15 U.S.C. § 55 — Additional definitions

Page 76 TITLE 15—COMMERCE AND TRADE § 55 rious to health at the time the same leave offi- cial ‘‘establishments.’’ (b) Exception of advertising medium or agency No publisher, radio-broadcast licensee, or agency or medium for the dissemination of ad- vertising, except the manufacturer, packer, dis- tributor, or seller of the commodity to which the false advertisement relates, shall be liable under this section by reason of the dissemina- tion by him of any false advertisement, unless he has refused, on the request of the Commis- sion, to furnish the Commission the name and post-office address of the manufacturer, packer, distributor, seller, or advertising agency, resid- ing in the United States, who caused him to dis- seminate such advertisement. No advertising agency shall be liable under this section by rea- son of the causing by it of the dissemination of any false advertisement, unless it has refused, on the request of the Commission, to furnish the Commission the name and post-office address of the manufacturer, packer, distributor, or seller, residing in the United States, who caused it to cause the dissemination of such advertisement. (Sept. 26, 1914, ch. 311, § 14, as added Mar. 21, 1938, ch. 49, § 4, 52 Stat. 114.) Editorial Notes REFERENCES IN TEXT The Meat Inspection Act, referred to in subsec. (a), is act Mar. 4, 1907, ch. 2907, titles I to IV, as added Dec. 15, 1967, Pub. L. 90–201, 81 Stat. 584, which is classified to subchapters I to IV (§ 601 et seq.) of chapter 12 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 21 and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Act Mar. 21, 1938, ch. 49, § 5(b), 52 Stat. 117, provided: ‘‘Section 14 of the Federal Trade Commission Act [this section] added to such Act by section 4 of this Act, shall take effect on the expiration of sixty days after the date of the enactment of this Act [Mar. 21, 1938].’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Federal Trade Commis- sion, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 8 of 1950, § 1, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1264, set out under section 41 of this title. § 55. Additional definitions For the purposes of sections 52 to 54 of this title— (a) False advertisement (1) The term ‘‘false advertisement’’ means an advertisement, other than labeling, which is misleading in a material respect; and in deter- mining whether any advertisement is mis- leading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such rep- resentations or material with respect to con- sequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said adver- tisement, or under such conditions as are cus- tomary or usual. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, con- tains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug. (2) In the case of oleomargarine or margarine an advertisement shall be deemed misleading in a material respect if in such advertisement rep- resentations are made or suggested by state- ment, word, grade designation, design, device, symbol, sound, or any combination thereof, that such oleomargarine or margarine is a dairy product, except that nothing contained herein shall prevent a truthful, accurate, and full statement in any such advertisement of all the ingredients contained in such oleomargarine or margarine. (b) Food The term ‘‘food’’ means (1) articles used for food or drink for man or other animals, (2) chew- ing gum, and (3) articles used for components of any such article. (c) Drug The term ‘‘drug’’ means (1) articles recognized in the official United States Pharmacopoeia, of- ficial Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (2) arti- cles intended for use in the diagnosis, cure, miti- gation, treatment, or prevention of disease in man or other animals; and (3) articles (other than food) intended to affect the structure or any function of the body of man or other ani- mals; and (4) articles intended for use as a com- ponent of any article specified in clause (1), (2), or (3); but does not include devices or their com- ponents, parts, or accessories. (d) Device The term ‘‘device’’ (except when used in sub- section (a) of this section) means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or re- lated article, including any component, part, or accessory, which is— (1) recognized in the official National For- mulary, or the United States Pharmacopeia, or any supplement to them, (2) intended for use in the diagnosis of dis- ease or other conditions, or in the cure, miti- gation, treatment, or prevention of disease, in man or other animals, or (3) intended to affect the structure or any function of the body of man or other animals, and which does not achieve any of its principal in- tended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of any of its principal in- tended purposes. (e) Cosmetic The term ‘‘cosmetic’’ means (1) articles to be rubbed, poured, sprinkled, or sprayed on, intro- Page 77 TITLE 15—COMMERCE AND TRADE § 56 duced into, or otherwise applied to the human body or any part thereof intended for cleansing, beautifying, promoting attractiveness, or alter- ing the appearance, and (2) articles intended for use as a component of any such article; except that such term shall not include soap. (f) Oleomargarine or margarine For the purposes of this section and section 347 of title 21, the term ‘‘oleomargarine’’ or ‘‘margarine’’ includes— (1) all substances, mixtures, and compounds known as oleomargarine or margarine; (2) all substances, mixtures, and compounds which have a consistence similar to that of butter and which contain any edible oils or fats other than milk fat if made in imitation or semblance of butter. (Sept. 26, 1914, ch. 311, § 15, as added Mar. 21, 1938, ch. 49, § 4, 52 Stat. 114; amended Mar. 16, 1950, ch. 61, § 4(a), (b), 64 Stat. 21; Pub. L. 94–295, § 3(a)(1)(B), May 28, 1976, 90 Stat. 575.) Editorial Notes AMENDMENTS 1976—Subsec. (d). Pub. L. 94–295 expanded definition of ‘‘device’’ to include implements, machines, implants, in vitro reagents, and other similar or related articles, added recognition in the National Formulary or the United States Pharmacopeia, or any supplement to the Formulary or Pharmacopeia, to the enumeration of conditions under which a device may qualify for inclu- sion under this chapter, and inserted requirements that a device be one which does not achieve any of its prin- cipal intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achieve- ment of any of its principal intended purposes. 1950—Subsec. (a). Act Mar. 16, 1950, § 4(a), designated existing provisions as par. (1) and added par. (2) relat- ing to oleomargarine. Subsec. (f). Act Mar. 16, 1950, § 4(b), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1950 AMENDMENT Amendment by act Mar. 16, 1950, effective July 1, 1950, see note set out under section 347 of Title 21, Food and Drugs. § 56. Commencement, defense, intervention and supervision of litigation and appeal by Com- mission or Attorney General (a) Procedure for exercise of authority to litigate or appeal (1) Except as otherwise provided in paragraph (2) or (3), if— (A) before commencing, defending, or inter- vening in, any civil action involving this sub- chapter (including an action to collect a civil penalty) which the Commission, or the Attor- ney General on behalf of the Commission, is authorized to commence, defend, or intervene in, the Commission gives written notification and undertakes to consult with the Attorney General with respect to such action; and (B) the Attorney General fails within 45 days after receipt of such notification to com- mence, defend, or intervene in, such action; the Commission may commence, defend, or in- tervene in, and supervise the litigation of, such action and any appeal of such action in its own name by any of its attorneys designated by it for such purpose. (2) Except as otherwise provided in paragraph (3), in any civil action— (A) under section 53 of this title (relating to injunctive relief); (B) under section 57b of this title (relating to consumer redress); (C) to obtain judicial review of a rule pre- scribed by the Commission, or a cease and de- sist order issued under section 45 of this title; (D) under the second paragraph of section 49 of this title (relating to enforcement of a sub- pena) and under the fourth paragraph of such section (relating to compliance with section 46 of this title); or (E) under section 57b–2a of this title; the Commission shall have exclusive authority to commence or defend, and supervise the litiga- tion of, such action and any appeal of such ac- tion in its own name by any of its attorneys des- ignated by it for such purpose, unless the Com- mission authorizes the Attorney General to do so. The Commission shall inform the Attorney General of the exercise of such authority and such exercise shall not preclude the Attorney General from intervening on behalf of the United States in such action and any appeal of such action as may be otherwise provided by law. (3)(A) If the Commission makes a written re- quest to the Attorney General, within the 10-day period which begins on the date of the entry of the judgment in any civil action in which the Commission represented itself pursuant to para- graph (1) or (2), to represent itself through any of its attorneys designated by it for such pur- pose before the Supreme Court in such action, it may do so, if— (i) the Attorney General concurs with such request; or (ii) the Attorney General, within the 60-day period which begins on the date of the entry of such judgment— (a) refuses to appeal or file a petition for writ of certiorari with respect to such civil action, in which case he shall give written notification to the Commission of the rea- sons for such refusal within such 60-day pe- riod; or (b) the Attorney General fails to take any action with respect to the Commission’s re- quest. (B) In any case where the Attorney General represents the Commission before the Supreme Court in any civil action in which the Commis- sion represented itself pursuant to paragraph (1) or (2), the Attorney General may not agree to any settlement, compromise, or dismissal of such action, or confess error in the Supreme Court with respect to such action, unless the Commission concurs. (C) For purposes of this paragraph (with re- spect to representation before the Supreme Court), the term ‘‘Attorney General’’ includes the Solicitor General. (4) If, prior to the expiration of the 45-day pe- riod specified in paragraph (1) of this section or a 60-day period specified in paragraph (3), any