INTERPRETATION OF PART OF THE UNIFORM WASHINGTON FOOD, DRUG, AND COSMETIC ACT

INTERPRETATION OF PART OF THE UNIFORM WASHINGTON FOOD, DRUG, AND COSMETIC ACT

A notice and hearing must be given by the Director of the Department of Agriculture prior to the institution of a criminal proceeding for a violation of the Uniform Washington Food, Drug, and Cosmetic Act.

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                                                              September 17, 1951

Honorable Sverre N. Omdahl
Director
Department of Agriculture
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 129

Dear Sir:

            Your letter of September 7, 1951, requests an interpretation of sections 22, 24, 25 and 34 of chapter 257, Laws of 1945, and, in addition, asks whether compliance with section 34 (b), supra, is mandatory.

            You are advised that section 34 (b) supra, definitely requires the giving of a notice and the granting of a hearing prior to the institution of any criminal proceeding under chapter 257, supra.

            For an interpretation of sections 22, 24, 25 and 34, supra, see our analysis.

                                                                     ANALYSIS

            For brevity's sake, we shall hereinafter term the Director of the Department of Agriculture as the Director, and chapter 257, Laws of 1945, (Rem. Rev. Stat. sections 6130-50 et seq.) as the Act.  All section citations refer to the Act unless we indicate otherwise.

            A. Section 34 reads as follows:

            "(a) It shall be the duty of each State Attorney, County Attorney, or City Attorney to whom the Director reports any violation of this act, or  [[Orig. Op. Page 2]] regulations promulgated under it, to cause appropriate proceedings to be instituted in the proper courts, without delay, and to be duly prosecuted as prescribed by law.

            "(b)Before any violation of this act is reported by the Director to any such attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views to the Director, either orally or in writing, with regard to such contemplated proceeding."  (Emphasis supplied).

            Relative to section 34 (b), you state that "nothing can be gained by delaying proceedings by prior hearing of the party in question, because our laboratory tests have already found the product to be adulterated."  However true this may be, the legislature has decided that there shall be a notice and hearing before"any violation of this act is reported by the Director to any such attorney for the institution of a criminal proceeding.  * * *" (Emphasis supplied).  The legislative intent is patent.  Such intent, once discerned, becomes the controlling factor and, in the end, constitutes the law.  See 50 Am.Jur., Statutes, section 223.  Therefore, we conclude that a criminal proceeding founded upon a violation of the Act, cannot be instituted without a prior notice and hearing.

            The institution of a criminal proceeding is not the only remedy available to the Director upon the discovery of a violation of the Act.  Section 23 authorizes the Director to apply to a superior court for a temporary or permanent injunction restraining any violations of the Act.  Section 28 permits the destruction of any article "so adulterated or misbranded that it is unfit or unsafe for human use and its immediate condemnation is required to protect the public health."  Section 29 empowers the Director to embargo "adulterated or misbranded" articles, but section 30 requires the procuring of a superior court order affirming this action.  We note that the Act does not require notice and hearing prior to the institution of proceedings or the taking of action under sections 23, 28, and 29.  Only when a criminal proceeding is contemplated does section 34 (b) require a prior notice and hearing.

            B. Section 22 prohibits certain acts and the causing thereof.  It is too lengthy to be here quoted.

             [[Orig. Op. Page 3]]

            Subsections (a) through (c) contain prohibitions relative to adulterated and misbranded foods, drugs, devices, and cosmetics.  For what foods, drugs, devices, and cosmetics shall be deemed adulterated and misbranded, see sections 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 85, 86, and 87; section 2, chapter 116, Laws of 1949, section 6, chapter 20, Laws of 1951.  Subsections (d) and (j) prohibit violations of sections 53 and 75.  Subsection (e) forbids "any false advertisement."  Sections 89 and 90 fully delineate what constitutes "any false advertisement."  Subsections (f) and (g) interdict refusals to allow investigations and inspections authorized by sections 96, 99 and 100.  Subsection (h) prohibits the "removal, mutilation, or violation" of embargo notices.  Subsection (i) interdicts the giving of false guarantees or undertakings authorized by section 26.  Subsection (k) forbids the tampering with or removal of any label that results in a violation of the Act.  Subsection (l) prohibits advertisements or representations that drugs comply with section 75 or section 505 of the Federal Food, Drug, and Cosmetic Act.

            Sections 24 and 25 set out the possible penalties for violation of section 22.  Section 24 seems to apply to inadvertent violations.  Under this section the maximum penalty for the first conviction is a fine of not more than two hundred dollars, and the highest penalty for a subsequent conviction, whether the prior conviction is under sections 24 or 25, is a fine of five hundred dollars and/or imprisonment for thirty days.

            Section 25 pertains to violations of section 22 with intent "to defraud or mislead."  Should the State prevail in its proof of fraud, the maximum penalty upon conviction is a fine of one thousand dollars and/or imprisonment for ninety days.

            Our interpretations of sections 22, 24, 25, and 34, as detailed above, are given for the mere purpose of shedding light upon the subjects, and arenot attempts to anticipate all possible contingencies arising under the Act.

Very truly yours,

SMITH TROY
Attorney General

ROBERT A. COMFORT
Assistant Attorney General