TITLE 37

FOOD, DRUGS, AND OIL

CHAPTER 1

IDAHO FOOD, DRUG AND COSMETIC ACT

37-118.  Tagging and detention of article or product suspected of being adulterated or misbranded — Embargo and condemnation under certain conditions and by certain procedures. (a) Whenever a duly authorized agent of the director finds or has probable cause to believe, that any food, drug, device, or cosmetic is adulterated, or so misbranded as to be dangerous or fraudulent, within the meaning of this act, he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or embargoed, and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It shall be unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission.

(b)  When an article detained or embargoed under subsection (a) of this section has been found by such agent to be adulterated, or misbranded, he shall petition the probate court or district court in the county in whose jurisdiction the article is detained or embargoed for a libel for condemnation of such article. When such agent has found that 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 is adulterated or misbranded, such article shall, after entry of the decree be destroyed at the expense of the claimant thereof, under the supervision of such agent, and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of such article or his agent; provided, that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decree and after such costs, fees and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the director. The expense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article on representation to the court by the director that the article is no longer in violation of this act, and that the expenses of such supervision have been paid.

(d)  Whenever the director or any of its authorized agents shall find in any room, building, vehicle of transportation or other structure, any meat, sea food, poultry, vegetable, fruit or other perishable articles which are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, the director or its authorized agent, shall forthwith condemn or destroy the same, or in any other manner render the same unsaleable as human food.

(e)  Whenever the director or its duly authorized agent shall find, or have probable cause to believe, that any food, drug, device or cosmetic is offered or exposed for sale, or held in possession with intent to distribute or sell, or is intended for distribution or sale in violation of any provision of this act, whether it is in the custody of a common carrier or any other person, the director may affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, in violation of this act, and has been embargoed. Within seven (7) days after an embargo has been placed upon any article, the embargo shall be removed by the director or a summary proceeding for the confiscation of the article shall be instituted by the director. No person shall remove or dispose of such embargoed article by sale or otherwise without the permission of the director or agent; or after summary proceedings have been instituted, without permission from the court. If the embargo shall be removed by the director or by the court, neither the director nor the state shall be held liable for damages because of such embargo in the event that the court shall find that there was probable cause for the embargo.

(f)  Such proceeding shall be by complaint, verified by affidavit, which may be made on information and belief in the name of the director or agent against the article to be confiscated.

(g)  The complaint shall contain: (1) a particular description of the article, (2) the name of the place where the article is located, (3) the name of the person in whose possession or custody the article was found, if such name be known to the person making the complaint or can be ascertained by reasonable effort, and (4) a statement as to the manner in which the article is adulterated or misbranded or the characteristics which render its distribution or sale illegal.

(h)  Upon the filing of the verified complaint, the court shall issue a warrant directed to the proper officer to seize and take in his possession the article described in the complaint and bring the same before the court who issued the warrant and to summon the person named in the warrant, and any other person who may be found in possession of the article, to appear at the time and place therein specified.

(i)  Any such person shall be summoned by service of a copy of the warrant in the same manner as a summons issuing out of the court in which the warrant has been issued.

(j)  The hearing upon the complaint shall be at the time and place specified in the warrant, which time shall not be less than five (5) days or more than fifteen (15) days from the date of issuing the warrant, but, if the execution and service of the warrant has been less than three (3) days before the return of the warrant, either party shall be entitled to a reasonable continuance. Upon the hearing the complaint may be amended.

(k)  Any person who shall appear and claim the food, drug, device, or cosmetic seized under the warrant shall be required to file a claim in writing.

(l)  If, upon the hearing, it shall appear that the article was offered or exposed for sale, or was in possession with intent to distribute or sell, or was intended for distribution or sale, in violation of any provision of this act, it shall be confiscated and disposed of by destruction or sale as the court may direct, but no such article shall be sold contrary to any provision of this act. The proceeds of any sale, less the legal costs and charges, shall be paid into the state treasury.

History:

[37-118, added 1959, ch. 153, sec. 6, p. 351; am. 1974, ch. 23, sec. 17, p. 633.]