Section 5. Penalties.
(a) Criminal penalties.--A person who violates any provision of this act or any rule, regulation, standard or order made under this act commits a summary offense for the first or second offense. A person who violates any provision of this act or any rule, regulation, standard or order made under this act commits a misdemeanor of the third degree if the violation is a third or subsequent offense and if the violation occurs within two years of the date of the last previous offense.
(b) Civil penalties.--In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this act or a rule or regulation adopted or any order issued under this act, the secretary may assess a civil penalty not to exceed $10,000 upon an individual or business for each offense. No civil penalty shall be assessed unless the person charged has been given notice and opportunity for a hearing in accordance with law. In determining the amount of the penalty, the secretary shall consider the gravity of the violation. Whenever the secretary finds a violation which did not cause harm to human health, the secretary may issue a warning in lieu of assessing a penalty. In case of inability to collect the civil penalty or failure of any person to pay all or any portion of the penalty as the secretary may determine, the secretary may refer the matter to the Attorney General, who shall recover the amount by action in the appropriate court.
(c) Guaranty.--
(1) No prosecution shall be sustained under the
provisions of this act for the manufacture, delivery,
consignment, bailment, holding or sale of or offering for
sale, exposing for sale or having in possession with intent
to sell any adulterated or misbranded article against a
person from whom the article of food, sample or portion was
obtained by the department, if the person can establish a
guaranty to the effect that the article of food is not
adulterated or misbranded within the meaning of this act, was
adulterated or misbranded prior to coming into the possession
of the person and the person did not know or have reason to
know of the adulteration or misbranding or was adulterated or
misbranded after it left the possession and control of the
person. The guaranty must be signed by the supplier,
manufacturer, wholesale dealer, jobber or distributor from
whom the articles of food were purchased or procured.
(2) The guaranty to afford protection shall contain the
name and address of the supplier, manufacturer, wholesale
dealer, jobber or distributor making the sale of the article
of food to the person holding the guaranty. A supplier,
manufacturer, wholesale dealer, jobber or distributor giving
a guaranty under the provisions of this act may be held
responsible and may be proceeded against for the adulteration
or misbranding of any article of food sold under the guaranty
and shall be subject to the penalties provided for violation
of the provisions of this act. A guaranty shall not operate
as a defense to prosecution for a violation of the provisions
of this act if the person holding the guaranty continues to
sell the same food after written or printed notice from the
secretary that the article is adulterated or misbranded
within the meaning of this act. However, if the person
violated the provisions of this act by having stored,
transported, exposed or kept the article in a way or manner
to render it diseased, contaminated or unwholesome, the
person may be proceeded against for a violation.
(d) Minor violations.--Nothing in this act shall be construed as requiring prosecution or institution of a proceeding under this act for minor violations of this act if the secretary believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.