53-3-201 - Part definitions and general provisions. - Tennessee Statutes

53-3-201. Part definitions and general provisions.

As used in this part, unless the context otherwise requires:

     (1)  “Bulk milk” means milk in bulk form that is furnished to a processor for the purpose of processing and manufacturing into milk products;

     (2)  “Commissioner” means the commissioner of agriculture;

     (3)  (A)  “Cost to the processor or distributor” means the actual cost of bulk milk and other ingredients, plus the cost of doing business properly allocable to each item covered by the term “milk products,” which cost of doing business includes, but is not limited to, labor, employee salaries, rent, maintenance and depreciation on real and personal property, shrinkage, interest, power, supplies, advertising, transportation and delivery costs, credit losses, all permits and license fees, all taxes, insurance and any and all other overhead expenses;

          (B)  In the absence of proof to the contrary, the actual cost of bulk milk shall be presumed to be the cost as established by a federal marketing order effective in the area, or, if higher, the price established by a producer cooperative; or, in the absence of either, then the price that is effective in the nearest marketing area covered by a federal marketing order; and

          (C)  The profit derived from the sale of one (1) product, whether the product is one of those included in the term “milk products,” or some other product, shall not be utilized in cost computations as a credit to, or deductions from, the cost of doing business properly allocable to any product embraced by the term milk products, so as to subsidize or lower the cost of doing business with respect to the milk products;

     (4)  (A)  “Cost to the retailer” means the invoice price paid by the retailer for milk products, plus that portion of the retailer's overhead or cost of doing business properly allocable to the milk products, which cost of doing business shall include the same items of expense as are enumerated in the definition of cost to the processor or distributor in subdivision (3);

          (B)  In the absence of specific evidence, the cost of doing business of a retailer shall be presumed to be ten percent (10%) of the invoice price, this cost to be calculated to the nearest whole cent on each sales unit; and

          (C)  The cost of doing business of a retailer includes the fair value of any concession, of any kind whatever, that has the effect of reducing the actual sales price or increasing the cost of the goods delivered for the price stated in the invoice, including, but not limited to, the cost to the retailer of trading stamps or redeemable coupons;

     (5)  “Distributor” means any person engaged in the business of selling or offering for sale within the state milk products for consideration, where the property is sold for the purpose of resale or further processing, or is to be used or consumed by the purchaser and not resold or used for the purpose of further processing;

     (6)  “Milk products” means all or any one (1) of the following: market milk, pasteurized milk, vitamin-D milk, homogenized milk, flavored milk or flavored milk drinks, sweet cream, whipping cream, homogenized cream, skim milk, cottage cheese, buttermilk, and cultured buttermilk, as those products are defined by the commissioner under § 53-3-104, bulk milk as defined in this section, and all other products offered for sale by a milk processor or distributor, derived, in whole or in part, from milk, and frozen desserts, as described and defined by the commissioner under § 53-3-104;

     (7)  “Person” means and includes one (1) or more individuals, partnerships, associations, incorporated, unincorporated or cooperative, corporations, legal representatives, trustees in bankruptcy, receivers, or any other business unit, or any combination of these, except where the context otherwise requires;

     (8)  “Processor” means any person engaged in the business of processing or packaging bulk milk and other materials into milk products; and

     (9)  “Retailer” means any person, whether or not a processor or distributor, engaged in the business of selling or offering for sale within the state milk products for a consideration, where the milk products are to be used or consumed by the purchaser and are not to be resold or used for the purpose of manufacture or further processing.

[Acts 1955, ch. 74, § 1; 1957, ch. 109, § 1; 1961, ch. 203, § 1; modified; T.C.A., § 52-331; Acts 2005, ch. 300, § 1.]