I
106TH CONGRESS
2D SESSION
H. R. 4982
To prohibit the unauthorized destruction, modification, or alteration of prod-
uct 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 ef-
forts, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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 MODIFICA-
TIONS 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 with-
out authorization of the manufacturer—
(A) to alter, conceal, remove, obliterate,
deface, strip, or peel any product batch code af-
fixed 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, re-
move, obliterate, deface, strip, or peel any prod-
uct 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 expira-
tion date of the good; and
(C) to place into foreign or domestic com-
merce a good, in a case in which the person
knows that the product batch code, which oth-
erwise 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 vio-
lation 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) ap-
plies) 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 pro-
hibits a person from affixing a Universal Product
Code, security tag, or other legitimate pricing or in-
ventory 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, re-
move, obliterate, deface, strip, or peel any product
batch code.
(2) REPACKAGING, REPACKING, OR
TEMPO-
RARILY
JOINING
PRODUCTS
FOR
RESALE.—(A)
Nothing in this section prohibits a person from re-
moving 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, con-
cealed, or removed;
(ii) the repackaging, repacking, or tem-
porary joining of products is in full compliance
with all applicable Federal laws and regula-
tions, 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 repack-
aged; and
(II) the name of the repackager.
(B) Nothing in this section shall—
(i) prohibit the repackaging of pre-
scription drugs in accordance with all ap-
plicable Federal and State laws;
(ii) prohibit a registered pharmacist
or other authorized health care provider
from dispensing prescription drugs as au-
thorized 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 per-
mitted by section 526 of the Tariff Act of
1930 (relating to the importation of arti-
cles bearing trademarks) or regulations
issued under that section.
(d) CIVIL REMEDIES.—
(1) IN GENERAL.—Any manufacturer who is in-
jured 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 DIS-
POSITION OF GOODS.—In any action under para-
graph (1), the court may—
(A) grant one or more temporary, prelimi-
nary, or permanent injunctions upon the post-
ing 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 re-
strain the violation;
(B) at any time while the action is pend-
ing, 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 deter-
mines to be reasonable, if the court has reason-
able 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, pre-
liminary, or permanent injunctions on such
terms as the court determines to be rea-
sonable to prevent or restrain the alleged
violation; and
(ii) at any time during the pro-
ceedings, order the impounding, on such
terms as the court determines is reason-
able, of any good that is in the custody or
control of the defendant and that the court
has reasonable cause to believe was in-
volved in the violation.
(D) upon conviction of any person in viola-
tion of this section, order the forfeiture and de-
struction of any good involved in the violation.
(3) DAMAGES.—
(A) IN
GENERAL.—Subject to subpara-
graph (B), in any action under paragraph (1),
the plaintiff shall be entitled to recover the ac-
tual damages suffered by the plaintiff as a re-
sult of the violation, and any profits of the vio-
lator that are attributable to the violation and
are not taken into account in computing the ac-
tual damages. In establishing the violator’s
profits, the plaintiff shall be required to present
proof only of the violator’s sales, and the viola-
tor 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 re-
spect to each type of goods involved in the vio-
lation.
(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 sub-
section, 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 appro-
priate.
(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 sus-
tains 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 expi-
ration date, if applicable, and which is clearly identi-
fied as a batch code by affixing the letters ‘‘BC’’ be-
fore the batch code or by some other visual and con-
spicuous indication that it is a batch code and does
not include copyright management information con-
veyed in connection with copies of a copyrighted
work or any performance or display of a copyrighted
work, other codes or markings by which a manufac-
turer 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 (in-
cluding any crib, vehicle safety seat, or toy) in-
tended for use by children under the age of 3;
(B) any container, packaging, label, or
component of any item described in subpara-
graph (A);
(C) any firearm, ammunition, or mechan-
ical component principally used for explosive de-
vices;
(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 Fed-
eral Trade Commission may recommend to be
protected under this Act.
(4) PACKAGE.—The term ‘‘package’’ means any
container or wrapping in which any consumer com-
modity 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 manufac-
turers, packers, or processors, or to wholesale
or retail distributors thereof;
(B) shipping containers or outer wrappings
used by retailers to ship or deliver any com-
modity 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 con-
tainers 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 ‘‘manufac-
turer’’ 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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