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This entry was published on 2014-09-22
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SECTION 6825
Proof required in prosecution for certain violations
Education (EDN) CHAPTER 16, TITLE 8, ARTICLE 137
§ 6825. Proof required in prosecution for certain violations. 1. In
an action or proceeding, civil or criminal, against a person for
violating such provisions of this article which relate to the possession
of, compounding, retailing or dispensing of misbranded, substituted or
imitated drugs, poisons or cosmetics, when it shall be necessary that an
analysis be made for the purpose of establishing the quality of such
drug, poison or cosmetic so as to determine the fact of misbranding,
substituting or imitating, then it shall be required to prove at the
trial or hearing of such action or proceeding, that the person, taking
the same for analysis separated it into two representative parts,
hermetically or otherwise effectively and completely sealed, delivered
one such sealed part to the seller, manufacturer, wholesaler,
pharmacist, or druggist from whose premises such sample was taken and
delivered the other part so sealed to the chemist designated by the
state board of pharmacy; and the facts herein required to be proven
shall be alleged in the complaint or information by which such action or
proceeding was begun. The rules of the board shall be proven prima facie
by the certificate of the secretary.

2. Any person accused of violation of any of the provisions of this
article relating to adulterating, misbranding, substitution or imitation
shall not be prosecuted or convicted or suffer any of the penalties,
fines or forfeitures for such violation, if he establishes upon the
hearing or trial that the drug, device or cosmetic alleged to be
adulterated, misbranded, substituted or imitated was purchased by him
under a written guaranty of the manufacturer or seller to the effect
that said drug, device or cosmetic was not adulterated or misbranded,
within the meaning of this article and proves that he has not
adulterated, misbranded, substituted or imitated the same, provided the
seller has taken due precaution to maintain the standard set for the
drug, device or cosmetic. A guaranty, in order to be a defense to a
prosecution or to prevent conviction or to afford protection, must state
that the drug, device or cosmetic to which it refers is not adulterated,
misbranded, substituted or imitated within the meaning of the provisions
of this article and must state also the full name and place of business
of the manufacturer, wholesaler, jobber or other person from whom the
drug, device or cosmetic was purchased, and the date of purchase. The
act, omission or failure of any officer, agent or other employee acting
for or employed by any person within the scope of his authority or
employment shall in every case be the act, omission or failure of such
person as well as that of the officer, agent or other employee, and such
person shall be equally liable for violations of this article by a
partnership, association or corporation, and every member of the
partnership or association and the directors and general officers of the
corporation and the general manager of the partnership, association or
corporation shall be individually liable and any action, prosecution or
proceeding authorized by this article may be brought against any or all
of such persons. When any prosecution under this article is made on the
complaint of the board, any fines collected shall be paid into the state
treasury as provided by this article.

3. No publisher, radio-broadcast licensee, advertising agency, or
agency or medium for the dissemination of advertising, except the
manufacturer, packer, distributor, or seller of the commodity to which
the false advertisement relates, shall be subject to the penalties
provided by this article by reason of the dissemination by him of any
false advertisement, unless he has refused, on the request of the
secretary, to furnish the secretary the name and post-office address of
the manufacturer, packer, distributor, seller or advertising agency, who
caused him to disseminate such advertisement.