[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2105 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 2105

 To amend chapter 65 of title 18, United States Code, to prohibit the 
   unauthorized destruction, modification, or alteration of product 
    identification codes used in consumer product recalls, for law 
                  enforcement, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 24, 2000

 Mr. Hatch (for himself and Mr. Leahy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend chapter 65 of title 18, United States Code, to prohibit the 
   unauthorized destruction, modification, or alteration of product 
    identification codes used in consumer product recalls, for law 
                  enforcement, 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 ``Antitampering Act of 2000''.

SEC. 2. PROHIBITION OF UNAUTHORIZED ALTERATION OF PRODUCT 
              IDENTIFICATION CODES.

    (a) In General.--Chapter 65 of title 18, United States Code, is 
amended by inserting after section 1365 the following:
``Sec. 1365A. Tampering with product identification codes
    ``(a) Definitions.--In this section--
            ``(1) 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;
            ``(2) the term `flea market' means any location, other than 
        a permanent retail store, at which space is rented or otherwise 
        made available for the conduct of business of a transient or 
        limited vendor;
            ``(3) the term `good' means any article, product, or 
        commodity that is customarily produced or distributed for sale, 
        rental, or licensing in interstate or foreign commerce, and any 
        container, packaging, label, or component thereof;
            ``(4) the term `manufacturer' means--
                    ``(A) the original manufacturer of a good; and
                    ``(B) any duly appointed agent or representative of 
                that manufacturer acting within the scope of its agency 
                or representation;
            ``(5) the term `product identification code'--
                    ``(A) means any visible number, letter, symbol, 
                marking, date (including an expiration date), or code 
                that is affixed to or embedded in any good, by which 
                the manufacturer of the good may trace the good back to 
                a particular lot, batch, date of production, or date of 
                removal;
                    ``(B) does not include--
                            ``(i) copyright management information (as 
                        defined in section 1202(c) of title 17) 
                        conveyed in connection with copies or 
                        phonorecords of a copyrighted work or any 
                        performance or display of a copyrighted work;
                            ``(ii) other codes or markings on the good; 
                        or
                            ``(iii) a Universal Product Code; and
                    ``(C) does not include any trademark or copyright 
                notice by itself or any item listed in subparagraph (A) 
                that is affixed to, superimposed on, or embedded in a 
                trademark or copyright notice;
            ``(6) the term `transient or limited vendor' does not 
        include a person who sells by sample, catalog, or brochure for 
        future delivery to the purchaser;
            ``(7) the term `Universal Product Code' means a 12-digit, 
        all numeric code that identifies the consumer package 
        consisting of--
                    ``(A) a 1-digit number system character;
                    ``(B) a 5-digit manufacturer identification number;
                    ``(C) a 5-digit item code;
                    ``(D) a 1-digit check number; and
                    ``(E) the bar code symbol that encodes the 12-digit 
                Universal Product Code; and
            ``(8) the term `value' means the face, par, or market 
        value, whichever is the greatest.
    ``(b) Prohibited Acts.--Except as provided in subsection (d) or as 
otherwise expressly authorized under any other provision of Federal 
law, it shall be unlawful for any person, other than the consumer or 
the manufacturer of a good, knowingly and without the authorization of 
the manufacturer--
            ``(1) to directly or indirectly alter, conceal, remove, 
        obliterate, deface, strip, or peel any product identification 
        code affixed to or embedded in a good and visible to the 
        consumer;
            ``(2) to directly or indirectly affix to or embed in a good 
        a product identification code that is visible to the consumer 
        and that is intended by the manufacturer for a different good, 
        such that the code no longer accurately identifies the lot, 
        batch, date of production, or date of removal of the good;
            ``(3) to directly or indirectly affix to or embed in a good 
        any number, letter, symbol, marking, date, or code intended to 
        simulate a product identification code that is otherwise 
        visible to the consumer;
            ``(4) to import, reimport, export, sell, offer for sale, 
        hold for sale, distribute, or broker a good--
                    ``(A) in a case in which the person knows that the 
                product identification code, which otherwise would be 
                visible to the consumer, has been altered, concealed, 
                removed, obliterated, defaced, stripped, peeled, 
                affixed, or embedded in violation of paragraph (1) or 
                (2); or
                    ``(B) in a case in which the person knows that the 
                good bears a number, letter, symbol, marking, date, or 
                code in violation of paragraph (3); or
            ``(5) to sell, offer for sale, or knowingly permit the sale 
        at a flea market of--
                    ``(A) baby food, infant formula, or any other 
                similar product manufactured and packaged for sale for 
                consumption by a child who is less than 3 years of age; 
                or
                    ``(B) any food, drug, device, or cosmetic (as those 
                terms are defined in section 201 of the Federal Food, 
                Drug, and Cosmetic Act (21 U.S.C. 321));
        unless that person keeps for public inspection written 
        documentation identifying such person as an authorized 
        representative of the manufacturer or distributor of the food, 
        drug, device, or cosmetic.
    ``(c) Applicability.--The prohibitions set forth in paragraphs (1) 
through (4) of subsection (b) shall apply to visible product 
identification codes (or simulated product identification codes in a 
case to which subsection (b)(3) applies) affixed to, or embedded in, 
any good held for sale or distribution in interstate or foreign 
commerce or after shipment therein, including any good held in a United 
States Customs Service bonded warehouse or foreign trade zone.
    ``(d) Exceptions.--
            ``(1) Universal product code 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 Federal or State law, if 
        such code or information does not (or can be removed so as not 
        to) permanently alter, conceal, remove, obliterate, deface, 
        strip, or peel any product identification code.
            ``(2) Repackaging for resale.--Nothing in this section 
        prohibits a person from removing a good from a primary package 
        or container and repackaging the good in another package or 
        container, or from placing a good and its original packaging 
        within new packaging, if--
                    ``(A) the good retains its original product 
                identification code, which has not been permanently 
                altered, concealed, or removed;
                    ``(B) the repackaging is in full compliance with 
                all applicable Federal laws and regulations, including 
                section 301 of the Federal Food, Drug, and Cosmetic Act 
                (21 U.S.C. 331); and
                    ``(C) a new package includes a label that clearly 
                states--
                            ``(i) that the good has been repackaged; 
                        and
                            ``(ii) the name of the repacker.
    ``(e) Criminal Penalties.--Any person who willfully violates this 
section--
            ``(1) shall be fined under this title, imprisoned not more 
        than 1 year, or both;
            ``(2) shall be fined under this title, imprisoned not more 
        than 5 years, or both, if the total value of the good or goods 
        involved in the violation is greater than $10,000;
            ``(3) shall be fined under this title, imprisoned not more 
        than 10 years, or both, if--
                    ``(A) the person acts with reckless disregard for 
                the health or safety of the public and under 
                circumstances manifesting extreme indifference to such 
                risk; and
                    ``(B) the violation threatens the health or safety 
                of the public;
            ``(4) shall be fined under this title, imprisoned not more 
        than 20 years, or both, if--
                    ``(A) the person acts with reckless disregard for 
                the risk that another person will be placed in danger 
                of death or bodily injury and under circumstances 
                manifesting extreme indifference to such risk; and
                    ``(B) serious bodily injury to any individual 
                results;
            ``(5) shall be fined under this title, imprisoned for any 
        term of years or for life, or both, if--
                    ``(A) the person acts with reckless disregard for 
                the risk that another person will be placed in danger 
                of death or bodily injury and under circumstances 
                manifesting extreme indifference to such risk; and
                    ``(B) the death of an individual results; and
            ``(6) with respect to any second or subsequent violation of 
        this section, be convicted of a felony, and be subject to twice 
        the maximum term of imprisonment that would otherwise be 
        imposed under this subsection, fined under this title, or both.
    ``(f) Injunctions and Impounding, Forfeiture, and Disposition of 
Goods.--
            ``(1) Injunctions and impounding.--In any prosecution under 
        this section, upon motion of the United States, the court may--
                    ``(A) grant 1 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
                    ``(B) at any time during the proceedings, order the 
                impounding, on such terms as the court determines to be 
                reasonable, of any good that the court has reasonable 
                cause to believe was involved in the violation.
            ``(2) Forfeiture and disposition of goods.--Upon conviction 
        of any person of a violation of this section, the court shall--
                    ``(A) order the forfeiture of any good involved in 
                the violation or that has been impounded under 
                paragraph (1)(B); and
                    ``(B) either--
                            ``(i) order the destruction of each good 
                        forfeited under subparagraph (A);
                            ``(ii) order the disposal of the good by 
                        delivery to such Federal, State, or local 
                        government agencies as, in the opinion of the 
                        court, have a need for such good, or by gift to 
such charitable or nonprofit institutions as, in the opinion of the 
court, have a need for such good; or
                            ``(iii) order the return of the goods 
                        involved upon the request of any interested 
                        party.
    ``(g) Civil Remedies.--
            ``(1) In general.--Any person who is injured by a violation 
        of this section, or demonstrates the likelihood of such injury, 
        may bring a civil action in an appropriate district court of 
        the United States against the alleged violator.
            ``(2) Injunctions and impounding and disposition of 
        goods.--In any action under paragraph (1), the court may--
                    ``(A) grant 1 or more temporary, preliminary, or 
                permanent injunctions upon the posting of a bond at 
                least equal to the value of the goods affected 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 of the goods affected--
                            ``(i) if the court has reasonable cause to 
                        believe the goods were involved in the 
                        violation;
                            ``(ii) upon the posting of a bond at least 
                        equal to the value of the goods affected; and
                            ``(iii) on other terms such as the court 
                        determines to be reasonable; and
                    ``(C) as part of a final judgment or decree, in the 
                court's discretion--
                            ``(i) order the destruction of any good 
                        involved in the violation or that has been 
                        impounded under subparagraph (B);
                            ``(ii) order the disposal of the good--
                                    ``(I) by delivery to such Federal, 
                                State, or local government agencies as, 
                                in the opinion of the court, have a 
                                need for such good; or
                                    ``(II) by gift to such charitable 
                                or nonprofit institutions as, in the 
                                opinion of the court, have a need for 
                                such good, if such disposition would 
                                not otherwise be in violation of law, 
                                and if the manufacturer consents to 
                                such disposition; or
                            ``(iii) order the return of the goods 
                        involved in the violation to the manufacturer 
                        upon the request of any interested party.
            ``(3) Damages.--
                    ``(A) In general.--Subject to subparagraph (B), in 
                any action under paragraph (1), the plaintiff shall be 
                entitled to recover--
                            ``(i) the actual damages suffered by the 
                        plaintiff as a result of the violation, and;
                            ``(ii) any profits of the violator that are 
                        attributable to the violation and are not taken 
                        into account in computing the actual damages.
                    ``(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--
                            ``(i) not less than $500 and not more than 
                        $100,000, with respect to each type of goods 
                        involved in the violation; and
                            ``(ii) if the court finds that the 
                        violation threatens the health and safety of 
                        the public, not less than $5,000 and not more 
                        than $1,000,000, with respect to each type of 
                        good involved in the violation.
                    ``(C) Proof of 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.
            ``(4) Costs and attorney's fees.--In any action under 
        paragraph (1), in addition to any damages recovered under 
        paragraph (3), the court in its discretion may award the 
        prevailing party its costs of the action and its reasonable 
        attorney's 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, in an action brought under this subsection, may 
                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 as described in subparagraph (A) shall bear the 
                burden of proving the existence of the earlier 
                violation.
            ``(6) Limitations on actions.--No civil action may be 
        commenced under this section later than 3 years after the date 
        on which the claimant discovers or has reason to know of 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.
    ``(h) Enforcement Actions.--
            ``(1) In general.--Subject to paragraphs (2) and (3), the 
        Attorney General and the Secretary of the Treasury shall 
        enforce the requirements of this section.
            ``(2) Agency discretion.--The head of a department or 
        agency of the Federal Government (including the Commissioner of 
        Food and Drugs and the Secretary of Agriculture) may 
        investigate any violation of this section involving a good that 
        is regulated by a provision of law administered by that 
        department or agency.
            ``(3) Customs service.--
                    ``(A) In general.--The United States Customs 
                Service shall--
                            ``(i) seize any good imported, reimported, 
                        or offered for import into the United States in 
                        violation of subsection (b)(4);
                            ``(ii) promptly notify the manufacturer or 
                        duly appointed agent or representative of the 
                        seizure; and
                            ``(iii) destroy or dispose of the goods in 
                        accordance with the procedures set forth in 
                        section 526(e) of Tariff Act of 1930 (19 U.S.C. 
                        1526(e)).
                    ``(B) Voluntary disclosures.--In order to assist 
                the United States Customs Service in carrying out its 
                obligations under this paragraph, any domestic or 
                foreign manufacturer may voluntarily record with the 
                United States Customs Service--
                            ``(i) its name and address;
                            ``(ii) a description of its goods and 
                        product identification codes; and
                            ``(iii) such other information as may 
                        facilitate the enforcement of this section.''.
    (b) Conforming Amendment.--The table of sections for chapter 65 of 
title 18, United States Code, is amended by inserting after the item 
relating to section 1365 the following:

``1365A. Tampering with product identification codes.''.
    (c) Regulatory Authority.--Not later than 6 months after the date 
of enactment of this Act, the Attorney General, after consultation with 
the Secretary of the Treasury, the Commissioner of Food and Drugs, and 
the head of any other department or agency of the Federal Government 
that the Attorney General determines to be appropriate, shall issue 
such rules and regulations as may be necessary to implement section 
1365A of title 18, United States Code, as added by this section.

SEC. 3. ATTORNEY GENERAL REPORTING REQUIREMENTS.

    Section 2320(f) of title 18, United States Code, is amended--
            (1) by striking ``of title 18'' each place that term 
        appears;
            (2) by inserting ``tampering with product identification 
        codes (as defined in section 1365A),'' after ``involve''; and
            (3) in paragraph (4), by inserting ``1365A,'' after 
        ``sections''.

SEC. 4. EFFECTIVE DATE.

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