15 U.S.C. § 1263 — Prohibited acts

Page 1370 TITLE 15—COMMERCE AND TRADE § 1263 hazardous substance’’ for ‘‘any container of such haz- ardous substance, intended or suitable for household use, which fails to bear a label in accordance with such regulations shall be deemed to be a misbranded pack- age of a hazardous substance’’. Subsec. (d). Pub. L. 89–756, § 2(e), inserted ‘‘hazardous substance or’’ before ‘‘container of a hazardous sub- stance’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Energy and Commerce of House of Representatives treated as referring to Committee on Commerce of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Commerce of House of Representatives changed to Committee on En- ergy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and ex- changes and insurance generally transferred to Com- mittee on Financial Services of House of Representa- tives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 applicable with respect to regulations under this chapter and chapters 25 and 47 of this title for which notices of proposed rulemaking are issued after Aug. 14, 1981, see section 1215 of Pub. L. 97–35, set out as a note under section 2052 of this title. EFFECTIVE DATE OF 1969 AMENDMENT Amendment by Pub. L. 91–113 effective on sixtieth day following Nov. 6, 1969, see section 5 of Pub. L. 91–113, set out as a note under section 1261 of this title. NATIONAL COMMISSION ON PRODUCT SAFETY Pub. L. 90–146, Nov. 20, 1967, 81 Stat. 466, as amended by Pub. L. 91–51, Aug. 4, 1969, 83 Stat. 86, established a National Commission on Product Safety to study and investigate the scope and adequacy of measures to pro- tect consumers against unreasonable risk of injuries which may be caused by hazardous household products and required the Commission to transmit its final re- port to the President and to the Congress by June 30, 1970. Ninety days after submission of its final report the Commission ceased to exist by the express terms of Pub. L. 90–146. § 1263. Prohibited acts The following acts and the causing thereof are prohibited: (a) The introduction or delivery for introduc- tion into interstate commerce of any mis- branded hazardous substance or banned haz- ardous substance. (b) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the label of, or the doing of any other act with respect to, a hazardous substance, if such act is done while the substance is in interstate commerce, or while the substance is held for sale (whether or not the first sale) after ship- ment in interstate commerce, and results in the hazardous substance being a misbranded haz- ardous substance or banned hazardous sub- stance. (c) The receipt in interstate commerce of any misbranded hazardous substance or banned haz- ardous substance and the delivery or proffered delivery thereof for pay or otherwise. (d) The giving of a guarantee or undertaking referred to in section 1264(b)(2) of this title which guarantee or undertaking is false, except by a person who relied upon a guarantee or un- dertaking to the same effect signed by, and con- taining the name and address of, the person re- siding in the United States from whom he re- ceived in good faith the hazardous substance. (e) The failure to permit entry or inspection as authorized by section 1270(b) of this title or to permit access to and copying of any record as authorized by section 1271 of this title. (f) The introduction or delivery for introduc- tion into interstate commerce, or the receipt in interstate commerce and subsequent delivery or proffered delivery for pay or otherwise, of a haz- ardous substance in a reused food, drug, or cos- metic container or in a container which, though not a reused container, is identifiable as a food, drug, or cosmetic container by its labeling or by other identification. The reuse of a food, drug, or cosmetic container as a container for a haz- ardous substance shall be deemed to be an act which results in the hazardous substance being a misbranded hazardous substance. As used in this paragraph, the terms ‘‘food’’, ‘‘drug’’, and ‘‘cos- metic’’ shall have the same meanings as in the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.]. (g) The manufacture of a misbranded haz- ardous substance or banned hazardous substance within the District of Columbia or within any territory not organized with a legislative body. (h) The use by any person to his own advan- tage, or revealing other than to the Commission or officers or employees of the Commission, or to the courts when relevant in any judicial pro- ceeding under this chapter, of any information acquired under authority of section 1270 of this title concerning any method of process which as a trade secret is entitled to protection. (i) The failure to notify the Commission with respect to exports, pursuant to section 1273(d) of this title. (j) The failure to comply with an order issued under section 1274 of this title. (k) The introduction or delivery for introduc- tion into interstate commerce of any lead solder which has a lead content in excess of 0.2 percent which does not prominently display a warning label stating the lead content of the solder and warning that the use of such solder in the mak- ing of joints or fittings in any private or public potable water supply system is prohibited. (Pub. L. 86–613, § 4, July 12, 1960, 74 Stat. 375; Pub. L. 89–756, §§ 2(f), 3(b), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 95–631, § 7(a), Nov. 10, 1978, 92 Stat. 3745; Pub. L. 97–35, title XII, § 1211(f)(2), Aug. 13, 1981, 95 Stat. 723; Pub. L. 99–339, title I, § 109(d)(2), June 19, 1986, 100 Stat. 653; Pub. L. 110–314, title II, § 204(b)(4)(B), (C), (H), Aug. 14, 2008, 122 Stat. 3041, 3042.) Editorial Notes REFERENCES IN TEXT The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (f), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is classified generally to chapter 9 (§ 301 et seq.) of Title 21, Food and Drugs. For complete classi- fication of this Act to the Code, see section 301 of Title 21 and Tables. AMENDMENTS 2008—Subsec. (h). Pub. L. 110–314, § 204(b)(4)(B), (C), substituted ‘‘Commission or officers or employees of Page 1371 TITLE 15—COMMERCE AND TRADE § 1264 the Commission’’ for ‘‘Secretary or officers or employ- ees of the Department’’. Subsec. (i). Pub. L. 110–314, § 204(b)(4)(H), substituted ‘‘Commission’’ for ‘‘Consumer Product Safety Commis- sion’’. 1986—Subsec. (k). Pub. L. 99–339 added subsec. (k). 1981—Subsec. (j). Pub. L. 97–35 added subsec. (j). 1978—Subsec. (i). Pub. L. 95–631 added subsec. (i). 1966—Subsec. (a). Pub. L. 89–756, §§ 2(f)(1), 3(b), sub- stituted ‘‘misbranded hazardous substance or banned hazardous substance’’ for ‘‘misbranded package of a hazardous substance’’. Subsec. (b). Pub. L. 89–756, §§ 2(f)(2), 3(b), substituted ‘‘being a misbranded hazardous substance or banned hazardous substance’’ for ‘‘being in a misbranded pack- age’’. Subsec. (c). Pub. L. 89–756, §§ 2(f)(1), 3(b), substituted ‘‘misbranded hazardous substance or banned hazardous substance’’ for ‘‘misbranded package of a hazardous substance’’. Subsec. (f). Pub. L. 89–756, § 2(f)(2), substituted ‘‘being a misbranded hazardous substance’’ for ‘‘being in a mis- branded package’’. Subsec. (g). Pub. L. 89–756, §§ 2(f)(1), 3(b), substituted ‘‘misbranded hazardous substance or banned hazardous substance’’ for ‘‘misbranded package of a hazardous substance’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–339 effective 24 months after June 19, 1986, see section 109(d)(3) of Pub. L. 99–339, set out as a note under section 1261 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 effective Aug. 13, 1981, see section 1215 of Pub. L. 97–35, set out as a note under section 2052 of this title. § 1264. Penalties; exceptions (a) Criminal penalties Any person who violates any of the provisions of section 1263 of this title shall be guilty of a misdemeanor and shall on conviction thereof be subject to a fine of not more than $500 or to im- prisonment for not more than ninety days, or both; but for offenses committed with intent to defraud or mislead, or for second and subsequent offenses, the penalty shall be imprisonment for not more than 5 years, a fine determined under section 3571 of title 18, or both. (b) Exceptions No person shall be subject to the penalties of subsection (a) of this section, (1) for having vio- lated section 1263(c) of this title, if the receipt, delivery, or proffered delivery of the hazardous substance was made in good faith, unless he re- fuses to furnish on request of an officer or em- ployee duly designated by the Commission, the name and address of the person from whom he purchased or received such hazardous substance, and copies of all documents, if any there be, per- taining to the delivery of the hazardous sub- stance to him; or (2) for having violated section 1263(a) of this title, if he established a guarantee or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the hazardous substance, to the effect that the hazardous substance is not a misbranded hazardous substance or a banned hazardous sub- stance within the meaning of those terms in this chapter; or (3) for having violated subsection (a) or (c) of section 1263 of this title with respect to any hazardous substance shipped or delivered for shipment for export to any foreign country, in a package marked for export on the outside of the shipping container and labeled in accordance with the specifications of the foreign purchaser and in accordance with the laws of the foreign country, but if such hazardous substance is sold or offered for sale in domestic commerce or if the Commission determines that exportation of such substance presents an unreasonable risk of injury to persons residing within the United States, this clause shall not apply. (c) Civil penalties (1) Any person who knowingly violates section 1263 of this title shall be subject to a civil pen- alty not to exceed $100,000 for each such viola- tion. Subject to paragraph (2), a violation of subsections (a), (b), (c), (d), (f), (g), (i), (j), and (k) of section 1263 of this title shall constitute a separate offense with respect to each substance involved, except that the maximum civil pen- alty shall not exceed $15,000,000 for any related series of violations. A violation of section 1263(e) of this title shall constitute a separate violation with respect to each failure or refusal to allow or perform an act required by section 1263(e) of this title; and, if such violation is a continuing one, each day of such violation shall constitute a separate offense, except that the maximum civil penalty shall not exceed $15,000,000 for any related series of violations. (2) The second sentence of paragraph (1) of this subsection shall not apply to violations of sub- section (a) or (c) of section 1263 of this title— (A) if the person who violated such sub- section is not the manufacturer, importer, or private labeler or a distributor of the sub- stances involved; and (B) if such person did not have either (i) ac- tual knowledge that such person’s distribution or sale of the substance violated such sub- section, or (ii) notice from the Commission that such distribution or sale would be a viola- tion of such subsection. (3) In determining the amount of any penalty to be sought upon commencing an action seek- ing to assess a penalty for a violation of section 1263 of this title, the Commission shall consider the nature, circumstances, extent, and gravity of the violation, including the nature of the sub- stance, the severity of the risk of injury, the oc- currence or absence of injury, the amount of the substance distributed, the appropriateness of such penalty in relation to the size of the busi- ness of the person charged, including how to mitigate undue adverse economic impacts on small businesses, and such other factors as ap- propriate. (4) Any civil penalty under this subsection may be compromised by the Commission. In de- termining the amount of such penalty or wheth- er it should be remitted or mitigated, and in what amount, the Commission shall consider the appropriateness of such penalty to the size of the business of the persons charged, including how to mitigate undue adverse economic im- pacts on small businesses, the nature, cir- cumstances, extent, and gravity of the viola-