[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4982 Introduced in House (IH)]







106th CONGRESS
  2d Session
                                H. R. 4982

 To prohibit the unauthorized destruction, modification, or alteration 
of product batch codes to protect consumer health and safety and assist 
         with law enforcement efforts, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 26, 2000

 Mr. Stearns introduced the following bill; which was referred to the 
                         Committee on Commerce

_______________________________________________________________________

                                 A BILL


 
 To prohibit the unauthorized destruction, modification, or alteration 
of product batch codes to protect consumer health and safety and assist 
         with law enforcement efforts, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Consumer Labeling Protection Act of 
2000''.

SEC. 2. PROHIBITION AGAINST UNAUTHORIZED MODIFICATIONS OF PRODUCT BATCH 
              CODES.

    (a) In General.--
            (1) Prohibited acts.--Except as otherwise authorized by 
        this Act or other Federal law, it shall be unlawful for any 
        person, other than the consumer or the manufacturer of a good, 
        knowingly and without authorization of the manufacturer--
                    (A) to alter, conceal, remove, obliterate, deface, 
                strip, or peel any product batch code affixed to or 
                embedded in a good and visible to the consumer, except 
                that it is not a violation of this section for a person 
                to alter, conceal, remove, obliterate, deface, strip, 
                or peel any product batch code in the course of 
                removing any other codes or markings that are placed on 
                or embedded in the product batch code;
                    (B) to affix or imbed a batch code to or in a good 
                which is intended by the manufacturer for a different 
                good such that the batch code no longer accurately 
                identifies the actual date of manufacture, place of 
                manufacture, or expiration date of the good; and
                    (C) to place into foreign or domestic commerce a 
                good, in a case in which the person knows that the 
                product batch code, which otherwise would be visible to 
                the consumer, has been altered, concealed, removed, 
                obliterated, defaced, stripped, peeled, affixed, or 
                embedded in violation of subparagraph (A), or in a case 
                in which the person has knowledge that the good bears a 
                number, letter, symbol, marking, date, or code which is 
                incorrect.
            (2) Federal trade commission act.--A violation described in 
        paragraph (1) shall be deemed to be an unlawful deceptive act 
        or practice in violation of section 5 of the Federal Trade 
        Commission Act and such a violation shall be treated in 
        accordance with that Act.
    (b) Applicability.--The prohibitions set forth in subparagraphs 
(A), (B), and (C) of subsection (b)(1) shall apply to visible product 
batch codes (or simulated product batch codes in a case to which 
subsection (b)(1)(C) applies) affixed to, or embedded in, any good held 
for sale or distribution in interstate or foreign commerce or after 
shipment therein.
    (c) Exclusions.--
            (1) UPC codes.--Nothing in this section prohibits a person 
        from affixing a Universal Product Code, security tag, or other 
        legitimate pricing or inventory code or other information 
        required by State or Federal law if such code or information 
        does not (or can be removed so as not to) alter, conceal, 
        remove, obliterate, deface, strip, or peel any product batch 
        code.
            (2) Repackaging, repacking, or temporarily joining products 
        for resale.--(A) Nothing in this section prohibits a person 
        from removing a good from a package and repackaging the good in 
        another package, from repacking a good in its original package 
        within a new package, or from temporarily joining products 
        together such that the product batch code is temporarily 
        obscured, if--
                    (i) the good retains its original product batch 
                code, which has not been altered, concealed, or 
                removed;
                    (ii) the repackaging, repacking, or temporary 
                joining of products is in full compliance with all 
                applicable Federal laws and regulations, including 
                section 301 of the Federal Food, Drug, and Cosmetic 
                Act; and
                    (iii) the new package, in the case of a good that 
                has been repackaged, includes a label that clearly 
                states--
                            (I) that the good has been repackaged; and
                            (II) the name of the repackager.
                    (B) Nothing in this section shall--
                            (i) prohibit the repackaging of 
                        prescription drugs in accordance with all 
                        applicable Federal and State laws;
                            (ii) prohibit a registered pharmacist or 
                        other authorized health care provider from 
                        dispensing prescription drugs as authorized 
                        under Federal and State law to consumers 
                        pursuant to a valid prescription;
                            (iii) prohibit the repackaging of food 
                        products and perishable commodities that are 
                        transferred from their original package for 
                        purposes of immediate availability, 
                        preparation, and purchase or consumption by the 
                        consumer; or
                            (iv) annul, limit, impair, or otherwise 
                        affect conduct that is prohibited or permitted 
                        by section 526 of the Tariff Act of 1930 
                        (relating to the importation of articles 
                        bearing trademarks) or regulations issued under 
                        that section.
    (d) Civil Remedies.--
            (1) In general.--Any manufacturer who is injured by a 
        violation of this section, or demonstrates the likelihood of 
        such injury, may bring a civil action in an appropriate United 
        States district court against the alleged violator. The 
complaint shall set forth in detail the manner and form of the alleged 
violation.
            (2) Injunctions and impounding and disposition of goods.--
        In any action under paragraph (1), the court may--
                    (A) grant one or more temporary, preliminary, or 
                permanent injunctions upon the posting of a bond at 
                least equal to the value of the goods affected and on 
                such terms as the court determines to be reasonable to 
                prevent or restrain the violation;
                    (B) at any time while the action is pending, order 
                the impounding upon the posting of a bond at least 
                equal to the value of the goods affected and, on such 
                terms as the court determines to be reasonable, if the 
                court has reasonable cause to believe the goods were 
                involved in the violation; and
                    (C) as part of a final judgment or decree, in the 
                court's discretion--
                            (i) grant one or more temporary, 
                        preliminary, or permanent injunctions on such 
                        terms as the court determines to be reasonable 
                        to prevent or restrain the alleged violation; 
                        and
                            (ii) at any time during the proceedings, 
                        order the impounding, on such terms as the 
                        court determines is reasonable, of any good 
                        that is in the custody or control of the 
                        defendant and that the court has reasonable 
                        cause to believe was involved in the violation.
                    (D) upon conviction of any person in violation of 
                this section, order the forfeiture and destruction of 
                any good involved in the violation.
            (3) Damages.--
                    (A) In general.--Subject to subparagraph (B), in 
                any action under paragraph (1), the plaintiff shall be 
                entitled to recover the actual damages suffered by the 
                plaintiff as a result of the violation, and any profits 
                of the violator that are attributable to the violation 
                and are not taken into account in computing the actual 
                damages. In establishing the violator's profits, the 
                plaintiff shall be required to present proof only of 
                the violator's sales, and the violator shall be 
                required to prove all elements of cost or deduction 
                claimed.
                    (B) Statutory damages.--In any action under 
                paragraph (1), the plaintiff may elect, at any time 
                before final judgment is rendered, to recover, instead 
                of actual damages and profits described in subparagraph 
                (A), an award of statutory damages for any violation 
                under this section in an amount equal to not less than 
                $5,000 and not more than $1,000,000, with respect to 
                each type of goods involved in the violation.
            (4) Attorneys' fees.--In any action under paragraph (1), in 
        addition to damages covered under paragraph (3), the court in 
        its discretion may award the prevailing party its costs in the 
        action and its reasonable attorneys' fees.
            (5) Repeat violations.--
                    (A) Treble damages.--In any case in which a person 
                violates this section within 3 years after the date on 
                which a final judgment was entered against that person 
                for a previous violation of this section, the court 
                may, in its discretion, in an action brought under this 
                subsection, increase the award of damages for the later 
                violation to not more than 3 times the amount that 
                would otherwise be awarded under paragraph (3), as the 
                court considers appropriate.
                    (B) Burden of proof.--A plaintiff that seeks 
                damages described in subparagraph (A) shall bear the 
                burden of proving the existence of the earlier 
                violation.
            (6) Limitations on civil actions.--No civil action may be 
        commenced under this section later than 18 months after the 
        date on which the claimant discovers the violation.
            (7) Innocent violations.--In any action under paragraph 
        (1), the court in its discretion may reduce or remit the total 
        award of damages or award no damages in any case in which the 
        violator sustains the burden of proving, and the court finds, 
        that the violator was not aware and had no reason to believe 
        that the acts of the violator constituted a violation.
    (e) Definitions.--In this section:
            (1) Batch code.--The term ``batch code'' means a single 
        visible code which specifically and only includes the batch 
        number, the date of product manufacture, the place of 
        manufacture, and an expiration date, if applicable, and which 
        is clearly identified as a batch code by affixing the letters 
        ``BC'' before the batch code or by some other visual and 
        conspicuous indication that it is a batch code and does not 
        include copyright management information conveyed in connection 
        with copies of a copyrighted work or any performance or display 
        of a copyrighted work, other codes or markings by which a 
        manufacturer may attempt to monitor, control, or trace the 
        identity of a distributor or location of resell, or a universal 
        product code.
            (2) Consumer.--The term ``consumer''--
                    (A) means--
                            (i) the ultimate user or purchaser of a 
                        good; or
                            (ii) any hotel, restaurant, or other 
                        provider of services that must remove or alter 
                        the container, label, or packaging of a good in 
                        order to make the good available to the 
                        ultimate user or purchaser; and
                    (B) does not include any retailer or other 
                distributor who acquires a good for resale.
            (3) Good.--The term ``good'' means--
                    (A) any food, drug, device, or product (including 
                any crib, vehicle safety seat, or toy) intended for use 
                by children under the age of 3;
                    (B) any container, packaging, label, or component 
                of any item described in subparagraph (A);
                    (C) any firearm, ammunition, or mechanical 
                component principally used for explosive devices;
                    (D) any additional product or separately 
                manufactured product components which have been the 
                subject of a Federal recall within 3 years from the 
                date of enactment of this Act or at any time after the 
                effective date of this Act if the recall was conducted 
                by the Consumer Product Safety Commission; or
                    (E) any additional product which the Federal Trade 
                Commission may recommend to be protected under this 
                Act.
            (4) Package.--The term ``package'' means any container or 
        wrapping in which any consumer commodity is enclosed for use in 
        the delivery or display of that consumer commodity to retail 
        purchasers, but does not include--
                    (A) shipping containers or wrappings used solely 
                for the transportation of any consumer commodity in 
                bulk or in quantity to manufacturers, packers, or 
                processors, or to wholesale or retail distributors 
                thereof;
                    (B) shipping containers or outer wrappings used by 
                retailers to ship or deliver any commodity to retail 
                customers if such containers and wrappings do not 
                include product batch codes, and if other information 
                is not required by Federal law to be included on such 
                containers or wrappings;
                    (C) transparent wrappers or containers which do not 
                bear written, printed, or graphic matter obscuring 
                label information required by Federal law; or
                    (D) containers used for tray pack displays in 
                retail establishments (within the meaning set forth in 
                regulations issued by the Secretary of Health and Human 
                Services under sections 3 and 4 of the Fair Packaging 
                and Labeling Act (15 U.S.C. 1452, 1453); 21 C.F.R. 
                1.20).
            (5) Manufacturer.--The term ``manufacturer'' means the 
        original manufacturer of a good and any duly appointed agent or 
        representative of that manufacturer acting within the scope of 
        its agency or representation.
            (6) Universal product code.--The term ``Universal Product 
        Code'' means a fixed length identification number and 
        associated bar code symbol--
                    (A) established by the Uniform Code Council 
                accredited by the American National Standards 
                Institute; and
                    (B) used to identify companies and their products.
            (7) Value.--The term ``value'', with respect to a good, 
        means the face, par, or market value of the good, whichever is 
        the greatest.

SEC. 2. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 6 months after 
the date of the enactment of this Act.
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