N.Y. Education Law § 6825: Proof required in prosecution for certain violations

§ 6825. Proof required in prosecution for certain violations. 1. In

an action or proceeding, civil or criminal, against a person for

violating such provisions of this article which relate to the possession

of, compounding, retailing or dispensing of misbranded, substituted or

imitated drugs, poisons or cosmetics, when it shall be necessary that an

analysis be made for the purpose of establishing the quality of such

drug, poison or cosmetic so as to determine the fact of misbranding,

substituting or imitating, then it shall be required to prove at the

trial or hearing of such action or proceeding, that the person, taking

the same for analysis separated it into two representative parts,

hermetically or otherwise effectively and completely sealed, delivered

one such sealed part to the seller, manufacturer, wholesaler,

pharmacist, or druggist from whose premises such sample was taken and

delivered the other part so sealed to the chemist designated by the

state board of pharmacy; and the facts herein required to be proven

shall be alleged in the complaint or information by which such action or

proceeding was begun. The rules of the board shall be proven prima facie

by the certificate of the secretary.

2. Any person accused of violation of any of the provisions of this

article relating to adulterating, misbranding, substitution or imitation

shall not be prosecuted or convicted or suffer any of the penalties,

fines or forfeitures for such violation, if he establishes upon the

hearing or trial that the drug, device or cosmetic alleged to be

adulterated, misbranded, substituted or imitated was purchased by him

under a written guaranty of the manufacturer or seller to the effect

that said drug, device or cosmetic was not adulterated or misbranded,

within the meaning of this article and proves that he has not

adulterated, misbranded, substituted or imitated the same, provided the

seller has taken due precaution to maintain the standard set for the

drug, device or cosmetic. A guaranty, in order to be a defense to a

prosecution or to prevent conviction or to afford protection, must state

that the drug, device or cosmetic to which it refers is not adulterated,

misbranded, substituted or imitated within the meaning of the provisions

of this article and must state also the full name and place of business

of the manufacturer, wholesaler, jobber or other person from whom the

drug, device or cosmetic was purchased, and the date of purchase. The

act, omission or failure of any officer, agent or other employee acting

for or employed by any person within the scope of his authority or

employment shall in every case be the act, omission or failure of such

person as well as that of the officer, agent or other employee, and such

person shall be equally liable for violations of this article by a

partnership, association or corporation, and every member of the

partnership or association and the directors and general officers of the

corporation and the general manager of the partnership, association or

corporation shall be individually liable and any action, prosecution or

proceeding authorized by this article may be brought against any or all

of such persons. When any prosecution under this article is made on the

complaint of the board, any fines collected shall be paid into the state

treasury as provided by this article.

3. No publisher, radio-broadcast licensee, advertising agency, or

agency or medium for the dissemination of advertising, except the

manufacturer, packer, distributor, or seller of the commodity to which

the false advertisement relates, shall be subject to the penalties

provided by this article by reason of the dissemination by him of any

false advertisement, unless he has refused, on the request of the

secretary, to furnish the secretary the name and post-office address of

the manufacturer, packer, distributor, seller or advertising agency, who

caused him to disseminate such advertisement.