the maximum contaminant level for total coliforms, when fecal coliforms of E. coli are present in the water distribution system; or (iv) occurrence of a waterborne disease outbreak as defined by federal regulation. For purposes of this section, maximum contaminant level shall mean the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.

§ 37-2103. Violation a misdemeanor.

Any person, persons, corporation, corporations or officers of a municipality, failing or neglecting to comply with any of the provisions of this chapter shall be guilty of a misdemeanor.

§ 37-2201 — 37-2215. [Repealed.]

§ 37-2301 — 37-2323. Regulation of narcotic drugs. [Repealed.]

§ 37-2401 — 37-2409. Regulation of use and dispensing of barbiturates. [Repealed.]

§ 37-2501. Adulterated or misbranded oil — Manufacture and sale unlawful.

It shall be unlawful for any person to manufacture, sell, keep for sale, or offer for sale within the state of Idaho any gasoline, benzine, naphtha, lubricating oil or grease, road oil, bituminous road materials, diesel fuel, fuel oil for boilers and internal combustion engines, which is adulterated or misbranded within the meaning of this chapter, and any person who shall manufacture, sell, keep for sale, or offer for sale any of the above-named articles, which is adulterated or misbranded, within the meaning of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than twenty-five dollars ($25.00), nor more than $300.00, and each and every sale in violation hereof shall be deemed a separate offense.

§ 37-2502. Inspection.

It shall be the duty of the department of agriculture to inspect and take samples of the above-named articles that are manufactured, kept for sale, or offered for sale, or sold within the state of Idaho and to cause the same to be tested and to enforce the provisions of this chapter.

§ 37-2503. Right of access for inspection — Penalty for obstructing entry or inspection.

For obtaining information regarding the suspected violation of this chapter, the department of agriculture shall have access to all places where the above-named articles are sold, offered for sale or kept for sale, manufactured or transported, or stored, and may take samples therefrom for analysis, tendering payment therefor. Any person obstructing such entry or inspection, or failing upon request to assist therein shall be guilty of a misdemeanor and shall be punished as provided in section 37-2501, Idaho Code.

§ 37-2504. Oil to be labeled.

Gasoline, benzine, naphtha, lubricating oil and grease, road oil, bituminous road materials, diesel fuel and fuel oil must be sold under their true name and grades, respectively, and such names and grades must be impressed or otherwise plainly marked upon the barrel, can, vessel, or other container in which the same is stored, sold, offered or exposed for sale, respectively, or upon a label conspicuously and securely fastened thereto, giving the true name and grade of the product, name and address of manufacturer or dealer, who sells the same.

§ 37-2505. Confiscation of unlawful articles.

Possession by any person of any of the articles above-named in this chapter shall be considered prima facie evidence that the same is kept by such person for sale and, if in violation of this chapter, the department of agriculture shall be authorized to seize upon and take possession of such article and upon the order of any court of competent jurisdiction its official shall destroy the same: provided, that in case the legal disability which exists against such article is one which can be removed by proper labeling, the official shall relabel and sell the same and pay the proceeds into the state treasury.

§ 37-2506. Quality standards.

The standards of quality for motor gasoline, benzine, naphtha, grease, road oil, bituminous road products, fuel oil for heating purposes and diesel fuel shall be the latest specifications adopted by the American Society for Testing and Materials or other specifications adopted as standard by an Idaho governmental agency for its use, for those products. Motor oils shall conform to the latest viscosity classifications of the Society of Automotive Engineers. Motor oils falling outside those viscosity classifications shall not carry the SAE designation.

§ 37-2507. Analysis by chemist.

The department of agriculture is directed to make, or accomplish by contract with qualified laboratories, all analyses and tests of articles inspected in this chapter and to employ, in such analyses and tests, the standard methods of analysis which have been or shall be adopted by the American Society for Testing and Materials or other standard methods of analysis adopted as standard by an Idaho governmental agency when analyzing or testing products for such agency’s use.

§ 37-2508. Chemist as witness.

In all prosecutions arising under this chapter the certificate of any chemist from a qualified testing laboratory as approved by the department of agriculture, when duly sworn to by such officer shall be prima facie evidence of the fact or facts therein certified, or in case it is necessary for such chemist to appear as a witness in court, the judge of the district court wherein such trial shall be held, shall issue a subpoena for his attendance at the trial and it shall be the duty of such chemist to obey such subpoena, and all his actual and necessary expenses shall be paid by the county wherein such trial is held in the same manner that county officers are paid and, in case of conviction, shall be charged to the defendant as part of the costs of prosecution.

§ 37-2509. Duty of attorney general and prosecuting attorneys.

It shall be the duty of the attorney general of the state of Idaho or the prosecuting attorney in any county of the state, when called upon by the department of agriculture, to render all legal assistance in his power to execute the provisions of this chapter and to prosecute cases arising under this chapter.

§ 37-2510. Penalty of publicity.

When any person has been convicted of manufacturing, selling, keeping for sale or offering for sale within the state of Idaho any gasoline, benzine, naphtha, lubricating oil or grease, road oil, bituminous road materials, diesel fuel and fuel oil for boilers and internal combustion engines, which is adulterated or misbranded, it shall be the duty of the department of agriculture to publish the fact in at least one (1) newspaper published in the county in which such adulterated or misbranded article or articles is found, giving the name of the article, the name of the manufacturer, the name of the dealer or person selling or offering the same for sale and such other information as will be beneficial to the consumers.

§ 37-2511. Person defined.

The word “person,” as used in this chapter shall be construed to import both the plural and the singular, as the case demands, and shall include corporations, companies, societies and associations. When construing and enforcing the provisions of this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society or association as well as that of the person.

§ 37-2512. Adulteration of oils — Misbranded defined.

For the purposes of this chapter an article shall be deemed to be adulterated:

1. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality, purity or strength.
2. If any substance has been substituted, wholly or in part, for the article.
3. If the article fails to conform to any of the requirements of the standards of quality, purity and strength adopted by the American Society for Testing and Materials or other specifications adopted as standard by an Idaho governmental agency for its use.

The term “misbranded,” as used herein, shall apply to all articles, the package or label of which shall bear any statement, design or device regarding such article, or the ingredients or substances contained therein, or the properties of such article which are false or misleading in any particular whatsoever.

§ 37-2513. Disposition of fines.

All fines, exclusive of costs, collected by any of the courts of this state, as penalties, for the violation of this chapter or any of its provisions, shall be paid by the proper officers of said court to the state treasurer of the state of Idaho.

§ 37-2514. Reclaimed oil defined.

Reclaimed oil as used in this act is defined as any lubricating oil or motor oil which has been previously used for the lubrication of internal combustion engines or any gearing or shafting attached to or connected thereto, or for any other lubricating purpose and includes any lubricating or motor oil which after such use has been re-run, filtered, redistilled, settled or reprocessed in any manner.

§ 37-2515. Sign or label on containers — Containers of one gallon or less.

Except as provided in this act containers of reclaimed oil which [are] sold or offered for sale or delivery shall bear a superimposed sign or label of rectangular shape not less than four (4) by six (6) inches containing the words “reclaimed motor oil” or “lubricating oil, reclaimed” in red letters of gothic type over a white background with a stroke of not less than one-eighth inch (1/8″) in width and not less than three-fourths inch (¾″) in height.

On all containers of reclaimed oil which is [are] sold or offered for sale of one (1) gallon or less, a superimposed sign or label of rectangular shape of not less than two (2) by three (3) inches containing the words “reclaimed motor oil” or “lubricating oil, reclaimed,” in red letters of gothic type over a white background with a stroke of not less than one-sixteenth inch (1/16″) in width and not less than one-half inch (½″) in height shall be sufficient.

Lubricants blended with re-refined/recycled oil shall be labeled as such. The size type on containers of one (1) gallon or less shall be at least one-eighth inch (1/8″) high and on containers larger than one (1) gallon at least one-fourth inch (¼″) high.

§ 37-2516. Product blended with reclaimed oil.

If any reclaimed oil is used in blending or compounding in any other petroleum product sold or offered for sale or delivery the fact of such blending or compounding shall be indicated on all containers in the manner required by this act for containers of reclaimed oil.

Lubricants blended with re-refined/recycled oil shall be labeled as such. The size type on containers of one (1) gallon or less shall be at least one-eighth (1/8) inch high and on containers larger than one (1) gallon at least one-fourth (¼) inch high.

§ 37-2517. Underground storage or fill-pipe — Affixation and visibility of metal tag.

If the container of reclaimed oil sold or offered for sale or delivery is an underground storage tank the sign or label required by this article to be attached shall be affixed to the inlet end of the fill-pipe of the underground tank and shall consist of a metal tag firmly attached or affixed and plainly visible while the tank is being filled. The letters on such sign or label may be any convenient size.

§ 37-2518, 37-2519. Display of baskets containing bottles of oil — Sufficiency of labels — Intermingling of bottles. [Repealed.]

§ 37-2520. Penalties for violation of act.

Any person who shall sell or offer for sale or delivery any reclaimed oil the container of which is not labeled or marked as provided in this act shall be guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than twenty-five dollars, nor more than $300.00, and each and every sale in violation hereof shall be deemed a separate offense.

§ 37-2601. Definitions. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2602. Enrichment of flour. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2603. Enrichment of bread and rolls. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2604. Enforcement of provisions

Rules and regulations. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2605. Revision of standards to conform to interstate shipments. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2606. Suspension of enrichment during shortage. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2607. Publication of orders, rules and regulations. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2608. Method of publication. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2609. Inspection and investigation. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

§ 37-2610. Penalty for violation. [Repealed.]

Repealed by S.L. 2020, ch. 140, § 2, effective July 1, 2020.

Article I

Sec.

Article II

Article III

Article IV

Article V

Article VI

Idaho Code Art. I

Article I

§ 37-2701. Definitions.

As used in this chapter:

1. “Administer” means the direct application of a controlled substance whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
   1. A practitioner or, in his presence, by his authorized agent; or
   2. The patient or research subject at the direction and in the presence of the practitioner.
   3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
   4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;
   5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
   6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;
   7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
   8. Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;
   9. Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;
   10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;
   11. Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;
   12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
2. “Agent” means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.
3. “Board” means the state board of pharmacy created in chapter 17, title 54, Idaho Code, or its successor agency.
4. “Bureau” means the drug enforcement administration, United States department of justice, or its successor agency.
5. “Controlled substance” means a drug, substance or immediate precursor in schedules I through VI of article II of this chapter.
6. “Counterfeit substance” means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.
7. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship.
8. “Director” means the director of the Idaho state police.
9. “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery.
10. “Dispenser” means a practitioner who dispenses.
11. “Distribute” means to deliver other than by administering or dispensing a controlled substance.
12. “Distributor” means a person who distributes.
13. “Drug” means (1) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; (2) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (3) substances, other than food, intended to affect the structure or any function of the body of man or animals; and (4) substances intended for use as a component of any article specified in clause (1), (2), or (3) of this subsection. It does not include devices or their components, parts, or accessories.
14. “Drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to: (1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
    1. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
    2. Water pipes;
    3. Carburetion tubes and devices;
    4. Smoking and carburetion masks;
    5. Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
    6. Miniature cocaine spoons, and cocaine vials;
    7. Chamber pipes;
    8. Carburetor pipes;
    9. Electric pipes;
    10. Air-driven pipes;
    11. Chillums;
    12. Bongs;
    13. Ice pipes or chillers;
    14. “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section 37-2702, Idaho Code, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
    15. “Peace officer” means any duly appointed officer or agent of a law enforcement agency, as defined herein, including, but not limited to, a duly appointed investigator or agent of the Idaho state police, an officer or employee of the board of pharmacy, who is authorized by the board to enforce this chapter, an officer of the Idaho state police, a sheriff or deputy sheriff of a county, or a marshal or policeman of any city.
15. “Financial institution” means any bank, trust company, savings and loan association, savings bank, mutual savings bank, credit union, or loan company under the jurisdiction of the state or under the jurisdiction of an agency of the United States.
16. “Immediate precursor” means a substance which the board has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.
17. “Isomer” means the optical isomer, except as used in section 37-2705(d), Idaho Code.
18. “Law enforcement agency” means a governmental unit of one (1) or more persons employed full-time or part-time by the state or a political subdivision of the state for the purpose of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.
19. “Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, and includes extraction, directly or indirectly, from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance:
    1. By a practitioner as an incident to his administering, dispensing or, as authorized by board rule, distributing of a controlled substance in the course of his professional practice; or
    2. By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for delivery.
20. “Marijuana” means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Evidence that any plant material or the resin or any derivative thereof, regardless of form, contains any of the chemical substances classified as tetrahydrocannabinols shall create a presumption that such material is “marijuana” as defined and prohibited herein. (u) “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause 1, but not including the isoquinoline alkaloids of opium.
    3. Opium poppy and poppy straw.
    4. Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
21. “Practitioner” means:
22. “Prescriber” means an individual currently licensed, registered or otherwise authorized to prescribe and administer controlled substances in the course of professional practice.
23. “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
24. “Simulated controlled substance” means a substance that is not a controlled substance, but which by appearance or representation would lead a reasonable person to believe that the substance is a controlled substance. Appearance includes, but is not limited to, color, shape, size, and markings of the dosage unit. Representation includes, but is not limited to, representations or factors of the following nature:
25. “State,” when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.
26. “Ultimate user” means a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.
27. “Utility” means any person, association, partnership or corporation providing telephone and/or communication services, electricity, natural gas or water to the public.

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following: 1. Statements by an owner or by anyone in control of the object concerning its use;

2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;

3. The proximity of the object, in time and space, to a direct violation of this chapter;

4. The proximity of the object to controlled substances;

5. The existence of any residue of controlled substances on the object;

6. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

7. Instructions, oral or written, provided with the object concerning its use;

8. Descriptive materials accompanying the object which explain or depict its use;

9. National and local advertising concerning its use;

10. The manner in which the object is displayed for sale;

11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;

13. The existence and scope of legitimate uses for the object in the community;

14. Expert testimony concerning its use.

(w) “Opium poppy” means the plant of the species Papaver somniferum L., except its seeds.

(y) “Person” means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

(z) “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing.

(1) A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of his professional practice or research in this state;

(2) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of its professional practice or research in this state. (bb) “Prescribe” means a direction or authorization permitting an ultimate user to lawfully obtain or be administered controlled substances.

(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;

(2) Statements made to the recipient that the substance may be resold for inordinate profit; or

(3) Whether the substance is packaged in a manner normally used for illicit controlled substances.

§ 37-2702. Authority to control.

1. The board shall administer the regulatory provisions of this act and may add substances to or delete or reschedule all substances enumerated in the schedules in section 37-2705, 37-2707, 37-2709, 37-2711, or 37-2713, Idaho Code, pursuant to the procedures of chapter 52, title 67, Idaho Code. In making a determination regarding a substance, the board shall consider the following:
   1. The actual or relative potential for abuse;
   2. The scientific evidence of its pharmacological effect, if known;
   3. The state of current scientific knowledge regarding the substance;
   4. The history and current pattern of abuse;
   5. The scope, duration, and significance of abuse;
   6. The risk to the public health;
   7. The potential of the substance to produce psychic or physiological dependence liability; and
   8. Whether the substance is an immediate precursor of a substance already controlled under this article.
2. After considering the factors enumerated in subsection (a) of this section, the board shall make findings with respect thereto and issue a rule controlling the substance if it finds the substance has a potential for abuse.
3. If the board designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor.
4. If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the board, the board shall similarly control the substance under this act by promulgating a temporary rule or proposing a statutory amendment, or both, within thirty (30) days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty (30) day period, the board objects to inclusion, rescheduling, or deletion. In that case, the board shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling, or deletion under this act by the board, control under this act is stayed until the board publishes its decision.
5. Authority to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco.

§ 37-2703. Nomenclature.

The controlled substances listed or to be listed in the schedules in sections 37-2705, 37-2707, 37-2709, 37-2711 and 37-2713, Idaho Code, are included by whatever official, common, usual, chemical, or trade-name designated.

§ 37-2704. Schedule I tests.

The board shall place a substance in schedule I if it finds that the substance:

1. Has high potential for abuse; and
2. Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.

§ 37-2705. Schedule I.

1. The controlled substances listed in this section are included in schedule I.
2. Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation:
   1. Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-phenethyl)-4- piperidinyl]-N-phenylacetamide);
   2. Acetylmethadol;
   3. Acetyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide);
   4. Acryl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide;
   5. Allylprodine;
   6. Alphacetylmethadol (except levo-alphacetylmethadol also known as levo-alpha-acetylmethadol, levomethadyl acetate or LAAM);
   7. Alphameprodine;
   8. Alphamethadol;
   9. Alpha-methylfentanyl;
   10. Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl)ethyl-4- piperidinyl]-N-phenylpropanamide);
   11. Benzethidine;
   12. Betacetylmethadol;
   13. Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl)-4- piperidinyl]-N-phenylpropanamide);
   14. Beta-hydroxy-3-methylfentanyl (N-(1-(2-hydroxy-2-phenethyl)-3- methyl-4-piperidinyl)-N-phenylpropanamide);
   15. Betameprodine;
   16. Betamethadol;
   17. Betaprodine;
   18. Clonitazene;
   19. Cyclopentyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopentanecarboxamide) ;
   20. Cyclopropyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide) ;
   21. Dextromoramide;
   22. Diampromide;
   23. Diethylthiambutene;
   24. Difenoxin;
   25. Dimenoxadol;
   26. Dimepheptanol;
   27. Dimethylthiambutene;
   28. Dioxaphetyl butyrate;
   29. Dipipanone;
   30. Ethylmethylthiambutene;
   31. Etonitazene; (32) Etoxeridine;
3. Any of the following opium derivatives, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation:
   1. Acetorphine;
   2. Acetyldihydrocodeine;
   3. Benzylmorphine;
   4. Codeine methylbromide;
   5. Codeine-N-Oxide;
   6. Cyprenorphine;
   7. Desomorphine;
   8. Dihydromorphine;
   9. Drotebanol;
   10. Etorphine (except hydrochloride salt);
   11. Heroin;
   12. Hydromorphinol;
   13. Methyldesorphine;
   14. Methyldihydromorphine;
   15. Morphine methylbromide;
   16. Morphine methylsulfonate;
   17. Morphine-N-Oxide;
   18. Myrophine;
   19. Nicocodeine;
   20. Nicomorphine;
   21. Normorphine;
   22. Pholcodine;
   23. Thebacon.
4. Hallucinogenic substances. Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term “isomer” includes the optical, position and geometric isomers): (1) Dimethoxyphenethylamine, or any compound not specifically excepted or listed in another schedule that can be formed from dimethoxyphenethylamine by replacement of one (1) or more hydrogen atoms with another atom(s), functional group(s) or substructure(s) including, but not limited to, compounds such as DOB, DOC, 2C-B, 25B-NBOMe;
5. b. /ut/f6 cis or trans tetrahydrocannabinol, and their optical isomers.
6. c. /ut/f3/f,/f4 cis or trans tetrahydrocannabinol, and its optical isomers. (Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions are covered.) d. [(6aR,10aR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-o1)], also known as
7. d. 1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1 H-indazole-3-carboxamide (4-cn-cumyl-BUTINACA).
8. e. Ethyl 2-(1-(5-fluoropentyl)-1H-indazole-3carboxamido)-3,3-dimethylbut anoate * (5f-edmbpinaca).
9. f. (1-(4-fluorobenzyl)-1H-indol-3-yl)(2,2,3,3tetramethylcyclopropy l)methanone (fub-144).
10. g. 1-(5-fluoropentyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carbox amide (5f-cumyl-pinaca; sgt25).
11. h. (1-(5-fluoropentyl)-N-(2-phenylpropan-2-yl)-1 H-pyrrolo[2.3-B]pyridine-3-carboxamide(5fcumyl-P7AICA).
12. i. Methyl 2-(1-(cyclohexylmethyl)-1H-indole-3-carboxamido)-3-methylbutano ate (MMB-CHMICA, AMB-CHMICA).
13. j. Methyl 2-(1-(5-fluoropentyl)-1H-indole-3-carboxamido)-3,3-dimethylbuta noate (5f-mdmbpica).
14. k. N-(adamantan-1-yl)-1-(4-fluorobenzyl)-1H-indazole3-carboxamide (fub-akb48; fub-apinaca).
    1. Gamma hydroxybutyric acid (some other names include GHB; gamma-hydroxybutyrate, 4-hydroxybutyrate; 4-hyroxybutanoic acid; sodium oxybate; sodium oxybutyrate);
    2. Flunitrazepam (also known as “R2,” “Rohypnol”);
    3. Mecloqualone;
    4. Methaqualone.
    5. Alpha-pyrrolidinohexanophenone* (a-php);
    6. 4-chloro-alpha-pyrrolidinovalerophenone* (4chloro-a-pvp);
    7. Fenethylline;
    8. Methcathinone (some other names: 2-(methyl-amino)-propiophenone, alpha-(methylamino)-propiophenone, N-methylcathinone, AL-464, AL-422, AL-463 and UR1423);
    9. (+/-)cis-4-methylaminorex [(+/-)cis-4,5-dihydro-4-methyl-5-phenyl-2- oxazolamine];
    10. 4-methyl-alpha-ethylaminopentiophenone* (4meap);
    11. 4′-methyl-alpha-pyrrolidinohexiophenone* (mphp);
    12. N-benzylpiperazine (also known as: BZP, 1-benzylpiperazine);
    13. N-ethylamphetamine;
    14. N-ethylhexedrone*;
    15. N,N-dimethylamphetamine (also known as: N,N-alpha-trimethyl-benzeneethanamine).

(33) Fentanyl-related substances. “Fentanyl-related substances” means any substance not otherwise listed and for which no exemption or approval is in effect under section 505 of the federal food, drug, and cosmetic act, 21 U.S.C. 355, and that is structurally related to fentanyl by one (1) or more of the following modifications:

i. Replacement of the phenyl portion of the phenethyl group by any monocycle, whether or not further substituted in or on the monocycle;

ii. Substitution in or on the phenethyl group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino, or nitro groups;

iii. Substitution in or on the piperidine ring with alkyl, alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino, or nitro groups;

iv. Replacement of the aniline ring with any aromatic monocycle, whether or not further substituted in or on the aromatic monocycle; and/or

v. Replacement of the N-propionyl group by another acyl group;

(34) 4-Fluoroisobutyryl fentanyl (N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide) ;

(35) Furanyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2-carboxamide);

(36) Furethidine;

(37) Hydroxypethidine;

(38) Isobutyryl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylisobutyramide);

(39) Ketobemidone;

(40) Levomoramide;

(41) Levophenacylmorphan;

(42) 3-Methylfentanyl;

(43) 3-methylthiofentanyl (N-[(3-methyl-1-(2-thienyl)ethyl-4- piperidinyl]-N-phenylpropanamide);

(44) Morpheridine;

(45) MPPP (1-methyl-4-phenyl-4-propionoxypiperidine);

(46) MT-45 (1-cyclohexyl-4-(1,2-diphenylethyl)piperazine);

(47) Noracymethadol;

(48) Norlevorphanol;

(49) Normethadone;

(50) Norpipanone;

(51) Ocfentanil (N-(2-fluorophenyl)-2-methoxy-N-(1-phenethylpiperidin-4-yl) acetamide);

(52) Para-chloroisobutyryl fentanyl (N-(4-chlorophenyl)-N-(1-phenethylpiperidin-4-yl) isobutyramide);

(53) Para-fluorobutyryl fentanyl (N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl) butyramide);

(54) Para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-phenethyl)-4- piperidinyl] propanamide);

(55) Para-methoxybutyryl fentanyl (N-(4-methoxyphenyl)-N-(1-phenethylpiperidin-4-yl) butyramide);

(56) PEPAP (1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine);

(57) Phenadoxone;

(58) Phenampromide; (59) Phenomorphan;

(60) Phenoperidine;

(61) Piritramide;

(62) Proheptazine;

(63) Properidine;

(64) Propiram;

(65) Racemoramide;

(66) Tetrahydrofuranyl fentanyl (N-(1-phenethylpiperidine-4-yl)-N-phenyltetrahydrofuran-2-carbo xamide;

(67) Thiofentanyl (N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-

propanamide);

(68) Tilidine;

(69) Trimeperidine;

(70) u-47700 (3,4-Dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide ;

(71) Valeryl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylpentanamide).

(2) Methoxyamphetamine or any compound not specifically excepted or listed in another schedule that can be formed from methoxyamphetamine by replacement of one (1) or more hydrogen atoms with another atom(s), functional group(s) or substructure(s) including, but not limited to, compounds such as PMA and DOM;

(3) 5-methoxy-3,4-methylenedioxy-amphetamine;

(4) 5-methoxy-N,N-diisopropyltryptamine;

(5) Amphetamine or methamphetamine with a halogen substitution on the benzyl ring, including compounds such as fluorinated amphetamine and fluorinated methamphetamine;

(6) 3,4-methylenedioxy amphetamine;

(7) 3,4-methylenedioxymethamphetamine (MDMA);

(8) 3,4-methylenedioxy-N-ethylamphetamine (also known as N-ethyl-alpha-methyl-3,4 (methylenedioxy) phenethylamine, and N-ethyl MDA, MDE, MDEA);

(9) N-hydroxy-3,4-methylenedioxyamphetamine (also known as N-hydroxy-alpha-methyl-3,4(methylenedioxy) phenethylamine, and N-hydroxy MDA);

(10) 3,4,5-trimethoxy amphetamine;

(11) 5-methoxy-N,N-dimethyltryptamine (also known as 5-methoxy-3-2[2-(dimethylamino)ethyl]indole and 5-MeO-DMT);

(12) Alpha-ethyltryptamine (some other names: etryptamine, 3-(2-aminobutyl) indole);

(13) Alpha-methyltryptamine;

(14) Bufotenine;

(15) Diethyltryptamine (DET);

(16) Dimethyltryptamine (DMT);

(17) Ibogaine;

(18) Lysergic acid diethylamide;

(19) Marihuana;

(20) Mescaline;

(21) Parahexyl;

(22) Peyote;

(23) N-ethyl-3-piperidyl benzilate;

(24) N-methyl-3-piperidyl benzilate;

(25) Psilocybin;

(26) Psilocyn;

(27) Tetrahydrocannabinols or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure such as the following:

i. Tetrahydrocannabinols:

a. /ut/f1 cis or trans tetrahydrocannabinol, and their optical isomers, excluding dronabinol in sesame oil and encapsulated in either a soft gelatin capsule or in an oral solution in a drug product approved by the U.S. Food and Drug Administration.

6aR-trans-3-(1,1-dimethylheptyl)-6a,7,10,10a-tetrahydro-1-hydro xy- 6,6-dimethyl-6H-dibenzo[b,d]pyran-9-methanol (HU-210) and its geometric isomers (HU211 or dexanabinol).

ii. The following synthetic drugs:

a. Any compound structurally derived from (1H-indole-3-yl) (cycloalkyl, cycloalkenyl, aryl)methanone, or (1H-indole-3-yl) (cycloalkyl, cycloalkenyl, aryl)methane, or (1H-indole-3-yl) (cycloalkyl, cycloalkenyl, aryl), methyl or dimethyl butanoate, amino-methyl (or dimethyl)-1-oxobutan-2-yl) carboxamide by substitution at the nitrogen atoms of the indole ring or carboxamide to any extent, whether or not further substituted in or on the indole ring to any extent, whether or not substituted to any extent in or on the cycloalkyl, cycloalkenyl, aryl ring(s) (substitution in the ring may include, but is not limited to, heteroatoms such as nitrogen, sulfur and oxygen).

b. N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(5-fluoropentyl)-1 H-indazole-3-carboxamide (5F-AB-PINACA).

c. 1-(1.3-benzodioxol-5-yl)-2-(ethylamino)-pentan-1-one (N-ethylpentylone, ephylone).

l . Naphthalen-1-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate (NM2201; CBL2201).

m. Any compound structurally derived from 3-(1-naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring to any extent, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted in the naphthyl ring to any extent.

n. Any compound structurally derived from 1-(1-naphthylmethyl)indene by substitution at the 3-position of the indene ring to any extent, whether or not further substituted in the indene ring to any extent, whether or not substituted in the naphthyl ring to any extent.

o. Any compound structurally derived from 3-phenylacetylindole by substitution at the nitrogen atom of the indole ring to any extent, whether or not further substituted in the indole ring to any extent, whether or not substituted in the phenyl ring to any extent.

p. Any compound structurally derived from 2-(3-hydroxycyclohexyl)phenol by substitution at the 5-position of the phenolic ring to any extent, whether or not substituted in the cyclohexyl ring to any extent. q. Any compound structurally derived from 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring to any extent, whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent.

r. [2,3-dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo[1,2,3-de]- 1,4-benzoxazin-6-yl]-1-napthalenylmethanone (WIN-55,212-2).

s. 3-dimethylheptyl-11-hydroxyhexahydrocannabinol (HU-243).

t. [(6S, 6aR, 9R, 10aR)-9-hydroxy-6-methyl-3-[(2R)-5-phenylpentan-2-yl]oxy-5,6,6a ,7,8,9,10, 10a-octahydrophenanthridin-1-yl]acetate (CP 50,5561).

(28) Ethylamine analog of phencyclidine: N-ethyl-1-phenylcyclohexylamine (1-phenylcyclohexyl) ethylamine; N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE;

(29) Pyrrolidine analog of phencyclidine: 1-(phenylcyclohexyl)-pyrrolidine, PCPy, PHP;

(30) Thiophene analog of phencyclidine 1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienylanalog of phencyclidine, TPCP, TCP;

(31) 1-[1-(2-thienyl) cyclohexyl] pyrrolidine another name: TCPy;

(32) Spores or mycelium capable of producing mushrooms that contain psilocybin or psilocin.

(e) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(f) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:

(1) Aminorex (some other names: aminoxaphen, 2-amino-5-phenyl-2-oxazoline, or 4,5-dihydro-5-phenyl-2-oxazolamine);

(2) Cathinone (some other names: 2-amino-1-phenol-1-propanone, alpha-aminopropiophenone, 2-aminopropiophenone and norephedrone);

(3) Substituted cathinones. Any compound, except bupropion or compounds listed under a different schedule, structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl or thiophene ring systems, whether or not the compound is further modified in any of the following ways:

i. By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl or halide substituents, whether or not further substituted in the ring system by one (1) or more other univalent substituents;

ii. By substitution at the 3-position with an acyclic alkyl substituent;

iii. By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl or methoxybenzyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure. (4 Alpha-pyrrolidinoheptaphenone* (PV8);

§ 37-2706. Schedule II tests.

The board shall place a substance in schedule II if it finds that:

1. The substance has high potential for abuse;
2. The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
3. The abuse of the substance may lead to severe psychic or physical dependence.

§ 37-2707. Schedule II.

1. Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
2. Substances, vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
   1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding apomorphine, dextrorphan, nalbuphine, nalmefene, naloxone, naltrexone and their respective salts, but including the following:
   2. Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (b)(1) of this section, except that these substances shall not include the isoquinoline alkaloids of opium.
   3. Opium poppy and poppy straw.
   4. Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but shall not include the following:
   5. Benzoylecgonine.
   6. Methylbenzoylecgonine (Cocaine — its salts, optical isomers, and salts of optical isomers). (7) Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid or powder form which contains the phenanthrine alkaloids of the opium poppy).
   7. Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid or powder form which contains the phenanthrine alkaloids of the opium poppy).
3. Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation, unless specifically excepted or unless listed in another schedule:
   1. Alfentanil;
   2. Alphaprodine;
   3. Anileridine;
   4. Bezitramide;
   5. Bulk Dextropropoxyphene (nondosage forms);
   6. Carfentanil;
   7. Dihydrocodeine;
   8. Diphenoxylate;
   9. Fentanyl;
   10. Isomethadone;
   11. Levo-alphacetylmethadol (also known as levo-alpha-acetylmethadol, levomethadyl acetate, LAAM);
   12. Levomethorphan;
   13. Levorphanol;
   14. Metazocine;
   15. Methadone;
   16. Methadone — Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;
   17. Moramide — Intermediate, 2-methyl-3-morpholino-1, 1-diphenyl propane-carboxylic acid;
   18. Pethidine (meperidine);
   19. Pethidine — Intermediate — A, 4-cyano-1-methyl-4-phenylpiperidine;
   20. Pethidine — Intermediate — B, ethyl-4-phenylpiperidine-4-carboxylate;
   21. Pethidine — Intermediate — C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;
   22. Phenazocine;
   23. Piminodine;
   24. Racemethorphan;
   25. Racemorphan;
   26. Remifentanil;
   27. Sufentanil.
4. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
   1. Amphetamine, its salts, optical isomers, and salts of its optical isomers;
   2. Lisdexamfetamine;
   3. Methamphetamine, its salts, isomers, and salts of its isomers;
   4. Phenmetrazine and its salts;
   5. Methylphenidate.
5. Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: (1) Amobarbital;
6. Hallucinogenic substances.
   1. Nabilone ................ (another name for nabilone:(+/-)-trans-3-(1,1- dimethylheptyl)-6,6a,7,8,10,10a- hexahydro-1- hydroxy-6,6-dimethyl-9H- dibenzo[b,d]pyran-9-one) (21 CFR 1308.12 (f))
7. Immediate precursors. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances:
   1. Immediate precursor to amphetamine and methamphetamine:
      1. Anthranilic acid;
      2. Ephedrine;
      3. Lead acetate;
      4. Methylamine;
      5. Methyl formamide;
      6. N-methylephedrine;
      7. Phenylacetic acid;
      8. Phenylacetone;
      9. Phenylpropanolamine;
      10. Pseudoephedrine.

1. Decocainized coca leaves or extractions of coca leaves, which extractions do not contain cocaine; or ecgonine; or

2. [/f1/f2/f3I]ioflupane.

(2) Glutethimide;

(3) Pentobarbital;

(4) Phencyclidine;

(5) Secobarbital.

Except that any combination or compound containing ephedrine, or any of its salts and isomers, or phenylpropanolamine or its salts and isomers, or pseudoephedrine, or any of its salts and isomers which is prepared for dispensing or over-the-counter distribution is not a controlled substance for the purpose of this section, unless such substance is possessed, delivered, or possessed with intent to deliver to another with the intent to manufacture methamphetamine, amphetamine or any other controlled substance in violation of section 37-2732, Idaho Code. For purposes of this provision, the requirements of the uniform controlled substances act shall not apply to a manufacturer, wholesaler or retailer of over-the-counter products containing the listed substances unless such person possesses, delivers, or possesses with intent to deliver to another the over-the-counter product with intent to manufacture a controlled substance.

(2) Immediate precursors to phencyclidine (PCP):

(a) 1-phenylcyclohexylamine;

(b) 1-piperidinocyclohexanecarbonitrile (PCC).

(3) Immediate precursor to fentanyl: 4-anilino-N-phenethyl-4-piperidine (ANPP).

§ 37-2708. Schedule III tests.

The board shall place a substance in schedule III if it finds that:

1. The substance has a potential for abuse less than the substances listed in schedules I and II;
2. The substance has currently accepted medical use in treatment in the United States; and
3. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

§ 37-2709. Schedule III.

1. Schedule III shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
2. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, (whether optical or geometric), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
   1. Those compounds, mixtures, or preparations in dosage unit form containing any stimulant substances listed in schedule II which compounds, mixtures, or preparations were listed as excepted compounds under 21 CFR 1308.32, and any other drug of the quantitative composition shown in that list for those drugs or which is the same except that it contains a lesser quantity of controlled substances.
   2. Benzphetamine;
   3. Chlorphentermine;
   4. Clortermine;
   5. Phendimetrazine.
3. Depressants. Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
   1. Any compound, mixture or preparation containing:
   2. Any suppository dosage form containing:
   3. Any substance which contains any quantity of a derivative of barbituric acid or any salt thereof, including, but not limited to:
   4. Chlorhexadol;
   5. Embutramide;
   6. Any drug product containing gamma hydroxybutyric acid, including its salts, isomers, and salts of isomers, for which an application is approved under section 505 of the federal food, drug, and cosmetic act;
   7. Ketamine, its salts, isomers, and salts of isomers — 7285. (Some other names for ketamine: (+/-)-2-(2-chlorophenyl)-2-(methylamino)-cyclohexanone).
   8. Lysergic acid;
   9. Lysergic acid amide;
   10. Methyprylon;
   11. Perampanel, and its salts, isomers and salts of isomers;
   12. Sulfondiethylmethane;
   13. Sulfonethylmethane;
   14. Sulfonmethane;
   15. Tiletamine and zolazepam or any salt thereof.
4. Nalorphine.
5. Narcotic drugs. Unless specifically excepted or unless listed in another schedule:
   1. Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
      1. Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;
      2. Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;
      3. Not more than 1.8 grams of dihydrocodeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;
      4. Not more than 300 milligrams of ethylmorphine, or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with one (1) or more ingredients in recognized therapeutic amounts;
      5. Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;
      6. Not more than 50 milligrams of morphine, or any of its salts, per 100 milliliters or per 100 grams with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts.
   2. Any material, compound, mixture, or preparation containing any of the following narcotic drugs or their salts, as set forth below:
      1. Buprenorphine.
      2. [Reserved].
6. Anabolic steroids and human growth hormones. Any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins and corticosteroids) that promotes muscle growth including any salt, ester or isomer of a drug or substance listed in this subsection, if that salt, ester or isomer promotes muscle growth.
   1. 13beta-ethyl-17beta-hydroxygon-4-en-3-one;
   2. 17alpha-methyl-3alpha, 17beta-dihydroxy-5alpha-androstane;
   3. 17alpha-methyl-3beta, 17beta-dihydroxy-5alpha-androstane;
   4. 17alpha-methyl-3beta,17beta-dihydroxyandrost-4-ene;
   5. 17alpha-methyl-4-hydroxynandrolone;
   6. 17alpha-methyl-delta1-dihydrotestosterone;
   7. 19-nor-4-androstenediol;
   8. 19-nor-4-androstenedione;
   9. 19-nor-4,9(10)-androstadienedione;
   10. 19-nor-5-androstenediol;
   11. 19-nor-5-androstenedione;
   12. 1-androstenediol;
   13. 1-androstenedione;
   14. 3alpha,17beta-dihydroxy-5alpha-androstane;
   15. 3beta,17beta-dihydroxy-5alpha-androstane;
   16. 4-androstenediol;
   17. 4-androstenedione;
   18. 4-hydroxy-19-nortestosterone;
   19. 4-hydroxytestosterone;
   20. 5-androstenediol;
   21. 5-androstenedione;
   22. Androstenedione;
   23. Bolasterone;
   24. Boldenone;
   25. Boldione;
   26. Calusterone;
   27. Chlorotestosterone (4-chlorotestosterone);
   28. Clostebol;
   29. Dehydrochlormethyltestosterone;
   30. Delta1-dihydrotestosterone;
   31. Desoxymethyltestosterone;
   32. Dihydrotestosterone (4-dihydrotestosterone);
   33. Drostanolone;
   34. Ethylestrenol;
   35. Fluoxymesterone;
   36. Formebulone;
   37. Furazabol;
   38. Human growth hormones;
   39. Mestanolone;
   40. Mesterolone;
   41. Methandienone;
   42. Methandranone;
   43. Methandriol;
   44. Methandrostenolone;
   45. Methasterone (2a, 17a-dimethyl-5a-androstan-17=beta-ol-3-one);
   46. Methenolone;
   47. Methyldienolone;
   48. Methyltestosterone;
   49. Methyltrienolone; (50) Mibolerone;
7. Hallucinogenic substances.
   1. Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in the federal Food and Drug Administration approved product — 7369. (Some other names for dronabinol: (6aR-trans)-6a,7,8,10a- tetrahydro-6,6,9-trimethyl-3-pentyl-6H-dibenzo [b,d]pyran-1-ol or (-)-delta-9-(trans)-tetrahydrocannabinol).
8. The board may except by rule any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsection (b) or (c) of this section from the application of all or any part of this act if the compound, mixture, or preparation contains one (1) or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.

i. Amobarbital;

ii. Secobarbital;

iii. Pentobarbital or any salt thereof and one (1) or more other active medicinal ingredients which are not listed in any schedule.

i. Amobarbital;

ii. Secobarbital;

iii. Pentobarbital or any salt of any of these drugs and approved by the Food and Drug Administration for marketing only as a suppository.

i. Aprobarbital;

ii. Butabarbital (secbutabarbital);

iii. Butalbital, excluding drug products exempted by the federal drug enforcement administration (DEA);

iv. Butobarbital (butethal);

v. Talbutal;

vi. Thiamylal;

vii. Thiopental;

viii. Vinbarbital.

(51) Nandrolone;

(52) Norbolethone;

(53) Norclostebol;

(54) Norethandrolone;

(55) Normethandrolone;

(56) Oxandrolone;

(57) Oxymesterone;

(58) Oxymetholone;

(59) Prostanozol (17=beta-hydroxy-5a-androstano[3,2-c]pyrazole);

(60) Stanolone;

(61) Stanozolol;

(62) Stenbolone;

(63) Testolactone;

(64) Testosterone;

(65) Testosterone cypionate;

(66) Testosterone enanthate;

(67) Testosterone propionate;

(68) Tetrahydrogestrinone;

(69) Trenbolone.

Anabolic steroids that are expressly intended for administration through implants or injection to cattle or other nonhuman species, and that are approved by the federal Food and Drug Administration for such use, shall not be classified as controlled substances under this act and shall not be governed by its provisions.

In addition to the penalties prescribed in article IV of the uniform controlled substances act, any person shall be guilty of a felony who prescribes, dispenses, supplies, sells, delivers, manufactures or possesses with the intent to prescribe, dispense, supply, sell, deliver or manufacture anabolic steroids or any other human growth hormone for purposes of enhancing performance in an exercise, sport or game or hormonal manipulation intended to increase muscle mass, strength or weight without a medical necessity as determined by a physician.

§ 37-2710. Schedule IV tests.

The board shall place a substance in schedule IV if it finds that:

1. The substance has a low potential for abuse relative to substances in schedule III;
2. The substance has currently accepted medical use in treatment in the United States; and
3. Abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in schedule III.

§ 37-2711. Schedule IV.

1. Schedule IV shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
2. Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
   1. No more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit;
   2. Dextropropoxyphene (alpha-(+)-4-dimethylamino-1, 2-diphenyl- 3-methyl-2-propionoxybutane).
   3. 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol (including tramadol), including its salts, optical and geometric isomers, and salts of isomers.
3. Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
   1. Alfaxalone 5[alpha]-pregnan-3[alpha]-ol-11,20-dione;
   2. Alprazolam;
   3. Barbital;
   4. Bromazepam;
   5. Camazepam;
   6. Carisprodol;
   7. Chloral betaine;
   8. Chloral hydrate;
   9. Chlordiazepoxide;
   10. Clobazam;
   11. Clonazepam;
   12. Clorazepate;
   13. Clotiazepam;
   14. Cloxazolam;
   15. Delorazepam;
   16. Diazepam;
   17. Dichloralphenazone;
   18. Estazolam;
   19. Ethchlorvynol;
   20. Ethinamate;
   21. Ethyl loflazepate;
   22. Fludiazepam;
   23. Flurazepam;
   24. Fospropofol;
   25. Halazepam;
   26. Haloxazolam; (27) Ketazolam;
   27. Lormetazepam;
   28. Mebutamate;
   29. Medazepam;
   30. Meprobamate;
   31. Methohexital;
   32. Methylphenobarbital (mephobarbital);
   33. Midazolam;
   34. Nimetazepam;
   35. Nitrazepam;
   36. Nordiazepam;
   37. Oxazepam;
   38. Oxazolam;
   39. Paraldehyde;
   40. Petrichloral;
   41. Phenobarbital;
   42. Pinazepam;
   43. Prazepam;
   44. Quazepam;
   45. Suvorexant;
   46. Temazepam;
   47. Tetrazepam;
   48. Triazolam;
   49. Zaleplon;
   50. Zolpidem;
   51. Zopiclone.
4. Fenfluramine — Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible:
   1. Dexfenfluramine;
   2. Fenfluramine.
5. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
   1. Cathine ((+)-norpseudoephedrine);
   2. Diethylpropion;
   3. Fencamfamin;
   4. Fenproporex;
   5. Lorcaserin;
   6. Mazindol;
   7. Mefenorex;
   8. Modafinil;
   9. Pemoline (including organometallic complexes and chelates thereof);
   10. Phentermine;
   11. Pipradrol;
   12. Sibutramine;
   13. SPA ((-)-1-dimethylamino-1,2-diphenylethane).
6. Other substances. Unless specifically excepted, or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, including its salts:
   1. Pentazocine;
   2. Butorphanol (including its optical isomers);
   3. Eluxadoline (5-[[[(2S)-2-amino-3-[4-aminocarbonyl)-2,6-dimethylphenyl]-1-ox opropyl] [(1S)-1-(4-phenyl-1H-imidazol-2-yl)ethyl] amino]methyl]-2-methoxybenzoic acid) (including its optical isomers) and its salts, isomers, and salts of isomers.
7. The board may except by rule any compound, mixture, or preparation containing any depressant substance listed in subsection (c) of this section from the application of all or any part of this act if the compound, mixture, or preparation contains one (1) or more active medicinal ingredients not having a depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a depressant effect on the central nervous system.

(28) Loprazolam;

(29) Lorazepam;

§ 37-2712. Schedule V tests.

The board shall place a substance in schedule V if it finds that:

1. The substance has low potential for abuse relative to the controlled substances listed in schedule IV;
2. The substance has currently accepted medical use in treatment in the United States; and
3. The substance has limited physical dependence or psychological dependence liability relative to the controlled substances listed in schedule IV.

§ 37-2713. Schedule V.

1. Schedule V shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
2. Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs and their salts, as set forth below.
3. Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound, mixture, or preparation containing any of the following limited quantities of narcotic drugs or salts thereof, which shall include one (1) or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone:
   1. Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
   2. Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams;
   3. Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams;
   4. Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;
   5. Not more than 100 milligrams of opium per 100 milliliters or per 100 grams;
   6. Not more than 0.5 milligrams difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
4. Other substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, including its salts:
   1. Brivaracetam ((2S)-2-[(4R)-2-oxo-4-propylpyrrolidin-1-yl]butanamide) (also referred to as BRV; UCB-34714; Briviact) (including its salts);
   2. Ezogabine [N-[2-amino-4-(4-fluorobenzylamino)-phenyl]-carbamic acid ethyl ester]-2779;
   3. Lacosamide;
   4. Pregabalin;
   5. Pyrovalerone.
5. Approved cannabidiol drugs. A drug product in finished dosage formulation that has been approved by the U.S. food and drug administration that contains cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-penty l-1,3- benzenediol) derived from cannabis and no more than 0.1 percent (w/w) residual tetrahydrocannabinols.

§ 37-2713A. Schedule VI.

1. Schedule VI shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name or brand name designated, listed in this section.
2. Volatile nitrites. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation containing any of the following drugs or their related compounds, congeners or isomers as follows:
   1. Amyl nitrite;
   2. Butyl nitrite;
   3. Isobutyl nitrite;
   4. Isoamyl nitrite;
   5. Isopentyl nitrite.

Except that any combination or compound containing amyl nitrite which is prepared pursuant to a prescription issued by a licensed practitioner is not a controlled substance for the purpose of this section.

§ 37-2714. Republishing of schedules. [Repealed.]

Repealed by S.L. 2018, ch. 36, § 2, effective July 1, 2018.

§ 37-2715. Rules.

The board may promulgate rules and charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances within this state.

§ 37-2716. Registration requirements.

1. Every person who manufactures, distributes, prescribes, administers, dispenses, or conducts research with any controlled substance within this state shall obtain annually a registration issued by the board in accordance with this chapter and its rules.
2. Every prescriber, except veterinarians, shall also register with the board to obtain online access to the controlled substances prescriptions database.
3. Persons registered by the board under this chapter may possess, manufacture, distribute, dispense, prescribe, administer, or conduct research with those substances to the extent authorized by their registration and licensing entity and in conformity with the other provisions of this chapter.
4. The following persons need not register and may lawfully possess controlled substances under this chapter:
   1. An agent or employee of any person registered pursuant to this chapter, if he is acting in the usual course of his business or employment;
   2. A common or contract carrier or warehouseman, or an employee thereof, whose possession of any controlled substance is in the usual course of business or employment;
   3. An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a schedule V substance.
5. The board may waive by rule the requirement for registration of certain persons if it finds it consistent with the public health and safety.
6. A separate registration is required at each principal place of business or professional practice where the applicant manufactures, distributes, administers, dispenses, or conducts research with controlled substances, except a separate registration is not required under this chapter for practitioners engaging in research with nonnarcotic controlled substances in schedules II through IV where the practitioner is already registered under this chapter in another capacity.
7. Practitioners registered under federal law to conduct research with schedule I substances may conduct research with schedule I substances within this state upon registering in Idaho and furnishing the board with evidence of the practitioner’s federal registration.
8. The board may inspect the establishment of a registrant or applicant for registration in accordance with this chapter and board rule.

§ 37-2717. Registration.

The board shall register an applicant to manufacture, prescribe, administer, dispense, distribute or conduct research with controlled substances included in sections 37-2705, 37-2707, 37-2709, 37-2711 and 37-2713, Idaho Code, unless it determines that the issuance of that registration would be inconsistent with the public interest. In determining the public interest, the board shall consider the following factors:

1. Maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific, or industrial channels;
2. Compliance with applicable state and local law;
3. Any convictions of the applicant under any federal and state laws relating to any controlled substance;
4. Past experience in the manufacture, dispensing, prescribing, administering, research or distribution of controlled substances, and the existence in the applicant’s establishment of effective controls against diversions;
5. Furnishing by the applicant of false or fraudulent material in any application filed under this chapter;
6. Restriction, suspension or revocation of the applicant’s federal registration; and
7. Any other factors relevant to and consistent with the public health and safety.

§ 37-2718. Discipline.

1. A registration under section 37-2717, Idaho Code, may be restricted, suspended or revoked by the board upon a finding that the registrant:
   1. Has furnished false or fraudulent material information in any application filed under this act;
   2. Has been found guilty of a felony or misdemeanor under any state or federal law relating to any controlled substance;
   3. Has had his federal registration restricted, suspended or revoked; or
   4. Has violated this chapter, any rule of the board promulgated under this act, an order of the board or any federal regulation relating to controlled substances; provided, however, that no restriction, revocation or suspension procedure be initiated under this paragraph without the board first giving notice of the procedure to the state licensing board with authority over the registrant’s professional license.
2. The notice required in subsection (a) (4) of this section shall be given immediately in the event action is taken without an order to show cause as allowed under section 37-2719(b), Idaho Code. In all other cases, such notice shall be given as early as reasonably practicable without risking compromise of the board’s investigation but no later than the earlier of:
   1. Issuance of an order to show cause under section 37-2719(a), Idaho Code; or
   2. Setting of a hearing for approval of a resolution of the matter through informal proceedings.
3. Restriction, revocation or suspension procedures arising solely from “practice-related issues” shall be referred by the board to such registrant’s state licensing board.
   1. Upon such referral, the registrant’s state licensing board shall commence such investigation of the referred matter as it deems necessary and shall take action upon the registrant’s license or shall inform the board of pharmacy, in writing, that it has investigated the referred matter and has concluded that no action is necessary.
   2. For purposes of this section, the term “practice-related issues” refers to issues involving questions regarding the professional conduct of the registrant within the scope of the registrant’s profession.
4. The board may limit the revocation or suspension of a registration to the particular controlled substance with respect to which grounds for revocation or suspension exist.
5. If the board restricts, suspends or revokes a registration, all pertinent controlled substances owned or possessed by the registrant at the time of the restriction or suspension or the effective date of the revocation order may be placed under seal. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded unless a court, upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the court. Upon a revocation order becoming final, all controlled substances may be forfeited to the state.
6. The board shall promptly notify the bureau and the state licensing board with authority over the registrant’s professional license of all orders restricting, suspending or revoking registration and all forfeitures of controlled substances.
7. In the event the drug enforcement administration or a state licensing board with authority over a registrant’s professional license or registration takes an action against the registrant in any fashion which suspends, restricts, limits or affects the registrant’s ability to manufacture, distribute, prescribe, administer, dispense, or conduct research with any controlled substance, the professional licensing board shall promptly notify the board of pharmacy of the action. (1) Upon such action, the board of pharmacy shall be authorized to issue its order suspending, restricting, limiting or otherwise affecting the registrant’s controlled substance registration in the same fashion as the professional licensing board action.

(2) The board of pharmacy order may be issued without further hearing or proceeding, but shall be subject to the effect of any reversal or modification of the professional licensing board action by reason of any appeal or rehearing.

§ 37-2719. Order to show cause.

1. Except as set forth in section 37-2718(g), Idaho Code, before denying, restricting, suspending or revoking a registration, or refusing a renewal of registration, the board shall serve upon the applicant or registrant an order to show cause why the registration should be restricted, denied, revoked, or suspended, or why the renewal should be refused. The order to show cause shall contain a statement of the basis therefor and shall call upon the applicant or registrant to appear before the board at a time and place not less than thirty (30) days after the date of service of the order, but in the case of a denial or renewal of registration the show cause order shall be served not later than thirty (30) days before the expiration of the registration. These proceedings shall be conducted in accordance with chapter 52, title 67, Idaho Code, without regard to any criminal prosecution or other proceeding. Proceedings to refuse renewal of registration shall not abate the existing registration which shall remain in effect pending the outcome of the administrative hearing.
2. The board may suspend, without an order to show cause, any registration simultaneously with the institution of proceedings under section 37-2718, Idaho Code, or where renewal of registration is refused, if it finds that there is an imminent danger to the public health or safety which warrants this action. The suspension shall continue in effect until the conclusion of the proceedings, including judicial review thereof, unless sooner withdrawn by the board or dissolved by a court of competent jurisdiction.
3. In conjunction with a proceeding for denying, restricting, suspending or revoking a registration, or refusing a renewal of registration, and upon a finding of grounds for such denial, restriction, suspension, revocation or refusal to renew, the board may also impose an administrative fine not to exceed two thousand dollars ($2,000) per occurrence and the costs of prosecution and administrative costs of bringing the action including, but not limited to, attorney’s fees and costs and costs of hearing transcripts.

§ 37-2720. Records — Drug storage — Inventory.

Persons registered under this chapter shall keep records, store controlled substances and maintain inventories in conformance with the recordkeeping, storage and inventory requirements of federal law and with any additional rules the board issues.

§ 37-2721. Order forms. [Repealed.]

Repealed by S.L. 2018, ch. 36, § 3, effective July 1, 2018. For present comparable provisions, see§ 37-2722.

§ 37-2722. Issuing, distributing, and dispensing of controlled substances.

No person shall issue or dispense a prescription drug order for a controlled substance unless it is in compliance with applicable state and federal law and rules of the board.

1. Controlled substances included in schedule I shall be distributed only by a registrant to another registrant pursuant to the federal drug enforcement administration (DEA) order form 222.
2. Controlled substances included in schedule II shall:
   1. Be distributed only by a registrant to another registrant pursuant to DEA order form 222.
   2. Be dispensed only pursuant to a valid prescription drug order, except when dispensed directly by a prescriber.
   3. Not be refilled.
   4. Include a quantity that is both spelled out in English and written in numerical form, when a written prescription drug order is required.
3. Controlled substances included in schedule III or IV shall:
   1. Be dispensed only pursuant to a valid prescription drug order, except when dispensed directly by a prescriber.
   2. Not be filled or refilled more than six (6) months after the date thereof or be refilled more than five (5) times, unless renewed by the practitioner.
4. Controlled substances included in schedule V shall not be distributed or dispensed other than for a medical purpose.
5. A pharmacist may dispense a controlled substance pursuant to a valid prescription drug order of an individual licensed in a jurisdiction other than the state of Idaho as long as the individual is acting within the jurisdiction, scope and authority of his license.
6. Prior to issuing to a patient a prescription for outpatient use for an opioid analgesic or benzodiazepine listed in schedule II, III, or IV, the prescriber or the prescriber’s delegate shall review the patient’s prescription drug history for the preceding twelve (12) months from the prescription drug monitoring program and evaluate the data for indicators of prescription drug diversion or misuse. This review is not required:
   1. For patients:
      1. Receiving treatment in an inpatient setting;
      2. At the scene of an emergency or in an ambulance;
      3. In hospice care; or
      4. In a skilled nursing home care facility; or
   2. For a prescription in a quantity intended to last no more than three (3) days.
7. Subsection (f) of this section shall be effective on and after October 1, 2020, and shall apply only to individuals required by this chapter to register for the prescription drug monitoring program.

§ 37-2723. Form and contents of prescription. [Repealed.]

Repealed by S.L. 2018, ch. 36, § 5, effective July 1, 2018. For present comparable provisions, see§ 37-2722.

§ 37-2724. Use in hospital — Form of order — Record

Nursing home, extended care facility. [Repealed.]

Repealed by S.L. 2018, ch. 36, § 6, effective July 1, 2018. For present comparable provisions, see§ 37-2722.

§ 37-2725. Prescription drug order blanks.

1. Paper prescription drug order blanks shall comply with federal law and shall utilize noncopyable paper that contains security provisions against copying that results in some indication on the copy that it is a copy and therefore rendering it null and void.
2. Prescription drug order blanks shall not be transferable. Any person possessing any such blank otherwise than is herein provided is guilty of a misdemeanor.
3. The prescription drug order blank shall contain the name and address of the prescriber. Prescription drug order blanks may contain the printed names of multiple prescribers who are affiliated; provided however, such prescription drug order blanks shall contain a means, in addition to the signature of the prescriber, such as a box or a check, for clear identification of the printed name and address of the prescriber issuing the prescription.
4. Prescriptions written by a prescriber in an institutional facility or other health care facility in which a prescriber may attend a patient, other than his or her regular place of business, may be written on prescription drug order blanks kept or provided by that facility that contain the name and address of that facility, but not necessarily of the prescriber, provided the prescriber’s name must be stamped, written or printed on the completed prescription in a manner that is legible to a pharmacist.
5. Failure of a prescriber to clearly mark the prescriber’s printed name and address on the prescription as required in subsection (3) of this section, or to stamp, write or print the prescriber’s name legibly as required in subsection (4) of this section shall subject the prescriber to appropriate discipline by the board.
6. Prescription drug order blanks or drugs lost or stolen must be immediately reported to the board.

§ 37-2726. Filing prescriptions — Database.

1. All controlled substances, and opioid antagonists as defined in section 54-1733B, Idaho Code, dispensed for humans shall be filed with the board electronically in a format established by the board or by other method as required by board rule. The board may require the filing of other prescriptions by board rule. The board shall establish by rule the information to be submitted pursuant to the purposes of this section and the purposes set forth in section 37-2730A, Idaho Code.
2. The board shall create, operate and maintain a controlled substances prescriptions database containing the information submitted pursuant to subsection (1) of this section to be used for the purposes and subject to the terms, conditions and immunities described in section 37-2730A, Idaho Code. The board shall retain the information submitted pursuant to subsection (1) of this section for a period of five (5) years from the date the controlled substance was dispensed. The database information must be made available only to the following:
   1. Authorized individuals employed by Idaho’s boards or other states’ licensing entities charged with the licensing and discipline of practitioners;
   2. Peace officers employed by federal, state and local law enforcement agencies engaged as a specified duty of their employment in enforcing law regulating controlled substances;
   3. Authorized individuals under the direction of the department of health and welfare for the purpose of monitoring and enforcing that department’s responsibilities under the public health, medicare and medicaid laws;
   4. A practitioner, licensed in Idaho or another state, having authority to prescribe controlled substances, or a delegate under the practitioner’s supervision, to the extent the information relates specifically to a current patient of the practitioner to whom the practitioner is prescribing or considering prescribing any controlled substance;
   5. A pharmacist, licensed in Idaho or another state, having authority to dispense controlled substances, or a delegate under the pharmacist’s supervision, to the extent the information relates specifically to a current patient to whom that pharmacist is dispensing or considering dispensing any controlled substance, or providing pharmaceutical care as defined in the Idaho pharmacy act;
   6. An individual who is the recipient of a dispensed controlled substance entered into the database may access records that pertain to that individual, upon the production of positive identification, or that individual’s designee upon production of a notarized release of information by that individual;
   7. Upon a lawful order issued by the presiding judge in a court of competent jurisdiction for the release of prescription monitoring program records of a named individual;
   8. Prosecuting attorneys, deputy prosecuting attorneys and special prosecutors of a county or city and special assistant attorneys general from the office of the attorney general engaged in enforcing law regulating controlled substances; and
   9. A medical examiner or coroner who is an officer of or employed by a state or local government, for determining a cause of death or for performing other duties authorized by law.
3. The board shall require pharmacists and prescribers, except veterinarians, to annually register with the board to obtain online access to the controlled substances prescriptions database. (4) The board must maintain records on the information disclosed from the database, including:
   1. The identification of each individual who requests or receives information from the database and who that individual represents;
   2. The information provided to each such individual; and
   3. The date and time the information is requested or provided.

(5) The board shall promulgate rules to ensure that only authorized individuals have access to the database.

(6) The board shall limit to four (4) the number of delegates that a practitioner or pharmacist may permit to access the database under the practitioner’s or pharmacist’s supervision.

(7) Any person who knowingly misrepresents to the board that he is a person entitled under subsection (2) of this section to receive information from the controlled substances prescriptions database under the conditions therein provided, and who receives information from the controlled substances prescriptions database resulting from that misrepresentation, shall be guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six (6) months, or by a fine not to exceed two thousand dollars ($2,000), or both. The foregoing criminal penalty is in addition to, and not in lieu of, any other civil or administrative penalty or sanction authorized by law.

(8) Any person in possession, whether lawfully or unlawfully, of information from the controlled substances prescriptions database that identifies an individual patient and who knowingly discloses such information to a person not authorized to receive or use such information under any state or federal law or rule or regulation, or the lawful order of a court of competent jurisdiction, or written authorization of the individual patient shall be guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six (6) months, or by a fine not to exceed two thousand dollars ($2,000), or both. The foregoing criminal penalty is in addition to, and not in lieu of, any other civil or administrative penalty or sanction authorized by law. The provisions of this subsection shall not apply to disclosure of individual patient information by the patient himself. The provisions of this subsection shall not apply to disclosure of information by a prosecuting attorney, deputy prosecuting attorney or special prosecutor of a county or city or by a special assistant attorney general from the office of the attorney general in the course of a criminal proceeding, whether preconviction or postconviction.

(9) Any person with access to the board’s online prescription monitoring program pursuant to a board-issued user account, login name and password who intentionally shares or recklessly fails to safeguard his user account, login name and password, resulting in another person not authorized to receive or use such information under the provisions of any state or federal law, rule or regulation obtaining information from the controlled substances prescriptions database, shall be guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six (6) months or by a fine not to exceed two thousand dollars ($2,000), or both. The foregoing criminal penalty is in addition to, and not in lieu of, any other civil or administrative penalty or sanction authorized by law.

(10) The board may, at its discretion, block access to certain controlled substances prescriptions database data if the board has reason to believe that access to the data is or may be used illegally.

(11) All costs associated with recording and submitting data as required in this section are assumed by the dispensing practitioner recording and submitting the data. (12) For purposes of this section, “delegate” means a nurse, medical or office assistant, current student of a health profession if a licensed practitioner or registered graduate of such profession may access the database, or a registered pharmacy technician who is designated by a supervising practitioner or pharmacist to access the database according to the provisions of this section and who must register with the state board of pharmacy for such access.

§ 37-2727. Controlled substances in opioid (narcotic) treatment programs.

1. At a facility with a controlled substance registration certificate issued by the United States department of justice, drug enforcement administration, for the operation of a narcotic treatment program, a nurse licensed under chapter 14, title 54, Idaho Code, may, pursuant to a valid order of a physician licensed under chapter 18, title 54, Idaho Code:
   1. Prepare and administer to a patient at that facility a controlled substance whether or not a practitioner is present; and
   2. Deliver at that facility to a patient for subsequent use by the patient off-site, take-home doses of a controlled substance, provided that:
      1. The patient is entitled to receive take-home doses of the controlled substance;
      2. The take-home doses delivered by the nurse to the patient were obtained at the facility by the nurse from a locked storage area suitable to prevent unauthorized access and to ensure a proper environment for preservation of the drugs within such area; and
      3. The take-home doses were prepared pursuant to a valid prescription drug order of the physician and were provided in a suitable container appropriately labeled for use by the patient.
      4. If the amount due to such person is less than the value of the conveyance, the conveyance may be sold at public auction by the director or appropriate prosecuting attorney. The director, or appropriate prosecuting attorney, shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community or locality where the sale is to take place at least one (1) week prior to sale of the conveyance. The proceeds from such sale shall be distributed as follows in the order indicated:
         1. To the bona fide or innocent owner, purchaser, conditional sales vendor, lienholder or mortgagee of the conveyance, if any, up to the value of his interest in the conveyance.
         2. The balance, if any, in the following order:
      5. In any case, the director, or appropriate prosecuting attorney, may, within thirty (30) days after judgment, pay the balance due to the bona fide lienholder, mortgagee or conditional sales vendor and thereby purchase the conveyance for use to enforce this act.
2. A nurse acting under the authority of this section is exempt from the registration requirements imposed by this chapter.
3. The facility must be registered under chapter 17, title 54, Idaho Code.

§ 37-2728 — 37-2730. Retention of prescription book by prescriber — Prescription book open for inspection — Filling prescriptions — Disposition of original and copy. [Repealed.]

§ 37-2730A. Prescription tracking program.

1. The board shall maintain a program to track the prescriptions for controlled substances that are filed with the board under section 37-2726, Idaho Code, for the purpose of assisting in identifying illegal activity related to the dispensing of controlled substances and for the purpose of assisting the board in providing information to patients, practitioners and pharmacists to assist in avoiding inappropriate use of controlled substances. The tracking program and any data created thereby shall be administered by the board.
2. The board shall use the information obtained through the tracking program in identifying activity it reasonably suspects may be in violation of this chapter or medical assistance law. The board shall report this information to the individuals and persons set forth in section 37-2726(2), Idaho Code. The board may release unsolicited information to pharmacists and practitioners when the release of information may be of assistance in preventing or avoiding inappropriate use of controlled substances. The board may provide the appropriate law enforcement agency, medicaid or medicare agency or licensing board with the relevant information in the board’s possession, including information obtained from the tracking program, for further investigation, or other appropriate law enforcement or administrative enforcement use.
3. Information, which does not identify individual patients, practitioners or dispensing pharmacists or pharmacies, may be released by the board for educational, research or public information purposes.
4. Nothing herein shall prevent a pharmacist or practitioner from furnishing another pharmacist or practitioner information obtained pursuant to and in compliance with this chapter.
5. Unless there is shown malice or criminal intent or gross negligence or reckless, willful and wanton conduct as defined in section 6-904C, Idaho Code, the state of Idaho, the board, any other state agency, or any person, or entity in proper possession of information as herein provided shall not be subject to any liability or action for money damages or other legal or equitable relief by reason of any of the following:
   1. The furnishing of information under the conditions herein provided;
   2. The receiving and use of, or reliance on, such information;
   3. The fact that any such information was not furnished; or
   4. The fact that such information was factually incorrect or was released by the board to the wrong person or entity.
6. The board may apply for any available grants and accept any gifts, grants or donations to assist in developing and maintaining the program required by this section.

§ 37-2731. Information required on label.

A practitioner with statutory authority to dispense a controlled substance shall affix to the package a label pursuant to board rule.

§ 37-2732. Prohibited acts A — Penalties.

1. Except as authorized by this chapter, it is unlawful for any person to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.
   1. Any person who violates this subsection with respect to:
      1. A controlled substance classified in schedule I which is a narcotic drug or a controlled substance classified in schedule II, except as provided for in section 37-2732B(a)(3), Idaho Code, is guilty of a felony and upon conviction may be imprisoned for a term of years not to exceed life imprisonment, or fined not more than twenty-five thousand dollars ($25,000), or both;
      2. Any other controlled substance which is a nonnarcotic drug classified in schedule I, or a controlled substance classified in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both;
      3. A substance classified in schedule IV, is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, fined not more than ten thousand dollars ($10,000), or both;
      4. A substance classified in schedules V and VI, is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than five thousand dollars ($5,000), or both.
2. Except as authorized by this chapter, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.
   1. Any person who violates this subsection with respect to:
      1. A counterfeit substance classified in schedule I which is a narcotic drug, or a counterfeit substance classified in schedule II, is guilty of a felony and upon conviction may be imprisoned for not more than fifteen (15) years, fined not more than twenty-five thousand dollars ($25,000), or both;
      2. Any other counterfeit substance classified in schedule I which is a nonnarcotic drug contained in schedule I or a counterfeit substance contained in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both;
      3. A counterfeit substance classified in schedule IV, is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, fined not more than ten thousand dollars ($10,000), or both;
      4. A counterfeit substance classified in schedules V and VI or a noncontrolled counterfeit substance, is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than five thousand dollars ($5,000), or both.
   2. Any person who violates this subsection and has in his possession a controlled substance which is a nonnarcotic drug classified in schedule I except lysergic acid diethylamide, or a controlled substance classified in schedules III, IV, V and VI is guilty of a misdemeanor and upon conviction thereof may be imprisoned for not more than one (1) year, or fined not more than one thousand dollars ($1,000), or both.
3. It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter. (1) Any person who violates this subsection and has in his possession a controlled substance classified in schedule I which is a narcotic drug or a controlled substance classified in schedule II, is guilty of a felony and upon conviction may be imprisoned for not more than seven (7) years, or fined not more than fifteen thousand dollars ($15,000), or both.
4. It shall be unlawful for any person to be present at or on premises of any place where he knows illegal controlled substances are being manufactured or cultivated, or are being held for distribution, transportation, delivery, administration, use, or to be given away. A violation of this section shall deem those persons guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than three hundred dollars ($300) and not more than ninety (90) days in the county jail, or both.
5. If any person is found to possess marijuana, which for the purposes of this subsection shall be restricted to all parts of the plants of the genus Cannabis, including the extract or any preparation of cannabis which contains tetrahydrocannabinol, in an amount greater than three (3) ounces net weight, it shall be a felony and upon conviction may be imprisoned for not more than five (5) years, or fined not more than ten thousand dollars ($10,000), or both.
6. If two (2) or more persons conspire to commit any offense defined in this act, said persons shall be punishable by a fine or imprisonment, or both, which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.
7. 1. It is unlawful for any person to manufacture or distribute a “simulated controlled substance,” or to possess with intent to distribute, a “simulated controlled substance.” Any person who violates this subsection shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000) and not more than one (1) year in the county jail, or both. (g)(1) It is unlawful for any person to manufacture or distribute a “simulated controlled substance,” or to possess with intent to distribute, a “simulated controlled substance.” Any person who violates this subsection shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000) and not more than one (1) year in the county jail, or both.
   2. It is unlawful for any person to possess a “simulated controlled substance.” Any person who violates this subsection shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than three hundred dollars ($300) and not more than six (6) months in the county jail, or both.
8. It is unlawful for any person to cause to be placed in any newspaper, magazine, handbill, or other publication, or to post or distribute in any public place, any advertisement or solicitation offering for sale simulated controlled substances. Any person who violates this subsection is guilty of a misdemeanor and shall be punished in the same manner as prescribed in subsection (g) [(g)(1)] of this section.
9. No civil or criminal liability shall be imposed by virtue of this chapter on any person registered under the Uniform Controlled Substances Act who manufactures, distributes, or possesses an imitation controlled substance for use as a placebo or other use by a registered practitioner, as defined in section 37-2701(aa), Idaho Code, in the course of professional practice or research.
10. No prosecution under this chapter shall be dismissed solely by reason of the fact that the dosage units were contained in a bottle or other container with a label accurately describing the ingredients of the imitation controlled substance dosage units. The good faith of the defendant shall be an issue of fact for the trier of fact.
11. Upon conviction of a felony or misdemeanor violation under this chapter or upon conviction of a felony pursuant to the “racketeering act,” section 18-7804, Idaho Code, or the money laundering and illegal investment provisions of section 18-8201, Idaho Code, the court may order restitution for costs incurred by law enforcement agencies in investigating the violation. Law enforcement agencies shall include, but not be limited to, the Idaho state police, county and city law enforcement agencies, the office of the attorney general and county and city prosecuting attorney offices. Costs shall include, but not be limited to, those incurred for the purchase of evidence, travel and per diem for law enforcement officers and witnesses throughout the course of the investigation, hearings and trials, and any other investigative or prosecution expenses actually incurred, including regular salaries of employees. In the case of reimbursement to the Idaho state police, those moneys shall be paid to the Idaho state police for deposit into the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code. In the case of reimbursement to the office of the attorney general, those moneys shall be paid to the general fund. A conviction for the purposes of this section means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment(s) or withheld judgment(s).

(2) Any person who violates this subsection and has in his possession lysergic acid diethylamide is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, or fined not more than five thousand dollars ($5,000), or both.

§ 37-2732A. Sacramental use of peyote permitted.

The criminal sanctions provided in this chapter do not apply to that plant of the genus Lophophora Williamii [Williamsii] commonly known as peyote when such controlled substance is transported, delivered or possessed to be used as the sacrament in religious rites of a bona fide native American religious ceremony conducted by a bona fide religious organization; provided, that this exemption shall apply only to persons of native American descent who are members or eligible for membership in a federally recognized Indian tribe. Use of peyote as a sacrament in religious rites shall be restricted to Indian reservations as defined in subsection (2) of section 63-3622Z, Idaho Code. A person transporting, possessing or distributing peyote in this state for religious rites shall have on their person a tribal enrollment card, a card identifying the person as a native American church member and a permit issued by a bona fide religious organization authorizing the transportation, possession and distribution of peyote for religious rites.

§ 37-2732B. Trafficking — Mandatory sentences.

1. Except as authorized in this chapter, and notwithstanding the provisions of section 37-2732, Idaho Code:
   1. Any person who knowingly manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, one (1) pound of marijuana or more, or twenty-five (25) marijuana plants or more, as defined in section 37-2701, Idaho Code, is guilty of a felony, which felony shall be known as “trafficking in marijuana.” If the quantity of marijuana involved:
      1. Is one (1) pound or more, but less than five (5) pounds, or consists of twenty-five (25) marijuana plants or more but fewer than fifty (50) marijuana plants, regardless of the size or weight of the plants, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of one (1) year and fined not less than five thousand dollars ($5,000);
      2. Is five (5) pounds or more, but less than twenty-five (25) pounds, or consists of fifty (50) marijuana plants or more but fewer than one hundred (100) marijuana plants, regardless of the size or weight of the plants, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of three (3) years and fined not less than ten thousand dollars ($10,000);
      3. Is twenty-five (25) pounds or more, or consists of one hundred (100) marijuana plants or more, regardless of the size or weight of the plants, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of five (5) years and fined not less than fifteen thousand dollars ($15,000).
      4. The maximum number of years of imprisonment for trafficking in marijuana shall be fifteen (15) years, and the maximum fine shall be fifty thousand dollars ($50,000).
      5. For the purposes of this section, the weight of the marijuana is its weight when seized or as determined as soon as practicable after seizure, unless the provisions of subsection (c) of this section apply.
   2. Any person who knowingly manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of cocaine or of any mixture or substance containing a detectable amount of cocaine is guilty of a felony, which felony shall be known as “trafficking in cocaine.” If the quantity involved:
      1. Is twenty-eight (28) grams or more, but less than two hundred (200) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of three (3) years and fined not less than ten thousand dollars ($10,000);
      2. Is two hundred (200) grams or more, but less than four hundred (400) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of five (5) years and fined not less than fifteen thousand dollars ($15,000);
      3. Is four hundred (400) grams or more, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of ten (10) years and fined not less than twenty-five thousand dollars ($25,000).
      4. The maximum number of years of imprisonment for trafficking in cocaine shall be life, and the maximum fine shall be one hundred thousand dollars ($100,000).
   3. Any person who knowingly manufactures or attempts to manufacture methamphetamine and/or amphetamine is guilty of a felony which shall be known as “trafficking in methamphetamine and/or amphetamine by manufacturing.” Any person convicted of trafficking in methamphetamine and/or amphetamine by attempted manufacturing shall be sentenced to a mandatory minimum fixed term of imprisonment of two (2) years and not to exceed fifteen (15) years imprisonment and fined not less than ten thousand dollars ($10,000). Any person convicted of trafficking in methamphetamine and/or amphetamine by manufacturing shall be sentenced to a mandatory minimum fixed term of imprisonment of five (5) years and not to exceed life imprisonment and fined not less than twenty-five thousand dollars ($25,000). The maximum number of years of imprisonment for trafficking in methamphetamine and/or amphetamine by manufacturing shall be life, and the maximum fine shall be one hundred thousand dollars ($100,000). (4) Any person who knowingly delivers, or brings into this state, or who is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or substance containing a detectable amount of methamphetamine or amphetamine is guilty of a felony, which felony shall be known as “trafficking in methamphetamine or amphetamine.” If the quantity involved:
   4. Any person who knowingly delivers, or brings into this state, or who is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or substance containing a detectable amount of methamphetamine or amphetamine is guilty of a felony, which felony shall be known as “trafficking in methamphetamine or amphetamine.” If the quantity involved:
      1. Is twenty-eight (28) grams or more, but less than two hundred (200) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of three (3) years and fined not less than ten thousand dollars ($10,000);
      2. Is two hundred (200) grams or more, but less than four hundred (400) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of five (5) years and fined not less than fifteen thousand dollars ($15,000);
      3. Is four hundred (400) grams or more, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of ten (10) years and fined not less than twenty-five thousand dollars ($25,000).
      4. The maximum number of years of imprisonment for trafficking in methamphetamine or amphetamine shall be life, and the maximum fine shall be one hundred thousand dollars ($100,000).
   5. Any person who knowingly manufactures, delivers, brings into this state, or who is knowingly in actual or constructive possession of the below-specified quantities of any of the following immediate precursors to methamphetamine or amphetamine (namely ephedrine, methylamine, methyl formamide, phenylacetic acid, phenylacetone, or pseudoephedrine) as defined in section 37-2707(g)(1), Idaho Code, or any compound, mixture or preparation which contains a detectable quantity of these substances, is guilty of a felony which shall be known as “trafficking in immediate precursors of methamphetamine or amphetamine.” If the quantity:
      1. Of ephedrine is five hundred (500) grams or more;
      2. Of methylamine is one-half (½) pint or more;
      3. Of methyl formamide is one-quarter (¼) pint or more;
      4. Of phenylacetic acid is five hundred (500) grams or more;
      5. Of phenylacetone is four hundred (400) grams or more;
      6. Of pseudoephedrine is five hundred (500) grams or more;
2. Any person who agrees, conspires, combines or confederates with another person or solicits another person to commit any act prohibited in subsection (a) of this section is guilty of a felony and is punishable as if he had actually committed such prohibited act.
3. For the purposes of subsections (a) and (b) of this section the weight of the controlled substance as represented by the person selling or delivering it is determinative if the weight as represented is greater than the actual weight of the controlled substance.

such person shall be sentenced to a mandatory minimum fixed term of imprisonment of ten (10) years and fined not less than twenty-five thousand dollars ($25,000). The maximum number of years of imprisonment for trafficking in immediate precursors of methamphetamine or amphetamine in the quantities specified in paragraphs (A) through (F) of this subsection (5) shall be life, and the maximum fine shall be one hundred thousand dollars ($100,000). If the quantity of pseudoephedrine is twenty-five (25) grams or more, but less than five hundred (500) grams, such person shall be sentenced to a term of imprisonment of up to ten (10) years and fined not more than twenty-five thousand dollars ($25,000). (6) Any person who knowingly manufactures, delivers or brings into this state, or who is knowingly in actual or constructive possession of, two (2) grams or more of heroin or any salt, isomer, or salt of an isomer thereof, or two (2) grams or more of any mixture or substance containing a detectable amount of any such substance is guilty of a felony, which felony shall be known as “trafficking in heroin.” If the quantity involved:

(A) Is two (2) grams or more, but less than seven (7) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of three (3) years and fined not less than ten thousand dollars ($10,000);

(B) Is seven (7) grams or more, but less than twenty-eight (28) grams, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of ten (10) years and fined not less than fifteen thousand dollars ($15,000);

(C) Is twenty-eight (28) grams or more, such person shall be sentenced to a mandatory minimum fixed term of imprisonment of fifteen (15) years and fined not less than twenty-five thousand dollars ($25,000).

(D) The maximum number of years of imprisonment for trafficking in heroin shall be life, and the maximum fine shall be one hundred thousand dollars ($100,000).

(7) A second conviction for any trafficking offense as defined in subsection (a) of this section shall result in a mandatory minimum fixed term that is twice that otherwise required under this section.

(8) Notwithstanding any other provision of law, with respect to any person who is found to have violated the provisions of this section, adjudication of guilt or the imposition or execution of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum fixed term of imprisonment prescribed in this section. Further, the court shall not retain jurisdiction.

§ 37-2732C. Using or being under the influence — Penalties.

1. Except as authorized in this chapter, it is unlawful for any person on a public roadway, on a public conveyance, on public property or on private property open to the public, to use or be under the influence of any controlled substance specified in subsection (b), (c), (d), (e) and (f) of section 37-2705, Idaho Code, or subsection (b), (c) and (d) of section 37-2707, Idaho Code, or subsection (c)(6) of section 37-2709, Idaho Code, or any narcotic drug classified in schedule III, IV or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within this exception.
2. Any person convicted of violating the provisions of subsection (a) of this section is guilty of a misdemeanor and is punishable by imprisonment in a county jail for not more than six (6) months, or by a fine not exceeding one thousand dollars ($1,000) or by both.
3. Any person who is convicted of violating subsection (a) of this section, when the offense occurred within five (5) years of that person being convicted of two (2) or more separate violations of that subsection and who refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subsection (d) shall be punished by imprisonment in the county jail for a mandatory minimum period of time of not less than one hundred twenty (120) days, nor more than one (1) year. The court may not reduce the mandatory minimum period of incarceration provided in this subsection.
4. The court may, when it would be in the interest of justice, permit any person convicted of a violation of subsection (a) of this section, punishable under subsection (b) or (c) of this section, to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subsection, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds.
5. Notwithstanding subsection (a), (b) or (c) of this section, or any other provision of law to the contrary, any person who is unlawfully under the influence of cocaine, cocaine base, methamphetamine, heroin, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense and is punishable by imprisonment in the county jail or the state prison for not more than one (1) year. As used in this subsection, “immediate possession” includes, but is not limited to, the interior passenger compartment of a motor vehicle.
6. Every person who violates subsection (e) of this section is punishable upon the second and each subsequent conviction by imprisonment in the state prison for a period of time not in excess of four (4) years.

§ 37-2733. Prohibited acts B — Penalties.

1. It is unlawful for any person:
   1. Who is subject to article III of this act to distribute or dispense a controlled substance in violation of section 37-2722, Idaho Code;
   2. Who is a registrant, to manufacture a controlled substance not authorized by his registration, or to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person;
   3. To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this act;
   4. To refuse an entry into any premises for any inspection authorized by this act; or
   5. Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this act for the purpose of using these substances, or which is used for keeping or selling them in violation of this act.
2. Any person who violates this section is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than twenty-five thousand dollars ($25,000), or both.

§ 37-2734. Prohibited acts C — Penalties.

1. It is unlawful for any person knowingly or intentionally:
   1. To distribute as a registrant a controlled substance classified in schedule I or II, except pursuant to the requirements of section 37-2722, Idaho Code;
   2. To use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;
   3. To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;
   4. To furnish false or fraudulent material information in, or omit any material information from, any application, report, or other document required to be kept or filed under this act, or any record required to be kept by this act; or
   5. To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render the drug a counterfeit substance.
2. Any person who violates this section is guilty of a felony and upon conviction may be imprisoned for not more than four (4) years, or fined not more than thirty thousand dollars ($30,000), or both.

§ 37-2734A. Prohibited acts D — Penalties.

1. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.
2. It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.
3. Any person who is in violation of the provisions of subsections (1) and/or (2) of this section is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than one thousand dollars ($1,000), or both.

§ 37-2734B. Prohibited acts E — Penalties.

It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. Any person who is in violation of this section is guilty of a felony and upon conviction may be imprisoned for not more than nine (9) years, fined not more than thirty thousand dollars ($30,000), or both.

§ 37-2734C. Prohibited acts F — Penalties.

1. A person is guilty of the crime of unlawful storage of anhydrous ammonia in a container that:
   1. Is not approved by the United States department of transportation to hold anhydrous ammonia; or
   2. Was not constructed to meet state and federal industrial health and safety standards for holding anhydrous ammonia.
2. Violation of this section is a felony.
3. This section does not apply to public employees or private contractors authorized to clean up and dispose of hazardous waste or toxic substances pursuant to the provisions of chapter 22, title 49, Idaho Code.
4. Any damages arising out of the unlawful possession of, storage of, or tampering with anhydrous ammonia equipment shall be the sole responsibility of the person or persons unlawfully possessing, storing or tampering with the anhydrous ammonia. In no case shall liability for damages arising out of the unlawful possession of, storage of, or tampering with anhydrous ammonia or anhydrous ammonia equipment extend to the lawful owner, installer, maintainer, designer, manufacturer, possessor or seller of the anhydrous ammonia or anhydrous ammonia equipment, unless such damages arise out of the acts or omissions of the owner, installer, maintainer, designer, manufacturer, possessor or seller that constitute negligent misconduct to abide by the laws regarding anhydrous ammonia possession and storage.

§ 37-2735. Penalties under other laws.

Any penalty imposed for violation of this act is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.

§ 37-2735A. Drug hotline fee.

In addition to any other penalties, a person convicted of a violation of this chapter shall be subject to an additional fine of ten dollars ($10.00) to be deposited in the drug and driving while under the influence enforcement donation fund, as set forth in section 57-816, Idaho Code, to be used for the purposes designated in that section.

§ 37-2736. Bar to prosecution.

If a violation of this act is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

§ 37-2737. Distribution to persons under age 18.

Any person eighteen (18) years of age or over who violates section 37-2732(a), Idaho Code, by distributing any nonnarcotic drug classified in schedule I, or any controlled substance classified in schedule III, IV, V, or VI, to a person under eighteen (18) years of age who is at least three (3) years his junior is punishable by the fine authorized by section 37-2732(a)(1)(B), (C) or (D), Idaho Code, by a term of imprisonment of up to twice that authorized by section 37-2732(a)(1)(B), (C) or (D), Idaho Code, or by both.

§ 37-2737A. Manufacture or delivery of controlled substance where children are present.

1. Except as authorized in this chapter, it is unlawful for any person to manufacture or deliver, or possess with the intent to manufacture or deliver, a controlled substance as defined in schedules I, II, III and IV in this chapter, upon the same premises where a child under the age of eighteen (18) years is present.
2. As used in this section, “premises” means any:
   1. Motor vehicle or vessel;
   2. Dwelling or rental unit including, but not limited to, apartment, townhouse, condominium, mobile home, manufactured home, motel room or hotel room;
   3. Dwelling house, its curtilage and any other outbuildings.
3. Except as provided in subsection (4) of this section, a person who violates the provisions of this section shall be guilty of a felony and upon conviction may be imprisoned for a term not to exceed five (5) years, fined not more than five thousand dollars ($5,000), or be both so imprisoned and fined.
4. A person who violates the provisions of this section by manufacturing or delivering, or possessing with the intent to manufacture or deliver, methamphetamine or amphetamine in quantities as specified in section 37-2732B(a)(4), Idaho Code, shall be guilty of a felony and upon conviction may be imprisoned for a term of up to ten (10) years, fined not more than twenty-five thousand dollars ($25,000), or be both so imprisoned and fined.
5. Any fine imposed under the provisions of this section shall be in addition to the fine imposed for any other offense, and any term of imprisonment shall be consecutive to any term imposed for any other offense, regardless of whether the violation of the provisions of this section and any of the other offenses have arisen from the same act or transaction.

§ 37-2738. Sentencing criteria in drug cases.

1. Any person who pleads guilty to, is found guilty of or has a judgment of conviction entered upon a violation of the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, shall be sentenced according to the criteria set forth herein.
2. Prior to sentencing for a violation enumerated in subsection (1) of this section, the defendant shall undergo, at his own expense (or at county expense through the procedures set forth in chapters 34 and 35, title 31, Idaho Code), a substance abuse evaluation at a facility approved by the Idaho department of health and welfare. Provided however, if the defendant has no prior or pending charges under the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, and the court does not have any reason to believe that the defendant regularly abuses drugs and is in need of treatment, the court may, in its discretion, waive the evaluation with respect to sentencing for a violation of subsection (b), (c)(3), or (e) of section 37-2732, Idaho Code, and proceed to sentence the defendant. The court may also, in its discretion, waive the requirement of a substance abuse evaluation with respect to a defendant’s violation of the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, and proceed to sentence the defendant if the court has a presentence investigation report, substance abuse assessment, criminogenic risk assessment, or similar assessment which has evaluated the defendant’s need for substance abuse treatment conducted within twelve (12) months preceding the date of the defendant’s sentencing.
3. In the event a substance abuse evaluation indicates the need for substance abuse treatment, the evaluation shall recommend an appropriate treatment program, together with the estimated costs thereof, and recommendations for other suitable alternative treatment programs, together with the estimated costs thereof. The person shall request that a copy of the completed evaluation be forwarded to the court. The court shall take the evaluation into consideration to determine an appropriate sentence. If a copy of the completed evaluation has not been provided to the court, the court may proceed to sentence the defendant; however, in such event it shall be presumed that substance abuse treatment is needed unless it is shown by a preponderance of evidence that treatment is not required. If the defendant has not made a good faith effort to provide the completed copy of the evaluation to the court, the court may consider the failure of the defendant to provide or report an aggravating circumstance in determining an appropriate sentence. If treatment is ordered, the person or facility performing the evaluation shall not be the person or facility that provides the treatment, unless this requirement is waived by the sentencing court, and with the exception of federally recognized Indian tribes or federal military installations where diagnoses and treatment are appropriate and available. Nothing herein contained shall preclude the use of funds authorized pursuant to the provisions of chapter 3, title 39, Idaho Code, for court ordered substance abuse treatment for indigent defendants.
4. When sentencing an individual for the crimes enumerated in subsection (1) of this section, the court shall not enter a withheld judgment unless it finds by a preponderance of the evidence that:
   1. The defendant has no prior finding of guilt for any felony, any violation of chapter 80, title 18, Idaho Code, or subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, whatsoever; and
   2. The sentencing court has an abiding conviction that the defendant will successfully complete the terms of probation; and (c) The defendant has satisfactorily cooperated with law enforcement authorities in the prosecution of drug related crimes of which the defendant has previously had involvement.
5. Any person who pleads guilty to or is found guilty of a violation of the provisions of the Idaho Code identified in subsection (1) of this section shall, when granted a probationary period of any sort whatsoever, be required by the court to complete a period of not less than one hundred (100) hours of community service work.

The requirements for the granting of a withheld judgment pursuant to this subsection shall not apply to a defendant who has been admitted to a problem solving court program approved by the drug court and mental health court coordinating committee and is participating in, or about to begin participating in, such a program, or who participated in such a problem solving court program in connection with the pending case and who successfully graduated from such a program prior to sentencing.

§ 37-2739. Second or subsequent offenses.

1. Any person convicted of a second or subsequent offense under this act, who is not subject to a fixed minimum term under section 37-2739B, Idaho Code, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
2. For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

§ 37-2739A. Mandatory minimum penalty.

Any person who is convicted of violating the felony provisions of section 37-2732(a), Idaho Code, by distributing controlled substances to another person, who is not subject to a fixed minimum term under section 37-2739B, Idaho Code, and who has previously been convicted within the past ten (10) years in a court of the United States, any state or a political subdivision of one or more felony offenses of dealing, selling or trafficking in controlled substances on an occasion or occasions different from the felony violation of section 37-2732(a), Idaho Code, and which offense or offenses were punishable in such court by imprisonment in excess of one (1) year, shall be sentenced to the custody of the state board of correction for a mandatory minimum period of time of not less than three (3) years or for such greater period as the court may impose up to a maximum of life imprisonment. The mandatory minimum period of three (3) years incarceration shall not be reduced and shall run consecutively to any other sentence imposed by the court.

§ 37-2739B. Fixed minimum sentences in drug cases.

1. The legislature intends to allow fixed minimum sentences for certain aggravating factors found in cases brought under the uniform controlled substances act. The legislature hereby finds and declares that trafficking in controlled substances in the state of Idaho is a primary contributor to a societal problem that causes loss of life, personal injury and theft of property, and exacts a tremendous toll on the citizens of this state. To afford better protection to our citizens from those who traffic in controlled substances, the fixed minimum sentencing contained in subsections (b) and (c) of this section is enacted. By enacting fixed minimum sentences, the legislature does not seek to limit a court’s power to impose a greater sentence pursuant to section 19-2513, Idaho Code.
2. Any person who is found guilty of violating the provisions of section 37-2732(a)(1)(A), Idaho Code, or of any attempt or conspiracy to commit such a crime, may be sentenced to a fixed minimum term of confinement to the custody of the state board of correction, which term shall be at least five (5) years and may extend to life, for each of the following aggravating factors found by the trier of fact:
   1. That the defendant has previously been found guilty of or convicted of a violation of section 37-2732(a)(1)(A), Idaho Code, or of an attempt or conspiracy to commit such a crime, or an offense committed in another jurisdiction which, if committed in this jurisdiction, would be punishable as a violation of section 37-2732(a)(1)(A), Idaho Code, or as an attempt or conspiracy to commit such an offense.
   2. That the violation occurred on or within one thousand (1,000) feet of the property of any public or private primary or secondary school, or in those portions of any building, park, stadium or other structure or grounds which were, at the time of the violation, being used for an activity sponsored by or through such a school.
   3. That the violation consisted of the delivery or attempted delivery of a controlled substance to a minor child under the age of eighteen (18) years.
3. The fixed minimum terms provided in this section may be imposed where the aggravating factors are separately charged in the information or indictment and admitted by the accused or found to be true by the trier of fact at the trial of the substantive crime; provided, however, that the prosecutor shall give notice to the defendant of intent to seek a fixed penalty at least fourteen (14) days prior to trial. During a fixed minimum term of confinement imposed under this section, the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct except for meritorious service. Each fixed minimum term imposed shall be served consecutively to the others, and consecutively to any minimum term of confinement imposed for the substantive offense.
4. Any person who is found guilty of violating the provisions of section 37-2732(a)(1)(A), Idaho Code, or of any attempt or conspiracy to commit such a crime, and who is sentenced to serve at least one (1) minimum term of confinement under this section, may be fined an amount up to twice that otherwise provided for the substantive offense.

§ 37-2740. Powers of enforcement personnel.

1. Any peace officer, as defined by this act, may:
   1. Carry firearms in the performance of his official duties;
   2. Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas, and summonses issued under the authority of this state;
   3. Make arrests without warrant for any offense under this act committed in his presence, or if he has probable cause to believe that the person to be arrested has committed or is committing a violation of this act which may constitute a felony or a misdemeanor;
   4. Make seizures of property pursuant to this act.
2. The director of the Idaho state police shall administer the state-level program of Idaho to suppress the unlawful traffic and abuse of controlled substances and shall have the authority to appoint and commission agents to enforce the provisions of this act.
3. All duly authorized peace officers while investigating offenses under this act in the performance of their official duties, and any person working under their immediate direction, supervision, or instruction, provided such person shall not deviate from the lawful direction of the peace officer, are immune from prosecution under this act.

§ 37-2741. Administrative inspections and warrants.

1. Issuance and execution of administrative inspection warrants shall be as follows:
   1. A magistrate, within his jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this act or rules hereunder, and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this act or rules hereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant;
   2. A warrant shall issue only upon an affidavit of a designated officer or employee having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he shall issue a warrant identifying the area, premises, building, or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any. The warrant shall:
      1. State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
      2. Be directed to a person authorized by section 37-2740, Idaho Code, to execute it;
      3. Command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
      4. Identify the item or types of property to be seized, if any;
      5. Direct that it be served during normal business hours and designate the judge or magistrate to whom it shall be returned;
   3. A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant;
   4. The judge or magistrate who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of the court in the county in which the inspection was made.
2. The board may make administrative inspections of controlled premises in accordance with the following provisions:
   1. For purposes of this section only, “controlled premises” means:
      1. Places where persons registered or exempted from registration requirements under this act are required to keep records; and
      2. Places including factories, warehouses, establishments, and conveyances in which persons registered or exempted from registration requirements under this act are permitted to hold, manufacture, compound, process, sell, deliver, or otherwise dispose of any controlled substance. (2) When authorized by an administrative inspection warrant issued pursuant to subsection (a) of this section an officer or employee designated by the board, upon presenting the warrant and appropriate credentials to the owner, operator, or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
      3. Inventory any stock of any controlled substance therein and obtain samples thereof;
      4. In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or
      5. In all other situations in which a warrant is not constitutionally required;

(3) When authorized by an administrative inspection warrant, an officer or employee designated by the board may:

(A) Inspect and copy records required by this act to be kept;

(B) Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in subsection (b)(5) of this section, all other things therein, including records, files, papers, processes, controls, and facilities bearing on violation of this act; and

(4) This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena issued in accordance with chapter 52, title 67, Idaho Code, nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:

(A) If the owner, operator, or agent in charge of the controlled premises consents;

(B) In situations presenting imminent danger to health or safety;

(C) In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;

(5) An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator, or agent in charge of the controlled premises consents in writing.

§ 37-2741A. Utility records — Inspection and copying — Wrongful disclosure.

1. Upon request of the attorney general or prosecuting attorney, a subpoena for the production of records of a utility may be signed and issued by a magistrate judge if there is reasonable articulable suspicion that a violation of the provisions of section 37-2732, 37-2732B, 37-2733, 37-2734 or 37-2734A, Idaho Code, has occurred or is occurring and that the records sought will materially aid in the investigation of such activity or appear reasonably calculated to lead to the discovery of information that will do so. The subpoena shall be served on the utility as in civil actions. The court may, upon motion timely made and in any event before the time specified for compliance with the subpoena, condition compliance upon advancement by the attorney general or prosecuting attorney of the reasonable costs of producing the records specified in the subpoena.
2. A response to a subpoena issued under this section is sufficient if a copy or printout, duly authenticated by an authorized representative of the utility as a true and correct copy or printout of its records, is provided, unless otherwise provided in the subpoena for good cause shown.
3. Except as provided in this subsection, a utility served with a subpoena under this section may disclose to the customer the fact that a subpoena seeking records relating to the customer has been served. A magistrate judge may order that the attorney general, prosecuting attorney or utility refrain from disclosing the fact that a subpoena has been served.
4. A utility shall be reimbursed in an amount set by the court for reasonable costs incurred in providing information pursuant to the provisions of this section.
5. The provisions of this section do not preclude the use of other legally authorized means of obtaining records, nor preclude the assertion of any legally recognized privileges or the right to seek a protective order where appropriate.
6. Disclosure by the attorney general, county prosecuting attorney, or any peace officer or other person designated by the attorney general or the county prosecuting attorney, of information obtained under this section, except in the proper discharge of official duties, is punishable as a misdemeanor.
7. Upon filing of any civil or criminal action, the nondisclosure requirements of any subpoena or order under this section shall terminate, and the attorney general or prosecuting attorney filing the action shall provide copies to the defendant of all subpoenas or other orders issued under this section.
8. A good faith reliance on a court order by a utility shall constitute a complete defense to any civil or criminal action brought against such utility under the laws of this state.
9. The term “utility,” as used herein, shall mean every corporation, association, company, partnership, sole proprietorship, business entity, person, or any municipal corporation, mutual nonprofit or cooperative corporation which provides water, gas or electrical services to members of the public, for compensation, within the state of Idaho.

§ 37-2742. Injunctions.

1. The district courts have jurisdiction to restrain or enjoin violations of this act.
2. The defendant may demand trial by jury for an alleged violation of an injunction or restraining order under this section.

§ 37-2743. Cooperative arrangements.

1. The director of the Idaho state police shall cooperate with federal and other state agencies in discharging his responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, he may:
   1. Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;
   2. Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;
   3. Cooperate with the bureau by establishing a centralized unit to accept, catalogue, file, and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the state, and make the information available for federal, state and local law enforcement purposes. The name or identity of a patient or research subject whose identity could not be obtained under subsection (c) of this section shall be subject to disclosure according to chapter 1, title 74, Idaho Code;
   4. Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substance may be extracted;
   5. Enter into agreements with other states to coordinate and facilitate the enforcement of this act; and
   6. Require law enforcement agencies to report such information regarding traffic in controlled substances and abuse of controlled substances as he deems necessary to enforce this act. Such reports shall be on forms supplied by the director of the Idaho state police and shall include, but not be limited to, the following information: Names, ages, sex, race, and residences of individuals involved in violations of this act; the contraband confiscated, showing the kind, location, quantity, date, and place where seized; the circumstances surrounding the arrests and a report of the disposition of charges.
2. Results, information, and evidence received from the bureau relating to the regulatory functions of this act, including results of inspections and investigations conducted by the bureau may be relied and acted upon by the board in the exercise of its regulatory functions under this act.
3. A practitioner engaged in medical practice or research is not required or compelled to furnish the name or identity of a patient or research subject to the director, nor may he be compelled in any state or local civil, criminal, administrative, legislative or other proceedings to furnish the name or identity of an individual that the practitioner is obligated to keep confidential and as such the name or identity of the patient or research subject is subject to disclosure according to chapter 1, title 74, Idaho Code.

§ 37-2744. Forfeitures.

1. The following are subject to forfeiture:
   1. All controlled substances that have been manufactured, distributed, dispensed, acquired, possessed or held in violation of this act or with respect to which there has been any act by any person in violation of this act;
   2. All raw materials, products and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substances or counterfeit substances in violation of this act;
   3. All property that is used, or intended for use, as a container for property used in the commission of an act prohibited by section 37-2732B, 37-2732(a) or (b), or 37-2737A, Idaho Code;
   4. All conveyances, including aircraft, vehicles, or vessels, that are used, or intended for use, to transport, or in any manner to facilitate the transportation, delivery, receipt or manufacture of substances as prohibited by section 37-2732B, 37-2732(a) or (b), or 37-2737A, Idaho Code, but:
      1. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this act;
      2. No conveyance is subject to forfeiture under this section if the owner establishes that he could not have known in the exercise of reasonable diligence that the conveyance was being used, had been used, was intended to be used or had been intended to be used in any manner described in subsection (a)(4) of this section;
      3. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the security interest was created without any knowledge or reason to believe that the conveyance was being used, had been used, was intended to be used, or had been intended to be used for the purpose alleged.
   5. All books, records, and research products and materials, including formulas, microfilm, tapes, and data that are used, or intended for use, in violation of this act.
   6. 1. All moneys, currency, negotiable instruments, securities or other items easily liquidated for cash, such as, but not limited to, jewelry, stocks and bonds, or other property described in paragraphs (2) and (3) of this subsection that is found in close proximity to property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection and that has been used or is intended for use in connection with the illegal manufacture, distribution, dispensing or possession of property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection; (6)(A) All moneys, currency, negotiable instruments, securities or other items easily liquidated for cash, such as, but not limited to, jewelry, stocks and bonds, or other property described in paragraphs (2) and (3) of this subsection that is found in close proximity to property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection and that has been used or is intended for use in connection with the illegal manufacture, distribution, dispensing or possession of property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection;
      2. Items described in subparagraph (A) of this paragraph or other things of value furnished or intended to be furnished by any person in exchange for a contraband controlled substance in violation of this chapter, all proceeds, including items of property traceable to such an exchange, and all moneys or other things of value used or intended to be used to facilitate any violation of this chapter, except that no property shall be forfeited under this paragraph to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
   7. All drug paraphernalia as defined by section 37-2701, Idaho Code.
   8. All simulated controlled substances, which are used or intended for use in violation of this chapter. (9) All weapons, or firearms, which are used in any manner to facilitate a violation of the provisions of this chapter.
2. Property subject to forfeiture under this chapter may be seized by the director, or any peace officer of this state, upon process issued by any district court, or magistrate division thereof, having jurisdiction over the property. Seizure without process may be made if:
   1. The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
   2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal racketeering or civil forfeiture proceeding based upon a violation of this chapter;
   3. Probable cause exists to believe that the property is directly or indirectly dangerous to health or safety; or
   4. Probable cause exists to believe that the property was used or is intended to be used in violation of this chapter.
3. In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted promptly.
   1. When property is seized under this section, the director or the peace officer who seized the property may:
      1. Place the property under seal;
      2. Remove the property to a place designated by him; or
      3. Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
   2. The peace officer who seized the property shall within five (5) days notify the director of such seizure.
   3. In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted within thirty (30) days by the director or appropriate prosecuting attorney.
4. Property taken or detained under this section may be subject to replevin during the pendency of the forfeiture proceedings upon a hearing and finding by the district court, or magistrate division thereof, having jurisdiction over the forfeiture proceedings, that the property is: (i) reasonably necessary for the owner’s employment or personal use, that the property will not be disposed of or used for criminal activity, and that reasonable security has been posted; or (ii) that the seizure violated the provisions of this section. The right of replevin shall terminate upon an order of forfeiture as set forth in this section. Property that is being held that has evidentiary value in the underlying criminal case shall not be subject to replevin. Forfeiture proceedings shall be civil actions against the property subject to forfeiture and the standard of proof shall be preponderance of the evidence.
   1. All property described in paragraphs (1), (7) and (8) of subsection (a) of this section shall be deemed contraband and shall be summarily forfeited to the state. Controlled substances that are seized or come into possession of the state, the owners of which are unknown, shall be deemed contraband and shall be summarily forfeited to the state.
   2. When property described in paragraphs (2), (3), (4), (5), (6) or (9) of subsection (a) of this section is seized pursuant to this section, forfeiture proceedings shall be filed in the office of the clerk of the district court for the county wherein such property is seized. The procedure governing such proceedings shall be the same as that prescribed for civil proceedings by the Idaho rules of civil procedure. The court shall determine whether such property was used, or intended for use, in violation of this chapter. The court shall also determine whether a property forfeiture is proportionate to the crime alleged, charged or proven. Factors to be considered by the court in making such a determination shall include, but are not limited to, the nature and severity of the crime, the fair market value of the property, the intangible or subjective value of the property, the hardship to the defendant, the effect of forfeiture on the defendant’s family or financial circumstances, and any other sanctions or penalties that have been imposed upon the defendant. The court may tailor the forfeiture of property according to its determination of proportionality as justice requires. (3) When conveyances, including aircraft, vehicles, or vessels, are seized pursuant to this section, a complaint instituting forfeiture proceedings shall be filed in the office of the clerk of the district court for the county wherein such conveyance is seized.
      1. Notice of forfeiture proceedings shall be given to each owner or party in interest who has a right, title, or interest which in the case of a conveyance shall be determined by the record in the Idaho transportation department, or a similar department of another state if the records are maintained in that state, by serving a copy of the complaint and summons according to one (1) of the following methods:
      2. Within twenty (20) days after the mailing or publication of the notice, the owner of the conveyance or claimant may file a verified answer and claim to the property described in the complaint instituting forfeiture proceedings.
      3. If at the end of twenty (20) days after the notice has been mailed there is no verified answer on file, the court shall hear evidence upon the fact of the unlawful use, or intent to use, and shall order the property forfeited to the director, or appropriate prosecuting attorney, if such fact is proved.
      4. If a verified answer is filed, the forfeiture proceeding shall be set for hearing before the court without a jury on a day not less than thirty (30) days therefrom; and the proceeding shall have priority over other civil cases.
5. When property is forfeited under this section, or is received from a federal enforcement agency, the director, or appropriate prosecuting attorney, may:
   1. Upon a showing that the property as set forth in this section is suited for and likely to be used for law enforcement activities, the plaintiff or law enforcement agency may, with judicial approval, retain it for official use;
   2. Sell that which is not required to be destroyed by law and which is not harmful to the public.
   3. Take custody of the property and remove it for disposition in accordance with law.
6. 1. The director or any peace officer of this state seizing any of the property described in paragraphs (1) and (2) of subsection (a) of this section shall cause a written inventory to be made and maintain custody of the same until all legal actions have been exhausted unless such property has been placed in lawful custody of a court or state or federal law enforcement agency. After all legal actions have been exhausted with respect to such property, the property shall be surrendered by the court, law enforcement agency, or person having custody of the same to the director to be destroyed pursuant to paragraph (2) of this subsection. The property shall be accompanied with a written inventory on forms furnished by the director. (f)(1) The director or any peace officer of this state seizing any of the property described in paragraphs (1) and (2) of subsection (a) of this section shall cause a written inventory to be made and maintain custody of the same until all legal actions have been exhausted unless such property has been placed in lawful custody of a court or state or federal law enforcement agency. After all legal actions have been exhausted with respect to such property, the property shall be surrendered by the court, law enforcement agency, or person having custody of the same to the director to be destroyed pursuant to paragraph (2) of this subsection. The property shall be accompanied with a written inventory on forms furnished by the director.
   2. All property described in paragraphs (1) and (2) of subsection (a) of this section that is seized or surrendered under the provisions of this act may be destroyed after all legal actions have been exhausted. The destruction shall be done under the supervision of the Idaho state police by a representative of the office of the director. An official record listing the property destroyed and the location of destruction shall be kept on file at the office of the director. Except, however, that the director of the Idaho state police or his designee may authorize the destruction of drug or nondrug evidence, or store those items at government expense when, in the opinion of the director or his designee, it is not reasonable to remove or transport such items from the location of the seizure for destruction. In such case, a representative sample will be removed and preserved for evidentiary purposes and, when practicable, destroyed as otherwise is in accordance with this chapter. On-site destruction of such items shall be witnessed by at least two (2) persons, one (1) of whom shall be the director or his designee who shall make a record of the destruction.
7. Species of plants from which controlled substances in schedules I and II may be derived that have been planted or cultivated in violation of this act, or of which the owners or cultivators are unknown, or that are wild growths, may be seized and summarily forfeited to the state.
8. The failure, upon demand by the director, or his duly authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
9. The director shall have the authority to enter upon any land or into any dwelling pursuant to a search warrant, to cut, harvest, carry off or destroy such plants described in subsection (g) of this section.
10. On or before March 31, 2019, and by March 31 of each year thereafter, each state or local law enforcement agency in this state that has seized or forfeited property pursuant to this section shall retain the following information from the previous calendar year:
    1. Name of the law enforcement agency that seized the property;
    2. Date of seizure;
    3. Type and description of property seized, including make, model, year, and serial number, if applicable;
    4. Crime, if any, for which the suspect has been charged, including whether such crime is a violation of state or federal law;
    5. Criminal case number, if any;
    6. Outcome, if any, of suspect’s case;
    7. If forfeiture was not processed under state law, the reason for the federal transfer, if known;
    8. Forfeiture case number;
    9. Date of forfeiture decision;
    10. Whether there was a forfeiture settlement agreement;
    11. Date and outcome of property disposition as described by one (1) of the following: returned to owner, partially returned to owner, sold, destroyed, or retained by law enforcement; and
    12. Value of the property forfeited based on the value realized, if sold, or a reasonable good faith estimate of the value, if possible.

Mere presence or possession of United States currency, without other indicia of criminal activity, is insufficient cause for seizure.

(I) Upon each owner or party in interest by mailing a copy of the complaint and summons by certified mail to the address as given upon the records of the appropriate department.

(II) Upon each owner or party in interest whose name and address is known, by mailing a copy of the notice by registered mail to the last known address.

(I) At the hearing any owner who has a verified answer on file may show by competent evidence that the conveyance was not used or intended to be used in any manner described in subsection (a)(4) of this section.

(II) At the hearing any owner who has a verified answer on file may show by competent evidence that his interest in the conveyance is not subject to forfeiture because he did not know that the conveyance was being used, had been used, was intended to be used or had been intended to be used in any manner described in subsection (a)(4) of this section.

(III) If the court finds that the property was not used or was not intended to be used in violation of this act, or is not subject to forfeiture under this act, the court shall order the property released to the owner as his right, title, or interest appears on records in the appropriate department as of the seizure.

(IV) An owner, co-owner or claimant of any right, title, or interest in the conveyance may prove that his right, title, or interest, whether under a lien, mortgage, conditional sales contract or otherwise, was created without any knowledge or reason to believe that the conveyance was being used, had been used, was intended to be used, or had been intended to be used for the purpose alleged; (i) In the event of such proof, the court shall order the conveyance released to the bona fide or innocent owner, purchaser, lienholder, mortgagee, or conditional sales vendor.

1. To the director, or appropriate prosecuting attorney, for all expenditures made or incurred by him in connection with the sale, including expenditure for any necessary repairs, storage, or transportation of the conveyance, and for all expenditures made or incurred by him in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling and investigation.
2. To the law enforcement agency of this state which seized the conveyance for all expenditures for traveling, investigation, storage and other expenses made or incurred after the seizure and in connection with the forfeiture of any conveyance seized under this act.
3. The remainder, if any, to the director for credit to the drug and driving while under the influence enforcement donation fund or to the appropriate prosecuting attorney for credit to the local drug enforcement donation fund, or its equivalent.
   1. To the director, or prosecuting attorney on behalf of the county or city law enforcement agency, for all expenditures made or incurred in connection with the sale, including expenditure for any necessary repairs, maintenance, storage or transportation, and for all expenditures made or incurred in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling and investigation.
   2. To the law enforcement agency of this state which seized the property for all expenditures for traveling, investigation, storage and other expenses made or incurred after the seizure and in connection with the forfeiture of any property seized under this act. (C) The remainder, if any, to the director for credit to the drug and driving while under the influence enforcement donation fund or to the appropriate prosecuting attorney for credit to the local agency’s drug enforcement donation fund; or

The director, or appropriate prosecuting attorney, shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community or locality where the sale is to take place at least one (1) week prior to sale of the property. The proceeds from such sale shall be distributed as follows in the order indicated:

Local law enforcement agencies shall submit the information required by this subsection to the county prosecutor for its jurisdiction on a form as promulgated in rule by the Idaho state police, and such prosecutor shall retain the form for a period of seven (7) years.

§ 37-2744A. Real property subject to forfeiture.

1. Any real property, including any interest therein and any appurtenances thereto or improvements thereon, which is used in any manner or part, to commit or to facilitate the commission of a violation of the provisions of this chapter punishable by more than one (1) year of imprisonment, shall be subject to forfeiture under the provisions of this section.
2. Property subject to forfeiture under the provisions of this section may be seized by the director upon determining that a parcel of property is subject to forfeiture, by filing a notice of forfeiture with the recorder of the county in which the property or any part thereof is situated. The notice must contain a legal description of the property sought to be forfeited; provided, however, that in the event the property sought to be forfeited is part of a greater parcel, the director may, for the purposes of this notice, use the legal description of the greater parcel. The director shall also send by certified mail a copy of the notice of forfeiture to any persons holding a recorded interest or of whose interest the director has actual knowledge. The director shall post a similar copy of the notice conspicuously upon the property and publish a copy thereof once a week for three (3) consecutive weeks immediately following the seizure in a newspaper published in the county. The owner or party in lawful possession of the property sought to be forfeited may retain possession and use thereof and may collect and keep income from the property while the forfeiture proceedings are pending.
3. In the event of a seizure pursuant to subsection (a) of this section, a complaint instituting forfeiture proceedings under subsection (d) of this section shall be filed in the district court in the county in which the real property is situated within ninety (90) days of the date of seizure. The complaint shall be served in the same manner as other complaints subject to the Idaho rules of civil procedure on all persons having an interest in the real property sought to be forfeited.
4. Real property sought to be forfeited under the provisions of this section shall not be subject to an action for detainer or any other collateral action, but is deemed to be in the custody of the director subject only to the orders and decrees of the district court having jurisdiction over the forfeiture proceedings. Forfeiture proceedings shall be civil proceedings in which the burden of proof shall be on the director to prove by a preponderance of the evidence that the property sought to be forfeited is subject to forfeiture. Upon being satisfied that an owner or claimant as defined in paragraph (4) of this subsection should not be subjected to forfeiture because that person had no knowledge or reason to believe that the real property was being used or had been used for the purposes alleged by the department, the director shall release the property to the owner or other claimant. The procedure applicable to such cases shall be the same as that prescribed by the Idaho rules of civil procedure. Following service the director may, where appropriate, seek default judgment pursuant to the Idaho rules of civil procedure. If an answer is filed the court shall proceed to set the case for hearing before the court without a jury.
   1. Following the hearing, if the court finds that the property is subject to forfeiture pursuant to subsection (a) of this section the court shall order the property forfeited to the director and title shall vest as of the date of the original seizure.
   2. Following the hearing, if the court finds that the property is not subject to forfeiture pursuant to subsection (a) of this section, the court shall order the property released to the owner or owners thereof.
   3. Any owner who has an answer on file may show by competent evidence that his interest in the property sought to be forfeited is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the real property was being used, or had been used in any manner in violation of the provisions of this section. If the court finds that the property was not used in violation of the provisions of this section or is not subject to forfeiture under the provisions of this section, the court shall order the property released to the owner.
   4. An owner, co-owner or claimant of any right, title or interest in the real property sought to be forfeited may prove that his right, title or interest, whether under a lien, mortgage, or otherwise, was created without any knowledge or reason to believe that the real property was being used or had been used for the purposes alleged by the department;
      1. In the event of such proof, the court shall order the real property released to the innocent owner, purchaser, lienholder or mortgagee.
      2. If the amount due to such person is less than the value of the real property, the real property may be sold in a commercially reasonable manner by the director. The proceeds from such sale shall be distributed as follows in the order indicated:
         1. To the innocent owner, purchaser or mortgagee of the real property, if any, up to the value of his interest in the real property.
         2. The balance, if any, in the following order:
            1. To the director for all expenditures made or incurred by the department in connection with the sale, including expenditure for any necessary repairs or maintenance of the real property, and for all expenditures made or incurred by the department in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, travel, investigation, title company fees and insurance premiums.
            2. The remainder, if any, to the director for credit to the drug [and driving while under the influence] enforcement donation account.
5. In issuing any order under the provisions of this section, the court shall make a determination that the property, or a portion thereof, was actually used in violation of the provisions of this act. The size of the property forfeited shall not be unfairly disproportionate to the size of the property actually used in violation of the provisions of this section.
6. When property is forfeited under the provisions of this section the director may:
   1. Retain it for official use; or
   2. Sell the property in a commercially reasonable manner. The proceeds shall be distributed by the director as follows:
      1. To reimburse for all expenditures made or incurred in connection with the sale, including expenditures for any necessary repairs or maintenance, and for all expenditures made or incurred in connection with the forfeiture proceedings including, but not limited to, expenditures for attorneys’ fees, title company fees, insurance premiums, recording costs, witnesses’ fees, reporters’ fees, transcripts, printing, travel and investigation.
      2. The remainder, if any, shall be credited to the drug [and driving while under the influence] enforcement donation account.

(C) In any case, the director may, within thirty (30) days after judgment, pay the balance due to the innocent owner, purchaser, lienholder or mortgagee and thereby purchase the real property for use in the enforcement of this act.

§ 37-2745. Burden of proof — Liabilities.

1. It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under the provisions of this act. The burden of proof of any exemption or exception is upon the person claiming it.
2. In the absence of proof that a person is the duly authorized holder of an appropriate registration, valid prescription, or order form issued under the provisions of this act, he is presumed not to be the holder of the registration, valid prescription or form. The burden of proof is upon him to rebut the presumption.
3. In all prosecutions under the provisions of this act involving the analysis of a controlled substance or a sample thereof, a certified copy of the analytical report with the notarized signature of the bureau chief of the Idaho forensic laboratory and the criminalist who conducted the analysis shall be accepted as prima facie evidence of the results of the analytical findings.
4. Notwithstanding any statute or rule to the contrary, the defendant may subpoena the criminalist to testify at the preliminary hearing and trial of the issue at no cost to the defendant.
5. No liability is imposed under the provisions of this act upon any authorized state, county or municipal officer, engaged in the lawful performance of his duties.

§ 37-2747. Education and research.

1. The director or his authorized agent shall carry out educational programs designed to prevent and deter misuse and abuse of controlled substances. In connection with these programs he may:
   1. Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations;
   2. Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances;
   3. Consult with interested groups and organizations to aid them in solving administrative and organizational problems;
   4. Evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances;
   5. Disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them; and
   6. Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances.
2. The director shall encourage research on misuse and abuse of controlled substances. In connection with the research, and in furtherance of the enforcement of this act, he may:
   1. Establish methods to assess accurately the effects of controlled substances and identify and characterize those with potential for abuse;
   2. Make studies and undertake programs of research to:
      1. Develop new or improved approaches, techniques, systems, equipment and devices to strengthen the enforcement of this act;
      2. Determine patterns of misuse and abuse of controlled substances and the social effects thereof; and
      3. Improve methods for preventing, predicting, understanding and dealing with the misuse and abuse of controlled substances; and
   3. Enter into contracts with public agencies, institutions of higher education, and private organizations or individuals for the purpose of conducting research, demonstrations, or special projects which bear directly on misuse and abuse of controlled substances.
3. The director may enter into contracts for educational and research activities without performance bonds.
4. The director may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of individuals who are the subjects of the research. Persons who obtain this authorization are not compelled in any civil, criminal, administrative, legislative, or other proceeding to identify the individuals who are the subjects of research for which the authorization was obtained.
5. The director may authorize the possession and distribution of controlled substances by persons lawfully engaged in education and research. Persons who obtain this authorization are exempt from state prosecution for possession and distribution of controlled substances to the extent of the authorization.

§ 37-2748. Pending proceedings.

1. Prosecution for any violation of law occurring prior to the effective date of this act is not affected or abated by this act. If the offense being prosecuted is similar to one set out in article IV of this act, then the penalties under article IV apply if they are less than those under prior law.
2. Civil seizures or forfeitures and injunctive proceedings commenced prior to the effective date of this act are not affected by this act.
3. All administrative proceedings pending under prior laws which are superseded by this act shall be continued and brought to a final determination in accord with the laws and rules in effect prior to the effective date of this act. Any substance controlled under prior law which is not listed within schedules I through V, is automatically controlled without further proceedings and shall be listed in the appropriate schedule.
4. The board shall initially permit persons to register who own or operate any establishment engaged in the manufacture, distribution, or dispensing of any controlled substance prior to the effective date of this act and who are registered or licensed by the state.
5. This act applies to violations of law, seizures and forfeiture, injunctive proceedings, administrative proceedings and investigations which occur following its effective date.

§ 37-2749. Continuation of rules.

Any orders and rules promulgated under any law affected by this act and in effect on the effective date of this act and not in conflict with it continue in effect until modified, superseded or repealed.

§ 37-2750. Uniformity of interpretation.

This act shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this act among those states which enact it.

§ 37-2751. Short title.

This act may be cited as the “Uniform Controlled Substances Act.”

§ 37-2801. Property subject to criminal forfeiture.

Any person who is found guilty of, who enters a plea of guilty, or who is convicted of a violation of the uniform controlled substances act, chapter 27, title 37, Idaho Code, punishable by imprisonment for more than one (1) year, no matter the form of the judgment or order withholding judgment, shall forfeit to the state of Idaho:

1. Any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
2. Any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of such violation.

The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to chapter 27, title 37, Idaho Code, that the person forfeit to the state of Idaho all property described in this section. The provisions of this chapter shall not be construed or interpreted in any manner to prevent the state of Idaho, attorney general or the appropriate prosecuting attorney from requesting restitution pursuant to section 37-2732(k), Idaho Code; or, if appropriate, from pursuing civil forfeiture pursuant to section 37-2744 and/or section 37-2744A, Idaho Code. Nor shall an order of forfeiture pursuant to this chapter be used as an offset against, or in any manner be used to diminish the amount of, a restitution order under section 37-2732(k), Idaho Code. The issue of criminal forfeiture shall be for the court alone, without submission to a jury, as a part of the sentencing procedure within the criminal action.

§ 37-2802. Property subject to forfeiture.

“Property” subject to criminal forfeiture under this chapter includes:

1. Real property, including things growing on, affixed to, or found on the land; and
2. Tangible and intangible personal property, including rights, privileges, interests, claims and securities.

§ 37-2803. Inventory.

Any peace officer of this state seizing property subject to forfeiture under the provisions of this chapter shall cause a written inventory to be made and maintain custody of the same until all legal actions have been exhausted. A copy of the inventory shall be sent, within five (5) days of the seizure, to the director of the Idaho state police. Upon completion of the forfeiture action pursuant to this chapter, a final inventory shall be made which indicates the disposition of the seized property, and a copy of that inventory shall also be sent to the director of the Idaho state police.

§ 37-2804. Forfeiture request — Rebuttable presumption.

Property subject to criminal forfeiture under this chapter shall not be ordered forfeited unless the attorney general or the appropriate prosecuting attorney has filed a separate allegation within the criminal proceeding seeking forfeiture of specific property as described in section 37-2801, Idaho Code. The attorney general or appropriate prosecuting attorney shall file, within fourteen (14) days of the filing of the criminal information or indictment, a separate part II forfeiture request and notice with the trial court.

There is a rebuttable presumption that any property of a person subject to the provisions of section 37-2801, Idaho Code, is subject to forfeiture under this chapter if the state of Idaho establishes by a preponderance of the evidence that:

1. The property was acquired by a person during the period of the violation of chapter 27, title 37, Idaho Code, or within a reasonable time after such violation; and
2. There was no likely source for such property other than the violation of chapter 27, title 37, Idaho Code.

§ 37-2805. Preservation of property — Warrant of seizure — Protective orders.

1. Upon application of the state of Idaho, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in section 37-2801, Idaho Code, for forfeiture under this chapter upon the filing of an indictment or information charging a violation of the uniform controlled substance act for which criminal forfeiture may be ordered and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this chapter.
2. The state may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this chapter in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (1) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property by the appropriate law enforcement agency upon such terms and conditions as the court shall deem proper.
3. The court may, upon application of the state of Idaho, enter such appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the state of Idaho in the property subject to forfeiture. Any income accruing to or derived from property subject to forfeiture under this chapter may be used to offset ordinary and necessary expenses to the property which are required by law, or which are necessary to protect the interests of the state of Idaho or third parties.

§ 37-2806. Institution of proceedings — Third parties.

Upon the filing of a part II forfeiture request pursuant to section 37-2804, Idaho Code, or in the event of seizure pursuant to a warrant of seizure, or upon entry of an order of forfeiture pursuant to section 37-2801, Idaho Code, the attorney general or appropriate prosecuting attorney shall, if appropriate, institute proceedings pursuant to sections 37-2807 or 37-2808, Idaho Code, or both, within five (5) days of such event.

§ 37-2807. Personal property — Rights of third parties.

1. Within five (5) days of any of the events specified in section 37-2806, Idaho Code, notice, including a copy of the request for forfeiture, shall be given to each co-owner or party in interest who has or claims any right, title or interest in any of such personal property according to one (1) of the following methods:
   1. Upon each co-owner of or party in interest in a titled motor vehicle, aircraft or other conveyance, by mailing notice by certified mail to the address of each co-owner and party in interest as given upon the records of the appropriate department of state or federal government where records relating to such conveyances are maintained.
   2. Upon each secured party and assignee designated as such in any UCC-1 financing statement on file in an appropriate filing office covering any personal property sought to be forfeited, by mailing notice by certified mail to the secured party and the assignee, if any, at their respective addresses as shown on such financing statement.
   3. Upon each co-owner or party in interest whose name and address is known, by mailing notice by registered mail to the last known address of such person.
2. Within twenty (20) days after the mailing of the notice, the co-owner or party in interest may file a verified answer and claim to the property described in the notice.
3. If a verified answer is filed within twenty (20) days after mailing of the notice, the forfeiture proceeding against all co-owners and parties in interest who have filed verified answers shall be set for hearing before the court without a jury on a day not less than sixty (60) days after the mailing of the notice; and the proceeding shall have priority over other civil cases.
   1. At the hearing, any co-owner or party in interest who has a verified answer on file may show by competent evidence that his interest in the titled motor vehicle, aircraft or other conveyance is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the titled motor vehicle, aircraft or other conveyance was being used, had been used or was intended to be used for the purposes described in section 37-2801, Idaho Code.
   2. A co-owner, or claimant of any right, title, or interest in the property may prove that his right, title or interest, whether under a lien, mortgage, security agreement, conditional sales contract or otherwise, was created without any knowledge or reason to believe that the property was being used, had been used or was intended to be used for the purpose alleged;
      1. In the event of such proof, the court shall order that portion of the property or interest released to the bona fide or innocent co-owner, purchaser, lienholder, mortgagee, secured party or conditional sales vendor.
      2. If the amount due to such person is less than the value of the property, the property may be sold at public auction or in another commercially reasonable method by the attorney general or appropriate prosecuting attorney. If sold at public auction, the attorney general, or appropriate prosecuting attorney, shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community or locality where the sale is to take place at least one (1) week prior to sale of the property. The proceeds from such sale shall be distributed as follows in the order indicated:
         1. To the bona fide or innocent co-owner, purchaser, conditional sales vendor, lienholder, mortgagee or secured party of the property, if any, up to the value of his interest in the property. 2. The balance, if any, in the following order:
            1. To the attorney general or appropriate prosecuting attorney, for all expenditures made or incurred by them in connection with the sale, including expenditure for any necessary repairs, storage or transportation of the property, and for all expenditures made or incurred by him in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling and investigation.
            2. To the law enforcement agency of this state which seized the property for all expenditures for traveling, investigation, storage and other expenses made or incurred after the seizure and in connection with the forfeiture of any property seized under this chapter.
            3. The remainder, if any, to the director of the Idaho state police for credit to the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code, or to the appropriate prosecuting attorney for credit to the local drug enforcement donation fund, or its equivalent.

3. Notwithstanding any other provision of this section, upon being satisfied that the interest of a co-owner or claimant should not be subject to forfeiture because they neither knew nor should have known that the personal property was being used or had been used for the purposes alleged, or that due to preexisting security interests in such property there is no equity which may be forfeited, the attorney general or appropriate prosecuting attorney may release the property to the co-owner, holder of the security interest, or other claimant.

4. In any case, the attorney general, or appropriate prosecuting attorney, may, within thirty (30) days after order of forfeiture, pay the balance due to the bona fide lienholder, mortgagee, secured party or conditional sales vendor and thereby purchase the property for use to enforce this chapter.

§ 37-2808. Real property — Rights of third parties.

1. Real property subject to forfeiture under the provisions of this chapter may be seized by the attorney general or appropriate prosecuting attorney upon determining that a parcel of property is subject to forfeiture, by filing a notice of seizure with the recorder of the county in which the property or any part thereof is situated. The notice must contain a legal description of the property sought to be forfeited; provided however, that in the event the property sought to be forfeited is part of a greater parcel, the attorney general or appropriate prosecuting attorney may, for the purposes of this notice, use the legal description of the greater parcel. The attorney general or appropriate prosecuting attorney shall also send by certified mail a copy of the notice of seizure to any persons holding a recorded interest or of whose interest the attorney general or appropriate prosecuting attorney has actual knowledge. The attorney general or appropriate prosecuting attorney shall post a similar copy of the notice conspicuously upon the property and publish a copy thereof once a week for three (3) consecutive weeks immediately following the seizure in a newspaper published in the county. The co-owner or party in lawful possession of the property sought to be forfeited may retain possession and use thereof and may collect and keep income from the property while the forfeiture proceedings are pending.
2. In the event of a seizure pursuant to subsection (1) of this section, a request for forfeiture shall be filed with the trial court within the time limit imposed by section 37-2804, Idaho Code. The request shall be served in the same manner as complaints subject to the Idaho rules of civil procedure on all persons having an interest in the real property sought to be forfeited.
3. Notwithstanding any other provision of this section, upon being satisfied that the interest of a co-owner or claimant should not be subject to forfeiture because they neither knew nor should have known that the real property was being used or had been used for the purposes alleged, or that due to preexisting security interests in such property there is no equity which may be forfeited, the attorney general or appropriate prosecuting attorney may release the property to the co-owner, holder of the security interest, or other claimant.
4. Within twenty (20) days of the mailing of the notice, the co-owner or party in interest may file a verified answer and claim to the property described in the notice.
5. If a verified answer is filed within twenty (20) days after mailing of the notice, the forfeiture proceeding against all co-owners and parties in interest who have filed verified answers shall be set for hearing before the court without a jury on a day not less than sixty (60) days after the mailing of the notice; and the proceeding shall have priority over other civil cases.
   1. A co-owner, or claimant of any right, title or interest in the real property sought to be forfeited may prove that his right, title or interest, whether under a lien, mortgage, deed of trust or otherwise, was created without any knowledge or reason to believe that the real property was being used or had been used for the purposes alleged; (b) Any co-owner who has a verified answer on file may show by competent evidence that his interest in the property sought to be forfeited is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the real property was being used, or had been used in any manner in violation of the provisions of section 37-2801, Idaho Code.
6. In the event of such proof, the court shall order the release of the interest of the co-owner, purchaser, lienholder, mortgagee or beneficiary.
   1. If the amount due to such person is less than the value of the real property, the real property may be sold in a commercially reasonable manner by the attorney general or appropriate prosecuting attorney. The proceeds from such sale shall be distributed as follows in the order indicated:
      1. To the innocent co-owner, purchaser, mortgagee or beneficiary of the real property, if any, up to the value of his interest in the real property.
      2. The balance, if any, in the following order:
         1. To the attorney general or appropriate prosecuting attorney for all expenditures made or incurred in connection with the sale, including expenditure for any necessary repairs or maintenance of the real property, and for all expenditures made or incurred in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, travel, investigation, title company fees and insurance premiums.
         2. The remainder, if any, to the director of the Idaho state police for credit to the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code.
   2. In any case, the attorney general or appropriate prosecuting attorney may, within thirty (30) days after the order of forfeiture, pay the balance due to the innocent co-owner, purchaser, lienholder, mortgagee or beneficiary and thereby purchase the real property for use in the enforcement of this chapter.

§ 37-2809. Proportionality.

In issuing any order under the provisions of this chapter, the court shall make a determination that the property, or a portion thereof in the case of real property, was actually used in violation of the provisions of this chapter. The size of the property forfeited shall not be unfairly disproportionate to the size of the property actually used in violation of the provisions of this chapter.

§ 37-2810. Authority of the attorney general.

With respect to property ordered forfeited under this chapter, the attorney general or appropriate prosecuting attorney is authorized to:

1. Restore forfeited property to victims of a violation of this chapter, or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with the provisions of this chapter;
2. Compromise claims arising under this chapter;
3. Award compensation to persons providing information resulting in a forfeiture under this chapter; and
4. Take appropriate measures necessary to safeguard and maintain property ordered forfeited under this chapter pending its disposition.

§ 37-2811. Bar on intervention.

Except as provided in sections 37-2807 and 37-2808, Idaho Code, no party claiming an interest in property subject to forfeiture under this section may:

1. Intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this chapter; or
2. Commence an action at law or equity against the state of Idaho concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this chapter.

§ 37-2812. Jurisdiction — Depositions.

The district courts of the state of Idaho shall have jurisdiction over:

1. Property for which forfeiture is sought that is within the state at the time the action is filed; or
2. The interest of a co-owner or interest holder in the property if the co-owner or interest holder is subject to personal jurisdiction in this state.

In order to facilitate the identification and location of property declared forfeited after the entry of an order declaring property forfeited to the state of Idaho, the court may, upon application of the state of Idaho, order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged be produced at the same time and place, in the same manner as provided for the taking of depositions under rule 26 of the Idaho rules of civil procedure.

§ 37-2813. Disposition of property.

On the motion of a party and after notice to any persons who are known to have an interest in the property and an opportunity to be heard, the court may order property that has been seized for forfeiture sold, leased, rented or operated to satisfy an interest of any interest holder who has timely filed a proper claim or to preserve the interests of any party. The court may order a sale or any other disposition of the property if the property may perish, waste, be foreclosed on or otherwise be significantly reduced in value or if the expenses of maintaining the property are or will become greater than its fair market value. If the court orders a sale, the court shall designate a third party or state property manager to dispose of the property by public sale or other commercially reasonable method and shall distribute the proceeds in the following order of priority:

1. Payment of reasonable expenses incurred in connection with the sale.
2. Satisfaction of exempt interests in the order of their priority.
3. Preservation of the balance, if any, in the actual or constructive custody of the court in an interest-bearing account, subject to further proceedings under this chapter.

When property is forfeited under this chapter, the attorney general or appropriate prosecuting attorney, may:

(1) Retain it for official use; and/or

(2) Sell that which is not required to be destroyed by law and which is not harmful to the public, pursuant to section 37-2807 or 37-2808, Idaho Code.

§ 37-2814. Forfeiture of substitute property.

If any of the property described in section 37-2801, Idaho Code, as a result of any act or omission of the defendant:

1. Cannot be located upon the exercise of due diligence;
2. Has been transferred or sold to, or deposited with, a third party;
3. Has been placed beyond the jurisdiction of the court;
4. Has been substantially diminished in value; or
5. Has been commingled with other property which cannot be divided without difficulty;

the court shall order the forfeiture of any other property of the defendant up to the value of any property described in section 37-2801, Idaho Code.

§ 37-2815. Construction.

The provisions of this section [chapter] shall be liberally construed to effectuate its remedial purposes.

§ 37-2901 — 37-2906. Licensing and dispensing of narcotics — Regulation. [Repealed.]

§ 37-3001 — 37-3045. Persons authorized to dispense narcotics — False or fictitious prescriptions prohibited — Regulation of prescriptions — Dispensing without valid license prohibited. [Repealed.]

§ 37-3101. Definitions.

For the purposes of this act, unless the context clearly indicates a contrary intent:

1. “Physician” means a person licensed to practice medicine or surgery in this state as provided for under chapter 18, title 54, Idaho Code.
2. “Hospital” means a public or private institution licensed pursuant to the laws of this state as provided for under chapter 13, title 39, Idaho Code.
3. “Drug” means a narcotic or hallucinogenic drug as defined in sections 37-2702, 37-2703, and subsection (c) of section 37-3301, Idaho Code.

§ 37-3102. Request for treatment and rehabilitation — Information confidential.

A person may request treatment and rehabilitation for addiction or dependency to any drug, as defined in section 37-3101[, Idaho Code], from a physician qualified to administer such treatment under the provisions of this act; and such physician or any employee or person acting under his direction or supervision shall not report or disclose the name of such person or the fact that treatment was requested or has been undertaken to any law enforcement officer or agency; nor shall such information be admissible as evidence in any court, grand jury, or administrative proceeding unless authorized by the person seeking treatment. A physician may undertake the treatment and rehabilitation of such person or refer such person to another physician or hospital for such purpose. If the person seeking such treatment or rehabilitation is sixteen (16) years of age or older, the fact that such person sought treatment or rehabilitation for such drug addiction or dependency, or that he is receiving such treatment or rehabilitation service, shall not be reported or disclosed to the parents or legal guardian of such person without his consent, and such person who may give legal consent to receive such treatment and rehabilitation under the provisions of this act shall be counseled as to the benefits of involving his parents or legal guardian in his treatment or rehabilitation.

§ 37-3103. Treatment or rehabilitation — Procedures.

A person seeking treatment or rehabilitation for drug addiction or dependency shall first be examined and evaluated by a physician. Such a physician shall prescribe a proper course of treatment and medication, if needed. The treating physician may further prescribe a course of treatment or rehabilitation and authorize another physician or hospital to provide the prescribed treatment or rehabilitation services. Treatment or rehabilitation services may be provided to a person individually or in a group. Any hospital participating in such treatment or rehabilitation shall not report or disclose to a law enforcement officer or agency the name of any person receiving or engaging in such treatment or rehabilitation, nor shall any person receiving or participating in such treatment or rehabilitation report or disclose the name of any other person engaged in or receiving such treatment or rehabilitation, or that such a program is in existence, to a law enforcement officer or agency. However, any person engaged in or receiving such treatment or rehabilitation may authorize the disclosure of his name and individual participation.

§ 37-3104. Use of drugs by physician in treatment.

A physician may use any drug or medicine which shall be authorized or released by a federal agency or authority with jurisdiction to so act; providing that the physician adheres to the criterion for the use of such drug or medicine as established by the federal agency or authority with jurisdiction to so act. Such drug or medicine may be used to treat any person addicted to or dependent on drugs as the physician or hospital deems appropriate, subject to the provisions of this act.

§ 37-3105. Reports — Form.

Every physician that provides treatment or rehabilitation services to a person addicted to or dependent upon drugs shall each quarter of every year, commencing July 1, 1971, make a statistical report to the director of the department of health and welfare or his designee in such form and manner as the director of the department of health and welfare shall prescribe for each such person treated or to whom rehabilitation services were provided during the preceding quarter. The form of the report prescribed shall be furnished by the director of the department of health and welfare and be so designated that a carbon copy shall be sent quarterly to the director of the Idaho state police and the state board of pharmacy; the report shall include the doctor’s signature. The name or address of any person treated or to whom rehabilitation services were provided shall not be reported.

§ 37-3106 — 37-3110. Reports concerning treatment of addicts. [Repealed.]