1 2 3 4 37 305 section 306 or 707 705 concerning any method or proc ess which as a trade secret is entitled to protection. (b) Any person who violates any of the provisions of subdivisions (1) to (7), inclusive, of paragraph (a) of 5 this section shall be guilty of a misdemeanor and shall on 6 conviction thereof be subject to imprisonment for not more 7 9 than one year, or a fine of not more than $1,000, or both 8 such imprisonment and fine; and for a second or subsequent offense imprisonment for not more than two years, or a fine of not more than $3,000 $5,000, or both such imprisonment and fine: Provided, however, That any person who violates 10 11 12 any of the provisions of subdivision (4) or (5) of para13 graph (a) of this section shall only be liable for and forfeit 14 and pay a civil penalty of not more than $1,000 to be 15 recovered by civil action in the district court within the 16 district where the person resides or carries on business if (1) the violation does not involve inminent danger to health or gross deception, and (2) the violation is estab19 lished by opinion evidence only; except that for a second or subsequent violation to which this proviso applies such civil penalty shall be in an amount not to exceed $5,000. 17 18 20 21 22 23 (c) Notwithstanding the provision of paragraph (b) of this section, in case of a willful violation of any of the 24 provisions of subdivisions (1) to (7), inclusive, of para 25 graph graph (a) of this section the penalty shall be imprison 1 38 ment for not more than three years, or a fine of not more 2 than $10,000, or both such imprisonment and fine. 3 (d) No publisher, radio-broadcast licensee, advertising 4 agency, or other agency or medium for the dissemination of 5 advertising shall be deemed to have violated the provisions of 6 subdivision (4) or (5) of paragraph (a) of this section by 7 reason of the dissemination of any false advertisement when such dissemination is caused by the manufacturer, packer, 9 distributor, or seller, residing in the United States, of the 8 10 13 15 article so advertised; but such manufacturer, packer, dis11 tributor, or seller shall be amenable to the prosecution and 12 penalties provided for violation of such subdivisions. It shall be unlawful for any publisher, radio-broadcast licensee, 14 advertising agency, or other agency or medium for the dissemination of advertising willfully to refuse, on reasonable 16 request of an officer or employce duly designated by the 17 Secretary, to furnish to such officer or employee the name 18 and post-office address of the manufacturer, packer, dis19 tributor, or seller, residing in the United States, who caused 20 him to disseminate any such advertisement; and any publisher, radio-broadcast licensee, advertising agency, or other 22 agency or medium for the dissemination of advertising who so refuses shall be guilty of a misdemeanor and shall on 24 conviction thereof be subject to the penalties prescribed by 25 paragraph (b) of this section. 21 23 1 39 (e) No dealer shall be subject to the penalties of 2 paragraph (b) of this section (1) for having received in 3 interstate commerce any article of food, drug, device, or 4 cosmetic and in good faith sold it as received delivered it 5 or proffered delivery of it as received, if such delivery or 6 proffer was made in good faith, unless he refuses to furnish 7 on request of an officer or employee duly designated by the 8 Secretary the name and address of the person from whom 9 he purchased or received such article and copies of all docu10 ments, if any there be, pertaining to the delivery of the 11 13 article to him, or (2) if he establishes a guaranty or under12 taking signed by the person residing in the United States. from whom he received in good faith the article of food, drug, device, or cosmetic, or the advertising copy therefor, as the case may be, to the effect that such article is not adulterated or misbranded, and such copy is not false, within the meaning 14 15 16 17 19 of this Act, designating it this Act. To afford protection, 18 such guaranty or undertaking shall contain the name and address of the person furnishing such guaranty or under20 taking, and such person shall be amenable to the prosecution and penalties which would attach in due course to the dealer 22 under the provisions of this Act. No retail dealer shall be 23 prosecuted under this section for the dissemination, if in 24 good faith, of any advertisement offering for sale at his place 21 1 40 of business any article which he does not distribute or sell 2 in interstate commerce. 3 (f) Any person who violates any of the provisions of 4 subdivision (8) of paragraph (a) of this section shall be 5 quilty of a misdemeanor and shall on conviction thereof be 6 subject to imprisonment for not more than one year or a fine of not more than $5,000, or both such imprisonment and 8 fine. 7 9 10 (g) Any person who violates any of the provisions of subdivision (9) of paragraph (a) of this section shall be 11 guilty of a felony and shall on conviction thereof be subject to imprisonment for not more than two years or a fine of not more than $5,000, or both such imprisonment and fine. 12 13 14 15 16 18 LIABILITY OF CORPORATIONS AND THEIR OFFICERS SEC. 709 707. (a) When construing and enforcing the provisions of this Act, unless otherwise provided, the act, 17 omission, or failure of any officer, employee, or agent acting for or employed by any person, within the scope of his 19 employment or office, shall in every case be deemed to be the act, omission, or failure of such person, as well as that of the officer, employee, or agent. 20 21 22 (b) Whenever a corporation or association violates any of the provisions of this Act, unless otherwise provided, 24 such violation shall also be deemed to be a violation by the 23 25 individual directors, officers, or agents of such corporation or 41 1 association who personally ordered, or did any of the acts 2 constituting, in whole or in part, such violation. 3 4 5 6 INSTITUTION OF CRIMINAL AND CIVIL PENALTY PROCEEDINGS SEC. 740 708. Before reporting any violation of this Act to any United States attorney for institution of criminal 7 proceedings thereunder, or for the institution of civil penalty action under section 708 706 (b), the Secretary shall, in 8 9 accordance with regulations prescribed by him, afford 10 appropriate notice and opportunity for hearing to interested persons the person against whom the proceedings are con12 templated (1) for hearing upon the question of such viola13 tion; and (2) for hearing to review his tentative decision 11 14 16 17 to make such report, upon cause shown satisfactory to the 15 Secretary. The report shall be accompanied by findings of the appropriate officers and employees, duly authenticated under their oaths. Nothing in this Act shall be construed as requiring the Secretary to report for prosecution or for the institution of libel, injunction proceedings, or civil penalty action, minor violations of this Act whenever 18 19 20 21 he believes that the purposes of the Act can best be accom22 plished by a suitable written notice or warning. SEIZURE 24 23 SEC. 1 709. (a) Any article of food, drug, device, 25 or cosmetic that is adulterated or misbranded when |