CHAPTER 148

FORMERLY

SENATE BILL, NO. 141

AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 33 OF TITLE 16 OF THE DELAWARE CODE, RELATING TO THE PURITY OF FOOD AND DRUGS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two—thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 33 of Title 16 of the Delaware Code, by adding a new section to be designated as Section 3323 which should read as follows:

"Embargo

(a) (1) When a duly authorized agent of the Board of Health, when food is involved, or of the Board of Pharmacy, when drugs are involved, finds or has probable cause to believe that any food or drug as defined by this Act is adulterated or so misbranded as to be dangerous or fraudulent within the meaing of this Act, or is in violation of Sections 3303, 3304, 3308, or 3309 of this Act, he shall affix to such article a tag or other appropriate marking. This tag or marking shall give notice that such article is, or is suspected of being adulterated or misbranded and has been detained or embargoed. The tag or other appropriate marking shall warn all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by an authorized agent or the Court. It shall be unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission.

(2) When an authorized agent has found that an article which is embargoed or detained is not adulterated or misbranded, he shall remove the tag or other markings and it may be disposed of by sale or otherwise by the owner.

(b) When an article is adulterated or misbranded or is in violation of Sections 3303, 3304, 3308 or 3309 of this Act, it shall be liable to be proceeded against by petition to the Justice of the Peace or the Judge of the Court of Common Pleas in whose jurisdiction the article is located, detained or embargoed for a decree of condemnation of such article.

(c) If the Court finds that a sampled, detained or embargoed article is adulterated or misbranded, such article shall, after entry of the decree, be destroyed at the expense of the owner thereof, under the supervision of an authorized agent. All Court costs and fees, and storage and other expenses, shall be charged against the owner of such article or his agent. If adulteration or misbranding can be corrected by proper labelling or processing of the article, the Court, after entry of the decree may, by order, direct that such article be delivered to the owner thereof for such labelling or processing under the supervision of an agent of the State Board of Pharmacy or the Board of Health. Expense of such supervision and any other costs, fees, or expenses involved shall be paid by the owner. A sufficient bond shall be executed on the condition that the articles shall be properly labelled or processed. The article shall be returned to the owner and the bond shall be discharged on the representation to the Court by the State Board of health or the Board of Pharmacy or their authorized agents that the article is no longer In violation of this Act, and that the expenses of such supervision have been paid. The tag or markings described in paragraph (1) of subsection (a) may then be removed.

(d) The State Board of Health or its authorized agents shall condemn or destroy, or otherwise render unsaleable as human food, any meat, seafood, poultry, vegetable, fruit, or other perishable articles which are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to the health, or are otherwise unsafe. This applies to food found in any room, building, vehicle of transportation or other structure. The cost of condemning, destroying or rendering such food unsaleable shall be paid by the claimant."

Section 2. Amend Chapter 33 of Title 16 of the Delaware Codes by adding a new section, designated as Section 3324, titled "Penalties for Violations of Section 3323," to read:

"(a) Whoever violates any of the provisions of Section 3323 of this Title shall, for each offense, be fined not more than $500, or imprisoned not more than one year, or both. For each subsequent offense, he shall be fined not more than $1,000 or imprisoned for more than one year, or both.

(b) When construing and enforcing the provisions of this Chapter, the act, admission or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be deemed to be the act, admission, or failure of such corporation, company, society or association as well as of that person."

Approved July 14, 1981.