21 U.S.C. § 378 — Advertising of foods

submitted 88 years ago by Pub. L. 94-278 to r/title-21-FOOD-AND-DRUGS · 752 words · no verdicts yet

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Before acting against misleading food advertising, the Secretary usually must first notify the Federal Trade Commission in writing. If the Commission is already investigating or suing over that same advertising, the Secretary generally must wait. The Secretary can skip these steps and act right away if the food is an immediate health hazard.

This section coordinates how the Secretary and the Federal Trade Commission (FTC) handle food that is misbranded because of its advertising. (a) Determination of misbranding; notification of Federal Trade Commission by Secretary; contents. Except as subsection (c) allows, before the Secretary can start any action under subchapter III — either (A) about a food the Secretary decides is misbranded under section 343(a)(2) because of its advertising, or (B) about advertising the Secretary decides makes a food misbranded — the Secretary must first notify the FTC in writing of the action the Secretary plans to take. That notice must (A) describe the planned action and the advertising the Secretary found to cause the misbranding, and explain the Secretary's reasons for that finding, and (B) come with the records, documents, and other written materials that support the Secretary's determination. (b) Action by Federal Trade Commission precluding action by Secretary; exception. If the Secretary sends the FTC a notice under (a), and within 30 days of getting it the FTC notifies the Secretary in writing that it: (A) has started an investigation under the Federal Trade Commission Act into whether the advertising breaks that Act or any FTC order or rule; (B) has started, or plans to start, a civil action under section 5, 13, or 19 of that Act about the advertising, or the Attorney General has started or plans to start a civil action under section 5 about it; (C) has issued and served, or plans to issue and serve, a section 5(b) complaint about the advertising; or (D) has, under section 16(b) of that Act, certified the matter to the Attorney General — then the Secretary generally cannot start the action described in the notice to the FTC. But the Secretary can act after the 60-day period that begins when the Secretary received the FTC's notice, if by then: (A) the Commission or the Attorney General has not started the civil action described above; (B) the Commission has not issued and served the complaint described above; or (C) the Commission has not made the certification to the Attorney General described above — or, if it did, the Attorney General has not brought appropriate criminal proceedings against the advertising before the 60 days ran out. The Commission must promptly tell the Secretary once it starts such a civil action, issues and serves such a complaint, or once the Attorney General brings criminal proceedings. (c) Secretary's determination of imminent hazard to health as suspending applicability of provisions. The notice-and-wait rules in (a) and (b) do not apply to action under subchapter III about any food or food advertising, if the Secretary determines that acting right away is needed to eliminate an imminent hazard to health. (d) Coordination of action by Secretary with Federal Trade Commission. To avoid doing the same work twice, the Secretary must coordinate any subchapter III action taken because advertising makes a food misbranded with any FTC action under the Federal Trade Commission Act about that same advertising.

the actual law source: uscode.house.gov ↗public domain

(a) Determination of misbranding; notification of Federal Trade Commission by Secretary; contents

(1)

Except as provided in subsection (c), before the Secretary may initiate any action under subchapter III—

(A)

with respect to any food which the Secretary determines is misbranded under section 343(a)(2) of this title because of its advertising, or

(B)

with respect to a food’s advertising which the Secretary determines causes the food to be so misbranded,

the Secretary shall, in accordance with paragraph (2), notify in writing the Federal Trade Commission of the action the Secretary proposes to take respecting such food or advertising.

(2)

The notice required by paragraph (1) shall—

(A)

contain (i) a description of the action the Secretary proposes to take and of the advertising which the Secretary has determined causes a food to be misbranded, (ii) a statement of the reasons for the Secretary’s determination that such advertising has caused such food to be misbranded, and

(B)

be accompanied by the records, documents, and other written materials which the Secretary determines supports his determination that such food is misbranded because of such advertising.

(b) Action by Federal Trade Commission precluding action by Secretary; exception

(1)

If the Secretary notifies the Federal Trade Commission under subsection (a) of action proposed to be taken under subchapter III with respect to a food or food advertising and the Commission notifies the Secretary in writing, within the 30-day period beginning on the date of the receipt of such notice, that—

(A)

it has initiated under the Federal Trade Commission Act [15 U.S.C. 41 et seq.] an investigation of such advertising to determine if it is prohibited by such Act or any order or rule under such Act,

(B)

it has commenced (or intends to commence) a civil action under section 5, 13, or 19 [15 U.S.C. 45, 53, or 57b] with respect to such advertising or the Attorney General has commenced (or intends to commence) a civil action under section 5 [15 U.S.C. 45] with respect to such advertising,

(C)

it has issued and served (or intends to issue and serve) a complaint under section 5(b) of such Act [15 U.S.C. 45(b)] respecting such advertising, or

(D)

pursuant to section 16(b) of such Act [15 U.S.C. 56(b)] it has made a certification to the Attorney General respecting such advertising,

the Secretary may not, except as provided by paragraph (2), initiate the action described in the Secretary’s notice to the Federal Trade Commission.

(2)

If, before the expiration of the 60-day period beginning on the date the Secretary receives a notice described in paragraph (1) from the Federal Trade Commission in response to a notice of the Secretary under subsection (a)—

(A)

the Commission or the Attorney General does not commence a civil action described in subparagraph (B) of paragraph (1) of this subsection respecting the advertising described in the Secretary’s notice,

(B)

the Commission does not issue and serve a complaint described in subparagraph (C) of such paragraph respecting such advertising, or

(C)

the Commission does not (as described in subparagraph (D) of such paragraph) make a certification to the Attorney General respecting such advertising, or, if the Commission does make such a certification to the Attorney General respecting such advertising, the Attorney General, before the expiration of such period, does not cause appropriate criminal proceedings to be brought against such advertising,

the Secretary may, after the expiration of such period, initiate the action described in the notice to the Commission pursuant to subsection (a). The Commission shall promptly notify the Secretary of the commencement by the Commission of such a civil action, the issuance and service by it of such a complaint, or the causing by the Attorney General of criminal proceedings to be brought against such advertising.

The requirements of subsections (a) and (b) do not apply with respect to action under subchapter III with respect to any food or food advertising if the Secretary determines that such action is required to eliminate an imminent hazard to health.

(d) Coordination of action by Secretary with Federal Trade Commission

For the purpose of avoiding unnecessary duplication, the Secretary shall coordinate any action taken under subchapter III because of advertising which the Secretary determines causes a food to be misbranded with any action of the Federal Trade Commission under the Federal Trade Commission Act [15 U.S.C. 41 et seq.] with respect to such advertising.

Source credit: (June 25, 1938, ch. 675, § 707, as added Pub. L. 94–278, title V, § 502(b), Apr. 22, 1976, 90 Stat. 412.)

history & why it existsrecord from the source credit

1938Enacted · Pub. L. 94-278 · 90 Stat. 412

A history note hasn’t been published yet. The record shows enactment by Pub. L. 94-278 on 1938-06-25.

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