§ 6825 — Proof required in prosecution for certain violations

§ 6825. Proof required in prosecution for certain violations. 1. In\nan action or proceeding, civil or criminal, against a person for\nviolating such provisions of this article which relate to the possession\nof, compounding, retailing or dispensing of misbranded, substituted or\nimitated drugs, poisons or cosmetics, when it shall be necessary that an\nanalysis be made for the purpose of establishing the quality of such\ndrug, poison or cosmetic so as to determine the fact of misbranding,\nsubstituting or imitating, then it shall be required to prove at the\ntrial or hearing of such action or proceeding, that the person, taking\nthe same for analysis separated it into two representative parts,\nhermetically or otherwise effectively and completely sealed, delivered\none such sealed part to the seller, manufacturer, wholesaler,\npharmacist, or druggist from whose premises such sample was taken and\ndelivered the other part so sealed to the chemist designated by the\nstate board of pharmacy; and the facts herein required to be proven\nshall be alleged in the complaint or information by which such action or\nproceeding was begun. The rules of the board shall be proven prima facie\nby the certificate of the secretary.\n 2. Any person accused of violation of any of the provisions of this\narticle relating to adulterating, misbranding, substitution or imitation\nshall not be prosecuted or convicted or suffer any of the penalties,\nfines or forfeitures for such violation, if he establishes upon the\nhearing or trial that the drug, device or cosmetic alleged to be\nadulterated, misbranded, substituted or imitated was purchased by him\nunder a written guaranty of the manufacturer or seller to the effect\nthat said drug, device or cosmetic was not adulterated or misbranded,\nwithin the meaning of this article and proves that he has not\nadulterated, misbranded, substituted or imitated the same, provided the\nseller has taken due precaution to maintain the standard set for the\ndrug, device or cosmetic. A guaranty, in order to be a defense to a\nprosecution or to prevent conviction or to afford protection, must state\nthat the drug, device or cosmetic to which it refers is not adulterated,\nmisbranded, substituted or imitated within the meaning of the provisions\nof this article and must state also the full name and place of business\nof the manufacturer, wholesaler, jobber or other person from whom the\ndrug, device or cosmetic was purchased, and the date of purchase. The\nact, omission or failure of any officer, agent or other employee acting\nfor or employed by any person within the scope of his authority or\nemployment shall in every case be the act, omission or failure of such\nperson as well as that of the officer, agent or other employee, and such\nperson shall be equally liable for violations of this article by a\npartnership, association or corporation, and every member of the\npartnership or association and the directors and general officers of the\ncorporation and the general manager of the partnership, association or\ncorporation shall be individually liable and any action, prosecution or\nproceeding authorized by this article may be brought against any or all\nof such persons. When any prosecution under this article is made on the\ncomplaint of the board, any fines collected shall be paid into the state\ntreasury as provided by this article.\n 3. No publisher, radio-broadcast licensee, advertising agency, or\nagency or medium for the dissemination of advertising, except the\nmanufacturer, packer, distributor, or seller of the commodity to which\nthe false advertisement relates, shall be subject to the penalties\nprovided by this article by reason of the dissemination by him of any\nfalse advertisement, unless he has refused, on the request of the\nsecretary, to furnish the secretary the name and post-office address of\nthe manufacturer, packer, distributor, seller or advertising agency, who\ncaused him to disseminate such advertisement.\n