220 



1965 — Subsec. (a). Pub. L. 89-74, 5 7(a), added the 

 proviso limiting the penalties for depressant or stimulant 

 drug violations to two years imprisonment or $5,000 fine 

 or both for first offense and to two years imprisonment 

 or $15,000 fine or both for subsequent offenses. 



Subsec. (b) Pub. L. 89-74, § 7(b), Inserted the paren- 

 thetical exception provision, 



Subsec. (c). Pub. L. 89-74, §9(d). added cl. (5). 



1960 — Subsec, (c). Pub. L. 86-618 substituted in cl. 

 (3). "a color additive" for "a coal-tar color", "the color 

 additive" for "the coal-tar color" and "such color addi- 

 tive was" for "such color was." 



1951 — Subsec. (c)(4). Act Oct. 26, 1951, added sub- 

 sec. (c) (4) . 



§334. Seirure. 



(a) Grounds and jurisdiction. 



(1) Any article of food, driig, or cosmetic 



that is adulterated or misbranded when introduced 

 into or while in interstate commerce or while held for 

 sale (whether or not the first sale) after shipment 

 in interstate commerce, or which may not, under the 

 provisions of section 344 or 355 of this title, be in- 

 troduced into interstate commerce, shall be liable 

 to be proceeded against while in interstate com- 

 merce, or at any time thereafter, on libel of in- 

 formation and condemned in any district court of 

 the United States or United States court of a Ter- 

 ritory within the jurisdiction of which the article 

 is found: Provided, however. That no libel for 

 condemnation shall be instituted under this chap- 

 ter, for any alleged misbranding if there Is pending 

 In any court a libel for condemnation proceeding 

 under this chapter based upon the same alleged 

 misbranding, and not more than one such pro- 

 ceeding shall be instituted if no such proceeding 

 is so pending, except that such limitations shall not 

 apply (A) when such misbranding has been the basis 

 of a prior judgment In favor of the United States, 

 in a criminal, injunction, or libel for condemnation 

 proceeding under this chapter, or (B) when the Sec- 

 retary has probable cause to believe from facts 

 found, without hearing, by him or any officer of em- 

 ployee of the Department that the misbranded arti- 

 cle Is dangerous to health, or that the labeling of 

 the misbranded article Is fraudulent, or would be in 

 a material respect misleading to the Injury or dam- 

 age of the purchaser or consumer. In any case 

 where the number of libel for condemnation pro- 

 ceedings is limited as above provided the proceeding 

 pending or instituted shall, on application of the 

 claimant, seasonably made, be removed for trial to 

 any district agreed ur)on by stipulation between the 

 parties, or. in case of failure to so stipulate within a 

 reasonable time, the claimant may apply to the 

 court of the district in which the seizure has been 

 made, and such court (after giving the United States 

 attorney for such district reasonable notice and op- 

 portunity to be heard) shall by order, unless good 

 cause to the contrary is shown, specify a district of 

 reasonable proximity to the claimant's principal 

 place of business, to which the case shall be removed 

 for trial. 



(2) The following shall be liable to be proceeded 

 against at any time on libel of information and con- 

 demned In any district court of the United States 

 or United States court of a Territory within the 



jurisdiction of which they are found: (A) Any drug 

 that is a counterfeit drug, <B) Any container of a 

 counterfeit drug, (C) Any punch, die, plate, stone, 

 labeling, container, or other thing used or designed 

 for use in making a counterfeit drug or drugs, and 

 (D) Any adulterated or misbranded device. 



(3) (A) Except as provided in subparagraph (B) , 

 no libel for condemnation may be instituted under 

 paragraph (1) or (2) against any food which — 



(I) is misbranded imder section 403(a) (2) be- 

 cause of its advertising, and 



(II) is being held for sale to the ultimate con- 

 sumer in an establishment other than an estab- 

 lishment owned or operated by a manufacturer, 

 packer, or distributor of the food. 



(B) A libel for condemnation may be instituted 

 under paragraph (1) or (2) against a iood de- 

 scribed in subparagraph (A) if — 



(I) (I) the food's advertising which resulted 

 in the food being misbranded under section 1343 

 was disseminated in the establishment in which 

 the food is being held for sale to the ultimate 

 consumer. 



(II) such advertising was disseminated by, or 

 under the direction of, the owner or operator of 

 such establishment, or 



(III) all or part of the cost of such advertising 

 was paid by such owner or operator; and 



(11) the owner or operator of such establish- 

 ment used such advertising in the establishment 

 to promote the sale of the food. 



(b) Procedure; multiplicity of pending proceedings. 



The article, equipment, or other thing proceeded 

 against shall be liable to seizure by process pursuant 

 to the libel, and the procedure in cases under this 

 section shall conform, as nearly as may be, to the 

 procedure in admiralty; except that on demand 

 of either party any issue of fact joined in any such 

 case shall be tried by jury. When libel for condem- 

 nation proceedings under this section. Involving the 

 same claimant and the same issues of adulteratio.i 

 or misbranding, are pending in two or more jurisdic- 

 tions, such pending proceedings, upon application of 

 the claimant seasonably made to the court of one 

 such jurisdiction, shall be consolidated for trial by 

 order of such court, and tried in (1) any district 

 selected by the claimant where one of such proceed- 

 ings is pending; or i2) a district agreed upon by 

 stipulation between the parties. If no order for con- 

 solidation is so made within a reasonable time, the 

 claimant may apply to the court of one such juris- 

 diction and such court i after giving the United 

 States attorney for such district reasonable notice 

 and opportunity to be heard) shall by order, un- 

 less good cause to the contrary is shown, specify a 

 district of reasonable proximity to the claimant's 

 principal place of business, in which all such pend- 

 ing proceedings shall be consolidated for trial and 

 tried. Such order of consolidation shall not apply 

 so as to require the removal of any case the date for 

 trial of which has been fixed. The court granting 

 such order shall give prompt notification thereof 



