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SUBCHAPTER III - PROHIBITED ACTS AND
PENALTIES
§ 331. Prohibited acts.
The following acts and the causing thereof are prohibited:
- (a) The introduction or delivery for introduction into interstate
commerce of any food, drug, device, or cosmetic that is adulterated or
misbranded.
- (b) The adulteration or misbranding of any food, drug, device, or cosmetic
in interstate commerce.
- (c) The receipt in interstate commerce of any food, drug, device, or
cosmetic that is adulterated or misbranded, and the delivery or proffered
delivery thereof for pay or otherwise.
- (d) The introduction or delivery for introduction into interstate commerce
of any article in violation of section 344 or 355 of this title.
- (e) The refusal to permit access to or copying of any record as required by
section 350a or 373 of this title; or the failure to establish or maintain any
record, or make any report, required under section 350a, 355(i) or (k), 357(d)
or (g), 360b(a)(4)(C), 360b(j), (l), or (m), 360e(f), or 360i of this title, or
the refusal to permit access to or verification or copying of any such required
record.
- (f) The refusal to permit entry or inspection as authorized by section 374
of this title.
- (g) The manufacture within any Territory of any food, drug, device, or
cosmetic that is adulterated or misbranded.
- (h) The giving of a guaranty or undertaking referred to in section
333(c)(2) of this title, which guaranty or undertaking is false, except by a
person who relied upon a guaranty or undertaking to the same effect signed by,
and containing the name and address of, the person residing in the United States
from whom he received in good faith the food, drug, device, or cosmetic; or the
giving of a guaranty or undertaking referred to in section 333(c)(3) of this
title, which guaranty or undertaking is false.
- (i)
- (1) 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 section 344, 356, 357, or 379e of this title.
- (2) Making, selling, disposing of, or keeping in possession, control, or
custody, or concealing 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 such drug a
counterfeit drug.
- (3) The doing of any act which causes a drug to be a counterfeit drug, or
the sale or dispensing, or the holding for sale or dispensing, of a counterfeit
drug.
- (j) The using by any person to his own advantage, or revealing, other than
to the Secretary or officers or employees of the Department, or to the courts
when relevant in any judicial proceeding under this chapter, any information
acquired under authority of section 344, 348, 350a, 355, 356, 357, 360, 360b,
360c, 360d, 360e, 360f, 360h, 360i, 360j, 374, 379, or 379e of this title
concerning any method or process which as a trade secret is entitled to
protection. This paragraph does not authorize the withholding of information
from either House of Congress or from, to the extent of matter within its
jurisdiction, any committee or subcommittee of such committee or any joint
committee of Congress or any subcommittee of such joint committee.
- (k) 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 (whether or not the first sale) after shipment in
interstate commerce and results in such article being adulterated or misbranded.
- (l) The using, on the labeling of any drug or device or in any advertising
relating to such drug or device, of any representation or suggestion that
approval of an application with respect to such drug or device is in effect
under section 355, 360e, or 360j(g) of this title, as the case may be, or that
such drug or device complies with the provisions of such section.
- (m) The sale or offering for sale of colored oleomargarine or colored
margarine, or the possession or serving of colored oleomargarine or colored
margarine in violation of subsections (b) or (c) of section 347 of this title.
- (n) The using, in labeling, advertising or other sales promotion of any
reference to any report or analysis furnished in compliance with section 374 of
this title.
- (o) In the case of a prescription drug distributed or offered for sale in
interstate commerce, the failure of the manufacturer, packer, or distributor
thereof to maintain for transmittal, or to transmit, to any practitioner
licensed by applicable State law to administer such drug who makes written
request for information as to such drug, true and correct copies of all printed
matter which is required to be included in any package in which that drug is
distributed or sold, or such other printed matter as is approved by the
Secretary. Nothing in this paragraph shall be construed to exempt any person
from any labeling requirement imposed by or under other provisions of this
chapter
- (p) The failure to register in accordance with section 360 of this title,
the failure to provide any information required by section 360(j) or 360(k) of
this title, or the failure to provide a notice required by section 360(j)(2) of
this title.
- (q)
- (1) The failure or refusal to (A) comply with any requirement prescribed
under section 360h or 360j(g) of this title, (B) furnish any notification or
other material or information required by or under section 360i or 360j(g) of
this title, or (C) comply with a requirement under section 360l of this title.
- (2) With respect to any device, the submission of any report that is
required by or under this chapter that is false or misleading in any material
respect.
- (r) The movement of a device in violation of an order under section 334(g)
of this title or the removal or alteration of any mark or label required by the
order to identify the device as detained.
- (s) The failure to provide the notice required by section 350a(c) or
350a(e) of this title, the failure to make the reports required by section
350a(f)(1)(B) of this title, the failure to retain the records required by
section 350a(b)(4) of this title, or the failure to meet the requirements
prescribed under section 350a(f)(3) of this title.
- (t) The importation of a drug in violation of section 381(d)(1) of this
title, the sale, purchase, or trade of a drug or drug sample or the offer to
sell, purchase, or trade a drug or drug sample in violation of section 353(c) of
this title, the sale, purchase, or trade of a coupon, the offer to sell,
purchase, or trade such a coupon, or the counterfeiting of such a coupon in
violation of section 353(c)(2) of this title, the distribution of a drug sample
in violation of section 353(d) of this title or the failure to otherwise comply
with the requirements of section 353(d) of this title, or the distribution of
drugs in violation of section 353(e) of this title or the failure to otherwise
comply with the requirements of section 353(e) of this title.
- (u) The failure to comply with any requirements of the provisions of, or
any regulations or orders of the Secretary, under section 360b(a)(4)(A),
360b(a)(4)(D), or 360b(a)(5) of this title. (u) (FOOTNOTE 1) The introduction or
delivery for introduction into interstate commerce of a dietary supplement that
is unsafe under section 350b of this title. (FOOTNOTE 1) So in original.
Probably should be ''(v)''.
§ 332. Injunction proceedings.
- (a) Jurisdiction of courts
The district courts of the United States and the United States courts of the
Territories shall have jurisdiction, for cause shown (FOOTNOTE 1) to restrain
violations of section 331 of this title, except paragraphs (h), (i), and (j).
(FOOTNOTE 1) So in original. Probably should be followed by a comma.
- (b) Violation of injunction
In case of violation of an injunction or restraining order issued under this
section, which also constitutes a violation of this chapter, trial shall be by
the court, or, upon demand of the accused, by a jury.
§ 333. Penalties.
- (a) Violation of section 331 of this title; second violation;
intent to defraud or mislead
- (1) Any person who violates a provision of section 331 of this title shall
be imprisoned for not more than one year or fined not more than $1,000, or both.
- (2) Notwithstanding the provisions of paragraph (1) of this section,
(FOOTNOTE 1) if any person commits such a violation after a conviction of him
under this section has become final, or commits such a violation with the intent
to defraud or mislead, such person shall be imprisoned for not more than three
years or fined not more than $10,000, or both. (FOOTNOTE 1) So in original.
Words ''of this section'' probably should not appear.
- (b) Prescription drug marketing violations
- (1) Notwithstanding subsection (a) of this section, any person who violates
section 331(t) of this title by -
- (A) knowingly importing a drug in violation of section 381(d)(1) of this
title,
- (B) knowingly selling, purchasing, or trading a drug or drug sample or
knowingly offering to sell, purchase, or trade a drug or drug sample, in
violation of section 353(c)(1) of this title,
- (C) knowingly selling, purchasing, or trading a coupon, knowingly offering
to sell, purchase, or trade such a coupon, or knowingly counterfeiting such a
coupon, in violation of section 353(c)(2) of this title, or
- (D) knowingly distributing drugs in violation of section 353(e)(2)(A) of
this title, shall be imprisoned for not more than 10 years or fined not more
than $250,000, or both.
- (2) Any manufacturer or distributor who distributes drug samples by means
other than the mail or common carrier whose representative, during the course of
the representative's employment or association with that manufacturer or
distributor, violated section 331(t) of this title because of a violation of
section 353(c)(1) of this title or violated any State law prohibiting the sale,
purchase, or trade of a drug sample subject to section 353(b) of this title or
the offer to sell, purchase, or trade such a drug sample shall, upon conviction
of the representative for such violation, be subject to the following civil
penalties:
- (A) A civil penalty of not more than $50,000 for each of the first two such
violations resulting in a conviction of any representative of the manufacturer
or distributor in any 10-year period.
- (B) A civil penalty of not more than $1,000,000 for each violation
resulting in a conviction of any representative after the second conviction in
any 10-year period. For the purposes of this paragraph, multiple convictions of
one or more persons arising out of the same event or transaction, or a related
series of events or transactions, shall be considered as one violation.
- (3) Any manufacturer or distributor who violates section 331(t) of this
title because of a failure to make a report required by section 353(d)(3)(E) of
this title shall be subject to a civil penalty of not more than $100,000.
- (4)
- (A) If a manufacturer or distributor or any representative of such
manufacturer or distributor provides information leading to the institution of a
criminal proceeding against, and conviction of, any representative of that
manufacturer or distributor for a violation of section 331(t) of this title
because of a sale, purchase, or trade or offer to purchase, sell, or trade a
drug sample in violation of section 353(c)(1) of this title or for a violation
of State law prohibiting the sale, purchase, or trade or offer to sell,
purchase, or trade a drug sample, the conviction of such representative shall
not be considered as a violation for purposes of paragraph (2).
- (B) If, in an action brought under paragraph (2) against a manufacturer or
distributor relating to the conviction of a representative of such manufacturer
or distributor for the sale, purchase, or trade of a drug or the offer to sell,
purchase, or trade a drug, it is shown, by clear and convincing evidence -
- (i) that the manufacturer or distributor conducted, before the institution
of a criminal proceeding against such representative for the violation which
resulted in such conviction, an investigation of events or transactions which
would have led to the reporting of information leading to the institution of a
criminal proceeding against, and conviction of, such representative for such
purchase, sale, or trade or offer to purchase, sell, or trade, or
- (ii) that, except in the case of the conviction of a representative
employed in a supervisory function, despite diligent implementation by the
manufacturer or distributor of an independent audit and security system designed
to detect such a violation, the manufacturer or distributor could not reasonably
have been expected to have detected such violation, the conviction of such
representative shall not be considered as a conviction for purposes of paragraph
(2).
- (5) If a person provides information leading to the institution of a
criminal proceeding against, and conviction of, a person for a violation of
section 331(t) of this title because of the sale, purchase, or trade of a drug
sample or the offer to sell, purchase, or trade a drug sample in violation of
section 353(c)(1) of this title, such person shall be entitled to one-half of
the criminal fine imposed and collected for such violation but not more than
$125,000.
- (c) Exceptions in certain cases of good faith, etc. No person
shall be subject to the penalties of subsection (a)(1) of this section, (1) for
having received in interstate commerce any article and delivered it or proffered
delivery of it, if such delivery or proffer was made in good faith, unless he
refuses to furnish on request of an officer or employee duly designated by the
Secretary the name and address of the person from whom he purchased or received
such article and copies of all documents, if any there be, pertaining to the
delivery of the article to him; or (2) for having violated section 331(a) or (d)
of this title, if he establishes a guaranty or undertaking signed by, and
containing the name and address of, the person residing in the United States
from whom he received in good faith the article, to the effect, in case of an
alleged violation of section 331(a) of this title, that such article is not
adulterated or misbranded, within the meaning of this chapter designating this
chapter or to the effect, in case of an alleged violation of section 331(d) of
this title, that such article is not an article which may not, under the
provisions of section 344 or 355 of this title, be introduced into interstate
commerce; or (3) for having violated section 331(a) of this title, where the
violation exists because the article is adulterated by reason of containing a
color additive not from a batch certified in accordance with regulations
promulgated by the Secretary under this chapter, if such person establishes a
guaranty or undertaking signed by, and containing the name and address of, the
manufacturer of the color additive, to the effect that such color additive was
from a batch certified in accordance with the applicable regulations promulgated
by the Secretary under this chapter; or (4) for having violated section 331(b),
(c) or (k) of this title by failure to comply with section 352(f) of this title
in respect to an article received in interstate commerce to which neither
section 353(a) nor 353(b)(1) of this title is applicable, if the delivery or
proffered delivery was made in good faith and the labeling at the time thereof
contained the same directions for use and warning statements as were contained
in the labeling at the time of such receipt of such article; or (5) for having
violated section 331(i)(2) of this title if such person acted in good faith and
had no reason to believe that use of the punch, die, plate, stone, or other
thing involved would result in a drug being a counterfeit drug, or for having
violated section 331(i)(3) of this title if the person doing the act or causing
it to be done acted in good faith and had no reason to believe that the drug was
a counterfeit drug.
- (d) Exceptions involving misbranded food No person shall be
subject to the penalties of subsection (a)(1) of this section for a violation of
section 331 of this title involving misbranded food if the violation exists
solely because the food is misbranded under section 343(a)(2) of this title
because of its advertising.
- (e) Prohibited distribution of human growth hormone
- (1) Except as provided in paragraph (2), whoever knowingly distributes, or
possesses with intent to distribute, human growth hormone for any use in humans
other than the treatment of a disease or other recognized medical condition,
where such use has been authorized by the Secretary of Health and Human Services
under section 355 of this title and pursuant to the order of a physician, is
guilty of an offense punishable by not more than 5 years in prison, such fines
as are authorized by title 18, or both.
- (2) Whoever commits any offense set forth in paragraph (1) and such offense
involves an individual under 18 years of age is punishable by not more than 10
years imprisonment, such fines as are authorized by title 18, or both.
- (3) Any conviction for a violation of paragraphs (1) and (2) of this
subsection shall be considered a felony violation of the Controlled Substances
Act (21 U.S.C. 801 et seq.) for the purposes of forfeiture under section 413 of
such Act (21 U.S.C. 853).
- (4) As used in this subsection the term ''human growth hormone'' means
somatrem, somatropin, or an analogue of either of them.
- (5) The Drug Enforcement Administration is authorized to investigate
offenses punishable by this subsection.
- (f) Violations related to devices
- (1)
- (A) Except as provided in subparagraph (B), any person who violates a
requirement of this chapter which relates to devices shall be liable to the
United States for a civil penalty in an amount not to exceed $15,000 for each
such violation, and not to exceed $1,000,000 for all such violations adjudicated
in a single proceeding.
- (B) Subparagraph (A) shall not apply -
- (i) to any person who violates the requirements of section 360i(a) or
360j(f) of this title unless such violation constitutes (I) a significant or
knowing departure from such requirements, or (II) a risk to public health,
- (ii) to any person who commits minor violations of section 360i(e) or
360i(f) of this title (only with respect to correction reports) if such person
demonstrates substantial compliance with such section, or
- (iii) to violations of section 351(a)(2)(A) of this title which involve one
or more devices which are not defective.
- (2)
- (A) A civil penalty under paragraph (1) shall be assessed by the Secretary
by an order made on the record after opportunity for a hearing provided in
accordance with this subparagraph and section 554 of title 5. Before issuing
such an order, the Secretary shall give written notice to the person to be
assessed a civil penalty under such order of the Secretary's proposal to issue
such order and provide such person an opportunity for a hearing on the order. In
the course of any investigation, the Secretary may issue subpoenas requiring the
attendance and testimony of witnesses and the production of evidence that
relates to the matter under investigation.
- (B) In determining the amount of a civil penalty, the Secretary shall take
into account the nature, circumstances, extent, and gravity of the violation or
violations and, with respect to the violator, ability to pay, effect on ability
to continue to do business, any history of prior such violations, the degree of
culpability, and such other matters as justice may require.
- (C) The Secretary may compromise, modify, or remit, with or without
conditions, any civil penalty which may be assessed under paragraph (1). The
amount of such penalty, when finally determined, or the amount agreed upon in
compromise, may be deducted from any sums owing by the United States to the
person charged.
- (3) Any person who requested, in accordance with paragraph (2)(A), a
hearing respecting the assessment of a civil penalty and who is aggrieved by an
order assessing a civil penalty may file a petition for judicial review of such
order with the United States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which such person resides or transacts
business. Such a petition may only be filed within the 60-day period beginning
on the date the order making such assessment was issued.
- (4) If any person fails to pay an assessment of a civil penalty -
- (A) after the order making the assessment becomes final, and if such person
does not file a petition for judicial review of the order in accordance with
paragraph (3), or
- (B) after a court in an action brought under paragraph (3) has entered a
final judgment in favor of the Secretary, the Attorney General shall recover the
amount assessed (plus interest at currently prevailing rates from the date of
the expiration of the 60-day period referred to in paragraph (3) or the date of
such final judgment, as the case may be) in an action brought in any appropriate
district court of the United States. In such an action, the validity, amount,
and appropriateness of such penalty shall not be subject to review.
§ 333a. Repealed.
§ 333a. Repealed. Pub. L. 101-647, title XIX, Sec. 1905, Nov. 29, 1990,
104 Stat. 4853
§ 334. Seizure.
- (a) Grounds and jurisdiction
- (1) Any article of food, drug, 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
introduced into interstate commerce, shall be liable to be proceeded against
while in interstate commerce, or at any time thereafter, on libel of information
and condemned in any district court of the United States or United States court
of a Territory within the jurisdiction of which the article is found. No libel
for condemnation shall be instituted under this chapter, 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 proceeding 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 Secretary has probable cause to believe from facts found, without hearing,
by him or any officer or employee of the Department that the misbranded article
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 damage
of the purchaser or consumer. In any case where the number of libel for
condemnation proceedings 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 upon 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
opportunity 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 condemned 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 under section 343(a)(2) of this title because of its
advertising, and
- (ii) is being held for sale to the ultimate consumer in an establishment
other than an establishment 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 food described in subparagraph (A) if -
- (i)
- (I) the food's advertising which resulted in the food being misbranded
under section 343(a)(2) of this title 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
- (ii) the owner or operator of such establishment 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 condemnation proceedings under this section,
involving the same claimant and the same issues of adulteration or misbranding,
are pending in two or more jurisdictions, 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 proceedings is
pending; or (2) a district agreed upon by stipulation between the parties. If no
order for consolidation is so made within a reasonable time, the claimant may
apply to the court of one such jurisdiction and such court (after giving the
United States attorney for such district reasonable notice and opportunity 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,
in which all such pending 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 to the other courts having jurisdiction
of the cases covered thereby.
- (c) Availability of samples of seized goods prior to trial
The court at any time after seizure up to a reasonable time before trial shall
by order allow any party to a condemnation proceeding, his attorney or agent, to
obtain a representative sample of the article seized and a true copy of the
analysis, if any, on which the proceeding is based and the identifying marks or
numbers, if any, of the packages from which the samples analyzed were obtained.
- (d) Disposition of goods after decree of condemnation; claims for
remission or mitigation of forfeitures
- (1) Any food, drug, device, or cosmetic condemned under this section shall,
after entry of the decree, be disposed of by destruction or sale as the court
may, in accordance with the provisions of this section, direct and the proceeds
thereof, if sold, less the legal costs and charges, shall be paid into the
Treasury of the United States; but such article shall not be sold under such
decree contrary to the provisions of this chapter or the laws of the
jurisdiction in which sold. After entry of the decree and upon the payment of
the costs of such proceedings and the execution of a good and sufficient bond
conditioned that such article shall not be sold or disposed of contrary to the
provisions of this chapter or the laws of any State or Territory in which sold,
the court may by order direct that such article be delivered to the owner
thereof to be destroyed or brought into compliance with the provisions of this
chapter, under the supervision of an officer or employee duly designated by the
Secretary, and the expenses of such supervision shall be paid by the person
obtaining release of the article under bond. If the article was imported into
the United States and the person seeking its release establishes (A) that the
adulteration, misbranding, or violation did not occur after the article was
imported, and (B) that he had no cause for believing that it was adulterated,
misbranded, or in violation before it was released from customs custody, the
court may permit the article to be delivered to the owner for exportation in
lieu of destruction upon a showing by the owner that all of the conditions of
section 381(e) of this title can and will be met. The provisions of this
sentence shall not apply where condemnation is based upon violation of section
342(a)(1), (2), or (6), section 351(a)(3), section 352(j), or section 361(a) or
(d) of this title. Where such exportation is made to the original foreign
supplier, then paragraphs (1) and (2) of section 381(e) of this title and the
preceding sentence shall not be applicable; and in all cases of exportation the
bond shall be conditioned that the article shall not be sold or disposed of
until the applicable conditions of section 381(e) of this title have been met.
Any article condemned by reason of its being an article which may not, under
section 344 or 355 of this title, be introduced into interstate commerce, shall
be disposed of by destruction.
- (2) The provisions of paragraph (1) of this subsection shall, to the extent
deemed appropriate by the court, apply to any equipment or other thing which is
not otherwise within the scope of such paragraph and which is referred to in
paragraph (2) of subsection (a) of this section.
- (3) Whenever in any proceeding under this section, involving paragraph (2)
of subsection (a) of this section, the condemnation of any equipment or thing
(other than a drug) is decreed, the court shall allow the claim of any claimant,
to the extent of such claimant's interest, for remission or mitigation of such
forfeiture if such claimant proves to the satisfaction of the court (i) that he
has not committed or caused to be committed any prohibited act referred to in
such paragraph (2) and has no interest in any drug referred to therein, (ii)
that he has an interest in such equipment or other thing as owner or lienor or
otherwise, acquired by him in good faith, and (iii) that he at no time had any
knowledge or reason to believe that such equipment or other thing was being or
would be used in, or to facilitate, the violation of laws of the United States
relating to counterfeit drugs.
- (e) Costs When a decree of condemnation is entered against
the article, court costs and fees, and storage and other proper expenses, shall
be awarded against the person, if any, intervening as claimant of the article.
- (f) Removal of case for trial In the case of removal for trial of
any case as provided by subsection (a) or (b) of this section -
- (1) The clerk of the court from which removal is made shall promptly
transmit to the court in which the case is to be tried all records in the case
necessary in order that such court may exercise jurisdiction.
- (2) The court to which such case was removed shall have the powers and be
subject to the duties, for purposes of such case, which the court from which
removal was made would have had, or to which such court would have been subject,
if such case had not been removed.
- (g) Administrative restraint; detention orders
- (1) If during an inspection conducted under section 374 of this title of a
facility or a vehicle, a device which the officer or employee making the
inspection has reason to believe is adulterated or misbranded is found in such
facility or vehicle, such officer or employee may order the device detained (in
accordance with regulations prescribed by the Secretary) for a reasonable period
which may not exceed twenty days unless the Secretary determines that a period
of detention greater than twenty days is required to institute an action under
subsection (a) of this section or section 332 of this title, in which case he
may authorize a detention period of not to exceed thirty days. Regulations of
the Secretary prescribed under this paragraph shall require that before a device
may be ordered detained under this paragraph the Secretary or an officer or
employee designated by the Secretary approve such order. A detention order under
this paragraph may require the labeling or marking of a device during the period
of its detention for the purpose of identifying the device as detained. Any
person who would be entitled to claim a device if it were seized under
subsection (a) of this section may appeal to the Secretary a detention of such
device under this paragraph. Within five days of the date an appeal of a
detention is filed with the Secretary, the Secretary shall after affording
opportunity for an informal hearing by order confirm the detention or revoke it.
- (2)
- (A) Except as authorized by subparagraph (B), a device subject to a
detention order issued under paragraph (1) shall not be moved by any person from
the place at which it is ordered detained until -
- (i) released by the Secretary, or
- (ii) the expiration of the detention period applicable to such order,
whichever occurs first.
- (B) A device subject to a detention order under paragraph (1) may be moved
-
- (i) in accordance with regulations prescribed by the Secretary, and
- (ii) if not in final form for shipment, at the discretion of the
manufacturer of the device for the purpose of completing the work required to
put it in such form.
§ 335. Hearing before report of criminal violation.
Before any violation of this chapter is reported by the Secretary to any
United States attorney for 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, either orally or in writing, with
regard to such contemplated proceeding.
§ 335a. Debarment, temporary denial of approval, and suspension.
- (a) Mandatory debarment
- (1) Corporations, partnerships, and associations If the Secretary
finds that a person other than an individual has been convicted, after May 13,
1992, of a felony under Federal law for conduct relating to the development or
approval, including the process for development or approval, of any abbreviated
drug application, the Secretary shall debar such person from submitting, or
assisting in the submission of, any such application.
- (2) Individuals If the Secretary finds that an individual has
been convicted of a felony under Federal law for conduct -
- (A) relating to the development or approval, including the process for
development or approval, of any drug product, or
- (B) otherwise relating to the regulation of any drug product under this
chapter, the Secretary shall debar such individual from providing services in
any capacity to a person that has an approved or pending drug product
application.
- (b) Permissive debarment
- (1) In general The Secretary, on the Secretary's own initiative
or in response to a petition, may, in accordance with paragraph (2), debar -
- (A) a person other than an individual from submitting or assisting in the
submission of any abbreviated drug application, or
- (B) an individual from providing services in any capacity to a person that
has an approved or pending drug product application.
- (2) Persons subject to permissive debarment The following persons
are subject to debarment under paragraph (1):
- (A) Corporations, partnerships, and associations Any person other
than an individual that the Secretary finds has been convicted -
- (i) for conduct that -
- (I) relates to the development or approval, including the process for the
development or approval, of any abbreviated drug application; and
- (II) is a felony under Federal law (if the person was convicted before May
13, 1992), a misdemeanor under Federal law, or a felony under State law, or
- (ii) of a conspiracy to commit, or aiding or abetting, a criminal offense
described in clause (i) or a felony described in subsection (a)(1) of this
section, if the Secretary finds that the type of conduct which served as the
basis for such conviction undermines the process for the regulation of drugs.
- (B) Individuals
- (i) Any individual whom the Secretary finds has been convicted of -
- (I) a misdemeanor under Federal law or a felony under State law for conduct
relating to the development or approval, including the process for development
or approval, of any drug product or otherwise relating to the regulation of drug
products under this chapter, or
- (II) a conspiracy to commit, or aiding or abetting, such criminal offense
or a felony described in subsection (a)(2) of this section, if the Secretary
finds that the type of conduct which served as the basis for such conviction
undermines the process for the regulation of drugs.
- (ii) Any individual whom the Secretary finds has been convicted of -
- (I) a felony which is not described in subsection (a)(2) of this section or
clause (i) of this subparagraph and which involves bribery, payment of illegal
gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion,
falsification or destruction of records, or interference with, obstruction of an
investigation into, or prosecution of, any criminal offense, or
- (II) a conspiracy to commit, or aiding or abetting, such felony, if the
Secretary finds, on the basis of the conviction of such individual and other
information, that such individual has demonstrated a pattern of conduct
sufficient to find that there is reason to believe that such individual may
violate requirements under this chapter relating to drug products.
- (iii) Any individual whom the Secretary finds materially participated in
acts that were the basis for a conviction for an offense described in subsection
(a) of this section or in clause (i) or (ii) for which a conviction was
obtained, if the Secretary finds, on the basis of such participation and other
information, that such individual has demonstrated a pattern of conduct
sufficient to find that there is reason to believe that such individual may
violate requirements under this chapter relating to drug products.
- (iv) Any high managerial agent whom the Secretary finds -
- (I) worked for, or worked as a consultant for, the same person as another
individual during the period in which such other individual took actions for
which a felony conviction was obtained and which resulted in the debarment under
subsection (a)(2) of this section, or clause (i), of such other individual,
- (II) had actual knowledge of the actions described in subclause (I) of such
other individual, or took action to avoid such actual knowledge, or failed to
take action for the purpose of avoiding such actual knowledge,
- (III) knew that the actions described in subclause (I) were violative of
law, and
- (IV) did not report such actions, or did not cause such actions to be
reported, to an officer, employee, or agent of the Department or to an
appropriate law enforcement officer, or failed to take other appropriate action
that would have ensured that the process for the regulation of drugs was not
undermined, within a reasonable time after such agent first knew of such
actions, if the Secretary finds that the type of conduct which served as the
basis for such other individual's conviction undermines the process for the
regulation of drugs.
- (3) Stay of certain orders An order of the Secretary under
clause (iii) or (iv) of paragraph (2)(B) shall not take effect until 30 days
after the order has been issued.
- (c) Debarment period and considerations
- (1) Effect of debarment The Secretary -
- (A) shall not accept or review (other than in connection with an audit
under this section) any abbreviated drug application submitted by or with the
assistance of a person debarred under subsection (a)(1) or (b)(2)(A) of this
section during the period such person is debarred,
- (B) shall, during the period of a debarment under subsection (a)(2) or
(b)(2)(B) of this section, debar an individual from providing services in any
capacity to a person that has an approved or pending drug product application
and shall not accept or review (other than in connection with an audit under
this section) an abbreviated drug application from such individual, and
- (C) shall, if the Secretary makes the finding described in paragraph (6) or
(7) of section 335b(a) of this title, assess a civil penalty in accordance with
section 335b of this title.
- (2) Debarment periods
- (A) In general The Secretary shall debar a person under subsection (a) or
(b) of this section for the following periods:
- (i) The period of debarment of a person (other than an individual) under
subsection (a)(1) of this section shall not be less than 1 year or more than 10
years, but if an act leading to a subsequent debarment under subsection (a) of
this section occurs within 10 years after such person has been debarred under
subsection (a)(1) of this section, the period of debarment shall be permanent.
- (ii) The debarment of an individual under subsection (a)(2) of this section
shall be permanent.
- (iii) The period of debarment of any person under subsection (b)(2) of this
section shall not be more than 5 years. The Secretary may determine whether
debarment periods shall run concurrently or consecutively in the case of a
person debarred for multiple offenses.
- (B) Notification Upon a conviction for an offense described in
subsection (a) or (b) of this section or upon execution of an agreement with the
United States to plead guilty to such an offense, the person involved may notify
the Secretary that the person acquiesces to debarment and such person's
debarment shall commence upon such notification.
- (3) Considerations In determining the appropriateness and the
period of a debarment of a person under subsection (b) of this section and any
period of debarment beyond the minimum specified in subparagraph (A)(i) of
paragraph (2), the Secretary shall consider where applicable -
- (A) the nature and seriousness of any offense involved,
- (B) the nature and extent of management participation in any offense
involved, whether corporate policies and practices encouraged the offense,
including whether inadequate institutional controls contributed to the offense,
- (C) the nature and extent of voluntary steps to mitigate the impact on the
public of any offense involved, including the recall or the discontinuation of
the distribution of suspect drugs, full cooperation with any investigations
(including the extent of disclosure to appropriate authorities of all
wrongdoing), the relinquishing of profits on drug approvals fraudulently
obtained, and any other actions taken to substantially limit potential or actual
adverse effects on the public health,
- (D) whether the extent to which changes in ownership, management, or
operations have corrected the causes of any offense involved and provide
reasonable assurances that the offense will not occur in the future,
- (E) whether the person to be debarred is able to present adequate evidence
that current production of drugs subject to abbreviated drug applications and
all pending abbreviated drug applications are free of fraud or material false
statements, and
- (F) prior convictions under this chapter or under other Acts involving
matters within the jurisdiction of the Food and Drug Administration.
- (d) Termination of debarment
- (1) Application Any person that is debarred under subsection (a)
of this section (other than a person permanently debarred) or any person that is
debarred under subsection (b) of this section may apply to the Secretary for
termination of the debarment under this subsection. Any information submitted to
the Secretary under this paragraph does not constitute an amendment or
supplement to pending or approved abbreviated drug applications.
- (2) Deadline The Secretary shall grant or deny any application
respecting a debarment which is submitted under paragraph (1) within 180 days of
the date the application is submitted.
- (3) Action by the Secretary
- (A) Corporations
- (i) Conviction reversal If the conviction which served as the
basis for the debarment of a person under subsection (a)(1) or (b)(2)(A) of this
section is reversed, the Secretary shall withdraw the order of debarment.
- (ii) Application Upon application submitted under paragraph (1),
the Secretary shall terminate the debarment of a person if the Secretary finds
that -
- (I) changes in ownership, management, or operations have fully corrected
the causes of the offense involved and provide reasonable assurances that the
offense will not occur in the future, and
- (II) sufficient audits, conducted by the Food and Drug Administration or by
independent experts acceptable to the Food and Drug Administration, demonstrate
that pending applications and the development of drugs being tested before the
submission of an application are free of fraud or material false statements. In
the case of persons debarred under subsection (a)(1) of this section, such
termination shall take effect no earlier than the expiration of one year from
the date of the debarment.
- (B) Individuals
- (i) Conviction reversal If the conviction which served as the
basis for the debarment of an individual under subsection (a)(2) of this section
or clause (i), (ii), (iii), or (iv) of subsection (b)(2)(B) of this section is
reversed, the Secretary shall withdraw the order of debarment.
- (ii) Application Upon application submitted under paragraph (1), the
Secretary shall terminate the debarment of an individual who has been debarred
under subsection (b)(2)(B) of this section if such termination serves the
interests of justice and adequately protects the integrity of the drug approval
process.
- (4) Special termination
- (A) Application Any person that is debarred under subsection
(a)(1) of this section (other than a person permanently debarred under
subsection (c)(2)(A)(i) of this section) or any individual who is debarred under
subsection (a)(2) of this section may apply to the Secretary for special
termination of debarment under this subsection. Any information submitted to the
Secretary under this subparagraph does not constitute an amendment or supplement
to pending or approved abbreviated drug applications.
- (B) Corporations Upon an application submitted under subparagraph
(A), the Secretary may take the action described in subparagraph (D) if the
Secretary, after an informal hearing, finds that -
- (i) the person making the application under subparagraph (A) has
demonstrated that the felony conviction which was the basis for such person's
debarment involved the commission of an offense which was not authorized,
requested, commanded, performed, or recklessly tolerated by the board of
directors or by a high managerial agent acting on behalf of the person within
the scope of the board's or agent's office or employment,
- (ii) all individuals who were involved in the commission of the offense or
who knew or should have known of the offense have been removed from employment
involving the development or approval of any drug subject to sections 355 or 357
of this title,
- (iii) the person fully cooperated with all investigations and promptly
disclosed all wrongdoing to the appropriate authorities, and
- (iv) the person acted to mitigate any impact on the public of any offense
involved, including the recall, or the discontinuation of the distribution, of
any drug with respect to which the Secretary requested a recall or
discontinuation of distribution due to concerns about the safety or efficacy of
the drug.
- (C) Individuals Upon an application submitted under subparagraph
(A), the Secretary may take the action described in subparagraph (D) if the
Secretary, after an informal hearing, finds that such individual has provided
substantial assistance in the investigations or prosecutions of offenses which
are described in subsection (a) or (b) of this section or which relate to any
matter under the jurisdiction of the Food and Drug Administration.
- (D) Secretarial action The action referred to in subparagraphs
(B) and (C) is -
- (i) in the case of a person other than an individual -
- (I) terminating the debarment immediately, or
- (II) limiting the period of debarment to less than one year, and
- (ii) in the case of an individual, limiting the period of debarment to less
than permanent but to no less than 1 year, whichever best serves the interest of
justice and protects the integrity of the drug approval process.
- (e) Publication and list of debarred persons The
Secretary shall publish in the Federal Register the name of any person debarred
under subsection (a) or (b) of this section, the effective date of the
debarment, and the period of the debarment. The Secretary shall also maintain
and make available to the public a list, updated no less often than quarterly,
of such persons, of the effective dates and minimum periods of such debarments,
and of the termination of debarments.
- (f) Temporary denial of approval
- (1) In general The Secretary, on the Secretary's own initiative
or in response to a petition, may, in accordance with paragraph (3), refuse by
order, for the period prescribed by paragraph (2), to approve any abbreviated
drug application submitted by any person -
- (A) if such person is under an active Federal criminal investigation in
connection with an action described in subparagraph (B),
- (B) if the Secretary finds that such person -
- (i) has bribed or attempted to bribe, has paid or attempted to pay an
illegal gratuity, or has induced or attempted to induce another person to bribe
or pay an illegal gratuity to any officer, employee, or agent of the Department
of Health and Human Services or to any other Federal, State, or local official
in connection with any abbreviated drug application, or has conspired to commit,
or aided or abetted, such actions, or
- (ii) has knowingly made or caused to be made a pattern or practice of false
statements or misrepresentations with respect to material facts relating to any
abbreviated drug application, or the production of any drug subject to an
abbreviated drug application, to any officer, employee, or agent of the
Department of Health and Human Services, or has conspired to commit, or aided or
abetted, such actions, and
- (C) if a significant question has been raised regarding -
- (i) the integrity of the approval process with respect to such abbreviated
drug application, or
- (ii) the reliability of data in or concerning such person's abbreviated
drug application. Such an order may be modified or terminated at any time.
- (2) Applicable period
- (A) In general Except as provided in subparagraph (B), a denial
of approval of an application of a person under paragraph (1) shall be in effect
for a period determined by the Secretary but not to exceed 18 months beginning
on the date the Secretary finds that the conditions described in subparagraphs
(A), (B), and (C) of paragraph (1) exist. The Secretary shall terminate such
denial -
- (i) if the investigation with respect to which the finding was made does
not result in a criminal charge against such person, if criminal charges have
been brought and the charges have been dismissed, or if a judgment of acquittal
has been entered, or
- (ii) if the Secretary determines that such finding was in error.
- (B) Extension If, at the end of the period described in
subparagraph (A), the Secretary determines that a person has been criminally
charged for an action described in subparagraph (B) of paragraph (1), the
Secretary may extend the period of denial of approval of an application for a
period not to exceed 18 months. The Secretary shall terminate such extension if
the charges have been dismissed, if a judgment of acquittal has been entered, or
if the Secretary determines that the finding described in subparagraph (A) was
in error.
- (3) Informal hearing Within 10 days of the date an order is
issued under paragraph (1), the Secretary shall provide such person with an
opportunity for an informal hearing, to be held within such 10 days, on the
decision of the Secretary to refuse approval of an abbreviated drug application.
Within 60 days of the date on which such hearing is held, the Secretary shall
notify the person given such hearing whether the Secretary's refusal of approval
will be continued, terminated, or otherwise modified. Such notification shall be
final agency action.
- (g) Suspension authority
- (1) In general If -
- (A) the Secretary finds -
- (i) that a person has engaged in conduct described in subparagraph (B) of
subsection (f)(1) of this section in connection with 2 or more drugs under
abbreviated drug applications, or
- (ii) that a person has engaged in flagrant and repeated, material
violations of good manufacturing practice or good laboratory practice in
connection with the development, manufacturing, or distribution of one or more
drugs approved under an abbreviated drug application during a 2-year period, and
-
- (I) such violations may undermine the safety and efficacy of such drugs,
and
- (II) the causes of such violations have not been corrected within a
reasonable period of time following notice of such violations by the Secretary,
and
- (B) such person is under an active investigation by a Federal authority in
connection with a civil or criminal action involving conduct described in
subparagraph (A), the Secretary shall issue an order suspending the distribution
of all drugs the development or approval of which was related to such conduct
described in subparagraph (A) or suspending the distribution of all drugs
approved under abbreviated drug applications of such person if the Secretary
finds that such conduct may have affected the development or approval of a
significant number of drugs which the Secretary is unable to identify. The
Secretary shall exclude a drug from such order if the Secretary determines that
such conduct was not likely to have influenced the safety or efficacy of such
drug.
- (2) Public health waiver The Secretary shall, on the Secretary's
own initiative or in response to a petition, waive the suspension under
paragraph (1) (involving an action described in paragraph (1)(A)(i)) with
respect to any drug if the Secretary finds that such waiver is necessary to
protect the public health because sufficient quantities of the drug would not
otherwise be available. The Secretary shall act on any petition seeking action
under this paragraph within 180 days of the date the petition is submitted to
the Secretary.
- (h) Termination of suspension The Secretary shall withdraw
an order of suspension of the distribution of a drug under subsection (g) of
this section if the person with respect to whom the order was issued
demonstrates in a petition to the Secretary -
- (1)
- (A) on the basis of an audit by the Food and Drug Administration or by
experts acceptable to the Food and Drug Administration, or on the basis of other
information, that the development, approval, manufacturing, and distribution of
such drug is in substantial compliance with the applicable requirements of this
chapter, and
- (B) changes in ownership, management, or operations -
- (i) fully remedy the patterns or practices with respect to which the order
was issued, and
- (ii) provide reasonable assurances that such actions will not occur in the
future, or
- (2) the initial determination was in error.
The Secretary shall act on a submission of a petition under this subsection
within 180 days of the date of its submission and the Secretary may consider the
petition concurrently with the suspension proceeding. Any information submitted
to the Secretary under this subsection does not constitute an amendment or
supplement to a pending or approved abbreviated drug application.
- (i) Procedure The Secretary may not take any action under
subsection (a), (b), (c), (d)(3), (g), or (h) of this section with respect to
any person unless the Secretary has issued an order for such action made on the
record after opportunity for an agency hearing on disputed issues of material
fact. In the course of any investigation or hearing under this subsection, the
Secretary may administer oaths and affirmations, examine witnesses, receive
evidence, and issue subpoenas requiring the attendance and testimony of
witnesses and the production of evidence that relates to the matter under
investigation.
- (j) Judicial review
- (1) In general Except as provided in paragraph (2), any person
that is the subject of an adverse decision under subsection (a), (b), (c), (d),
(f), (g), or (h) of this section may obtain a review of such decision by the
United States Court of Appeals for the District of Columbia or for the circuit
in which the person resides, by filing in such court (within 60 days following
the date the person is notified of the Secretary's decision) a petition
requesting that the decision be modified or set aside.
- (2) Exception Any person that is the subject of an adverse
decision under clause (iii) or (iv) of subsection (b)(2)(B) of this section may
obtain a review of such decision by the United States District Court for the
District of Columbia or a district court of the United States for the district
in which the person resides, by filing in such court (within 30 days following
the date the person is notified of the Secretary's decision) a complaint
requesting that the decision be modified or set aside. In such an action, the
court shall determine the matter de novo.
- (k) Certification Any application for approval of a drug
product shall include -
- (1) a certification that the applicant did not and will not use in any
capacity the services of any person debarred under subsection (a) or (b) of this
section, in connection with such application, and
- (2) if such application is an abbreviated drug application, a list of all
convictions, described in subsections (a) and (b) of this section which occurred
within the previous 5 years, of the applicant and affiliated persons responsible
for the development or submission of such application.
- (l) Applicability
- (1) Conviction For purposes of this section, a person is
considered to have been convicted of a criminal offense -
- (A) when a judgment of conviction has been entered against the person by a
Federal or State court, regardless of whether there is an appeal pending,
- (B) when a plea of guilty or nolo contendere by the person has been
accepted by a Federal or State court, or
- (C) when the person has entered into participation in a first offender,
deferred adjudication, or other similar arrangement or program where judgment of
conviction has been withheld.
- (2) Effective dates Subsection (a) of this section, subparagraph
(A) of subsection (b)(2) of this section, and clauses (i) and (ii) of subsection
(b)(2)(B) of this section shall not apply to a conviction which occurred more
than 5 years before the initiation of an agency action proposed to be taken
under subsection (a) or (b) of this section. Clauses (iii) and (iv) of
subsection (b)(2)(B) of this section and subsections (f) and (g) of this section
shall not apply to an act or action which occurred more than 5 years before the
initiation of an agency action proposed to be taken under subsection (b), (f),
or (g) of this section. Clause (iv) of subsection (b)(2)(B) of this section
shall not apply to an action which occurred before June 1, 1992. Subsection (k)
of this section shall not apply to applications submitted to the Secretary
before June 1, 1992.
§ 335b. Civil penalties.
Any person that the Secretary finds -
- (1) knowingly made or caused to be made, to any officer, employee, or
agent of the Department of Health and Human Services, a false statement or
misrepresentation of a material fact in connection with an abbreviated drug
application,
- (2) bribed or attempted to bribe or paid or attempted to pay an illegal
gratuity to any officer, employee, or agent of the Department of Health and
Human Services in connection with an abbreviated drug application,
- (3) destroyed, altered, removed, or secreted, or procured the destruction,
alteration, removal, or secretion of, any material document or other material
evidence which was the property of or in the possession of the Department of
Health and Human Services for the purpose of interfering with that Department's
discharge of its responsibilities in connection with an abbreviated drug
application,
- (4) knowingly failed to disclose, to an officer or employee of the
Department of Health and Human Services, a material fact which such person had
an obligation to disclose relating to any drug subject to an abbreviated drug
application,
- (5) knowingly obstructed an investigation of the Department of Health and
Human Services into any drug subject to an abbreviated drug application,
- (6) is a person that has an approved or pending drug product application
and has knowingly -
- (A) employed or retained as a consultant or contractor, or
- (B) otherwise used in any capacity the services of, a person who was
debarred under section 335a of this title, or
- (7) is an individual debarred under section 335a of this title and, during
the period of debarment, provided services in any capacity to a person that had
an approved or pending drug product application, shall be liable to the United
States for a civil penalty for each such violation in an amount not to exceed
$250,000 in the case of an individual and $1,000,000 in the case of any other
person.
- (b) Procedure
- (1) In general
- (A) Action by the Secretary A civil penalty under subsection (a)
of this section shall be assessed by the Secretary on a person by an order made
on the record after an opportunity for an agency hearing on disputed issues of
material fact and the amount of the penalty. In the course of any investigation
or hearing under this subparagraph, the Secretary may administer oaths and
affirmations, examine witnesses, receive evidence, and issue subpoenas requiring
the attendance and testimony of witnesses and the production of evidence that
relates to the matter under investigation.
- (B) Action by the Attorney General In lieu of a proceeding under
subparagraph (A), the Attorney General may, upon request of the Secretary,
institute a civil action to recover a civil money penalty in the amount and for
any of the acts set forth in subsection (a) of this section. Such an action may
be instituted separately from or in connection with any other claim, civil or
criminal, initiated by the Attorney General under this chapter.
- (2) Amount In determining the amount of a civil penalty under
paragraph (1), the Secretary or the court shall take into account the nature,
circumstances, extent, and gravity of the act subject to penalty, the person's
ability to pay, the effect on the person's ability to continue to do business,
any history of prior, similar acts, and such other matters as justice may
require.
- (3) Limitation on actions No action may be initiated under this
section -
- (A) with respect to any act described in subsection (a) of this section
that occurred before May 13, 1992, or
- (B) more than 6 years after the date when facts material to the act are
known or reasonably should have been known by the Secretary but in no event more
than 10 years after the date the act took place.
- (c) Judicial review
Any person that is the subject of an adverse decision under subsection
(b)(1)(A) of this section may obtain a review of such decision by the United
States Court of Appeals for the District of Columbia or for the circuit in which
the person resides, by filing in such court (within 60 days following the date
the person is notified of the Secretary's decision) a petition requesting that
the decision be modified or set aside.
- (d) Recovery of penalties
The Attorney General may recover any civil penalty (plus interest at the
currently prevailing rates from the date the penalty became final) assessed
under subsection (b)(1)(A) of this section in an action brought in the name of
the United States. The amount of such penalty may be deducted, when the penalty
has become final, from any sums then or later owing by the United States to the
person against whom the penalty has been assessed. In an action brought under
this subsection, the validity, amount, and appropriateness of the penalty shall
not be subject to judicial review.
The Secretary may award to any individual (other than an officer or employee
of the Federal Government or a person who materially participated in any conduct
described in subsection (a) of this section) who provides information leading to
the imposition of a civil penalty under this section an amount not to exceed -
- (1) $250,000, or
- (2) one-half of the penalty so imposed and collected, whichever is less.
The decision of the Secretary on such award shall not be reviewable.
§ 335c. Authority to withdraw approval of abbreviated drug
applications.
- (a) In general The Secretary -
- (1) shall withdraw approval of an abbreviated drug application if the
Secretary finds that the approval was obtained, expedited, or otherwise
facilitated through bribery, payment of an illegal gratuity, or fraud or
material false statement, and
- (2) may withdraw approval of an abbreviated drug application if the
Secretary finds that the applicant has repeatedly demonstrated a lack of ability
to produce the drug for which the application was submitted in accordance with
the formulations or manufacturing practice set forth in the abbreviated drug
application and has introduced, or attempted to introduce, such adulterated or
misbranded drug into commerce.
- (b) Procedure
The Secretary may not take any action under subsection (a) of this section
with respect to any person unless the Secretary has issued an order for such
action made on the record after opportunity for an agency hearing on disputed
issues of material fact. In the course of any investigation or hearing under
this subsection, the Secretary may administer oaths and affirmations, examine
witnesses, receive evidence, and issue subpoenas requiring the attendance and
testimony of witnesses and the production of evidence that relates to the matter
under investigation.
Subsection (a) of this section shall apply with respect to offenses or acts
regardless of when such offenses or acts occurred.
Any person that is the subject of an adverse decision under subsection (a)
of this section may obtain a review of such decision by the United States Court
of Appeals for the District of Columbia or for the circuit in which the person
resides, by filing in such court (within 60 days following the date the person
is notified of the Secretary's decision) a petition requesting that the decision
be modified or set aside.
§ 336. Report of minor violations.
Nothing in this chapter shall be construed as requiring the Secretary to
report for prosecution, or for the institution of libel or injunction
proceedings, minor violations of this chapter whenever he believes that the
public interest will be adequately served by a suitable written notice or
warning.
§ 337. Proceedings in name of United States; provision as to
subpoenas.
- (a) Except as provided in subsection (b) of this section, all such
proceedings for the enforcement, or to restrain violations, of this chapter
shall be by and in the name of the United States. Subpoenas for witnesses who
are required to attend a court of the United States, in any district, may run
into any other district in any proceeding under this section.
- (b)
- (1) A State may bring in its own name and within its jurisdiction
proceedings for the civil enforcement, or to restrain violations, of section
341, 343(b), 343(c), 343(d), 343(e), 343(f), 343(g), 343(h), 343(i), 343(k),
343(q), or 343(r) of this title if the food that is the subject of the
proceedings is located in the State.
- (2) No proceeding may be commenced by a State under paragraph (1) -
- (A) before 30 days after the State has given notice to the Secretary that
the State intends to bring such proceeding,
- (B) before 90 days after the State has given notice to the Secretary of
such intent if the Secretary has, within such 30 days, commenced an informal or
formal enforcement action pertaining to the food which would be the subject of
such proceeding, or
- (C) if the Secretary is diligently prosecuting a proceeding in court
pertaining to such food, has settled such proceeding, or has settled the
informal or formal enforcement action pertaining to such food.
In any court proceeding described in subparagraph (C), a State may intervene
as a matter of right.
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