Chap. 375.—An ACT to amend and re-enact sections 1662, as amended, 1060,
and 1664, as amended, of the Code of Virginia, and to add thereto the
following new sections; section 1663-a, defining adulterated cosmetics; sec-
tion 1664-a, defining misbranded cosmetics; section 1664-b, defining false
advertisement; section 1664-c, prohibiting the dissemination of false adver-
tisement and the introduction and delivery into commerce of adulterated or
misbranded drugs or cosmetics; section 1664-d, providing for the seizure
and forfeiture of adulterated and misbranded drugs and cosmetics; and
section 1664-e, providing for injunctive relief in certain cases. [fH B 524]

Approved March 31, 1938

1. Be it enacted by the General Assembly of Virginia, that sec-
tions sixteen hundred and sixty-two, as amended, sixteen hundred and
sixty-three, and sixteen hundred and sixty-four, as amended, of the
Code of Virginia be amended and re-enacted, and that the said Code
be further amended by adding thereto four new sections, numbered
sixteen hundred and sixty-three-a, sixteen hundred and sixty-four-a,
sixteen hundred and sixty-four-b and sixteen hundred and sixty-
four-c, so that said amended sections and said new sections shall read
as follows: :

Section 1662. As used in this chapter, unless the context other-
wise indicates:

(1) The term “original package”, shall be construed to mean the
original carton, case, can, box, bottle, vial or other receptacle, put up
by the manufacturer or wholesaler with his label attached, making one
complete package of the drug article. |

(2) The term “drug”, includes (a) all substances and prepara-
tions recognized in the official United States Pharmacopoeia, official
Homeopathic Pharmacopoeia of the United States, or official National
Formulary, or any official supplement to any of them; and (b) all
substances and preparations intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in man or other ani-
mals; and (c) all substances, and preparations, other than food and
cosmetics, intended to affect the structure or any function of the
body. oO
.(3) The term “cosmetic” includes all substances and preparations
intended for cleansing, or altering the appearance of, or promoting
the attractiveness of, the person; except soap.

-: (4) The word “person”, shall be construed to import both the
plural and singular, as the case demands, and shall include individuals,
partnerships, corporations, companies, societies and associations.

(5) The word “pharmacy” shall include every place (except as
hereinafter provided) in which drugs, medicines or poisons are re-
tailed or dispensed, or are displayed for sale at retail, or are kept
in stock in other than manufacturers’ or wholesalers’ original pack-
ages, or in which physicians’ prescriptions are compounded.

(6) The term “label” means the principal display or displays
of written, printed, or graphic matter (1) upon any drug or cosmetic
or the immediate container thereof, and (2) upon the outside con-
tainer or wrapper, if any there be, of the retail package of any drug
or cosmetic.

— (7) The term “labeling” includes all labels, and other written,
printed, and graphic matter, in any form whatsoever, accompanying
any drug or cosmetic.

(8) The term “advertisement” includes all representations of fact
or opinion disseminated to the public in any manner or by any means
other than by the labeling.

(9) The term “official compendium” means the United States
Pharmacopoeia, Homeopathic Pharmacopoeia of the United States,
National Formulary, or any supplement to any of them, official at the
time'any drug to which the provisions thereof relate is introduced into
commerce.

(10) The term “board” means the State Board’ of Pharmacy. _

(11) The term “patent or proprietary medicines”, shall include
only medicines’ prepared according to a private formula or a secret
process or under a trademark of the manufacturer or owner, and sold
under a trade name in an original package on the label of which appear
the disease or diseases for which the medicine is intended to be used
and specific directions for its administration.

Section ’ Lt. “Adulterated drugs.—A arte shall be deemed to be
adulterated : ,

(1) If it has heat adjudicated to be uch by final judgment
under the Food: and Drug Act of the United States:

(2) (a) If it consists in whole or in part of any filthy, putrid,
or decomposed substance, or (b) if it has been prepared, packed, or
held under unsanitary conditions whereby it may have been contami-
nated with filth, or whereby it may have been: rendered injurious to
health; or (c) if its container is ‘composed of any poisonous or dele-
terious substance which may render it injurious to health. -

(3) If its name is recognized in an official compendium, or if it
purports to be a drug the name of which is so recognized, and it
differs from the standard of. strength, quality, or purity as determined
by the tests or methods of assay set forth therein; except that when-
ever tests or methods of assay have not been “prescribed therein,
tests or methods of assay which are accurate and adequate shall be
used. Provided that a drug may bear a mame recognized in an official
compendium and differ in strength or composition from the official
standard, but if it does so differ, the label shall carry a plain statement
to the effect that it is not to be confused with the drug or preparation
of the same name recognized in an official compendium, and a cau;
tion that it must not be dispensed when the official drug or preparation
is specified, and in addition to such statement, the label shall show
quantitatively the active ingredients of the formula of the drug or
preparation beating such identical name.

Whenever a drug is recognized in both the’ United: States’ Phar
macopoeia and the ‘Homeopathic ‘Pharmacopoeia of the United States
it shall be subject to the requirements of the United States Pharma-
copoeia unless it is labeled and offered for sale as a homeopathic drug,
1. which case it shall be subject to the provisions of the Homeopathic
Pharmacopoeia of the United States and not to those of the United
States Pharmacopoeia.

(4) If its identity or strength differs from, or its purity or
quality falls below, that which it purports to be or is represented to
possess.

(5) If any substance has been (a) mixed or packed therewith
so as to reduce its quality or strength, or (b) substituted wholly or
in part therefor.

Section 1663-a. Adulterated cosmetics—-A cosmetic shall be
deemed to be adulterated:

(1) If it has been adjudicated to be such by final judgment under
the Food and Drugs Act of the United States.

(2) If it bears or contains any poisonous or deleterious substance
which may render it injurious to health under such conditions of use
as are customary or usual.

(3) If it consists in whole or in part of any filthy, putrid, or
decomposed substance.

(4) If it has been prepared, packed, or held under unsanitary con-
ditions whereby it may have become contaminated with filth, or whereby
it may have been rendered injurious to health.

(5) If its container is composed of any poisonous or deleterious
substance which may render it injurious to health.

Section 1664. Misbranded drugs——A drug shall be deemed - to be
misbranded :

(1) If it has been adjudicated to be such by final judgment
under the Food and Drugs Act of the United States.

(2) If its labeling is false, deceiving or misleading in any par-
ticular.

(3) If it is dangerous to health under the conditions of use
prescribed in the labeling or advertising thereof.

(4) If in package form it fails to bear a label containing (a)
the name and place of business of the manufacturer, packer, seller, or
distributor; and (b) an accurate statement of the quantity of the
contents in either terms of weight, measure, or numerical count, ex-
cept granular effervescent salts; provided, that under subdivision (b)
of this paragraph reasonable variations shall be permitted, and exemp-
tions as to small packages shall be established, by regulations prescribed
by the board, where compliance with such provisions would be im-
practicable.

(5) If any word, statement, or other information required on
the label under any provision of this chapter is not prominently placed
thereon in such a manner as to be easily seen and in such terms as
to be readily understood by purchasers and users of such articles
under customary conditions of purchase and use, due consideration
being given to the size of the package.

(6) If it contains any quantity of the following substances:
Any alcohol, asetanilid, alpha eucaine, barbitaric acid, beta eucaine,
bromal, cannabis, carbromal, chloral hydrate, chloroform, coca, co-
caine, codeine, heroin, mariahuana, morphine, opium, paraldehyde,
peyote, sulphomethane, or any substance chemically derived therefrom,
except derivatives of coca leaves which do not contain cocaine, ecgo-
nine, or substances from which cocaine or ecgonine may be synthesised
or made, unless it is an article recognized in the United States Phar-
macopoeia, the National Formulary, or Homeopathic Pharmacopoeia
of the United States, and conforms to the standard as laid down in
the United States Pharmacopoeia, the National Formulary, or Homeo-
pathic Pharmacopoeia of the United States, and is labeled and sold
or dispensed as such, or unless dispensed on the written order of a
member of the medical profession, or unless its label bears the name
and quantity or proportion of such substances or derivative.

(7) Whenever a drug is recognized in both the United States
Pharmacopoeia and the Homeopathic Pharmacopoeia of the United
States it shall be subject to the requirements of the United States
Pharmacopoeia with respect to packaging and labeling unless it is
labeled and offered for sale as a homeopathic drug, in which case it
shall be subject to the provisions of the Homeopathic Pharmacopoeia
of the United States, and not to those of the United States Pharma-
copoeia, provided that the method of packing and labeling may be
modified with the consent of the board.

(8) (a) If it is a drug and its container is so made, formed, or
filled as to mislead the purchaser; and (b) if it is an imitation of an-
other drug; or (c) if it is offered for sale under the name of another
drug.

(9) When construing and enforcing the provisions of this chap-
ter with respect to labeling and advertisements, the term “antiseptic”
shall be deemed to have the same meaning as the word “germicide”,
except, however, in the case of a drug purporting to be, or represented
as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting

powder, or such other use as involves prolonged contact with the
body.

(10) The board is hereby directed to promulgate regulations ex-
empting from any labeling or packaging requirement of this chapter
drugs which are, in accordance with the practice of the trade, pro-
cessed, labeled, or repacked in substantial quantities at establishments
other than those where originally processed or packaged, on condition
that such drugs are in conformity with the provisions of this chapter
upon removal from such processing; labeling, or repacking establish-
ment.

Section 1664-a. Misbranded cosmetics—A cosmetic shall be
deemed to be misbranded: ,
(1) If it has been adjudicated to be such by final judgment
under the Food and Drugs Act of the United States.

(2) If its labeling is false or misleading in any particular, or
if it is injurious to health under the conditions of use prescribed in
the labeling or advertising thereof. , : :

(3) If in package form it fails to bear a label containing (a)
the name and place of business of the manufacturer, packer, seller,
or distributor; and (b) an accurate statement of the quantity of the
contents in terms of weight, measure, or numerical count ; provided,
that under subdivision (b) of this paragraph reasonable variations
shall be permitted, and exemptions as to small packages shall be es-
tablished, by regulations prescribed by the board, where compliance
with such provisions would be impracticable.

(4) If any word, statement, or other information required on
the label under any provision of this chapter is not prominently
placed thereon in such a manner as to be easily seen and in such
terms as to be readily understood by the purchasers and users of such
articles under customary conditions of purchase and use, due con-
sideration being given to the size of the package. , |

(5) The board is hereby authorized to promulgate regulations
excepting from any labeling requirement of this chapter cosmetics
which are, in accordance with the practice of the trade, processed,
labeled, or repacked in substantial quantities at establishments other
than those where originally processed or packed, on condition that
such cosmetics are in conformity with the provisions of this chapter
upon removal from such processing, labeling, or repacking establish-
ment. |

Section 1664-b. False advertisement—(1) An advertisement of
a drug or cosmetic shall be deemed to be false if such advertisement
violates the provisions of the Food and Drugs Act of the United
States. - a '

_ (2) The advertisement of a drug representing it to have any
therapeutic effect in the treatment of Bright’s Disease, kidney diseases,
cancer, tuberculosis, poliomyelitis (infantile paralysis), venereal dis-
ease, heart and vascular diseases shall be deemed to be false; except
that no advertisement not in violation of subsection (1) of this section
shall be deemed to be false under this paragraph if it is disseminated
only to members of the medical and pharmaceutical professions or
appears only in the scientific periodicals of these professions, or is
disseminated only for the purpose of public-health education by per-
sons not commercially interested, directly or indirectly in the sale of
such drugs. | oO oa ,

Section 1664-c. Prohibited acts——-The following acts and the
causing thereof are hereby prohibited: _

The introduction or delivery for introduction into commerce of
any drug or cosmetic that is adulterated or misbranded.

(2) The adulteration or misbranding of any drug or cosmetic
in commerce.
(3) The receipt in commerce of any drug or cosmetic that is
adulterated or misbranded, and the delivery or proffered delivery
thereof in the original unbroken package for pay or otherwise.

(4) The dissemination of a false advertisement by any means
for the purpose of inducing, directly or indirectly, the purchase of
drugs or cosmetics.

Provided, however, there shall be no prosecution of any licensed re-
tail merchant for violation of the provisions of Section 1664-c of this act
until the said retail merchant has been adequately warned by the State
Board of Pharmacy that the drug or cosmetic in question is adulterated
or misbranded.

Section 1664-d. Seizure and forfeiture—(1) Upon written com-
plaint of the board or its duly authorized representative, that a drug
or cosmetic is adulterated or misbranded, or has been manufactured,
processed, or packed in a factory or establishment, the operator of
which did not, at the time of manufacture, processing, or packing,
hold an unsuspended valid manufacturer’s permit, as required by law,
filed with the Commonwealth’s Attorney of the city or county where said
drug or cosmetic is located, said Commonwealth’s Attorney, if he be
of the opinion that the complaint is well founded, shall file in the clerk’s
office of the circuit or corporation court of his city or county, as the
case may be, an information in the name of the Commonwealth
against said property by name or general designation, setting forth
the violation of law alleged. The information shall also pray that the
property be condemned as forfeited to the Commonwealth and be
destroyed, and that all persons concerned in interest be cited to appear
and show cause why the said property should not be condemned
and destroyed to enforce a forfeiture. _

(2) Said clerk shall issue a warrant directed to the sergeant of
the city or sheriff of the county commanding him to take the said
property in his possession and hold the same subject to further proceed-
ings in the cause. If from any cause the warrant be not executed,
other like warrants may be successively issued until one be executed.
The officer serving the warrant shall take the said property into his
possession and forthwith return the warrant and report to the clerk
in writing thereon his action thereunder.

3) As soon as the warrant has been executed and returned, the
clerk shall issue a notice reciting briefly the filing of the information,
the object thereof, the issuing of the warrant and the seizure of the
property thereunder, citing all persons concerned in interest to appear
on the first day of the next term of the said court, if that be more
than ten days from the date of such notice, or if not, on the first
day of the next succeeding term, and show cause why the prayer of
the information for condemnation and destruction should not be
granted. He shall, at least ten days before the date fixed for the
notice for appearance, post a copy of the said notice at the frorit door
of the court house of his city or county, and publish the same in some
newspaper in the State selected by him. Such posting and publication
shall be sufficient service of notice on all persons concerned in in-
terest.

(4) The property, after seizure under the said warrant, may be
delivered to the claimants thereof, if the court, or the judge thereof
in the case, so order, upon his giving bond with sufficient residence
surety, to be approved by the clerk, in a penalty to be fixed by the
judge of the court; conditioned to abide by and perform the final
judgment of the court in the cause.

(5) Any person concerned in interest may appear and make de-
fense to the information, which may be done by answer on oath.
When the case is ready for trial, such issues of facts as are made by
the pleadings, or as the court may direct, shall be tried by a jury,
unless a trial by jury be dispensed with by the consent of parties; in
which case, the court shall determine the whole matter of law and fact.
If forfeiture be established the court shall direct an officer of the
court to destroy the property.

(6) For the purpose of review on a writ of error or supersedeas,
a final judgment or order in the cause shall be deemed a final judg-
ment or order in a civil case (not in Chancery) within the meaning
of section sixty-three hundred and sixty-six.

Section 1664-e. Injunction——In addition to the remedies herein-
above provided, the board is hereby authorized to apply to a court of
equity of the proper venue for an injunction to restrain any person
from a repetitious (a) introduction or cause to be introduced into
commerce any adulterated or misbranded drug or cosmetic; or (b)
dissemination of or causing to be disseminated a false advertisement
by any means for the purpose of inducing, directly or indirectly, the
purchase of drugs or cosmetics, in commerce; without being com-
pelled to allege or prove that an adeqaute remedy at law does not
exist.