65-660. Same; adulterated or misbranded food, drug, device or cosmetic; detaining or embargoing; condemnation proceedings; consolidation, when; samples and analyses of seized articles; destruction of
65-660
65-660. Same; adulterated or misbranded food, drug, device orcosmetic; detaining or embargoing; condemnation proceedings; consolidation,when; samples and analyses of seized articles; destruction of certainperishable food.(a) Whenever a duly authorized agent of the secretary finds or hasprobable cause to believe, that any food, drug, device, or cosmetic isadulterated, or so misbranded as to be dangerous or fraudulent, within themeaning of this act, he shall affix to such article a tag or otherappropriate marking, giving notice that such article is, or is suspected ofbeing, adulterated or misbranded and has been detained or embargoed, andwarning all persons not to remove or dispose of such article by sale orotherwise until permission for removal or disposal is given by such agentor the court. It shall be unlawful for any person to remove or dispose ofsuch detained or embargoed article by sale or otherwise without suchpermission.
(b) When an article detained or embargoed under subsection (a) has beenfound by such agent to be adulterated, or misbranded, he shall petition thedistrict court in whose jurisdiction the article is detained or embargoedfor a libel for condemnation of such article. When such agent has foundthat an article so detained or embargoed is not adulterated or misbranded,he shall remove the tag or other marking.
(c) If the court finds that a detained or embargoed article isadulterated or misbranded, such article shall, after entry of the decree bedestroyed at the expense of the claimant thereof, under the supervision ofsuch agent, and all court costs and fees, and storage and other properexpenses, shall be taxed against the claimant of such article or his agent:Provided, That when the adulteration or misbranding can be correctedby proper labeling or processing of the article, the court, after entry ofthe decree and after such costs, fees, and expenses have been paid and agood and sufficient bond, conditioned that such article shall be so labeledor processed, has been executed, may direct that such article be deliveredto the claimant thereof for such labeling or processing under thesupervision of an agent of the secretary. The expense of such supervisionshall be paid by the claimant. Such bond shall be returned to the claimantof the article on representation to the court by the secretary that thearticle is no longer in violation of this act, and that the expenses ofsuch supervision have been paid: Provided further, That no actionshall be instituted under this act for any alleged misbranding if there ispending in any court, state or federal, a proceeding under this act basedupon the same alleged misbranding, and not more than one such proceedingshall be instituted if no such proceeding is so pending, except that suchlimitations shall not apply (1) when such misbranding has been the basis ofa prior judgment in favor of the state of Kansas or the United States, in acriminal, injunction, or condemnation proceeding under this act, or (2)when the administrator has probable cause to believe from facts foundwithout hearing by him or any officer or employee of the agency that themisbranded article is dangerous to health, or that the labeling of themisbranded article is fraudulent, or would be in a material respectmisleading to the injury or damage of the purchaser or consumer. In anycase where the number of proceedings is limited as above provided, theproceeding pending or instituted shall, on application of the claimantseasonably made, be removed for trial to any district court agreed upon bystipulation between the parties, or in case of failure to so stipulatewithin a reasonable time, the claimant may apply to the court of thedistrict in which the seizure has been made, and such court after givingthe county attorney reasonable notice and opportunity to be heard shall byorder, unless good cause to the contrary is shown, specify a district inwhich claimant's principal place of business is located, to which the caseshall be removed for trial. Upon demand of either party any issue of factjoined in any such case shall be tried by jury: Provided further, Whenproceedings under this section involving the same claimant and the sameissues of adulteration or misbranding are pending in two or morejurisdictions, such pending proceedings upon application of the claimantseasonably made to the court of one jurisdiction, shall be consolidated fortrial by order of such court and tried in (1) any district selected by theclaimant where one such proceeding is pending, or (2) a district agreedupon by stipulation between the parties. If no order for consolidation isso made within a reasonable time the claimant may apply to the court of onesuch jurisdiction and such court, after giving reasonable notice to thecounty attorney and opportunity to be heard, shall by order unless goodcause to the contrary is shown, specify a district in which claimant'sprincipal place of business is located, in which all such pendingproceedings shall be consolidated for trial and tried. The court grantingsuch order shall give prompt notification thereof to the other courtshaving jurisdiction of the case covered thereby: Provided further, Thecourt at any time after seizure up to a reasonable time before trial, shallby order allow any party to a condemnation proceeding, his attorney oragent to obtain a representative sample of the article seized and asregards fresh fruits or fresh vegetables, a true copy of the analyses onwhich the proceeding is based and the identifying marks or numbers, if anyof the packages from which the samples analyzed were obtained.
(d) Whenever the secretary or any of his authorized agents shall find inany room, building, vehicle of transportation or other structure, any meat,seafood, poultry, vegetable, fruit or other perishable articles which areunsound, or contain any filthy, decomposed, or putrid substance, or thatmay be poisonous or deleterious to health or otherwise unsafe, the samebeing hereby declared to be a nuisance, the secretary, or his authorizedagent, shall forthwith condemn or destroy the same, or in any other mannerrender the same unsalable as human food.
History: L. 1953, ch. 286, § 6; L. 1974, ch. 352, §101; July 1.