Page:United States Statutes at Large Volume 90 Part 1.djvu/462

 90 STAT. 412

Ante, f. 4>11.

PUBLIC LAW 94-278—APR. 22, 1976 "(B) A libel for condemnation may be instituted under paragraph (1) or (2) against a food described in subparagraph (A) if— "(i)(I) the food's advertising which resulted in the food being misbranded under section 403(a)(2) was disseminated in the establishment in which the food is being held for sale to the ultimate consumer, " ( II) such advertising was disseminated by, or under the direction of, the owner or operator of such establishment, or " ( III) all or part of the cost of such advertising was paid by such owner or operator; and "(ii) the owner or operator of such establishment used such advertising in the establishment to promote the sale of the food.", (b) Chapter VII of such Act is amended by adding after section 706 (21 U.S.C. 376) the following new section: 'ADVERTISING OF CERTAIN FOODS

21 USC 378. 21 USC 331. Ante, p. 411. Notice to FTC.

15 USC 58.

15 USC 45, 53, 57b.

15 USC 56.

"SEC. 707. (a)(1) Except as provided in subsection (c), before the Secretary may initiate any action under chapter III— "(A) with respect to any food which the Secretary determines is misbranded under section 403(a)(2) 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)(1) If the Secretary notifies the Federal Trade Commission under subsection (a) of action proposed to be taken under chapter 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 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 with respect to such advertising or the Attorney General has commenced (or intends to commence) a civil action under section 5 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 respecting such advertising, or "(D) pursuant to section 16(b) of such Act 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.

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