Cross references. - Regulation of labeling, distribution, and use of pesticides, § 2-7-50 et seq.

Controlled substances and dangerous drugs, T. 16, C. 13.

CHAPTER 1 GENERAL PROVISIONS

Sec.

26-1-1. Maintenance of information and referral service for persons and organizations desiring to donate food to nonprofit organizations; inspection of donated food.

  1. The Department of Agriculture shall maintain an information and referral service for persons and organizations which have notified the department of their desire to donate food to nonprofit organizations.
  2. Appropriate state and local departments and agencies are authorized to inspect donated food items for wholesomeness and may establish procedures for the handling of the food items.

    (Code 1933, § 105-1106, enacted by Ga. L. 1980, p. 69, § 1.)

Cross references. - Liability of persons donating food for use or distribution by nonprofit organizations, § 51-1-31 .

Law reviews. - For article, "Consolidation by Compact: A Remedy for Preemption of State Food and Drug Laws," see 14 J. Pub. L. 276 (1965).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of the sampling provisions of the Federal Food, Drug, and Cosmetic Act, or other similar acts, 155 A.L.R. 910 .

CHAPTER 2 STANDARDS, LABELING, AND ADULTERATION OF FOOD

General Provisions.

Adulteration and Misbranding

of Food.

Meat Inspection.

G ENERAL PROVISIONS .

E NFORCEMENT OF ARTICLE .

Inspection of Animals, Carcasses, Meat,

and Meat Food Products;

Adulteration and

Misbranding.

M EAT PROCESSORS AND RELATED INDUSTRIES .

Advertisement and Sale of Meat Generally.

Animals Suspected of Bearing Any Residue Causing Contaminated Meat.

Meat, Poultry, and Dairy Processing Plants.

Milk and Milk Products.

Eggs.

Grains and Bread.

Fish and Other Seafoods.

Kosher Foods.

Soft Drinks.

Food Service Establishments.

Nonprofit Food Sales and Food Service.

Sale of Meat, Poultry, or Seafood from Mobile Vehicles.

Common-sense Consumption.

Cooperation in Implementation of Federal Food Safety Modernization Act.

Administrative Rules and Regulations. - General Rules, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Division Regulations, Chapter 40-7-1.

Additional Regulations Applicable to Salvageable Foods and Single Service Items, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Service Regulations, Chapter 40-7-2.

Additional Regulations Applicable to Corn Meal, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Agriculture, Food Division Regulations, Chapter 40-7-3.

RESEARCH REFERENCES

Foreign Substance in Food or Beverage, 30 POF2d 1.

Food Poisoning, 31 POF2d 31.

ALR. - Products liability: sufficiency of evidence to support product misuse defense in actions concerning food, drugs, and other products intended for ingestion, 58 A.L.R.4th 7.

ARTICLE 1 GENERAL PROVISIONS

26-2-1. Definitions of and standards for lard, mixed edible fats, and cottonseed oils.

The standards for lard, mixed edible fats, and cottonseed oils are defined as follows:

  1. "Lard" means the fat of freshly slaughtered swine. It shall not be made from a diseased animal or any portion of an animal unfit for food or contain less than 99 percent of pure fat.
  2. "Mixed edible fat" means a mixture which contains not less than 99 percent of sweet mixed fat and may consist of a mixture of refined cottonseed oil or other edible vegetable oils with sweet beef fat or other edible animal fat and shall be sold under a registered or proprietary brand and properly labeled with a distinctive trademark or name bearing the name of the manufacturer.
  3. "Edible cottonseed oil" means refined cottonseed oil, free from disagreeable taste or odors. White cottonseed oil for edible purposes is cottonseed oil which has been refined in such a manner as to be nearly colorless, flavorless, and odorless. Winter cottonseed oils for edible purposes are those from which a portion of the stearine has been removed; they may be either white or yellow.

    (Ga. L. 1906, p. 83, § 21; Civil Code 1910, § 2115; Code 1933, § 42-111; Ga. L. 1956, p. 195, § 23.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2101, 2104, and 2117, are included in the annotations for this Code section.

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that the law was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930).

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2117 (see now O.C.G.A. § 26-2-1 ), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

Cited in Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929).

RESEARCH REFERENCES

12 Am. Jur. Pleading and Practice Forms, Food, § 2.

C.J.S. - 36A C.J.S., Food, § 25.

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

26-2-2. Meat, fish, and poultry to be sold by net weight; exceptions; penalty.

  1. All meat, meat products, fish, and poultry offered or exposed for sale or sold commercially shall be sold by net weight only except when sold for immediate consumption on the premises or when sold as a cooked food but not in a package or when sold for breeding purposes or when sold as pets or for other purposes than for human or animal consumption.
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1956, p. 75, §§ 1, 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 31 et seq.

C.J.S. - 36A C.J.S., Food, §§ 19, 21 et seq., 40.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-3. Obstruction of inspectors and others in performance of duties.

Any manufacturer, dealer, or other person who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent any inspector or other person in the performance of his duty in collecting samples or otherwise in connection with this chapter shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not less than $10.00 nor more than $50.00. Any violation of this chapter, relating to feeding stuffs for domestic animals, shall be punished by a fine not exceeding $50.00 or imprisonment not exceeding 30 days, or both, in the discretion of the court.

(Ga. L. 1906, p. 83, § 20; Penal Code 1910, § 452; Code 1933, § 42-9905.)

RESEARCH REFERENCES

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-4. Labeling, sale, or advertising of spring water.

  1. As used in this Code section, the term "spring water" means water which is: (1) derived from an underground formation from which water flows naturally to the surface of the earth; (2) not derived from a municipal system or public water supply; and (3) collected only at the spring or through a bore hole into the same underground water-bearing zone; provided, however, that water collected with the assistance of external force to protect the water shall retain all the physical properties of and be of the same chemical composition and quality as the water that flows naturally to the surface.
  2. Any water which meets the definition of "spring water" as specified in subsection (a) of this Code section may lawfully be labeled, sold, advertised, and otherwise represented as "spring water" or "natural spring water," notwithstanding any other contrary provision of any law or regulation of this state.  No law or regulation of this state shall: (1) require or be construed to require any disclaimer in connection with such labeling, sale, advertisement, or representation; or (2) require or be construed to require such water to be additionally identified as any other type of water. (Code 1981, § 26-2-4 , enacted by Ga. L. 1992, p. 1016, § 1; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that water" for "provided, however, water" in subsection (a).

ARTICLE 2 ADULTERATION AND MISBRANDING OF FOOD

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

Powers and duties of Commissioners with regard to use, and advertisement of weights and measures pertaining to commodities generally, § 10-2-1 et seq.

JUDICIAL DECISIONS

Purpose of O.C.G.A. Title 26, Chapter 2, Article 2. - O.C.G.A. Title 26, Chapter 2, Article 2, the "Georgia Food Act," is a consumer protection Act, designed not to render the workplace a safe environment, but to prevent the sale and distribution of adulterated or misbranded foods to consumers. While safety in the workplace and compensation for injuries arising out of work activities are indeed matters of contemporary concern, they are the subject of other legislative enactments on both the state and federal level. Potts v. Fidelity Fruit & Produce Co., 165 Ga. App. 546 , 301 S.E.2d 903 (1983).

Determining if violation is negligence per se. - In determining whether the violation of a statute or ordinance, such as O.C.G.A. Title 26, Chapter 2, Article 2, is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide: (1) whether the injured person falls within the class of persons the statute was intended to protect; and (2) whether the harm complained of was the harm the statute was intended to guard against. Potts v. Fidelity Fruit & Produce Co., 165 Ga. App. 546 , 301 S.E.2d 903 (1983).

Injuries sustained other than in consumption of food not actionable under O.C.G.A. Title 26, Chapter 2, Article 2. - When the plaintiff brought an action to recover for personal injuries which the plaintiff allegedly sustained when bitten by a spider while unloading bananas from a truck and the incident occurred during the course of the plaintiff's employment because the alleged injuries did not arise incident to the plaintiff's consumption of the bananas, the trial court was correct in concluding that O.C.G.A. Title 26, Chapter 2, Article 2 affords the plaintiff no basis for recovery. Potts v. Fidelity Fruit & Produce Co., 165 Ga. App. 546 , 301 S.E.2d 903 (1983).

Cited in Foster v. Georgia Bd. of Chiropractic Exmrs., 257 Ga. 409 , 359 S.E.2d 877 (1987).

26-2-20. Short title.

This article may be cited as the "Georgia Food Act."

(Ga. L. 1956, p. 195, § 1.)

Law reviews. - For annual survey on product liability: a two-year survey, see 71 Mercer L. Rev. 223 (2019).

JUDICIAL DECISIONS

Genuine issue of fact remained as to causation of food poisoning. - In an action by rehearsal dinner guests against a caterer alleging food poisoning, summary judgment for the caterer was error; the caterer's circumstantial evidence of the absence of causation (others did not become ill, the guests consumed other food and drink, and did not become ill until days later) was contradicted by other evidence. Patterson v. Kevon, LLC, 304 Ga. 232 , 818 S.E.2d 575 (2018).

Res ipsa loquitur principle misapplied in consumer food product liability case. - In a consumer food product liability case, the trial court misapplied the doctrine of res ipsa loquitur because having found that the doctrine applied, the trial court was obligated to allow the jury to determine whether the defendant's negligence, if any, was the proximate cause of the plaintiff's injuries under a jury charge that included the principle of res ipsa loquitur instead of granting summary judgment to the defendant. Matthews v. Yoplait USA, Inc., 352 Ga. App. 591 , 835 S.E.2d 393 (2019).

26-2-21. Definitions.

  1. As used in this article, the term:
    1. "Commissioner" means the Commissioner of Agriculture.
    2. "Contaminated with filth" applies to any food not securely protected from dust, dirt, and, as far as may be necessary, by all reasonable means, from all foreign or injurious contamination.
    3. "Federal act" means the Federal Food, Drug, and Cosmetic Act (Title 21 U.S.C. Section 301, et seq., 52 Stat. Section 1040, et seq.).
    4. "Food" means:
      1. Articles used for food or drink for human consumption;
      2. Chewing gum; and
      3. Articles used for components of any such articles.
    5. "Food sales establishment" means retail and wholesale grocery stores; retail seafood stores and places of business; food processing plants, except those food processing plants which are currently required to obtain a license from the Commissioner under any other provision of law; bakeries; confectioneries; fruit, nuts, and vegetable stores or roadside stands; wholesale sandwich and salad manufacturers, including vending machines and operations connected therewith; and places of business and similar establishments, mobile or permanent, engaged in the sale of food primarily for consumption off the premises. Within a food sales establishment, there may be a food service component, not separately operated, which may serve customers on site. This food service component shall be considered as part of the food sales establishment. This term shall not include:
      1. The food sales component of any food service establishment defined in Code Section 26-2-370;
      2. Food service establishments as defined in Code Section 26-2-370;
      3. Establishments engaged in the sale of food primarily for consumption off the premises if such sale is an authorized part of and occurs upon the site of a fair or festival which:
        1. Is sponsored by a political subdivision of this state; and
        2. Lasts 120 hours or less;
      4. Establishments engaged in the boiling, bottling, and sale of sugar cane syrup or sorghum syrup within this state, provided that such bottles contain a label listing the producer's name and street address, all added ingredients, and the net weight or volume of the product; or
      5. Nonprofit food sales and food service provided under a permit issued pursuant to Article 14 of this chapter.
    6. "Immediate container" does not include package liners.
    7. "Label" means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under the authority of this article that any word, statement, or other information appear on the label shall not be considered to be complied with unless each such word, statement, or other information also appears on the outside wrapper or container, if there is any, of the retail package of such article, or is easily legible through the outside container or wrapper.
    8. "Labeling" means all labels and other written, printed, or graphic matter upon an article or any of its containers or wrappers or accompanying such article.
    9. "Official compendium" means the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them.
    10. "Person" means an individual, partnership, corporation, or association or any combination thereof.
  2. The provisions of this article regarding the selling of food shall be considered to include the manufacture, production, packaging, offer, exposure, possession, and holding of any such articles and the supplying or applying of any such articles in the conduct of any food establishment.

    (Ga. L. 1956, p. 195, § 2; Ga. L. 1971, p. 66, § 1; Ga. L. 1992, p. 1174, § 1; Ga. L. 1998, p. 1220, § 1; Ga. L. 2000, p. 1558, § 1; Ga. L. 2012, p. 1072, § 1/SB 300; Ga. L. 2020, p. 808, § 1/SB 345.)

The 2012 amendment, effective July 1, 2012, in paragraph (a)(5), added the undesignated language following subparagraph (a)(5)(C).

The 2020 amendment, effective August 5, 2020, rewrote paragraph (a)(5), which read: "'Food sales establishment' means retail and wholesale grocery stores; retail seafood stores and places of business; food processing plants, except those food processing plants which are currently required to obtain a license from the Commissioner under any other provision of law; bakeries; confectioneries; fruit, nuts, and vegetable stores or roadside stands; wholesale sandwich and salad manufacturers, including vending machines and operations connected therewith; and places of business and similar establishments, mobile or permanent, engaged in the sale of food primarily for consumption off the premises. Within a food sales establishment, there may be a food service component, not separately operated, which may serve customers on site. This food service component shall be considered as part of the food sales establishment. The food sales component of any food service establishment defined in Code Section 26-2-370 shall not be included in this definition. This term shall not include 'food service establishments' as defined in Code Section 26-2-370. This term also shall not include establishments engaged in the sale of food primarily for consumption off the premises if such sale is an authorized part of and occurs upon the site of a fair or festival which:

"(A) Is sponsored by a political subdivision of this state or by an organization exempt from taxes under paragraph (1) of subsection (a) of Code Section 48-7-25 or under Section 501(d) or paragraphs (1) through (8) or paragraph (10) of Section 501(c) of the Internal Revenue Code, as that code is defined in Code Section 48-1-2;

"(B) Lasts 120 hours or less; and

"(C) When sponsored by such an organization, is authorized to be conducted pursuant to a permit issued by the municipality or county in which it is conducted.

"This term also shall not include establishments engaged in the boiling, bottling, and sale of sugar cane syrup or sorghum syrup within this state, provided that such bottles contain a label listing the producer's name and street address, all added ingredients, and the net weight or volume of the product."

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "confectioneries" was substituted for "confectionaries" in the introductory language of paragraph (a)(5).

Pursuant to Code Section 28-9-5, in 1996, a comma was inserted in two places in paragraph (a)(3).

OPINIONS OF THE ATTORNEY GENERAL

Beer, wine, and distilled spirits manufactured for beverage purposes are "food" within the meaning of Ga. L. 1956, p. 195, § 2 (see now O.C.G.A. Title 26, Chapter 2, Article 2) and establishments manufacturing such articles are subject to inspection by the Department of Agriculture for compliance with the sanitary requirements of those provisions. 1970 Op. Att'y Gen. No. 70-60.

State and federal alcohol labeling laws may supersede O.C.G.A. § 26-2-21 . - Laws administered by the State Revenue Commissioner, the Secretary of the Treasury, and the Food and Drug Administration, regarding the labeling of beer, wine, and distilled spirits may supersede certain other state statutory provisions of this title. 1970 Op. Att'y Gen. No. 70-60.

Label on package of meat, in order to comply with Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-21 ), must contain the name and place of business of the specific establishment where the food is packaged; merely placing the name of a retail food chain and the home office city on a label would not comply with those provisions. 1973 Op. Att'y Gen. No. 73-98.

Food retailers with seating facilities subject to O.C.G.A. § 26-2-21 . - Food sales establishments defined in Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-21 (a)(5)) providing seats and other conveniences within its premises for customers to use in eating food purchased in that store shall be subject to inspection as a "food service establishment," as defined in former Code 1933, § 88-1001 (see now O.C.G.A. § 26-2-370 ). 1978 Op. Att'y Gen. No. 78-65.

Provisions of Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28 ) apply to bottled soft drinks. 1958-59 Op. Att'y Gen. p. 7.

RESEARCH REFERENCES

Am. Jur. 2d. - 32 Am. Jur. 2d, False Pretenses, § 85. 35A Am. Jur. 2d, Food, §§ 23, 26. 37 Am. Jur. 2d, Fraud and Deceit, § 83.

C.J.S. - 36A C.J.S., Food, §§ 1, 17, 43 et seq.

ALR. - What is "food" within meaning of statute, 17 A.L.R. 1282 .

Statutes or ordinances in relation to confectionery, 58 A.L.R. 293 .

Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

26-2-22. Prohibited acts.

The following acts and the causing thereof within this state are prohibited:

  1. The manufacture, sale or delivery, holding, storage, or offering for sale of any food that is adulterated or misbranded;
  2. The adulteration or misbranding of any food;
  3. The receipt in commerce of any food that is adulterated or misbranded and the delivery or proffered delivery thereof for pay or otherwise;
  4. The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of Code Section 26-2-37;
  5. The dissemination of any false advertisement;

    (5.1) The failure to comply with testing, reporting, or record-keeping requirements provided by or pursuant to Code Section 26-2-27.1;

  6. The refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by Code Section 26-2-36;
  7. The giving of a guaranty or undertaking, which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of, the person residing in the State of Georgia from whom he received in good faith the food;
  8. The removal or disposal of a detained or embargoed article in violation of Code Section 26-2-38;
  9. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of or the doing of any other act with respect to a food, if such act is done while such article is held for sale and results in such article being adulterated or misbranded;
  10. Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by regulations promulgated pursuant to this article; and
  11. The operation of a food sales establishment in violation of Code Section 26-2-25.

    (Ga. L. 1956, p. 195, § 3; Ga. L. 1971, p. 66, § 2; Ga. L. 1984, p. 22, § 26; Ga. L. 1985, p. 149, § 26; Ga. L. 2009, p. 441, § 1/SB 80.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, a comma was deleted following "using" in paragraph (10).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2101, 2104, 2115 and 2117, and former Code 1933, §§ 42-109, 42-115, and 42-9901, are included in the annotations for this Code section.

Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), did not change or repeal the common-law rule as stated in former Code 1933, § 105-1101 (see now O.C.G.A. § 51-1-23 ). Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109(7) and 42-9901).

Immunity for inspectors. - Inspectors for the consumer protection division who informed a public warehouseman that the pecans stored at its warehouse were unfit for human consumption without destroying the condemned pecans expeditiously nor notifying the holders of a security interest in the pecans of the condemnation owed no duty to the holders of the security interest under the Georgia Food Act, O.C.G.A. § 26-2-20 . The injury that the holders suffered in losing their security was not the type of injury the Georgia Food Act was designed to prevent. Planters & Citizens Bank v. Pennsylvania Millers Mut. Ins. Co., 786 F. Supp. 991 (S.D. Ga. 1992), aff'd, 992 F.2d 328 (11th Cir. 1993).

Cited in Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498 , 504 S.E.2d 551 (1998).

1. Legislative Intent

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that it was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

2. Applicability

No liability if substance not added to food. - Former Code 1910, § 2103 (see now O.C.G.A. § 26-2-26(1) and (2)) was not applicable when the contention is not that the defendant had adulterated the product by adding some deleterious foreign substance to the normal constituency of the product in order to sell it as a part of the product itself, but when the charge only contended that the defendant was negligent in allowing the normal ingredients of the product to become putrid and unwholesome. Armour & Co. v. Miller, 39 Ga. App. 228 , 147 S.E. 184 (1929) (decided under former Code 1910, § 2103).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115 (see now O.C.G.A. § 26-2-22 ). Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2115).

Product sometimes used as butter substitute. - Product cannot be banned merely because it is sometimes used as a substitute for creamery butter without being declared to be such. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

If it is not so misbranded as to deceive or so adulterated as to injure. - Law does not prohibit the sale of substitutes for creamery butter, provided the substitute is not sold so misbranded as to deceive or so adulterated as to injure. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

3. Federal Jurisdiction

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2101 (see now O.C.G.A. § 26-2-22 ), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

4. Indictment

Indictment sufficient. - Indictment charging that the defendant unlawfully sold "adulterated food," in that the defendant sold to a named person "a portion of an animal, to wit, a diseased cow, unfit for food, that had died otherwise than by slaughter," was not subject to demurrer (now motion to dismiss) because of failure to show compliance with statutory provisions as to examination of food by or under the direction of the state chemist. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1919) (decided under former Code 1910, § 2102).

Indictment not subject to demurrer (now motion to dismiss) because of failure to show how or in what way a portion sold was unfit for food, or was diseased, or what kind of product of the diseased cow was sold. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1917) (decided under former Code 1910, § 2102).

5. Standards of Care and Negligence

Plaintiff must show knowledge or negligence by food retailer. - In a suit for damages against a seller of unwholesome food which injures the plaintiff, it is still necessary to prove that the defendant either knew of the unwholesome condition of the food or was guilty of negligence in the transaction. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

Plaintiff need only show negligence as matter of law, and not of fact. - When before passage of the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), an action for damages resulting from negligence could be sustained only by proof of such negligence as a matter of fact, according to the standard of ordinary prudence as applied to the circumstances, now the plaintiff may show negligence as a matter of law by establishing a breach of the statutory duty, or a plaintiff may rely on both classes of negligence, according to the facts; in other words, the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), did not affect the nature or basis of the cause of action, but related only to the standard of care by which negligence could be determined. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948) (decided under former Code 1933, § 2-109).

Plaintiff can invoke section to show negligence as matter of law. - While the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), was designed to protect the public, and did not expressly set forth duties to individual consumers, the plaintiff as a member of the public could invoke its provisions to show negligence as a matter of law, if injured by the violation of a duty imposed by the law. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

By showing breach of statutory duty. - Plaintiffs, charging the defendant with a breach of legal duty in manufacturing and selling pie which they contended was unwholesome and putrid, so that they were injured and damaged by eating the food, since the enactment of the former Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), could show negligence as a matter of law by establishing a breach of the statutory duty. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

Sale of adulterated article which causes illness is negligence per se. - Sale of an adulterated article to a customer who is made ill by its consumption, in violation of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), constituted negligence per se. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901, and 42-9906).

Such as when retailer liable for not having manufacturer's guarantee of wholesomeness. - Retail dealer who sold adulterated food, the sale of which was prohibited by the former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), who had not established a guaranty from the manufacturer as provided in former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ), that the article was not adulterated within the meaning of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), although the dealer had no knowledge of the unfit condition of the article sold and was not negligent with respect thereto, would be liable in damages to the person made sick from eating such food without fault on the plaintiff's part. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901, and 42-9906).

Ordinary care is no defense, in that violation of section constitutes negligence per se. - On the trial of a suit against a dealer by a person alleged to have been made ill from eating alleged adulterated food sold by the defendant, the sale of which was made penal under former Code 1933, §§ 42-109 and 42-9901 (see now O.C.G.A. § 26-2-26 ), which was negligence per se, since the evidence authorized an inference that the food was unfit, decomposed, or putrid and was therefore unfit for human consumption and adulterated as defined in the title, and that the plaintiff was made sick from eating the food, it was error for the court to instruct the jury that if the defendant exercised ordinary care in connection with the sale of the food the plaintiff could not recover. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901, and 42-9906).

Plaintiff can establish negligence per se as matter of law, and/or negligence as matter of fact. - In a suit for damages against a seller of unwholesome food, the plaintiff may establish negligence as a matter of fact, or the plaintiff may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), or plaintiff may rely on both classes of negligence. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369 , 53 S.E.2d 718 (1949) (decided under former Code 1933, § 42-109).

When dealer with manufacturer's guarantee of wholesomeness still liable for negligence as matter of fact, if not per se. - Under former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ), a dealer selling food adulterated within the meaning of that statute would not violate the statute's provisions, and therefore would not be guilty of negligence per se, if the dealer had obtained a guaranty of wholesomeness from the manufacturer but the guaranty would not relieve the dealer from the liability referred to in former Code 1933, § 105-1101 (see now O.C.G.A. § 51-1-23 ), if the dealer is negligent as a matter of fact in selling unwholesome food which injures another. It follows that former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ), merely creates an exception to the statute in favor of those who obtain the guaranty. Burns v. Colonial Stores, Inc., 90 Ga. App. 492 , 83 S.E.2d 259 (1954) (decided under former Code 1933, §§ 42-109 and 42-115).

OPINIONS OF THE ATTORNEY GENERAL

Candy that contains a small quantity of bourbon flavor or is bourbon flavored is adulterated. 1957 Op. Att'y Gen. p. 144.

RESEARCH REFERENCES

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

Preservative as adulterant within statute in relation to food, 50 A.L.R. 76 .

Validity, construction, and application of statutes or ordinances directed against false or fraudulent statements in advertisements, 89 A.L.R. 1004 .

Constitutionality of statutes, ordinances or other regulations against adulteration of food products as applied to substances used for preservative purposes, 114 A.L.R. 1214 .

Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

Knowledge or actual negligence on part of seller which is not an element of criminal offense under penal statute relating to sale of unfit food or other commodity, as condition of civil action in tort in which violation of the statute is relied upon as negligence per se or evidence of negligence, 128 A.L.R. 464 .

Implied warranty of fitness by one serving food, 7 A.L.R.2d 1027, 87 A.L.R.4th 804, 90 A.L.R.4th 12.

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

Construction and application of Federal Food, Drug, and Cosmetic Act § 402 (a)(3) [21 USC § 342 (a) (3)] as to food deemed "adulterated," if it is filthy or the like, or unfit for food, 45 A.L.R.2d 861.

Validity and construction of regulations dealing with misrepresentation in the sale of Kosher food, 52 A.L.R.3d 959.

Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.

26-2-23. Injunctions for violations of Code Section 26-2-22.

In addition to the remedies provided for in this article, the Commissioner is authorized to apply to the superior court of the appropriate county for an injunction. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating Code Section 26-2-22, notwithstanding the existence of an adequate remedy at law.

(Ga. L. 1956, p. 195, § 4.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 51.

26-2-24. Penalty for violation of Code Section 26-2-22; exceptions.

Any person who violates Code Section 26-2-22 shall be guilty of a misdemeanor, provided that:

  1. No person shall be subject to the penalties provided in this article for having violated paragraph (1) or (3) of Code Section 26-2-22 if he or she establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in this state from whom he or she received in good faith the article, to the effect that such article is not adulterated or misbranded within the meaning of this article and designating this article;
  2. No publisher, radiobroadcast licensee, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this Code section by reason of the dissemination by him or her of such false advertisement unless he or she has refused, on the request of the Commissioner, to furnish the Commissioner the name and post office address of the manufacturer, packer, distributor, seller, or advertising agency who caused him or her to disseminate such advertisement; and
  3. If the removal or disposal of a detained or embargoed article creates a significant eminent threat or danger to human health, any person who violates paragraph (8) of Code Section 26-2-22 by removing or disposing of such detained or embargoed article and introducing or attempting to introduce said article into commerce for the purpose of human consumption or processing for human consumption in violation of Code Section 26-2-38 shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than two years.

    (Ga. L. 1956, p. 195, § 5; Ga. L. 1998, p. 189, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 42-109, 42-115, 42-9901, and 42-9906, are included in the annotations for this Code section.

Dealer with manufacturer's guarantee not negligent per se but can be negligent as matter of fact. - Under former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ), relating to guaranties of manufacturers, a dealer selling food which was adulterated within the meaning of the statute would not violate the statute's provisions, and therefore would not be guilty of negligence per se, if the dealer had obtained the prescribed guaranty; but the guaranty would not relieve the dealer from the liability referred to in former Code 1933, § 105-1101 (see now O.C.G.A. § 51-1-123) if the dealer was negligent as a matter of fact in selling unwholesome food by the use of which another was injured. It follows that former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ), merely creates an exception to the statute in favor of those who obtained and established the guaranty. Burns v. Colonial Stores, Inc., 90 Ga. App. 492 , 83 S.E.2d 259 (1954) (decided under former Code 1933, §§ 42-109 and 42-115).

Dealer without guaranty liable for illness, though without knowledge of food's unfitness. - Retail dealer who sold adulterated food, the sale of which was prohibited by former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), when the dealer had not established a guaranty from the manufacturer as provided in former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24 ) to the effect that the article was not adulterated within the meaning of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), although the dealer had no knowledge of the unfit condition of the article sold and was not negligent with respect thereto, would be liable in damages to the person made sick from eating such food without fault on the person's part. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq. 74 Am. Jur. 2d, Telecommunications, § 195.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

26-2-25. Licensing of food sales establishments; revocation; notice and hearing; transferability; posting of license; fees; rules and regulations.

  1. It shall be unlawful for any person to operate a food sales establishment without having first obtained a license from the Commissioner. No license issued under this article shall be suspended or revoked except for health and sanitation reasons or violations of this article and until the licensee to be affected shall be provided with reasonable notice thereof and an opportunity for hearing, as provided under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Licenses issued under this article shall be renewed annually and shall not be transferable with respect to persons or location. Each food sales establishment licensed pursuant to this Code section shall post such license on the premises in an open and conspicuous manner so as to be visible to the public. Neither the state nor any county, municipality, or consolidated government shall issue or renew any business or occupation license or permit for any food sales establishment until the establishment complies with the requirements of this article.
  2. The Commissioner shall charge the following fees for the licenses issued pursuant to subsection (a) of this Code section. The fee structure shall be based on the level of risk, procedural effort, and inspection time needed for each food sales establishment:
    1. Tier 5  ............ $300.00
    2. Tier 4  ............ 250.00
    3. Tier 3  ............ 200.00
    4. Tier 2  ............ 150.00
    5. Tier 1  ............ 100.00
  3. The Department of Agriculture shall establish rules and regulations by which to assign each food sales establishment to a proper tier and to collect the fees provided for in this Code section.

    (Ga. L. 1971, p. 66, § 3; Ga. L. 2002, p. 815, § 1; Ga. L. 2010, p. 9, § 1-57/HB 1055.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, "establishment" was substituted for "establishments" at the end of the introductory language in subsection (b) and "regulations" was substituted for "regulation" in subsection (c).

RESEARCH REFERENCES

ALR. - Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669 .

Application of occupation, sales, or license tax to one operating dining room, cafeteria, or beverage room incidental to business, 13 A.L.R.2d 1362.

26-2-26. When food deemed adulterated.

A food shall be deemed to be adulterated if:

  1. It bears or contains any poisonous or deleterious substance which may render it injurious to health; but, in case the substance is not an added substance, such food shall not be considered adulterated under this paragraph if the quantity of such substance in such food does not ordinarily render it injurious to health;
  2. It bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of Code Section 26-2-27. In regard to pesticide residues, a food shall be deemed to be adulterated and unsafe if it bears a pesticide residue in excess of a tolerance established by the United States Environmental Protection Agency under the Federal Food, Drug, and Cosmetic Act or if it bears a residue of a pesticide for which no tolerance has been established or is currently in effect for that food, if such residue appears at a level which is readily quantifiable by methods of assay for pesticide residues employed by the Commissioner on the date of the assay;
  3. It consists in whole or in part of a diseased or contaminated, filthy, putrid, or decomposed substance or if it is otherwise unfit for food;
  4. It has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome, or injurious to health;
  5. It is the product of a diseased animal or an animal that has died otherwise than by slaughter or an animal that has been fed upon the uncooked offal from a slaughterhouse;
  6. Its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health;
  7. Any valuable constituent has been in whole or in part omitted or abstracted therefrom;
  8. Any substance has been substituted wholly or in part therefor;
  9. Damage or inferiority has been concealed in any manner;
  10. Any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is;
  11. It is confectionary and it bears or contains any alcohol or nonnutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of 1 percent, harmless natural wax not in excess of four-tenths of 1 percent, harmless natural gum, and pectin, provided that this paragraph shall not apply to any confection containing less than one-half of 1 percent by volume of alcohol derived solely from the use of flavoring extracts or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances; or
  12. It bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.

    (Ga. L. 1956, p. 195, § 10; Ga. L. 1990, p. 8, § 26; Ga. L. 1990, p. 318, § 1.)

Cross references. - Warranties relating to sales of goods generally, § 11-2-312 et seq.

Civil action for knowing or negligent selling of unwholesome provisions to another person by use of which damage results to purchaser or his family, § 51-1-23 .

JUDICIAL DECISIONS

ANALYSIS

1. General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2101, 2104, 2115 and 2117, and former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906 are included in the annotations for this Code section.

Establishing injury. - In a negligence action by a restaurant customer who found an unwrapped condom in a salad, summary judgment was precluded by fact issues as to whether eating part of the salad was sufficient physical contact under the impact rule, and whether the customer's reaction of vomiting and becoming nauseated constituted a physical injury. Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498 , 504 S.E.2d 551 (1998).

Cited in Polite v. Carey Hilliards Restaurants, Inc., 177 Ga. App. 170 , 338 S.E.2d 541 (1985).

2. Legislative Intent

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that the law was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

3. Applicability and Definition of Adulterated Food

No liability for substance not added to food. - Former Code 1910, § 2103 (see now O.C.G.A. § 26-2-26(1) and (2)), was not applicable, when the contention is not that the defendant had adulterated the product by adding some deleterious foreign substance to the normal constituency of the product in order to sell it as part of the product itself, but if the charge only contended that the defendant was negligent in allowing the normal ingredients of the product to become putrid and unwholesome. Armour & Co. v. Miller, 39 Ga. App. 228 , 147 S.E. 184 (1929) (decided under former Code 1910, § 2103).

Butter substitutes. - Law does not prohibit the sale of substitutes for creamery butter, provided the substitute is not sold so misbranded as to deceive or so adulterated as to injure. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2115).

"Southern nut product," was held a "distinctive" name, not an imitation of creamery butter and not adulterated. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Definition of "adulterated food". - Food was adulterated, within the meaning of former Code 1933, § 42-109 if it contained something "foreign" or "added," or if the object was a "portion of an animal unfit for food." Davison-Paxon Co. v. Archer, 91 Ga. App. 131 , 85 S.E.2d 182 (1954) (decided under former Code 1933, § 42-109).

Includes decomposed food. - Any portion of an animal, such as pig's liver, which is decomposed or putrid, is adulterated and unfit for food. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109 and 42-9906).

Although bone not "portion unfit for food" requiring submission of case to jury as negligence per se. - Barbecued pork sandwich, which contained a small piece of bone which the plaintiff got caught in the plaintiff's throat, contained nothing that would render it unfit for food within the provisions of former Code 1933, § 42-109 as containing a "portion of animal unfit for food," and the defendant could not be charged with negligence per se in the violation of the former provisions so as to require the submission of the case to a jury. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369 , 53 S.E.2d 718 (1949) (decided under former Code 1933, § 42-109).

4. Jurisdiction

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2101 (see now O.C.G.A. § 26-2-22 ), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

5. Indictment

Indictment sufficient. - Indictment charging that the defendant unlawfully sold "adulterated food," in that defendant sold to a named person "a portion of an animal, to wit, a diseased cow, unfit for food, that had died otherwise than by slaughter," was not subject to demurrer (now motion to dismiss) because of failure to show compliance with statutory provisions as to examination of food by or under the direction of the state chemist. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1919) (decided under former Code 1910, § 2102).

Indictment not subject to demurrer (now motion to dismiss) because of failure to show how or in what way the portion sold was unfit for food, or was diseased, or what kind of product of the diseased cow was sold. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1919) (decided under former Code 1910, § 2102).

6. Standards of Negligence

Sale of adulterated food which causes illness is negligence per se. - Sale of an adulterated article to a customer who was made ill by the article's consumption, in violation of former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, constituted negligence per se. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906).

Judge must instruct jury that putrid food causing illness is negligence per se. - In a suit against a dealer by a person alleged to have been made ill from eating alleged adulterated food sold by the defendant, the sale of which was penal under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, which was negligence per se when the evidence authorized an inference that the food was decomposed or putrid and was therefore unfit for human consumption and adulterated as defined in the act, and that the plaintiff was made sick from eating the food, it was error for the court to instruct the jury that if the defendant exercised ordinary care in the sale of the food the plaintiff could not recover. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906).

Plaintiff can establish negligence per se as matter of law, and/or negligence as matter of fact. - In a suit for damages against a seller of unwholesome food, the plaintiff may establish negligence as a matter of fact, or the plaintiff may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, former Code 1933, § 42-109, or plaintiff may rely on both classes of negligence. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369 , 53 S.E.2d 718 (1949) (decided under former Code 1933, § 42-109).

Evidence that plaintiff was made sick by adulterated food sufficient for recovery. - In a suit against a retailer of meats, when the plaintiff alleges that the defendant sold some pig's liver which on the same day was cooked and eaten by the plaintiff's family all of whom became ill on the following morning, that when it was sold the liver was decomposed and unwholesome, contaminated by infectious matter, and unfit for food, that it poisoned the plaintiff, that the defendant was negligent in not inspecting the liver in holding it out as fresh and wholesome when it was not fit for human use, in not warning the plaintiff of the unwholesome condition and in selling the liver for human consumption in the unwholesome condition described, "which was a violation of state law," the petition was sufficient for recovery for a violation by the defendant of the statutory duty resting upon defendant, as contained in the provision of former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, making it a violation of law for the defendant to sell an article of food in the unwholesome and deleterious condition described. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79 , 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115 and 42-9901).

OPINIONS OF THE ATTORNEY GENERAL

Candy that contains a small quantity of bourbon flavor or is bourbon flavored is adulterated. 1957 Op. Att'y Gen. p. 144.

Fiber separators between layers of apples must be sterilized. - Former Code 1933, § 2103 was sufficient to prohibit the reuse of fiber separators between layers of apples unless adequate provisions had been made to sterilize or otherwise render the separators suitable for use. 1960-61 Op. Att'y Gen. p. 1.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 18, 20, 39.

C.J.S. - 36A C.J.S., Food, § 23.

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

Preservative as adulterant within statute in relation to food, 50 A.L.R. 76 .

Statutes or ordinances in relation to confectionery, 58 A.L.R. 293 .

Constitutionality of statutes, ordinances or other regulations against adulteration of food products as applied to substances used for preservative purposes, 114 A.L.R. 1214 .

Infected or tainted condition of milk or other food, or contamination in water, and its causation of the sickness of the consumer, as inferable from such sickness, 130 A.L.R. 616 .

Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from middleman, 140 A.L.R. 191 ; 142 A.L.R. 1490 .

Implied warranty of fitness by one serving food, 7 A.L.R.2d 1027, 87 A.L.R.4th 804, 90 A.L.R.4th 12.

Construction and application of Federal Food, Drug, and Cosmetic Act § 402 (a)(3) [21 USC § 342 (a)(3)] as to food deemed "adulterated," if it is filthy or the like, or unfit for food, 45 A.L.R.2d 861.

Coloring matter as forbidden adulteration of food, 56 A.L.R.2d 1129.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.

26-2-27. Poisonous or deleterious substances in food; exception for required substances.

  1. Any poisonous or deleterious substance added to any food, except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice, shall be deemed to be unsafe for purposes of the application of paragraph (2) of Code Section 26-2-26.
  2. When a poisonous or deleterious substance is required in the production of food or cannot be avoided by good manufacturing process, the Commissioner shall promulgate regulations limiting the quantity therein or thereon to such extent as the Commissioner finds necessary for the protection of public health; and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of paragraph (2) of Code Section 26-2-26. While such a regulation is in effect limiting the quantity of any such substance in the case of any food, such food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated within the meaning of paragraph (1) of Code Section 26-2-26.
  3. In determining the quantity of added poisonous or deleterious substances to be tolerated in or on different articles of food, the Commissioner shall take into account the extent to which the use of such substance is required or cannot be avoided in the production of each such article and the other ways in which the consumer may be affected by the same or other poisonous or deleterious substances.

    (Ga. L. 1956, p. 195, § 13.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1910, § 2103 are included in the annotations for this Code section.

Manufacturer not liable under section if substance not added. - Former Code 1910, § 2103 was not applicable when the contention was not that the defendant had adulterated the product by adding some deleterious foreign substance to the normal constituency of the product in order to sell it as a part of the product itself, but when the charge only contended that the defendant was negligent in allowing the normal ingredients of the product to become putrid and unwholesome. Armour & Co. v. Miller, 39 Ga. App. 228 , 147 S.E. 184 (1929) (decided under former Code 1910, § 2103).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 20.

C.J.S. - 36A C.J.S., Food, § 23.

ALR. - Preservative as adulterant within statute in relation of food, 50 A.L.R. 76 .

Statutory provisions relating to purity of food products as applicable to foreign substances which get into product as result of accident or negligence, and not by purpose or design, 98 A.L.R. 1496 .

Constitutionality of statutes, ordinances or other regulations against adulteration of food products as applied to substances used for preservative purposes, 114 A.L.R. 1214 .

Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from middleman, 140 A.L.R. 191 ; 142 A.L.R. 1490 .

26-2-27.1. Testing of specimens from food processing centers; consistency in standards; cost; retention of records from testing; exemption.

  1. As used in this Code section, the term "food processing plant" means a commercial operation that manufactures food for human consumption and does not provide food directly to a consumer from that location. Such term shall not include a commercial operation that produces raw agricultural commodities and whose end product remains a raw agricultural product.
      1. In order to protect the public health, safety, and welfare and ensure compliance with this article, the Commissioner shall by rule or regulation establish requirements for regular testing of samples or specimens of foods and ingredients by food processing plants for the presence of poisonous or deleterious substances or other contaminants rendering such foods or ingredients injurious to health. Such rules or regulations shall identify the specific classes or types of food processing plants, foods, ingredients, and poisonous or deleterious substances or other contaminants that shall be subject to such testing requirements and the frequency with which such tests shall be performed by food processing plants.
      2. The Commissioner shall also promulgate rules and regulations establishing minimum standards and requirements for a written food safety plan, such as a hazard analysis critical control point plan, that may be submitted by an operator of a food processing plant to document and describe the procedures used at such plant to prevent the presence of hazards such as poisonous or deleterious substances or other contaminants that would render finished foods or finished ingredients as manufactured at such plant injurious to health, including preventive controls, monitoring to ensure the effectiveness of such controls, and records of corrective actions, including actions taken in response to the presence of known hazards. If an operator of a food processing plant, in its discretion, submits to the department a written food safety plan for such plant and such plan conforms to rules and regulations promulgated for purposes of this subparagraph, then such food processing plant shall comply with the requirements of such written food safety plan, including, but not limited to, any test regimen provided by such plan, in lieu of complying with a test regimen established by rules or regulations promulgated by the Commissioner pursuant to subparagraph (A) of this paragraph.
        1. The Commissioner shall impose a civil penalty for a violation of this subsection.
        2. The department shall adopt rules and regulations establishing a schedule of civil penalties that shall be imposed under this subsection. Civil penalties imposed pursuant to this subsection shall not exceed $5,000.00 for each violation; provided, however, that a food processing plant that knowingly fails to comply with the provisions of subparagraph (B) of this paragraph shall be punished by the imposition of a $7,500.00 civil penalty. In addition to such civil penalty, within 30 days of the determination by the Commissioner that such violation has occurred, such food processing plant shall submit to the Commissioner a written plan pursuant to subparagraph (B) of this paragraph.
        3. For purposes of this subsection, each day a violation continues after the period established for compliance by the Commissioner shall be considered a separate violation.
        4. When a civil penalty is imposed under this subsection, such penalty shall be subject to review in the manner prescribed by Article 1 of Chapter 13 of Title 50, known as the "Georgia Administrative Procedure Act."
    1. In addition to any regular tests required pursuant to paragraph (1) of this subsection, the Commissioner may order any food processing plant to have samples or specimens of its foods and ingredients tested for the presence of any poisonous or deleterious substances or other contaminants whenever in his or her determination there are reasonable grounds to suspect that such foods or ingredients may be injurious to health.
  2. Any food processing plant subject to any testing requirements pursuant to this Code section shall cause such required tests to be performed in accordance with testing standards and procedures established by rules and regulations of the Commissioner. Testing standards and procedures established by the Commissioner under this paragraph shall be consistent with standards presented in the federal Food and Drug Administration's Bacterial Analytical Manual and standards developed by the Association of Analytical Communities International, International Organization for Standardization, or another internationally recognized certification body.
  3. A food processing plant shall be responsible for the cost of any testing required pursuant to this Code section and may conduct such testing either internally or via a third party, provided that subsection (c) of this Code section applies in either case.
    1. Whenever any person or firm that operates a food processing plant in this state obtains information from testing of samples or specimens of finished foods or finished food ingredients as manufactured at such food processing plant which, based on a confirmed positive test result, indicates the presence of a substance that would cause a manufactured food bearing or containing the same to be adulterated within the meaning of paragraph (1) of Code Section 26-2-26, such person or firm shall report such test result to the department within 24 hours after obtaining such information.
    2. Any person who knowingly fails to make the report required by paragraph (1) of this subsection shall be guilty of a misdemeanor. The punishment provided for in this subsection shall be supplemental to any other applicable provisions of law.
  4. Records of the results of any tests required pursuant to this Code section shall be kept by a food processing plant and made available to the department for inspection for a period of not less than two years from the date the results were reported by the laboratory. Any person who knowingly violates this subsection shall be guilty of a misdemeanor. The punishment provided for in this subsection shall be supplemental to any other applicable provisions of law.
  5. This Code section shall not apply to any food processing plant operating under a federal grant of inspection from the United States Department of Agriculture Food Safety and Inspection Service.
  6. Any person who knowingly introduces into commerce finished foods or finished food ingredients as manufactured at a food processing plant knowing that it contains a substance that would cause a manufactured food bearing or containing the same to be adulterated within the meaning of paragraph (1) of Code Section 26-2-26 shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment for not less than one nor more than 20 years, a fine not to exceed $20,000.00, or both. The punishment provided for in this subsection shall be supplemental to any other applicable provisions of law. (Code 1981, § 26-2-27.1 , enacted by Ga. L. 2009, p. 441, § 2/SB 80; Ga. L. 2010, p. 465, §§ 2, 3, 4/HB 883.)

Editor's notes. - Ga. L. 2010, p. 465, § 1/HB 883, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sanitary Activity for Food-processing Enterprises (SAFE) Act.'"

Administrative Rules and Regulations. - Additional regulations applicable to processing plants, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-7-18.

26-2-28. When food deemed misbranded.

A food shall be deemed to be misbranded if:

  1. Its labeling is false or misleading in any particular;
  2. It is offered for sale under the name of another food;
  3. It is an imitation of another food for which a definition and standard of identity have been prescribed by regulations as provided by Code Section 26-2-35; or if it is an imitation of another food that is not subject to paragraph (7) of this Code section, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;
  4. Its container is so made, formed, or filled as to be misleading;
    1. In package form, unless it bears a label containing:
      1. The name and place of business of the manufacturer, packer, or distributor; and
      2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count.

        However, under division (ii) of subparagraph (A) of this paragraph, reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the Commissioner; and a food shall not be deemed misbranded because of omission of the information required by division (i) of subparagraph (A) of this paragraph where such omission is authorized in writing by the Commissioner.

    2. The Commissioner may authorize the omission from the label of packaged food of the name and place of business of the manufacturer, packer, or distributor upon a showing of undue hardship because of the size of the package, the material of which the package is made, or the disproportionate cost of compliance. Before authorizing such omission, the Commissioner shall require the filing of a certificate of territorial responsibility in a form prescribed by him. Failure to maintain on file with the Commissioner a correct current statement of territorial responsibility in accordance with the Commissioner's requirements shall terminate any such authorization previously granted;
  5. Any word, statement, or other information required by or under authority of this article to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  6. It purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by Code Section 26-2-35, unless:
    1. It conforms to such definition and standard; and
    2. Its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food;
  7. It purports to be or is represented as:
    1. A food for which a standard of quality has been prescribed by regulations as provided by Code Section 26-2-35 and its quality falls below such standard, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or
    2. A food for which a standard or standards of fill of container have been prescribed by regulation as provided by Code Section 26-2-35, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard;
    1. It is not subject to paragraph (7) of this Code section, unless it bears labeling clearly giving:
      1. The common or usual name of the food, if any such name exists; and
      2. In case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings without naming each;
    2. To the extent that compliance with the requirements of division (ii) of subparagraph (A) of this paragraph is impractical or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the Commissioner;
    3. The requirements of division (ii) of subparagraph (A) of this paragraph shall not apply to any carbonated beverage, the ingredients of which have been fully and correctly disclosed, to the extent prescribed by division (ii) of subparagraph (A) of this paragraph, to the Commissioner in an affidavit;
  8. It purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the Commissioner determines to be, and by regulations prescribes, as necessary in order fully to inform purchasers as to its value for such uses;
  9. It bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact, provided that, to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the Commissioner; or
  10. It is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded.

    (Ga. L. 1956, p. 195, § 11; Ga. L. 1966, p. 180, § 1; Ga. L. 1982, p. 3, § 26.)

Law reviews. - For comment on Aeration Processes v. Commissioner, 194 N.E.2d 838 (Mass. 1963), and Coffee-Rich v. Kansas State Bd. of Health, 192 Kan. 431, 388 P.2d 582 (1964), discussing imitation foods and misbranding statutes, see 13 J. Pub. L. 536 (1964).

JUDICIAL DECISIONS

ANALYSIS

1. General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2104, 2115 and 2117, are included in the annotations for this Code section.

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that it was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

2. Jurisdiction

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2103, see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

3. Applicability

Word "imitation" as used in former Code 1910, § 2104 indicated something intentional rather than incidental, and imported more than mere resemblance or similitude. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Distinctive name not imitation. - "Southern nut product" held a "distinctive" name, not an imitation of creamery butter and not adulterated. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Product sometimes used as a substitute for creamery butter without being declared to be such was not banned. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929) (decided under former Code 1910, § 2115).

Substitute must not be sold so misbranded as to deceive or so adulterated as to injure. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Former Code 1910, § 2101 did not prohibit the use of adulterated or misbranded foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Former Code 1910, § 2104 dealt with articles sold in commerce. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

OPINIONS OF THE ATTORNEY GENERAL

Provisions of Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28 ) apply to bottled soft drinks. 1958-59 Op. Att'y Gen. p. 7.

Label on a package of meat, in order to comply with Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28 ), must contain the name and place of business of the specific establishment where the food is packaged; merely placing the name of a retail food chain and the home office city on a label would not comply with these provisions. 1973 Op. Att'y Gen. No. 73-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 24 et seq.

C.J.S. - 36A C.J.S., Food, §§ 19, 21, 41, 46, 47.

ALR. - Constitutionality of statutes requiring notice by label or otherwise, of the fact that product is imported, or as to the place of production, 83 A.L.R. 1409 ; 124 A.L.R. 572 .

Provisions of statutes against misbranding or false labeling of food, drug or cosmetic products as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

26-2-29. Misleading advertisements; certain practices declared misleading.

  1. An advertisement of a food shall be deemed to be false if it is misleading in any particular.
  2. By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices employed in the advertisement of a food are declared to be misleading:
    1. Causing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of food;
    2. Using deceptive representations or designations of geographic origin in connection with food;
    3. Representing that food has sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that it does not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
    4. Representing that food is of a particular standard, quality, or grade if it is not; or
    5. Making false or misleading statements concerning the food of another.

      (Ga. L. 1956, p. 195, § 14; Ga. L. 1989, p. 260, § 1.)

Cross references. - False advertising generally, § 10-1-420 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 32 Am. Jur. 2d, False Pretenses, § 85. 37 Am. Jur. 2d, Fraud and Deceit, § 83.

C.J.S. - 36A C.J.S., Food, § 41, 47, 48. 37 C.J.S., Fraud, § 23 et seq.

ALR. - Validity and construction of regulations dealing with misrepresentation in the sale of Kosher food, 52 A.L.R.3d 959.

26-2-30. Factors to be taken into account in determining whether labels or advertisements are misleading.

If an article is alleged to be misbranded because the labeling is misleading or if an advertisement is alleged to be false because it is misleading, then, in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statements, words, designs, devices, sound, or any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual.

(Ga. L. 1956, p. 195, § 2.)

Cross references. - False advertising generally, § 10-1-420 et seq.

26-2-30.1. Beef produced without antibiotics or growth hormones; "Georgia lean" beef.

  1. The Commissioner of Agriculture is authorized to promulgate and adopt rules and regulations for the labeling of beef and for the purpose of certifying beef as having been produced without feeding, injecting, or implanting antibiotics or growth hormones in the animal from which such beef was produced.
  2. The Commissioner of Agriculture is authorized to promulgate and adopt rules and regulations and to establish standards for the labeling and certification of beef as "Georgia lean." (Code 1981, § 26-2-30.1 , enacted by Ga. L. 1986, p. 1089, § 1.)

26-2-31. Repacking of flour, grits, hominy, and cornmeal; exceptions.

Reserved. Repealed by Ga. L. 1999, p. 642, § 1, effective July 1, 1999.

Editor's notes. - This Code section was based on Ga. L. 1889, p. 170, § 1; Ga. L. 1890-91, p. 236, § 1; Civil Code 1895, § 1622; Penal Code 1895, §§ 550, 551; Civil Code 1910, § 1865; Penal Code 1910, §§ 562, 563; Code 1933, §§ 42-318, 42-9902; Ga. L. 1958, p. 652, § 1.

26-2-32. Honey and imitation honey labels.

  1. It shall be unlawful for any person to package any product and label the product as "honey" or "imitation honey," or to use the word "honey" in any prominent location on the label of such product, or to sell or offer for sale any product which is labeled "honey" or "imitation honey" or which contains a label with the word "honey" prominently displayed thereon, unless such product is pure honey manufactured by honeybees.
  2. Any person who violates any provisions of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $500.00 nor more than $1,000.00 or by confinement for a total term not to exceed 12 months, or both.

    (Ga. L. 1974, p. 450, § 1; Ga. L. 1990, p. 391, § 1.)

Cross references. - Regulation of honeybees by Commissioner, § 2-14-40 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required for violation of O.C.G.A. § 26-2-32 . - Violation of O.C.G.A. § 26-2-32 is not, at this time, designated as an offense for which those charged with a violation are to be fingerprinted. 1990 Op. Att'y Gen. No. 90-22.

RESEARCH REFERENCES

ALR. - Constitutionality of statutes requiring notice by label or otherwise, of the fact that product is imported, or as to the place of production, 124 A.L.R. 572 .

Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-33. Enforcement of article by Commissioner; employment of personnel.

  1. The Commissioner is charged with the duty of enforcing this article and rules, regulations, and standards adopted and promulgated under this article in establishments that have the majority of square footage of building floor space used for the operation of food sales as defined in Code Section 26-2-21. The measurement of square footage shall consider indoor and outdoor dining areas as part of food service as defined in Code Section 26-2-370. The Commissioner shall employ the necessary personnel and shall fix their compensation and prescribe their duties. Duly authorized representatives are authorized to enter upon and inspect the premises of any food sales establishment.
  2. Notwithstanding any other provision of this article, food service establishments as defined in Code Section 26-2-370 shall be inspected and regulated under Article 13 of this chapter and shall not be subject to inspection or enforcement under this article.

    (Ga. L. 1956, p. 195, § 15; Ga. L. 2000, p. 1558, § 2.)

JUDICIAL DECISIONS

Immunity for inspectors. - Inspectors for the consumer protection division who informed a public warehouseman that the pecans stored at its warehouse were unfit for human consumption without destroying the condemned pecans expeditiously nor notifying the holders of a security interest in the pecans of the condemnation owed no duty to the holders of the security interest under the Georgia Food Act, O.C.G.A. Art. 2, Ch. 2, T. 26. The injury that the holders suffered in losing their security was not the type of injury the Georgia Food Act was designed to prevent. Planters & Citizens Bank v. Pennsylvania Millers Mut. Ins. Co., 786 F. Supp. 991 (S.D. Ga. 1992), aff'd, 992 F.2d 328 (11th Cir. 1993).

26-2-34. Promulgation of regulations; notice and hearing for proposed amendments; variances or waivers.

  1. The authority to promulgate regulations for the efficient enforcement of this article is vested in the Commissioner. The Commissioner is authorized to make the regulations promulgated under this article conform, insofar as practicable, with those promulgated under the federal act.
  2. Hearings authorized or required by this article shall be conducted by the Commissioner or such officer, agent, or employee as the Commissioner may designate for the purpose.
  3. Before promulgating any regulation authorized by Code Sections 26-2-35 and 26-2-37 and paragraph (10) of Code Section 26-2-28, the Commissioner shall give appropriate notice of the proposal and of the time and place for a hearing. The regulation so promulgated shall become effective on a date fixed by the Commissioner, which date shall not be prior to 30 days after its promulgation. Such regulation may be amended or repealed in the same manner as is provided for its adoption, except that, in the case of a regulation amending or repealing any such regulation, the Commissioner, to such an extent as is deemed necessary, in order to prevent undue hardship, may disregard the foregoing provisions regarding notices, hearing, or effective date.
    1. For purposes of this subsection, the term:
      1. "Substantial hardship" means a significant, unique, and demonstrable economic, technological, legal, or other type of hardship to the person requesting a variance or waiver which impairs the ability of the person to continue to function in the regulated practice or business.
      2. "Variance" means a decision by an agency to grant a modification to all or part of the literal requirements of a rule to a person who is subject to the rule.
      3. "Waiver" means a decision by an agency not to apply all or part of a rule to a person who is subject to the rule.
    2. The Commissioner may grant a variance or waiver to any rule promulgated pursuant to this Code section when a person subject to such rule demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person.
    3. This subsection shall not apply, and no variance or waiver shall be sought or authorized, if the granting of such variance or waiver would be harmful to the public health, safety, or welfare.

      (Ga. L. 1956, p. 195, § 15; Ga. L. 2017, p. 619, § 1/SB 78.)

The 2017 amendment, effective July 1, 2017, added subsection (d).

Administrative Rules and Regulations. - Food Division Regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-7-1.

Cottage Food Regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-7-19.

JUDICIAL DECISIONS

State cannot prohibit sale of food merely because it resembles existing product. - Neither the commissioner nor the Department of Agriculture has authority to promulgate a rule absolutely prohibiting the sale of a harmless and nutritious food product merely because it resembles another product already on the market. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 3.

C.J.S. - 36A C.J.S., Food, § 5.

26-2-34.1. (Effective January 1, 2021) Confidential information.

The following information, records, and data obtained by the Department of Agriculture from the federal Food and Drug Administration pursuant to a contract or commissioning agreement shall be deemed confidential and shall not be open to inspection by the public, to the extent that it was obtained or furnished on a confidential basis or is exempt from disclosure under 5 U.S.C. Sec. 552, the federal Freedom of Information Act: trade secrets; confidential commercial information; information under the federal deliberative process privilege; information compiled for law enforcement purposes; or information expressly required to be kept confidential by other federal laws.

(Code 1981, § 26-2-34.1 , enacted by Ga. L. 2020, p. 486, § 1/SB 381.)

Effective date. - This Code section becomes effective January 1, 2021.

26-2-35. Food regulations.

  1. Whenever in the judgment of the Commissioner such action will promote honesty and fair dealing in the interest of the consumers, the Commissioner shall promulgate regulations fixing and establishing for any food or any class of food a reasonable definition and standard of identity and, if applicable, a reasonable standard of quality and fill of container.
  2. In prescribing a definition and a standard of identity for any food or class of food in which optional ingredients are permitted, the Commissioner shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under authority of the federal act.

    (Ga. L. 1956, p. 195, § 9.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 11, 12, 42. 63C Am. Jur. 2d, Public Officers and Employees, § 460.

C.J.S. - 36A C.J.S., Food, §§ 4, 14. 73 C.J.S., Public Administrative Law and Procedure, §§ 162, 163.

26-2-36. Right of entry in food establishments and transport vehicles; examination of samples obtained.

  1. The Commissioner or his duly authorized agent shall have free access during all hours of operation and at all other reasonable hours to any factory, warehouse, or establishment in which food is manufactured, processed, packed, or held for introduction into commerce and any vehicle being used to transport or hold such foods to commerce for the purposes:
    1. Of inspecting such factory, warehouse, establishment, or vehicle, any records of pathogen destruction, and any records of testing of samples or specimens of foods or ingredients for the presence of poisonous or deleterious substances or other contaminants and the results thereof as may be required pursuant to Code Section 26-2-27.1, to determine if any of the provisions of this article are being violated; and
    2. Of securing samples or specimens of any food, after paying or offering to pay for such sample.
  2. It shall be the duty of the Commissioner to make or cause to be made examinations of samples secured under subsection (a) of this Code section to determine whether or not this article is being violated.

    (Ga. L. 1956, p. 195, § 16; Ga. L. 2009, p. 441, § 3/SB 80.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 12.

C.J.S. - 36A C.J.S., Food, §§ 19, 20.

ALR. - Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

26-2-37. Temporary permits.

  1. Whenever the Commissioner finds, after investigation, that the distribution in Georgia of any class of food may, by reason of contamination with microorganisms during manufacture, processing, or packing thereof in any locality, be injurious to health and that such injurious nature cannot be adequately determined after such articles have entered commerce, he then, and in such case only, shall promulgate regulations providing for the issuance to manufacturers, processors, or packers of such class of food in such locality of permits to which shall be attached such conditions governing the manufacture, processing, or packing of such class of food, for such temporary period of time, as may be necessary to protect the public health; and, after the effective date of such regulations and during such temporary period, no person shall introduce or deliver for introduction into commerce any such food manufactured, processed, or packed by any such manufacturer, processor, or packer unless such manufacturer, processor, or packer holds a permit issued by the Commissioner as provided by such regulations.
  2. The Commissioner is authorized to suspend immediately upon notice any permit issued under authority of this Code section if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended shall be privileged at any time to apply for the reinstatement of such permit. The Commissioner shall, immediately after prompt hearing and inspection of the establishment, reinstate such permit if it is found that adequate measures have been taken to comply with and maintain the conditions of the permit as originally issued or as amended.
  3. Any officer or employee duly designated by the Commissioner shall have access to any factory or establishment, the operator of which holds a permit from the Department of Agriculture, for the purpose of ascertaining whether or not the conditions of the permit are being complied with. Denial of access for such inspection shall be grounds for suspension of the permit until such access is freely given by the owner or operator.

    (Ga. L. 1956, p. 195, § 12.)

RESEARCH REFERENCES

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.

26-2-38. Detention or embargo of adulterated or misbranded food.

  1. Whenever a duly authorized agent of the Commissioner finds or has probable cause to believe that any food is adulterated or misbranded within the meaning of this article, such agent shall affix to such article or to any container, field, building, or structure which contains 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 the 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 permission of the Commissioner. Upon application, the Commissioner shall grant permission to move or dispose of such article to a safe and secure area and in a safe and secure manner.
  2. When an article detained or embargoed under subsection (a) of this Code section has been found by such agent to be adulterated or misbranded, he shall bring an action for condemnation of such article in the superior court of the county where the article is detained or embargoed. When such agent has found that an article so detained or embargoed is not adulterated or misbranded, he shall remove the tags or other markings.
  3. 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 the Commissioner 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 proper order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the Commissioner. The expense of such supervision shall be paid by the claimant. Such shall be returned to the claimant of the article on representation to the court by the Commissioner that the article is no longer in violation of this article and that the expense of such supervision has been paid.
  4. Whenever the Commissioner or any of his authorized agents shall find in any room, building, vehicle for transportation, or other structure any meat, seafood, poultry, vegetables, fruit, or other perishable articles which are unsound, which contain any filthy, decomposed, or putrid substances, or which might be poisonous or deleterious to health or otherwise unsafe, the same shall be declared to be a nuisance and the Commissioner or his authorized agent shall immediately condemn or destroy or in any other manner render the same unsalable as human food.

    (Ga. L. 1956, p. 195, § 6; Ga. L. 1986, p. 197, § 1; Ga. L. 1998, p. 189, § 2.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, § 2117 and former Code 1933, § 42-109, are included in the annotations for this Code section.

Definition of adulterated food. - Food is adulterated, within the meaning of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26 ), if it contains something "foreign" or "added," or it must appear that the object is a "portion of an animal unfit for food." Davison-Paxon Co. v. Archer, 91 Ga. App. 131 , 85 S.E.2d 182 (1954) (decided under former Code 1933, § 42-109).

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2101 (see now O.C.G.A. § 26-2-22 ), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

OPINIONS OF THE ATTORNEY GENERAL

Right of Department of Agriculture to embargo and destroy adulterated food. - Department of Agriculture inspectors are authorized to detain, to embargo, and under certain circumstances, to destroy adulterated food in the possession of any food establishment including pecans on display. 1970 Op. Att'y Gen. No. U70-22.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 58.

C.J.S. - 36A C.J.S., Food, §§ 23, 51, 52 et seq.

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

26-2-39. Summaries of judgments, decrees, and court orders; dissemination of information in the interest of health and protection of consumers against fraud.

  1. The Commissioner may cause to be published from time to time reports summarizing all judgments, decrees, and court orders which have been rendered under this article, including the nature of the charge and the disposition thereof.
  2. The Commissioner may also cause to be disseminated such information regarding food as the Commissioner deems necessary in the interest of public health and the protection of the consumer against fraud.
  3. Nothing in this Code section shall be construed to prohibit the Commissioner from collecting, reporting, and illustrating the results of the investigations of the Commissioner.

    (Ga. L. 1956, p. 195, § 17.)

RESEARCH REFERENCES

ALR. - Liability of manufacturer or seller for injury caused by food or food product sold, 77 A.L.R.2d 7.

Liability of packer, food store, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.

26-2-40. Minor violations of article.

Nothing in this article shall be construed as requiring the Commissioner to report, for the institution of proceedings under this article, minor violations of this article whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

(Ga. L. 1956, p. 195, § 8.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 43.

26-2-41. Prosecution of violations; notice to defendant prior to institution of criminal proceeding.

It shall be the duty of each prosecuting attorney to whom the Commissioner reports any violation of this article to cause appropriate proceedings to be instituted in the appropriate court without delay and to prosecute the same in the manner provided by law. Before any violation of this article is reported to any prosecuting attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the Commissioner or his designated agent orally or in writing, in person, or by attorney, with regard to such contemplated proceedings.

(Ga. L. 1956, p. 195, § 7.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, § 2102, are included in the annotations for this Code section.

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2101 (see now O.C.G.A. § 26-2-22 ), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930);(decided under former Code 1910, § 2101).

Indictment sufficient. - Indictment charging that the defendant unlawfully sold "adulterated food," in that defendant sold to a named person "a portion of an animal, to wit, a diseased cow, unfit for food, that had died otherwise than by slaughter," was not subject to demurrer (now motion to dismiss) because of failure to show compliance with statutory provisions as to examination of food by or under the direction of the state chemist. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1919);(decided under former Code 1910, § 2101).

Indictment not subject to demurrer (now motion to dismiss) because of failure to show how or in what way the portion sold was unfit for food, or was diseased, or what kind of product of the diseased cow was sold. Evitt v. State, 23 Ga. App. 532 , 98 S.E. 737 (1919);(decided under former Code 1910, § 2101).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 62 et seq., 67.

C.J.S. - 36A C.J.S., Food, § 59 et seq.

ARTICLE 3 MEAT INSPECTION

Cross references. - Disposal of diseased, disabled, or dead animals generally, T. 4, C. 5.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 33, 34.

PART 1 G ENERAL PROVISIONS

26-2-60. Short title.

This article may be cited as the "Georgia Meat Inspection Act."

(Ga. L. 1969, p. 1028, § 33.)

Administrative Rules and Regulations. - Meat Inspection - Meat Processing, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-10-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 31, 32.

26-2-61. Legislative intent.

Meat and meat food products are an important source of the nation's total supply of food. It is essential to the public interest that the health and welfare of consumers be protected by assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged. Unwholesome, adulterated, or misbranded meat or meat food products are injurious to the public welfare, destroy markets for wholesome, not adulterated, and properly labeled and packaged meat and meat food products, and result in sundry losses to livestock producers and processors of meat and meat food products as well as injury to consumers. The unwholesome, adulterated, mislabeled, or deceptively packaged articles can be sold at lower prices and compete unfairly with the wholesome, not adulterated, and properly labeled and packaged articles, to the detriment of consumers and the public generally. It is hereby found that regulation by the Commissioner and cooperation by this state and the United States as contemplated by this article are appropriate to the health and welfare of consumers and otherwise effectuate the purposes of this article.

(Ga. L. 1969, p. 1028, § 2.)

26-2-62. Definitions.

As used in this article, the term:

  1. "Adulterated" shall apply to any carcass, part thereof, meat, or meat food product under one or more of the following circumstances:
    1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but, in case the substance is not an added substance, such article shall not be considered adulterated under this subparagraph if the quantity of such substance in or on such article does not ordinarily render it injurious to health;
      1. If it bears or contains, by reason of administration of any substance to the live animal or otherwise, any added poisonous or added deleterious substance, other than one which is a pesticide chemical in or on a raw agricultural commodity, a food additive, or a color additive, which may, in the judgment of the Commissioner, make such article unfit for human food;
      2. If it is in whole or in part a raw agricultural commodity which bears or contains a pesticide chemical which is unsafe within the meaning of Section 408 of the Federal Food, Drug, and Cosmetic Act;
      3. If it bears or contains any food additive which is unsafe within the meaning of Section 409 of the Federal Food, Drug, and Cosmetic Act;
      4. If it bears or contains any color additive which is unsafe within the meaning of Section 721 of the Federal Food, Drug, and Cosmetic Act; or
      5. If an article which is not adulterated under division (ii), (iii), or (iv) of this subparagraph bears or contains any pesticide chemical, food additive, or color additive which is prohibited by regulations of the Commissioner in establishments at which inspection is maintained under Code Sections 26-2-100 through 26-2-115;
        1. If it is margarine containing animal fat and any of the raw material used therein consisted in whole or in part of any filthy, putrid, or decomposed substance.
    2. If it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food;
    3. If it has been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered injurious to health;
    4. If it is in whole or in part the product of an animal which has died otherwise than by slaughter;
    5. If its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health;
    6. If it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to Section 409 of the Federal Food, Drug, and Cosmetic Act;
    7. If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or if any substance has been substituted, wholly or in part therefor; or if damage or inferiority has been concealed in any manner; or if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is; or
  2. "Animal food manufacturer" means any person, firm, or corporation engaged in the business of manufacturing or processing food for animals, such food being derived wholly or in part from carcasses or parts or products of the carcasses of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines.
  3. "Capable of use as human food" shall apply to any carcass or part or product of a carcass of any animal, unless it is denatured or otherwise identified as required by regulations prescribed by the Commissioner to deter its use as human food, or unless it is naturally inedible by humans.
  4. "Commissioner" means the Commissioner of Agriculture of the State of Georgia or his delegate.
  5. "Federal Food, Drug, and Cosmetic Act" means the act so entitled and acts amendatory thereof or supplementary thereto.
  6. "Federal Meat Inspection Act" means the act so entitled as amended by the Wholesome Meat Act.
  7. "Firm" means any partnership, association, or other unincorporated business organization.
  8. "Intrastate commerce" means commerce within this state.
  9. "Label" means a display of written, printed, or graphic matter upon the immediate container, not including package liners, of any article.
  10. "Labeling" means all labels and other written, printed, or graphic matter upon any article or any of its containers or wrappers or accompanying such article.
  11. "Meat broker" means any person, firm, or corporation engaged in the business of buying or selling, on commission, carcasses, parts of carcasses, meat, or meat food products of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or otherwise negotiating purchases or sales of such articles other than for his or her own account or as an employee of another person, firm, or corporation.
  12. "Meat food product" means any product capable of use as human food which is made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, nontraditional livestock, rabbits, or goats, excepting products which contain meat or other portions of such carcasses only in a relatively small proportion or which historically have not been considered by consumers as products of the meat food industry and which are exempted from definition as a meat food product by the Commissioner under such conditions as the Commissioner may prescribe by regulation to assure that the meat or other portions of such carcasses contained in such product are not adulterated and that such products are not represented as meat food products. This term as applied to food products of equines shall have a meaning comparable to that provided in this paragraph with respect to cattle, sheep, swine, nontraditional livestock, rabbits, and goats.
  13. "Misbranded" shall apply to any carcass, part thereof, meat, or meat food product under one or more of the following circumstances:
    1. If its labeling is false or misleading in any particular;
    2. If it is offered for sale under the name of another food;
    3. If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;
    4. If its container is so made, formed, or filled as to be misleading;
    5. If in a package or other container, unless it bears a label showing: (i) the name and place of business of the manufacturer, packer, or distributor; and (ii) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, provided that reasonable variations may be permitted and exemptions as to small packages may be established by regulations promulgated by the Commissioner;
    6. If any word, statement, or other information required by or under authority of this article to appear on the label or other labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
    7. If it purports to be or is represented as a food for which a definition and standard of identity or composition has been prescribed by regulations of the Commissioner under Code Section 26-2-107, unless it conforms to such definition and standard and its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food;
    8. If it purports to be or is represented as a food for which a standard or standards of fill of container have been prescribed by regulations of the Commissioner under Code Section 26-2-107 and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard;
    9. If it is not subject to the provisions of subparagraph (G), unless its label bears:
      1. The common or usual name of the food, if there is any; and
      2. In case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings may, when authorized by the Commissioner, be designated as spices, flavorings, and coloring without naming each, provided that, to the extent that compliance with the requirements of this division is impracticable or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the Commissioner;
    10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the Commissioner, after consultation with the secretary of agriculture of the United States, determines to be, and by regulations prescribes as, necessary in order fully to inform purchasers as to its value for such uses;
    11. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact, provided that, to the extent that compliance with the requirements of this subparagraph is impracticable, exemptions shall be established by regulations promulgated by the Commissioner; or
    12. If it fails to bear, directly thereon or on its container, as the Commissioner may by regulations prescribe, the inspection legend and, unrestricted by any of the foregoing, such other information as the Commissioner may require in such regulations to assure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the article in a wholesome condition.
      1. The species of Artiodactyla (even-toed ungulates) listed as antelope, bison, buffalo, catalo, elk, deer other than white-tailed deer, and water buffalo that are held and possessed legally under the wild animal provisions of Chapter 5 of Title 27; and
      2. Any avian species which are grown commercially for slaughter and preparation as human food but are not amenable to the Federal Poultry Products Inspection Act; provided, however, that such term shall not include any such avian species raised for recreational purposes which are not sold at wholesale or retail.

    (13.1) "Nontraditional livestock" means:

  14. "Official certificate" means any certificate prescribed by regulations of the Commissioner for issuance by an inspector or other person performing official functions under this article.
  15. "Official device" means any device prescribed or authorized by the Commissioner for use in applying any official mark.
  16. "Official inspection legend" means any symbol prescribed by regulations of the Commissioner showing that an article was inspected and passed in accordance with this article.
  17. "Official mark" means the official inspection legend or any other symbol prescribed by regulations of the Commissioner to identify the status of any article or animal under this article.
  18. "Pesticide chemical," "food additive," "color additive," and "raw agricultural commodity" shall have the same meanings for purposes of this article as under the Federal Food, Drug, and Cosmetic Act.
  19. "Prepared" means slaughtered, canned, salted, rendered, boned, cut up, or otherwise manufactured or processed.
  20. "Renderer" means any person, firm, or corporation engaged in the business of rendering carcasses or parts or products of the carcasses of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, except rendering conducted under inspection under Code Sections 26-2-100 through 26-2-115.
  21. "Retail establishment" means any establishment which sells, offers for sale, or displays for sale to the public any meat or meat product, whether prepared or otherwise, including any establishment in which meat or meat products are sold for consumption off the premises thereof.

    (Ga. L. 1969, p. 1028, § 1; Ga. L. 1971, p. 56, § 1; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 12; Ga. L. 1996, p. 1219, § 1; Ga. L. 2008, p. 458, § 8/SB 364; Ga. L. 2016, p. 426, § 1/HB 815; Ga. L. 2020, p. 808, § 2/SB 345.)

The 2016 amendment, effective July 1, 2016, substituted the present provisions of paragraph (13.1) for the former provisions, which read: "'Nontraditional livestock' means the species of Artiodactyla (even-toed ungulates) listed as antelope, bison, buffalo, catalo, elk, deer other than white-tailed deer, and water buffalo that are held and possessed legally under the wild animal provisions of Chapter 5 of Title 27."

The 2020 amendment, effective August 5, 2020, substituted "Section 721" for "Section 706" in division (1)(B)(iv).

U.S. Code. - The Federal Food, Drug, and Cosmetic Act, referred to throughout this Code section, is codified at 21 U.S.C. § 301 et seq. Section 408 of that Act, referred to in division (1)(B)(ii) of this Code section, is codified at 21 U.S.C. § 346a. Section 409 of that Act, referred to in division (1)(B)(iii) of this Code section, is codified at 21 U.S.C. § 348. Section 706 of that Act, referred to in division (1)(B)(iv) of this Code section, is codified at 21 U.S.C. § 376.

The Federal Meat Inspection Act of 1907 and the Federal Wholesome Meat Act, referred to in paragraph (6) of this Code section, are codified at 21 U.S.C. § 601 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 18 et seq.

C.J.S. - 36A C.J.S., Food, §§ 19, 21 et seq.

ALR. - Construction and application of Federal Food, Drug, and Cosmetic Act § 402(a)(3) [21 USC § 342(a)(3)] as to food deemed "adulterated," if it is filthy or the like, or unfit for food, 45 A.L.R.2d 861.

What is "drug" within meaning of § 201(g)(1) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(g)(1)), 127 A.L.R. Fed. 141.

26-2-63. Federal and state cooperation.

  1. The Georgia Department of Agriculture, acting by and through the Commissioner, is designated as the state agency which shall be responsible for cooperating with the secretary of agriculture of the United States under the provisions of the Federal Meat Inspection Act and other related federal acts; and said department is directed to cooperate with the secretary of agriculture of the United States in developing and administering the meat inspection program of this state under this article to assure that its requirements will be at least equal to those imposed under Titles I and IV of the Federal Meat Inspection Act and in developing and administering the program of this state under Part 4 of this article in such a manner as will effectuate the purposes of this article and applicable federal acts.
  2. In such cooperative efforts, the Commissioner is authorized to accept from the secretary advisory assistance in planning and otherwise developing the state program; technical and laboratory assistance and training, including necessary curricular and instructional materials and equipment; and financial and other aid for administration of such a program. The Commissioner is further authorized to spend public funds of this state appropriated for administration of this article in furtherance of the cooperative program.
  3. The Commissioner is authorized to recommend to the secretary of agriculture such officials or employees of this state as the Commissioner shall designate for appointment to the advisory committees provided for in the Federal Meat Inspection Act; and the Commissioner shall serve as the representative of the Governor for consultation with the secretary under such act.

    (Ga. L. 1969, p. 1028, § 20.)

U.S. Code. - The Federal Meat Inspection Act, referred to in this Code section, is codified at 21 U.S.C. § 601 et seq.

26-2-64. Concurrent enforcement jurisdiction.

Consistent with the Federal Meat Inspection Act, 21 U.S.C. Section 601, et seq., the Commissioner may exercise concurrent jurisdiction with the secretary of agriculture of the United States and may enforce this article and any regulations promulgated pursuant thereto without regard to licensing agency.

(Ga. L. 1969, p. 1028, § 28; Ga. L. 2007, p. 620, § 1/HB 433; Ga. L. 2016, p. 426, § 2/HB 815.)

The 2016 amendment, effective July 1, 2016, substituted "Consistent with the Federal Meat Inspection Act, 21 U.S.C. Section 601, et seq.," for "The requirements of this article shall apply to persons, firms, corporations, establishments, animals, and articles regulated under the Federal Meat Inspection Act, 21 U.S.C. Section 601, et seq., only to the extent provided for in said federal act. Consistent with said federal act" in this Code section.

PART 2 E NFORCEMENT OF ARTICLE

26-2-80. Promulgation of regulations.

The Commissioner is authorized to promulgate, from time to time, such regulations as are necessary to effectuate the purpose of this article.

(Ga. L. 1969, p. 1028, § 31.)

Administrative Rules and Regulations. - Meat Inspection - Meat Processing, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-10-1.

Agricultural Tourist Attraction, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Chapter 40-28-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 3 et seq.

C.J.S. - 36A C.J.S., Food, § 5.

26-2-81. Powers of Commissioner; access to documentary evidence and witnesses; false reports; failure to file reports.

  1. The Commissioner shall also have power:
    1. To gather and compile information concerning and to investigate from time to time the organization, business, conduct, practices, and management of any person, firm, or corporation subject to this article and the relation thereof to other persons, firms, and corporations; and
    2. To require, by regulation, persons, firms, and corporations subject to this article, or any class of them, to file with the Commissioner, in such form as he may prescribe, annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commissioner such information as he may require as to the organization, business, conduct, practices, management, and relation to other persons, firms, and corporations of the person, firm, or corporation filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise as the Commissioner may prescribe, and shall be filed with the Commissioner within such reasonable period as he may prescribe, unless additional time is granted in any case by the Commissioner.
  2. For the purposes of this article, the Commissioner shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person, firm, or corporation being investigated or proceeded against and may require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence of any person, firm, or corporation relating to any matter under investigation. The Commissioner, hearing officer, or other designate may sign subpoenas and may administer oaths and affirmations, examine witnesses, and receive evidence.
    1. The attendance of witnesses and the production of documentary evidence may be required at any designated place of hearing. In case of disobedience to a subpoena, the Commissioner may apply to the superior court for an order requiring the attendance and testimony of witnesses and the production of documentary evidence.
    2. The appropriate superior court may, in case of contumacy or refusal to obey a subpoena issued to any person, firm, or corporation, issue an order requiring such person, firm, or corporation to appear before the Commissioner, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey the order of the court may be punished by such court as a contempt thereof.
      1. It shall be unlawful for any person, firm, or corporation willfully to:
        1. Make, or cause to be made, any false entry or statement of fact in any report required to be made under this article;
        2. Make, or cause to be made, any false entry in any account, record, or memorandum kept by any person, firm, or corporation subject to this article;
        3. Neglect or fail to make, or cause to be made, full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the business of such person, firm, or corporation;
        4. Remove out of the jurisdiction of this state or mutilate, alter, or by any other means falsify or conceal any documentary evidence of any such person, firm, or corporation; or
        5. Refuse to submit to the Commissioner or to any of his authorized agents, for the purpose of inspection and taking copies, any documentary evidence of any such person, firm, or corporation in his possession or within his control.
      2. Any person or the officers or agents of any firm or corporation who violate this subsection shall, upon conviction, be punished by imprisonment of not more than three years or by a fine not to exceed $5,000.00, or both.
    1. If any person, firm, or corporation required by this article to file any annual or special report fails so to do within the time fixed by the Commissioner for filing the report and such failure shall continue for 30 days after notice of such default, such person, firm, or corporation shall forfeit to this state the sum of $100.00 for each and every day of the continuance of such failure, which forfeiture shall be payable into the state treasury and shall be recoverable in a civil action in the name of the state brought in the county where the person, firm, or corporation has his or its principal office or in any county in which he or it shall do business. It shall be the duty of the Attorney General to prosecute for the recovery of such forfeitures.
    2. Information obtained by the Commissioner pursuant to the authority of this article shall not be made public by any officer or employee of this state without the authorization of the Commissioner. Such information and records shall not be subject to Article 4 of Chapter 18 of Title 50, providing for the inspection of public records.

      (Ga. L. 1969, p. 1028, § 27; Ga. L. 2003, p. 140, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 3 et seq.

C.J.S. - 36A C.J.S., Food, §§ 14, 15, 64, 76. 76 C.J.S., Records, §§ 70, 71.

26-2-82. Administrative penalties; judicial review.

The Commissioner, in order to enforce this article or any orders, rules, and regulations promulgated pursuant thereto, may issue an administrative order imposing a penalty not to exceed $1,000.00 for each violation whenever the Commissioner, after a hearing, determines that any person has violated this article or any regulations or orders promulgated under this article. The hearing and any administrative review thereof shall be conducted in accordance with the procedure for contested cases under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by any final order or action of the Commissioner shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." All penalties recovered as provided for in this article shall be paid into the state treasury. The Commissioner may file in the superior court of the county where the person under order resides or, if said person is a corporation, in the county wherein the corporation maintains its principal place of business or in the county wherein the violation occurred a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment has been rendered in an action duly heard and determined by said court. The penalty prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available to the Commissioner with respect to any violation of this article and any orders, rules, or regulations promulgated pursuant thereto.

(Ga. L. 1979, p. 1037, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq..

C.J.S. - 36A C.J.S., Food, §§ 16, 52.

ALR. - Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

26-2-83. Withdrawal of meat inspection service.

  1. The Commissioner is authorized to refuse to provide or to withdraw inspection service under Code Sections 26-2-100 through 26-2-115 and to revoke or suspend any license issued by the Department of Agriculture to any person, firm, or corporation subject to this article who shall violate any of the laws of this state pertaining to the department or any of the rules and regulations of the department promulgated pursuant to such laws, or who is unfit to engage in any business requiring inspection under Code Sections 26-2-100 through 26-2-115 because the applicant or recipient has been convicted in any federal or state court of:
    1. Any felony; or
    2. More than one violation of any law, other than a felony, based upon the acquiring, handling, or distributing of unwholesome, mislabeled, or deceptively packaged food or upon fraud in connection with transactions in food.
  2. This Code section shall not affect in any way other provisions of this article for withdrawal of inspection services under Code Sections 26-2-100 through 26-2-115 from establishments failing to maintain sanitary conditions or to destroy condemned carcasses, parts, meat, or meat food products.
  3. For the purpose of this Code section, a person shall be deemed to be responsibly connected with the business if he was a partner, officer, director, holder, or owner of 10 percent or more of its voting stock or an employee in a managerial or executive capacity.

    (Ga. L. 1969, p. 1028, § 21.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 53.

C.J.S. - 36A C.J.S., Food, §§ 19, 43, 70.

26-2-84. Detention of carcasses, meat, and meat food products suspected of being adulterated or misbranded; removal of official marks.

Whenever any carcass, part of a carcass, meat, or meat food product of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or any product exempted from the definition of a meat food product, or any dead, dying, disabled, or diseased cattle, sheep, swine, nontraditional livestock, rabbit, goat, or equine is found by any authorized representative of the Commissioner upon any premises where it is held for purposes of, or during or after, distribution and there is reason to believe that any such article is adulterated or misbranded and is capable of use as human food, or that it has not been inspected, in violation of Part 3 of this article or Title I of the Federal Meat Inspection Act or the Federal Food, Drug, and Cosmetic Act, or that such article or animal has been or is intended to be distributed in violation of any such provisions, it may be detained by such representative for a period not to exceed 20 days, pending action under Code Section 26-2-86 or notification of any federal authorities having jurisdiction over such article or animal; and it shall not be moved by any person, firm, or corporation from the place at which it is located when so detained, until released by such representative. All official marks may be required by such representative to be removed from such article or animal before it is released unless it appears to the satisfaction of the Commissioner that the article or animal is eligible to retain such marks.

(Ga. L. 1969, p. 1028, § 22; Ga. L. 1974, p. 453, § 1; Ga. L. 1982, p. 3, § 26; Ga. L. 1995, p. 244, § 13; Ga. L. 1996, p. 1219, § 2; Ga. L. 2008, p. 458, § 9/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, §§ 35, 36.

C.J.S. - 3B C.J.S., Animals, § 233 et seq.

26-2-85. Seizure and condemnation of carcasses, meat, and meat food products; release bond; costs.

  1. Any carcass, part of a carcass, meat, or meat food product of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or any dead, dying, disabled, or diseased cattle, sheep, swine, nontraditional livestock, rabbit, goat, or equine, that is being transported or is held for sale in this state after such transportation, and that is or has been prepared, sold, transported, or otherwise distributed or offered or received for distribution in violation of this article, is capable of use as human food and is adulterated or misbranded, or in any other way is in violation of this article, shall be liable to be proceeded against and seized and condemned, at any time, on an action for condemnation to be brought by the Commissioner in the superior court of the county in which the article or animal is found.
  2. If the article or animal is condemned, it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct. The proceeds, if sold, less the court costs and fees and storage and other proper expenses, shall be paid into the state treasury. The article or animals shall not be sold contrary to the provisions of this article or the Federal Meat Inspection Act or the Federal Food, Drug, and Cosmetic Act.
  3. Upon the execution and delivery of a good and sufficient bond conditioned that the article or animal shall not be sold or otherwise disposed of contrary to this article or the laws of the United States, the court may direct that such article or animal be delivered to the owner thereof subject to such supervision by authorized representatives of the Commissioner as is necessary to ensure compliance with the applicable laws.
  4. When a decree of condemnation is entered against the article or animal and it is released under bond or destroyed, court costs and fees and storage and other proper expenses shall be awarded against the person, if any, intervening as claimant of the article or animal.
  5. This Code section shall in no way derogate from authority for condemnation or seizure conferred by other provisions of this article or other laws but shall be cumulative to such other authority.

    (Ga. L. 1969, p. 1028, § 23; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 14; Ga. L. 1996, p. 1219, § 3; Ga. L. 2008, p. 458, § 10/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 58.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

26-2-86. Injunctions.

In addition to other remedies provided for in this article, the Commissioner is authorized to apply to the superior court of the appropriate county for an injunction. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this article, notwithstanding whether or not there exists an adequate remedy at law or the fact that the conduct sought to be enjoined is in violation of the criminal provisions of this article.

(Ga. L. 1969, p. 1028, § 24.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 51.

26-2-87. Minor violations.

Nothing in this article shall be construed as requiring the Commissioner to report, for prosecution or for the institution of an action or injunction proceedings, minor violations of this article, whenever he believes that the public interest will be adequately served by a suitable written notice or warning.

(Ga. L. 1969, p. 1028, § 26.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 43.

26-2-88. Penalties for fraud or distribution of adulterated articles; penalties for slaughter or distribution of diseased or cancerous animals.

  1. Any person, firm, or corporation who violates this article with intent to defraud or who distributes or attempts to distribute an article that is adulterated, except as defined in subparagraph (H) of paragraph (1) of Code Section 26-2-62, shall be subject to imprisonment for not more than three years or a fine of not more than $10,000.00, or both, provided that no person, firm, or corporation shall be subject to penalties under this subsection for receiving for transportation any article or animal in violation of this article if such receipt was made in good faith, unless such person, firm, or corporation refuses to furnish, on request of a representative of the Commissioner, the name and address of the person from whom he received such article or animal and copies of all documents, if there are any, pertaining to the delivery of the article or animal to him.
  2. Any person who unlawfully slaughters any diseased or cancerous animal for purposes of selling any part of the carcass for human consumption or who knowingly distributes or attempts to distribute any part of such a carcass for human consumption shall be guilty of a felony and punished by imprisonment for not less than three years or more than ten years or by a fine of not less than $10,000.00 or more than $50,000.00, or both.
  3. Any person who violates any of the provisions of this article for which a penalty is not otherwise prescribed in this article or who violates any rule or regulation promulgated under this article shall be guilty of a misdemeanor.

    (Ga. L. 1969, p. 1028, §§ 25, 29; Ga. L. 1982, p. 980, §§ 1, 2; Ga. L. 1985, p. 149, § 26; Ga. L. 1986, p. 10, § 26.)

Cross references. - Disposal of dead animals, T. 4, C. 5.

Animals suspected of bearing residue causing contaminated meat, § 26-2-180 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 59 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

PART 3 I NSPECTION OF ANIMALS, CARCASSES, MEAT, AND MEAT FOOD PRODUCTS; ADULTERATION AND MISBRANDING

26-2-100. Duties of inspectors.

The Commissioner shall appoint, from time to time, inspectors to make examination and inspection of all cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines, the inspection of which is provided for, and of all carcasses and parts thereof, and of all meats and meat food products thereof, and of the sanitary conditions of all establishments in which such meat and meat food products are prepared. Said inspectors shall refuse to stamp, mark, tag, or label any carcass or any part thereof, or meat food product therefrom, prepared in any establishment described in this chapter until the same shall have actually been inspected and found to be not adulterated. Said inspectors shall perform such other duties as are provided by this article and by the rules and regulations to be promulgated by the Commissioner.

(Ga. L. 1969, p. 1028, § 13; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 15; Ga. L. 1996, p. 1219, § 4; Ga. L. 2008, p. 458, § 11/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, §§ 7, 12, 42.

C.J.S. - 3A C.J.S., Animals, § 69. 36A C.J.S., Food, §§ 14, 19, 20.

26-2-100.1. Examinations and inspections of nontraditional livestock carcasses, meats, and meat food products.

All examinations and inspections of nontraditional livestock carcasses and parts thereof, of nontraditional livestock meats and meat food products thereof, of sanitary conditions of all establishments in which nontraditional livestock meat and meat food products are prepared, and any other examination or inspection of nontraditional livestock and products thereof under or pursuant to this article shall be conducted by and through a voluntary inspection program with all costs thereof paid by the establishment slaughtering the nontraditional livestock or preparing such meat or meat food product, at rates established by the Commissioner.

(Code 1981, § 26-2-100.1 , enacted by Ga. L. 1995, p. 244, § 16; Ga. L. 1996, p. 1219, § 5; Ga. L. 2008, p. 458, § 12/SB 364.)

26-2-101. Inspections and examinations; administration in conjunction with Article 2 of this chapter.

All inspections and examinations made under this article shall be such and made in such manner as described in the rules and regulations promulgated by the Commissioner, if not inconsistent with this article. This article may be administered in conjunction with the administration of Article 2 of this chapter.

(Ga. L. 1969, p. 1028, § 13; Ga. L. 2003, p. 140, § 26.)

26-2-102. Inspection of animals prior to slaughter or preparation; examination and slaughtering of diseased animals; examination and inspection of method; right of Commissioner to deny or suspend inspections.

  1. For the purpose of preventing the use in commerce of meat food products which are adulterated, the Commissioner shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment in this state in which slaughtering and preparation of meat and meat food products of such animals are conducted for commerce.
  2. All cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines found on such inspection to show symptoms of disease shall be set apart and slaughtered separately from all other cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines; and, when so slaughtered, the carcasses of said cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines shall be subject to a careful examination and inspection, all as provided by the rules and regulations promulgated by the Commissioner.
  3. For the purpose of preventing the inhumane slaughtering of livestock, the Commissioner shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of the method by which cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines are slaughtered and handled in connection with slaughter in the slaughtering establishments inspected under this article. The Commissioner may refuse to provide inspection to a new slaughtering establishment or may cause inspection to be suspended temporarily at a slaughtering establishment if the Commissioner finds that any cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines have been slaughtered or handled in connection with slaughter at such establishment by any method not in accordance with paragraph (2) of Code Section 26-2-110 and Code Section 26-2-110.1 until the establishment furnishes assurances satisfactory to the Commissioner that all slaughtering and handling in connection with slaughter of livestock shall be in accordance with such a method.

    (Ga. L. 1969, p. 1028, § 3; Ga. L. 1974, p. 453, § 1; Ga. L. 1981, p. 657, § 1; Ga. L. 1995, p. 244, § 17; Ga. L. 1996, p. 1219, § 6; Ga. L. 2008, p. 458, § 13/SB 364.)

Cross references. - Powers and duties of Commissioner regarding prevention of spread of parasitic livestock diseases, § 4-4-60 et seq.

Regulation of business of livestock dealers generally, § 4-6-1 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, §§ 36, 38. 35A Am. Jur. 2d, Food, §§ 7, 12, 49.

C.J.S. - 3A C.J.S., Animals, §§ 123, 138, 232. 36A C.J.S., Food, §§ 14, 19.

26-2-103. Post-mortem inspection and marking of carcasses and parts; disposition of condemned carcasses and parts; reinspection; removal of inspectors.

  1. The Commissioner shall cause to be made, by inspectors appointed for that purpose, a post-mortem examination and inspection of the carcasses and parts thereof of all cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines, capable of use as human food, to be prepared at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in this state in which such articles are prepared for commerce.
  2. The carcasses and parts thereof of all such animals found to be not adulterated shall be marked, stamped, tagged, or labeled as "Inspected and Passed"; and said inspectors shall label, mark, stamp, or tag as "Inspected and Condemned," all carcasses and parts thereof of animals found to be adulterated; and all carcasses and parts thereof thus inspected and condemned shall be made unfit for human consumption by such establishment in the presence of an inspector; and the Commissioner may remove inspectors from any establishment which fails so to destroy any such condemned carcass or part thereof.
  3. Inspectors, after the first inspection, shall, when they deem it necessary, reinspect said carcasses or parts thereof to determine whether since the first inspection the same have become adulterated. If any carcass or any part thereof shall, upon examination and inspection subsequent to the first examination and inspection, be found to be adulterated, it shall be made unfit for human consumption by such establishment in the presence of an inspector. The Commissioner may remove inspectors from any establishment which fails to destroy any such condemned carcass or part thereof.

    (Ga. L. 1969, p. 1028, § 4; Ga. L. 1974, p. 453, § 1; Ga. L. 1982, p. 3, § 26; Ga. L. 1995, p. 244, § 18; Ga. L. 1996, p. 1219, § 7; Ga. L. 2008, p. 458, § 14/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, §§ 36, 38. 35A Am. Jur. 2d, Food, §§ 12, 31, 60.

C.J.S. - 3A C.J.S., Animals, § 232. 36A C.J.S., Food, § 14.

26-2-104. Inspection of carcasses, parts, meat, and meat products brought into or returned to slaughtering or packing establishments; limitations on entry of carcasses, parts, meat, and meat products.

  1. Code Sections 26-2-102 and 26-2-103 shall apply to all carcasses or parts of carcasses of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines, or the meat or meat products thereof, capable of use as human food, which may be brought into any slaughtering, meat-canning, salting, packing, rendering, or similar establishment where inspection under this part is maintained; and such examination and inspection shall be had before the carcasses or parts thereof shall be allowed to enter into any department wherein the same are to be treated and prepared for meat food products.
  2. Code Sections 26-2-102 and 26-2-103 shall also apply to all such products which, after having been issued from any such slaughtering, meat-canning, salting, packing, rendering, or similar establishment, shall be returned to the same or to any similar establishment where such inspection is maintained.
  3. The Commissioner may limit the entry of carcasses, parts of carcasses, meat, and meat food products, and other materials into any establishment at which inspection under this part is maintained, under such conditions as he may prescribe, to assure that allowing the entry of such articles into such inspected establishments will be consistent with the purposes of this article.

    (Ga. L. 1969, p. 1028, § 5; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 19; Ga. L. 1996, p. 1219, § 8; Ga. L. 2008, p. 458, § 15/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, §§ 36, 38. 35A Am. Jur. 2d, Food, §§ 12, 31, 60.

C.J.S. - 3B C.J.S., Animals, § 233. 36A C.J.S., Food, § 12.

26-2-105. Inspection of meat food products where prepared; inspection markings; disposition of condemned meat food products; removal of inspectors.

  1. The Commissioner shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all meat food products prepared in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment where such articles are prepared for commerce.
  2. For the purpose of any examination and inspection, said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment.
  3. The inspectors shall mark, stamp, tag, or label as "Inspected and Passed" all such products found to be not adulterated; and said inspectors shall label, mark, stamp, or tag as "Inspected and Condemned" all such products found adulterated; and all such condemned meat food products shall be made unfit for human consumption, as provided for in Code Section 26-2-103. The Commissioner may remove inspectors from any establishment which fails to destroy such condemned meat food products.

    (Ga. L. 1969, p. 1028, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, §§ 36, 38. 35A Am. Jur. 2d, Food, §§ 12, 31, 60.

C.J.S. - 3B C.J.S., Animals, § 233. 36A C.J.S., Food, § 17.

26-2-106. Inspection of meat and meat food products in retail and other food service establishments; disposition of condemned meat; sale or display of noninspected meat or meat food products.

  1. The Commissioner shall periodically require meat inspectors to inspect meat and meat products located within or held for sale or consumption in retail establishments and other food service establishments for the purpose of ascertaining whether the same has been inspected by a federal or state meat inspector. Any meat or meat product which does not appear to have been inspected previously by a federal or state meat inspector shall be labeled as unfit for sale and shall not be sold. Any meat found to be adulterated shall be made unfit for human consumption, as provided for in Code Section 26-2-103. For the purpose of any examination and inspection said inspectors shall have access to every part of said establishment during normal hours of operation or at such other times when meat processing operations are being conducted. Said inspectors shall be accompanied by the owner or his authorized agent.
  2. It shall be unlawful for any retail establishment and other food service establishments to sell or display for sale any meat or meat food products which shall have been found by said inspectors to be adulterated or which have not been inspected by a federal or state meat inspector.

    (Ga. L. 1971, p. 56, § 2; Ga. L. 2016, p. 426, § 3/HB 815.)

The 2016 amendment, effective July 1, 2016, deleted former subsection (c), which read: "It shall be the responsibility of the consumer protection division field force sanitarian to supervise and enforce this Code section."

Cross references. - Promulgation of rules and regulations regarding sanitation standards for food service establishments, § 26-2-373 .

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 13, 33.

C.J.S. - 36A C.J.S., Food, § 19.

ALR. - Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

26-2-107. Labeling of meat, meat food products, and carcasses; standards and definitions; use of false or misleading labels or containers.

  1. When any meat or meat food product which has been inspected as provided for in Code Sections 26-2-102 through 26-2-106, and marked as "Inspected and Passed" shall be placed or packed in any can, pot, tin, canvas, or other receptacle or covering in any establishment where inspection under this article is maintained, the person, firm, or corporation preparing said product shall attach a label to said can, pot, tin, canvas, or other receptacle or covering, under supervision of an inspector, which label shall state that the contents thereof have been "Inspected and Passed" under this article. No inspection and examination of meat or meat food products deposited or enclosed in cans, tins, pots, canvas, or other receptacles or coverings in any establishment where inspection under this article is maintained shall be deemed to be complete until such meat or meat food products have been sealed or enclosed in said can, tin, pot, canvas, or other receptacle or covering under the supervision of an inspector.
  2. All carcasses, parts of carcasses, meat, and meat food products inspected at any establishment under the authority of this article and found to be not adulterated shall at the time they leave the establishment bear, in distinctly legible form, directly thereon or on their containers, as the Commissioner may require, the information required under paragraph (13) of Code Section 26-2-62.
  3. The Commissioner, whenever he determines such action is necessary for the protection of the public, may prescribe the styles and sizes of type to be used with respect to material required to be incorporated in labeling to avoid false or misleading labeling of any articles or animals subject to this part or to Part 4 of this article; definitions and standards of identity or composition for articles subject to this part and standards of fill of container for such articles not inconsistent with any such standards established under the Federal Food, Drug, and Cosmetic Act or under the Federal Meat Inspection Act; and there shall be consultation between the Commissioner and the secretary of agriculture of the United States prior to the issuance of such standards to avoid inconsistency between such standards and the federal standards.
  4. No article subject to this part shall be sold or offered for sale by any person, firm, or corporation under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size. Established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the Commissioner are permitted.
  5. If the Commissioner has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any article subject to this part is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading. If the person, firm, or corporation using or proposing to use the marking, labeling, or container does not accept the determination of the Commissioner, such person, firm, or corporation may request a hearing; but the use of the marking, labeling, or container shall, if the Commissioner so directs, be withheld pending hearing and final determination by the Commissioner. Any hearing conducted pursuant to this subsection shall be in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Ga. L. 1969, p. 1028, § 7.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 24.

C.J.S. - 36A C.J.S., Food, §§ 21, 46, 47.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

26-2-108. Sanitary inspections of slaughter and packing establishments; sanitation regulations; labeling adulterated meat and meat food products.

The Commissioner shall cause to be made, by experts in sanitation or by other competent inspectors, such inspection as may be necessary to inform himself or herself about the sanitary conditions of all slaughtering, meat-canning, salting, packing, rendering, or similar establishments in which cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines are slaughtered and the meat and meat food products thereof are prepared for commerce. The Commissioner shall prescribe the rules and regulations of sanitation under which such establishments shall be maintained; and, where the sanitary conditions of any such establishment are such that the meat or meat food products are rendered adulterated, the Commissioner shall refuse to allow the meat or meat food products to be labeled, marked, stamped, or tagged as "Inspected and Passed."

(Ga. L. 1969, p. 1028, § 8; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 20; Ga. L. 1996, p. 1219, § 9; Ga. L. 2008, p. 458, § 16/SB 364.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions decided under former Code 1910, § 2119 are included in annotations for this Code section.

Slaughter houses are subject to sanitary regulations. Schoen Bros. v. Pylant, 162 Ga. 565 , 134 S.E. 304 , 46 A.L.R. 1480 (1926) (decided under former Code 1910, § 2119, subdivision (3)).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, §§ 7, 12, 31.

C.J.S. - 3B C.J.S., Animals, § 233. 36A C.J.S., Food, §§ 17, 41.

26-2-109. Inspection of animals and food products thereof slaughtered and prepared at nighttime.

The Commissioner shall cause an examination and inspection of all cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines, and the food products thereof, slaughtered and prepared in the establishments described in this part. Such inspection shall be made during the nighttime as well as during the daytime, when the slaughtering of said cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, and other equines or the preparation of said food products is conducted during the nighttime.

(Ga. L. 1969, p. 1028, § 9; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 21; Ga. L. 1996, p. 1219, § 10; Ga. L. 2008, p. 458, § 17/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, §§ 12, 31.

C.J.S. - 3B C.J.S., Animals, § 233. 36A C.J.S., Food, § 17.

26-2-110. Slaughter, preparation, sale, or transportation of animals, meat, or meat food products generally.

No person, firm, or corporation shall, with respect to any cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or any carcasses, parts of carcasses, meat, or meat food products of any such animals:

  1. Slaughter any such animals or prepare any such articles which are capable of use as human food, at any establishment preparing such articles for commerce except in compliance with this article;
  2. Slaughter or handle in connection with such slaughter any such animals in any manner not declared to be humane under Code Section 26-2-110.1;
  3. Sell, transport, offer for sale or transportation, or receive for transportation, in commerce:
    1. Any such articles which:
      1. Are capable of use as human food; and
      2. Are adulterated or misbranded at the time of such sale, transportation, offer for sale or transportation, or receipt for transportation; or
    2. Any articles required to be inspected under this part unless they have been so inspected and passed; or
  4. With respect to any such articles which are capable of use as human food, do any act while they are being transported in commerce or held for sale after such transportation which is intended to cause or has the effect of causing such articles to be adulterated or misbranded.

    (Ga. L. 1969, p. 1028, § 10; Ga. L. 1974, p. 453, § 1; Ga. L. 1981, p. 657, § 2; Ga. L. 1995, p. 244, § 22; Ga. L. 1996, p. 1219, § 11; Ga. L. 2008, p. 458, § 18/SB 364.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1910, § 2119 are included in the annotations for this Code section.

Slaughter houses are subject to sanitary regulations. Schoen Bros. v. Pylant, 162 Ga. 565 , 134 S.E. 304 , 46 A.L.R. 1480 (1926) (decided under former Code 1910, § 2119, subdivision (3)).

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 21 et seq.

26-2-110.1. Approved methods for handling and slaughtering of animals; designation by Commissioner of methods of handling and slaughtering.

  1. For purposes of this article, the following methods of slaughtering and handling are declared to be humane:
    1. In the case of cattle, calves, horses, mules, sheep, swine, nontraditional livestock, rabbits, and other livestock, all animals are to be rendered insensible to pain by a single blow or gunshot or by an electrical, chemical, or other means which is rapid and effective before being shackled, hoisted, thrown, cast, or cut; or
    2. By slaughtering and handling in connection with such slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument.
  2. In addition to the methods prescribed in subsection (a) of this Code section, the Commissioner may designate as humane any methods of slaughtering and handling which have been so designated by the United States secretary of agriculture on or before April 7, 1981, pursuant to United States Code Section 7-1904. The Commissioner is further authorized to designate as humane other methods of slaughtering and handling which have been demonstrated by research, investigation, and experimentation to be humane with reference to the speed and scope of slaughtering operations and with reference to other existing methods and then current scientific knowledge.

    (Ga. L. 1981, p. 657, § 3; Ga. L. 1995, p. 244, § 23; Ga. L. 1996, p. 1219, § 12; Ga. L. 2008, p. 458, § 19/SB 364.)

26-2-111. Labeling and preparation of carcasses, meat, and meat food products of equines.

No person, firm, or corporation shall sell, transport, offer for sale or transportation, or receive for transportation, in commerce, any carcasses of horses, mules, or other equines, or parts of such carcasses, or the meat or meat food products thereof unless they are plainly and conspicuously marked or labeled or otherwise identified as required by regulations promulgated by the Commissioner to show the kinds of animals from which they were derived. When required by the Commissioner with respect to establishments at which inspection is maintained under this part, such animals and their carcasses, parts thereof, meat, and meat food products shall be prepared in establishments separate from those in which cattle, sheep, swine, rabbits, or goats are slaughtered or their carcasses, parts thereof, meats, or meat food products are prepared.

(Ga. L. 1969, p. 1028, § 12; Ga. L. 1974, p. 453, § 1.)

Cross references. - For further provisions regarding sale of horse meat, § 26-2-157 et seq.

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 21 et seq.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

26-2-112. Inspection exceptions; labeling and handling of custom slaughtered and prepared meat or meat food products.

  1. Except as provided in subsection (c) of this Code section, the provisions of this part requiring inspection of the slaughter of animals and the preparation of the carcasses, parts thereof, meat, and meat food products at establishments conducting such operations shall not apply to:
    1. The slaughtering by any person of animals of his or her own raising and the preparation by him or her and transportation in commerce of the carcasses, parts thereof, meat, and meat food products of such animals exclusively for use by him or her and members of his or her household and his or her nonpaying guests and employees;
    2. The custom slaughter by any person, firm, or corporation of cattle, sheep, swine, nontraditional livestock, rabbits, or goats delivered by the owner thereof for such slaughter and the preparation by such slaughterer and transportation in commerce of the carcasses, parts thereof, meat, and meat food products of such animals exclusively for use in the household of such owner by the owner and members of his or her household and his or her nonpaying guests and employees; nor to the custom preparation by any person, firm, or corporation of carcasses, parts thereof, meat, or meat food products derived from the slaughter by any person of cattle, sheep, swine, nontraditional livestock, rabbits, or goats of his or her own raising, or from game animals, delivered by the owner thereof for such custom preparation and transportation in commerce of such custom prepared articles, exclusively for use in the household of such owner by him or her and members of his or her household and his or her nonpaying guests and employees, provided that, in cases where such person, firm, or corporation engages in such custom operations at an establishment at which inspection under this article is maintained, the Commissioner may exempt from such inspection at such establishment any animals slaughtered or any meat or meat food products otherwise prepared on such custom basis. Custom operations at any establishment shall be exempt from inspection requirements as provided by this Code section only if the establishment complies with regulations which the Commissioner is authorized to promulgate to assure that any carcasses, parts thereof, meat, or meat food products, wherever handled on a custom basis, or any containers or packages containing such articles are separated at all times from carcasses, parts thereof, meat, or meat food products prepared for sale; that all such articles prepared on a custom basis or any containers or packages containing such articles are plainly marked "Not for Sale" immediately after being prepared and kept so identified until delivered to the owner; and that the establishment conducting the custom operation is maintained and operated in a sanitary manner; or
    3. The slaughtering and processing of rabbits by any person who raises rabbits for slaughter and processing for sale at wholesale and retail in numbers not to exceed 2,500 rabbits per year.
  2. The provisions of this article requiring inspection of the slaughter of animals and the preparation of carcasses, parts thereof, meat, and meat food products shall not apply to operations of types traditionally and usually conducted at retail stores and restaurants, when conducted at any retail store or restaurant or similar retail-type establishment for sale in normal retail quantities or service of such articles to consumers at such establishments.
  3. The slaughter of animals and preparation of articles referred to in paragraph (2) of subsection (a) and in subsection (b) of this Code section shall be conducted in accordance with such sanitary conditions as the Commissioner may by regulations prescribe. Notwithstanding subsection (a) of this Code section, the Commissioner or his delegate is authorized to enter upon the premises of any establishment which is exempt from regular inspections under the provisions of subsection (a) of this Code section and inspect such establishment and any facilities, carcasses, parts thereof, meat, meat food products, containers, and packaging to determine whether such establishment qualifies for exemption from regular inspections and is otherwise in compliance with the laws of this state and the rules and regulations of the Commissioner adopted pursuant thereto.
  4. The adulteration and misbranding provisions of this part, other than the requirement of the inspection legend, shall apply to articles which are not required to be inspected under this Code section.

    (Ga. L. 1969, p. 1028, § 14; Ga. L. 1971, p. 57, § 1; Ga. L. 1974, p. 453, § 1; Ga. L. 1977, p. 849, §§ 1, 2; Ga. L. 1984, p. 22, § 26; Ga. L. 1989, p. 335, § 1; Ga. L. 1995, p. 244, § 24; Ga. L. 1996, p. 1219, § 13; Ga. L. 2008, p. 458, § 20/SB 364.)

Law reviews. - For note on 1989 amendment of this Code section, see 6 Ga. St. U.L. Rev. 253 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, §§ 7, 12, 31.

C.J.S. - 3B C.J.S., Animals, § 233. 36A C.J.S., Food, §§ 17, 41, 96.

26-2-113. Storage and handling regulations for carcasses, meat, and meat food products.

The Commissioner may by regulations prescribe conditions under which carcasses, parts of carcasses, meat, and meat food products of cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, capable of use as human food, shall be stored or otherwise handled by any person, firm, or corporation engaged in the business of buying, selling, freezing, storing, or transporting such articles whenever the Commissioner deems such action necessary to assure that such articles will not be adulterated or misbranded when delivered to the consumer.

(Ga. L. 1969, p. 1028, § 15; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 25; Ga. L. 1996, p. 1219, § 14; Ga. L. 2008, p. 458, § 21/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 14, 15, 31.

C.J.S. - 36A C.J.S., Food, §§ 4, 21 et seq.

26-2-114. Fraudulent practices.

  1. No brand manufacturer, printer, or other person, firm, or corporation shall cast, print, lithograph, or otherwise make any device containing any official mark or simulation thereof, or any label bearing any such mark or simulation, or any form of official certificate or simulation thereof, except as authorized by the Commissioner.
  2. No person, firm, or corporation shall:
    1. Forge any official device, mark, or certificate;
    2. Without authorization from the Commissioner, use any official device, mark, or certificate, or simulation thereof, or alter, detach, deface, or destroy any official device, mark, or certificate;
    3. Contrary to the regulations promulgated by the Commissioner, fail to use or to detach, deface, or destroy any official device, mark, or certificate;
    4. Knowingly possess, without promptly notifying the Commissioner or his representative, any official device, or any counterfeit, simulated, forged, or improperly altered official certificate, or any device or label, or any carcass of any animal, or part or product thereof, bearing any counterfeit, simulated, forged, or improperly altered official mark;
    5. Knowingly make any false statement in any shipper's certificate or other nonofficial or official certificate provided for in the regulations prescribed by the Commissioner; or
    6. Knowingly represent that any article has been inspected and passed or exempted under this article when, in fact, it has, respectively, not been so inspected and passed or exempted.

      (Ga. L. 1969, p. 1028, § 11.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, §§ 21, 43.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

26-2-115. Use of "Georgia" in trademark, trade name, service mark, or advertisement.

  1. It shall be unlawful for any person, partnership, firm, or corporation to use the word "Georgia" in any trademark, trade name, service mark, or advertisement in connection with any meat or meat food product which is not equal to or better than U.S. grade "good."
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1971, p. 757, § 1.)

Cross references. - Trademarks, service marks, and trade names generally, § 10-1-440 et seq.

26-2-116. Applicability of part to federally inspected slaughtering and packing establishments.

The ante mortem, post-mortem, and sanitary inspection services provided for in this part are not required at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment at which such services are furnished by the United States Department of Agriculture pursuant to the Federal Meat Inspection Act.

(Ga. L. 1969, p. 1028, § 32.)

U.S. Code. - The Federal Meat Inspection Act, referred to in this Code section, is codified at 21 U.S.C. § 601 et seq.

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 9.

PART 4 M EAT PROCESSORS AND RELATED INDUSTRIES

Cross references. - Regulation of business of rendering and disposal plants, § 4-4-40 et seq.

26-2-130. Buying, selling, transporting, or receiving of dead, dying, disabled, or diseased animals.

No person, firm, or corporation engaged in the business of buying, selling, or transporting in commerce dead, dying, disabled, or diseased animals, or any parts of the carcasses of any such animals, shall buy, sell, transport, offer for sale or transportation, or receive for transportation any dead, dying, disabled, or diseased cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or parts of the carcasses of any such animals, unless such transaction or transportation is made in accordance with such regulations as the Commissioner may promulgate, to assure that such animals, or the unwholesome parts or products thereof, will be prevented from being used for human food purposes.

(Ga. L. 1969, p. 1028, § 19; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 26; Ga. L. 1996, p. 1219, § 15; Ga. L. 2008, p. 458, § 22/SB 364.)

Cross references. - Disposal of carcasses of animals which die on premises of public livestock sales markets, livestock slaughter establishments, and garbage feeding operations, § 4-5-7 .

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, §§ 7, 10, 31.

C.J.S. - 3B C.J.S., Animals, §§ 123 et seq., 142. 36A C.J.S., Food, § 23.

26-2-131. Registration of dealers in dead, dying, diseased, or disabled animals.

No person, firm, or corporation shall engage in business as a meat broker, renderer, or animal food manufacturer or engage in business as a wholesaler of any carcasses, or parts or products of the carcasses, of any cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, whether intended for human food or other purposes, or engage in business as a public warehouseman storing any such articles, or engage in the business of buying, selling, or transporting in commerce any dead, dying, disabled, or diseased animals of the specified kinds, or parts of such carcasses of any such animals unless, when required by regulations of the Commissioner, he or she has registered with the Commissioner his or her name and the address of each place of business at which, and all trade names under which, he or she conducts such business.

(Ga. L. 1969, p. 1028, § 18; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 27; Ga. L. 1996, p. 1219, § 16; Ga. L. 2008, p. 458, § 23/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 36. 35A Am. Jur. 2d, Food, § 31.

C.J.S. - 3B C.J.S., Animals, §§ 123 et seq., 142. 36A C.J.S., Food, § 19.

26-2-132. Maintenance and inspection of records.

  1. The following classes of persons, firms, and corporations shall keep such records as will fully and correctly disclose all transactions involved in their businesses; and all persons, firms, and corporations subject to such requirements shall, at all reasonable times, upon notice by a duly authorized representative of the Commissioner, afford such representative and any duly authorized representative of the secretary of agriculture of the United States accompanied by such representative of the Commissioner access to their places of business and opportunity to examine the facilities, inventory, and records thereof, to copy all such records, and to take reasonable samples of their inventory upon payment of the fair market value therefor:
    1. Any persons, firms, or corporations that engage for commerce in the business of slaughtering any cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines or preparing, freezing, packaging, or labeling any carcasses, or parts or products of carcasses, of any such animals for use as human food or animal food;
    2. Any persons, firms, or corporations that engage in the business of buying or selling (as meat brokers, wholesalers, or otherwise) or transporting in commerce or storing in or for such commerce any carcasses, or parts or products of carcasses, of any such animals; and
    3. Any persons, firms, or corporations that engage in business as renderers or engage in the business of buying, selling, or transporting any dead, dying, disabled, or diseased cattle, sheep, swine, nontraditional livestock, rabbits, goats, horses, mules, or other equines, or parts of such carcasses.
  2. Any record required to be maintained by this Code section shall be maintained for such period of time as the Commissioner may by regulations prescribe.

    (Ga. L. 1969, p. 1028, § 17; Ga. L. 1974, p. 453, § 1; Ga. L. 1995, p. 244, § 28; Ga. L. 1996, p. 1219, § 17; Ga. L. 2008, p. 458, § 24/SB 364.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 42.

C.J.S. - 3A C.J.S., Animals, §§ 232, 233. 36A C.J.S., Food, § 15.

26-2-133. Identification of carcasses, meat, or meat food products not intended for human use.

No person, firm, or corporation shall buy, sell, transport, offer for sale or transportation, or receive for transportation any animal, carcasses, or parts thereof, meat, or meat food products of any such animals, which are not intended for use as human food unless they are denatured or otherwise identified as required by the regulations of the Commissioner or are naturally inedible by humans.

(Ga. L. 1969, p. 1028, § 16.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 31.

C.J.S. - 36A C.J.S., Food, § 24.

ARTICLE 4 ADVERTISEMENT AND SALE OF MEAT GENERALLY

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

False advertising generally, § 10-1-420 et seq.

Administrative Rules and Regulations. - Additional Resolutions Applicable to the Sale of Meat by Weight and Food Service Contracts, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Division Regulations, Chapter 40-7-11.

26-2-150. Legislative intent.

The General Assembly declares that purchasers and consumers have a right to expect and demand honesty and fair practices in the sale of meat for human consumption. It is the purpose of this Code section and Code Sections 26-2-151 through 26-2-154 to ensure that honest, fair, and ethical practices are followed in the advertising and sale of meat for human consumption and to authorize the Commissioner of Agriculture to take all actions necessary to ensure that such practices are followed. The General Assembly views with alarm the fact that misleading and false advertising and sales tactics have been used in the sale of meat to Georgia consumers. It is to stop these practices that the General Assembly has enacted this Code section and Code Sections 26-2-151 through 26-2-154. The consumer has a right to know what he is buying and the true cost of the meat which he is purchasing for consumption.

(Ga. L. 1974, p. 1030, § 1; Ga. L. 2003, p. 140, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, § 4. 35A Am. Jur. 2d, Food, § 31.

C.J.S. - 36A C.J.S., Food, §§ 10, 21.

26-2-151. Promulgation of rules and regulations regarding deceptive advertising of meat.

The Commissioner of Agriculture is authorized to promulgate and adopt rules and regulations necessary or convenient to carry out Code Section 26-2-150, this Code section, and Code Sections 26-2-152 through 26-2-154 and to prevent the deceptive advertising of meat.

(Ga. L. 1974, p. 1030, § 4; Ga. L. 2003, p. 140, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3 et seq., 7 et seq., 31.

C.J.S. - 36A C.J.S., Food, § 5.

26-2-152. Advertisement or sale of beef, pork, and lamb; "bait and switch" advertising.

  1. It shall be unlawful for any person, partnership, firm, company, or corporation to advertise, sell, or offer for sale any carcass cuts of beef, pork, or lamb without prominently disclosing the price per pound of such beef, pork, or lamb in all such advertisements or on the packaging or display case in which the meat is displayed or offered for sale. This Code section shall not apply to the sale of beef, pork, or lamb when sold for immediate consumption on the premises or where sold as an unpackaged, cooked food or where sold for purposes other than for human consumption.
  2. It shall be unlawful for any person, partnership, firm, company, or corporation to employ "bait and switch" advertising or sales techniques in connection with the sale of beef, pork, or lamb or to use any other advertising or sales technique which is calculated to deceive, or which in fact deceives, purchasers of beef, pork, or lamb as to what they are purchasing or its quality or quantity. "Bait and switch" as used in this subsection shall mean, but shall not be limited to, the advertising of products with the intent not to sell the products as advertised; or advertising products with the intent not to supply reasonably expected public demand, unless the advertisement discloses a limitation of quantity; or advertising a product which by accepted standards is inferior, with the expectation of switching the consumer to a product of accepted standard at a higher price.
    1. As used in this subsection the term:
      1. "Animal" means any animal, including cattle, swine, sheep, goats, fish, and poultry, including eggs, raised for the production of an edible product or products intended for human consumption. The term also includes "game animals" as such term is defined in Code Section 27-1-2.
      2. "Food" means articles used or processed for human consumption and components of any such articles.
    2. It shall be unlawful for any person, partnership, firm, company, or corporation to label, advertise, or otherwise represent any food produced or sold in this state as meat or any product from an animal unless each product is clearly labeled by displaying the following terms prominently and conspicuously on the front of the package, labeling cell cultured products with "lab-grown," "lab-created," or "grown in a lab" and plant based products as "vegetarian," "veggie," "vegan," "plant based," or other similar term indicating that the product is plant based and does not include the flesh, offal, or other by-product of any part of the carcass of a live animal that has been slaughtered.

      (Ga. L. 1974, p. 1030, § 2; Ga. L. 2020, p. 303, § 1/SB 211.)

The 2020 amendment, effective December 31, 2020, added subsection (c).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraud and Deceit, § 83.

C.J.S. - 36A C.J.S., Food, §§ 41, 46, 47. 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 179, 180.

26-2-153. Sale of partial or whole carcasses.

It shall be unlawful for any person, partnership, firm, company, or corporation to advertise, sell, or offer for sale any quarter, half, three-quarters, or whole animal carcass for use as food for human consumption without disclosing in such advertisement and to the purchaser at the time of sale the minimum number of pounds of retail cuts contained in such quarter, half, three-quarters, or whole animal carcass. In determining the minimum number of pounds of red meat from such carcass, the person, partnership, firm, company, or corporation shall refer to currently effective United States Department of Agriculture charts and tables of yield grades.

(Ga. L. 1974, p. 1030, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 31.

C.J.S. - 36A C.J.S., Food, §§ 21, 48.

26-2-154. Penalty for violation of Code Sections 26-2-150 through 26-2-153.

Any person, partnership, firm, company, or corporation violating the provisions of Code Sections 26-2-150 through 26-2-153 or any rule or regulation adopted by the Commissioner of Agriculture pursuant to Code Sections 26-2-150 through 26-2-153 shall be guilty of a misdemeanor.

(Ga. L. 1974, p. 1030, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-155. Food service establishment display of information if serving imported beef.

  1. All food service establishments in this state, as defined in Code Section 26-2-370, which serve carcass beef, or cuts derived from such carcass, imported from a foreign country, shall conspicuously display or attach to their menus the words: "We serve beef imported from a foreign country."
  2. Any person, firm, or corporation who violates this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1972, p. 917, §§ 1, 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 57 et seq.

C.J.S. - 36A C.J.S., Food, §§ 41, 46. 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 179, 180.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-156. Slaughter of horses for human consumption or other purposes.

  1. No person, partnership, association, corporation, or firm shall slaughter a horse in this state for the purpose of selling or offering for sale for human consumption or for other than human consumption the horse meat derived from such slaughtered animal unless:
    1. Such horse shall have remained on the business premises for at least four consecutive days prior to its slaughter;
    2. The vehicle license plate number and state of issue of any motor vehicle and any trailer used to transport such horse to the business premises is recorded and retained at such premises;
    3. An identifying description of such horse is maintained at such premises;
    4. The person delivering or selling the horse or horses is identified by his driver's license number and address and said number is recorded on the bill of sale; and
    5. Satisfactory records, pursuant to rules and regulations of the Department of Agriculture, are kept to show information required in paragraphs (1) through (3) of this subsection.
  2. Any person, partnership, association, corporation, or firm violating this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1979, p. 846, §§ 1, 3.)

Cross references. - Labeling and preparation of carcasses, meat, and meat food products of horses, mules, and other animals, § 26-2-111 .

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 16, 31, 53 et seq.

C.J.S. - 36A C.J.S., Food, § 9, 10, 19, 43, 52 et seq.

26-2-157. Sale of horse meat - Sign; label.

No horse meat shall be sold or offered for sale in this state for human consumption unless at the place of sale there shall be posted in a conspicuous location a sign bearing the words "HORSE MEAT FOR SALE." No sausage, ground meat, canned, or processed meat containing horse meat shall be sold for human consumption unless the package bears a label stating the proportionate amount of horse meat contained therein and unless there is likewise kept and maintained in a conspicuous place a sign showing that the meat offered for sale contains horse meat.

(Ga. L. 1943, p. 475, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 23, 31.

C.J.S. - 36A C.J.S., Food, §§ 21, 41.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

Validity and construction of statutes, ordinances, or regulations concerning the sale of horse meat for human consumption, 19 A.L.R.2d 1013.

26-2-158. Sale of horse meat - Seller to inform purchaser.

It shall be unlawful for any person, firm, or corporation to sell horse meat in any form for human consumption unless the person, firm, or corporation selling the meat shall inform the purchaser thereof at the time of sale that the purchaser is obtaining horse meat.

(Ga. L. 1943, p. 475, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 23, 31.

C.J.S. - 36A C.J.S., Food, §§ 41, 46.

ALR. - Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

Validity and construction of statutes, ordinances, or regulations concerning the sale of horse meat for human consumption, 19 A.L.R.2d 1013.

26-2-159. Promulgation of regulations.

The Department of Agriculture is authorized to promulgate proper regulations for the carrying out of Code Sections 26-2-157 and 26-2-158, this Code section, and Code Sections 26-2-160 and 26-2-161 and to assist prosecuting attorneys in the enforcement thereof.

(Ga. L. 1943, p. 475, § 4; Ga. L. 2003, p. 140, § 26.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, inserted "Code Sections" preceding "26-2-157 and 26-2-158" near the middle of this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3 et seq., 7 et seq., 31.

C.J.S. - 36A C.J.S., Food, §§ 4, 14.

ALR. - Validity and construction of statutes, ordinances, or regulations concerning the sale of horse meat for human consumption, 19 A.L.R.2d 1013.

26-2-160. Sale of dog meat for human consumption; label on packages.

It shall be unlawful for any person, firm, or corporation to distribute or offer for sale for human consumption any dog meat in the State of Georgia; and all dog meat sold in this state for any purpose, other than human consumption, shall be sold in packages only. The packages shall carry a label showing the contents, for what use it is intended, and stating that said contents are "NOT FOR HUMAN CONSUMPTION." The words "not for human consumption" shall be in conspicuous type.

(Ga. L. 1943, p. 475, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 31.

C.J.S. - 36A C.J.S., Food, § 24, 41.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

26-2-161. Penalty for violations of Code Section 26-2-157, 26-2-158, 26-2-159, or 26-2-160.

Any person, firm, or corporation violating the terms of Code Section 26-2-157, 26-2-158, 26-2-159, or 26-2-160 shall be guilty of a misdemeanor and, upon conviction thereof shall be fined an amount not exceeding $1,000.00 or imprisoned for a period not exceeding 12 months, or both, at the discretion of the court.

(Ga. L. 1943, p. 475, § 5; Ga. L. 1982, p. 3, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

Validity and construction of statutes, ordinances, or regulations concerning the sale of horse meat for human consumption, 19 A.L.R.2d 1013.

Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

ARTICLE 5 ANIMALS SUSPECTED OF BEARING ANY RESIDUE CAUSING CONTAMINATED MEAT

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

26-2-180. Definitions.

As used in this article, the term:

  1. "Commissioner" means the Commissioner of Agriculture.
  2. "Contaminate" means to cause the loss of wholesomeness for human consumption.

    (Ga. L. 1976, p. 335, § 1.)

26-2-181. Promulgation of rules and regulations.

The Commissioner is authorized to promulgate rules and regulations to govern the sampling and inspection of animals, poultry, and products quarantined or detained pursuant to this article and to implement and enforce this article.

(Ga. L. 1976, p. 335, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 7, 11, 49.

C.J.S. - 36A C.J.S., Food, §§ 4, 10, 12.

26-2-182. Animals, poultry, or products thereof suspected of bearing substance causing contamination - Inspection and quarantine; notice to owners or keepers.

  1. The Commissioner or his duly authorized representative is authorized to inspect and quarantine or detain upon the premises where found any animals, poultry, or animal and poultry products suspected of bearing or containing a residue of any pesticide, insecticide, herbicide, drug, or any substance that would cause the resultant meat or product to be deemed contaminated.
  2. Notice of the quarantine or detention shall be given to the owners or keepers of said animals, poultry, or products and to the owners or operators of the premises where the suspected contaminated matter is found.

    (Ga. L. 1976, p. 335, § 2.)

Cross references. - Quarantine and inspection duties of Commissioner pertaining to prevention of spread of parasitic livestock diseases, § 4-4-60 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 7, 11, 19, 49.

C.J.S. - 36A C.J.S., Food, §§ 15, 23, 24, 51.

26-2-183. Animals, poultry, or products thereof suspected of bearing substance causing contamination - Sampling; removal from quarantine on order of Commissioner.

All animals, poultry, or animal and poultry products suspected of bearing or containing a contaminating residue shall be quarantined or detained at the premises where found until sufficient sampling conducted under the authority of the Commissioner has been completed to determine that the resultant meat or product is wholesome and fit for human consumption. No such animal, poultry, or product shall be moved from quarantine or detention except by order of the Commissioner.

(Ga. L. 1976, p. 335, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 19, 31.

C.J.S. - 36A C.J.S., Food, §§ 20, 23, 24.

26-2-184. Animals, poultry, or products thereof suspected of bearing substance causing contamination - Destruction; compliance with federal tolerances.

If animals, poultry, or animal and poultry products quarantined or detained contain such contaminating residue that remains in excess of a safe level for human consumption, the Commissioner is authorized to order the animals, poultry, or animal and poultry products to be destroyed in a manner prescribed for the particular contaminating residue. Tolerances established by the United States Food and Drug Administration shall be complied with in enforcing this and other Code sections of this article.

(Ga. L. 1976, p. 335, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 58.

C.J.S. - 36A C.J.S., Food, § 23.

26-2-185. Injunctions.

In addition to the remedies provided in this article and notwithstanding the existence of any other remedy at law and notwithstanding the pendency of any criminal prosecution, the Commissioner is authorized to apply to the superior courts of this state for injunctive relief. Such courts shall have the jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction or ex parte restraining order enjoining or restraining the violation or continuation of a violation of this article or for the failure or refusal to comply with this article or any rule or regulation promulgated under this article.

(Ga. L. 1976, p. 335, § 7.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 51.

26-2-186. Penalties.

Any person who violates this article or the rules and regulations promulgated under this article shall be guilty of a misdemeanor.

(Ga. L. 1976, p. 335, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ARTICLE 6 MEAT, POULTRY, AND DAIRY PROCESSING PLANTS

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

Hatchery operators and dealers, T. 4, C. 7.

Regulation of sanitary conditions of meat, poultry, and dairy processing plants, § 26-2-200 et seq.

26-2-200. Definitions.

As used in this article, the term:

  1. "Commissioner" means the Commissioner of Agriculture.
  2. "Meat" or "meat products" means the carcass or part of any carcass of any animal or fowl or any by-product thereof in any form.
  3. "Meat, poultry, or dairy processing plant" means: any abattoir, slaughterhouse, poultry killing or processing plant, milk depot, milk processing plant, or any other establishment for the killing, storage, dressing, manufacture, preparation, or processing of any animal, fowl, or dairy product or any by-product thereof for human consumption.
  4. "Person" means any person, firm, corporation, or association of persons, or combination thereof.

    (Ga. L. 1956, p. 748, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1910, § 2119 are included in the annotations for this Code section.

Slaughter houses are subject to sanitary regulations. Schoen Bros. v. Pylant, 162 Ga. 565 , 134 S.E. 304 , 46 A.L.R. 1480 (1926) (decided under former Code 1910, § 2119, subdivision (3)).

Wildlife club which processed meat and game for the club's members was a "meat, poultry, or dairy processing plant" within the meaning of O.C.G.A. § 26-2-200(3) . Aaron v. Irvin, 259 Ga. 353 , 381 S.E.2d 35 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Definition of private processing plants which must have licenses. - License is necessary for the operation of a meat, poultry, or dairy processing plant in this state where livestock is grown or fed out, slaughtered and sold for human consumption by the owner. 1957 Op. Att'y Gen. p. 1.

Includes private dairies. - Places manufacturing dairy products such as frozen desserts, which include ice cream, frozen custard, ice milk, milk sherbet, and similar products containing milk or milk by-products are subject to licensure. 1957 Op. Att'y Gen. p. 1.

State-owned ice cream parlor not "dairy" requiring license. - State Park Authority, created as a body corporate and politic and deemed to be an instrumentality of the state and a public corporation, is not required to obtain a dairy processing plant license to operate an ice cream parlor. 1958-59 Op. Att'y Gen. p. 5.

RESEARCH REFERENCES

ALR. - Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385 .

26-2-201. Supervision and control of sanitary conditions in dairies and meat, poultry, and dairy processing plants; designation of inspectors.

  1. The Commissioner shall have supervision and control over the sanitary conditions of all dairies and meat, poultry, or dairy processing plants in this state.
  2. The Commissioner shall maintain an adequate system of inspection and shall employ or designate qualified personnel to assist in the administration of this article. He shall fix the compensation of all personnel employed by him.
  3. The Commissioner is also vested with the authority to designate licensed veterinarians and city or county health authorities as inspectors as he deems advisable.

    (Ga. L. 1914, p. 148, § 1; Code 1933, §§ 42-401, 42-402; Ga. L. 1956, p. 748, §§ 2, 10.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1910, § 2119 are included in the annotations for this Code section.

Slaughter houses are subject to sanitary regulations. Schoen Bros. v. Pylant, 162 Ga. 565 , 134 S.E. 304 , 46 A.L.R. 1480 (1926) (decided under former Code 1910, § 2119, subdivision (3)).

OPINIONS OF THE ATTORNEY GENERAL

Milk processor who sells only to military installation still subject to state sanitary regulations. - Person operating a milk processing plant in this state which is not a part of or in conjunction with a military installation of the United States in this state is subject to the sanitary regulations and jurisdiction of the Department of Agriculture, even if the person processes only for sales to military installations. 1960-61 Op. Att'y Gen. p. 4.

Whether violation of provisions of former Code 1933, § 42-406 (see now O.C.G.A. § 26-2-212 ) could be punished as for misdemeanor as provided for in former Code 1933, § 42-9908 (see now O.C.G.A. § 26-2-215 ) was questionable. 1960-61 Op. Att'y Gen. p. 396.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 12, 31, 37.

C.J.S. - 36A C.J.S., Food, §§ 4, 14, 19, 29 et seq.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Power to prescribe the manner or conditions under which a slaughterhouse shall serve the public, 46 A.L.R. 1486 .

Validity of municipal ordinance imposing requirements on outside producers of milk to be sold in city, 14 A.L.R.2d 103.

26-2-202. Promulgation of rules and regulations.

  1. The Commissioner is authorized to adopt rules and regulations to carry out this article.
  2. The Commissioner shall adopt sanitary standards and specifications that are not less than those recognized and approved by the United States Department of Agriculture or the United States Department of Health and Human Services for like products and premises.

    (Ga. L. 1914, p. 148, § 1; Code 1933, § 42-401; Ga. L. 1956, p. 748, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3 et seq., 7 et seq.

C.J.S. - 36A C.J.S., Food, § 5.

26-2-203. Power of inspection.

In the performance of his duties, the Commissioner or any of his duly authorized representatives is authorized to enter and inspect, at any reasonable time, any dairy, or any meat, poultry, or dairy processing plant, or any vehicle where any dairy, animal, or poultry product, any by-product thereof, or any part thereof is held, stored, transported, or offered for sale.

(Ga. L. 1914, p. 148, § 3; Code 1933, § 42-403; Ga. L. 1956, p. 748, § 8; Ga. L. 2003, p. 140, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 42.

C.J.S. - 36A C.J.S., Food, § 19.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Power to prescribe the manner or conditions under which a slaughterhouse shall serve the public, 46 A.L.R. 1486 .

26-2-204. Inspection of dairy, meat, or poultry plants; correction of unsanitary conditions; take and test samples; evidentiary value thereof.

The Commissioner shall cause to be inspected at such times as he may deem proper each dairy and each meat, poultry, or dairy processing plant within this state. He shall require the correction of all unsanitary conditions found therein. He may take samples of dairy, poultry, or meat products or parts or portions thereof and cause them to be analyzed or tested by the state chemist. Such analyses or test records shall be preserved by the Commissioner and when sworn to by the state chemist shall be prima-facie evidence of violations of this article, rules and regulations, or standards or specifications adopted pursuant to this article.

(Ga. L. 1914, p. 148, § 3; Code 1933, § 42-403; Ga. L. 1956, p. 748, § 7.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 7, 12, 31, 49, 69.

C.J.S. - 36A C.J.S., Food, §§ 19, 20, 65.

26-2-205. Wholesomeness inspection of meat, poultry, and dairy products offered for sale; inspection of livestock slaughtered; marking system for inspection purposes; standards and specifications; exception.

The Commissioner is authorized to adopt and maintain an adequate system of wholesomeness inspection as to all meat, poultry, or dairy products offered for sale in this state. He shall be authorized to employ or designate qualified personnel necessary to maintain such inspection program. The Commissioner is authorized to require an ante mortem and post-mortem inspection of all livestock slaughtered by licensees under this article for sale as food in this state. He shall be authorized to adopt an appropriate marking system so as to identify those carcasses of animals inspected and passed as fit for human consumption. The Commissioner is authorized to adopt standards and specifications for meat, poultry, and dairy products and the processing thereof. Nothing contained in this Code section shall be applicable to any person slaughtering livestock or poultry or processing meat, poultry, or dairy products for home consumption.

(Ga. L. 1959, p. 168, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 7, 12, 31, 37.

C.J.S. - 36A C.J.S., Food, §§ 19, 21.

26-2-206. Wholesomeness inspection of meat, poultry, or dairy processing plants on cost basis or less.

The Commissioner is authorized to make the wholesomeness inspection provided in Code Section 26-2-205 available to meat, poultry, or dairy processing plants licensed under this article on the basis of actual costs. He is further authorized when sufficient funds are available to make such service available without cost.

(Ga. L. 1959, p. 168, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 42.

C.J.S. - 36A C.J.S., Food, § 19.

26-2-207. Dairy equipment and premises to be maintained in clean and sanitary condition; supply of clean, pure water; adequate drainage.

No person shall operate a dairy within this state unless the equipment and premises shall be maintained in a clean and sanitary condition. Each dairy shall have an adequate supply of clean, pure water and an adequate supply of clean, hot water and adequate drainage of the premises.

(Ga. L. 1956, p. 748, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 37.

C.J.S. - 36A C.J.S., Food, §§ 19, 29.

26-2-208. Sale, offer for sale, or possession of dairy, animal, or poultry products, under other than sanitary conditions; when conditions other than sanitary deemed to exist.

  1. No person, firm, or corporation shall sell, offer for sale, or have in his possession for sale any dairy, animal, or poultry product or any by-product thereof that has been produced, manufactured, transported, handled, stored, or processed under other than sanitary conditions.
  2. Conditions other than sanitary shall be deemed to exist where any or all of the following conditions exist:
    1. Premises, buildings, handling or storage space, or equipment, in a state of decay;
    2. Floors and side walls or other parts of any space of building covered or coated with decaying matter;
    3. Sufficient insect screens not provided or maintained;
    4. Insufficient drainage;
    5. Inadequate supply of pure water;
    6. Inadequate supply of hot water;
    7. Any animal or fowl held on the premises in unsanitary lots, pens, or cages or fed uncooked animal offal; or
    8. Where putrid odors exist.
  3. The enumeration of these conditions shall not be exclusive and the Commissioner shall determine whether unsanitary conditions exist.

    (Ga. L. 1914, p. 148, § 2; Code 1933, § 42-402; Ga. L. 1956, p. 748, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 31 et seq., 49.

C.J.S. - 36A C.J.S., Food, §§ 4, 21 29 et seq.

ALR. - Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322 .

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

26-2-209. Permanent license for meat processing plants; revocation or suspension; notice and hearing.

To assure the protection of the consuming public, no person shall operate a meat processing plant in this state without having first obtained a permanent license from the Commissioner; provided, however, that any meat processing plant operating under a federal grant of inspection from the United States Department of Agriculture, Food Safety Inspection Service, shall be exempt from such license requirement. There shall be no fee for such license. The license shall be kept on file in each place of business. The license shall not be transferable. The Georgia Department of Agriculture may refuse to grant inspection, and any such license may be revoked or suspended by the Commissioner for the violation of this article or rules and regulations or sanitary standards and specifications adopted pursuant to this article. The Commissioner shall notify the licensee of the reasons why he or she intends to revoke or suspend the license, and the licensee shall be entitled to a hearing before the Commissioner within ten days after receipt of such notice of intention to revoke or suspend. At such hearing the Commissioner shall consider the circumstances and shall give the licensee reasonable time to correct the conditions or circumstances that caused the notice of intention to revoke or suspend the license to be given.

(Ga. L. 1956, p. 748, § 5; Ga. L. 2007, p. 620, § 2/HB 433.)

JUDICIAL DECISIONS

Wildlife club which processed meat and game for the club's members was a processing plant which was required to be licensed under O.C.G.A. § 26-2-209 . Aaron v. Irvin, 259 Ga. 353 , 381 S.E.2d 35 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Operators of plants where livestock grown or prepared for human food must obtain license. - License is necessary for the operation of a meat, poultry, or dairy processing plant in this state where livestock is grown or fed out, slaughtered, and sold for human consumption by the owner. 1957 Op. Att'y Gen. p. 1.

Manufacturers of milk products, including frozen desserts. - Places manufacturing dairy products such as frozen desserts, which include ice cream, frozen custard, ice milk, milk sherbet, and similar products containing milk or milk by-products are subject to licensure. 1957 Op. Att'y Gen. p. 1.

State Park Authority operating ice cream parlor. - State Park Authority, created as a body corporate and politic and deemed to be an instrumentality of the state and a public corporation, is not required to obtain a dairy processing plant license to operate an ice cream parlor. 1958-59 Op. Att'y Gen. p. 5.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 32, 37 et seq.

C.J.S. - 36A C.J.S., Food, § 17, 18.

ALR. - Right of one who acquires title to, or other interest in, real property to benefit of a license previously issued by the public, permitting use of property for a specified purpose, 131 A.L.R. 1339 .

26-2-210. Permanent license for poultry processing plants; filing at place of business; transferability; suspension or revocation; notice and hearing.

To assure the protection of the consuming public, no person shall operate a poultry processing plant in this state without having first obtained a permanent license from the Commissioner; provided, however, that any poultry processing plant operating under a federal grant of inspection from the United States Department of Agriculture, Food Safety Inspection Service, shall be exempt from such license requirement. There shall be no fee for such license. The license shall be kept on file in each place of business. The license shall not be transferable. The Georgia Department of Agriculture may refuse to grant inspection, and any such license may be revoked or suspended by the Commissioner for the violation of this article or rules and regulations or sanitary standards and specifications adopted pursuant to this article. The Commissioner shall notify the licensee of the reasons why he or she intends to revoke or suspend the license, and the licensee shall be entitled to a hearing before the Commissioner within ten days after receipt of such notice of intention to revoke or suspend. At such hearing the Commissioner shall consider the circumstances and shall give the licensee reasonable time to correct the conditions or circumstances that caused the notice of intention to revoke or suspend the license to be given.

(Ga. L. 1970, p. 186, § 1; Ga. L. 2007, p. 620, § 3/HB 433.)

RESEARCH REFERENCES

ALR. - Right of one who acquires title to, or other interest in, real property to benefit of a license previously issued by the public, permitting use of property for a specified purpose, 131 A.L.R. 1339 .

26-2-211. Statistics on animals and poultry slaughtered; maintenance of records.

The Commissioner shall maintain a system by which accurate statistics regarding the disposition of all animals or poultry slaughtered for human consumption in this state by licensees may be obtained. He shall require that each licensee maintain adequate records so as to ascertain the total number of animals or poultry slaughtered, processed, or disposed of and the amount of meat, poultry, or dairy products received or processed by him.

(Ga. L. 1914, p. 148, § 4; Code 1933, § 42-405; Ga. L. 1956, p. 748, § 9.)

26-2-212. County and municipal ordinances dealing with meats, poultry, and dairy products.

Nothing in this article shall prevent the governing authority of any county or municipal corporation from adopting ordinances or resolutions providing for the inspection of meats, poultry, meat or poultry food products, and dairy products sold within its limits and to provide penalties for violation thereof; but no such ordinance or resolution shall conflict with any power or authority of the Commissioner or his representatives; provided, however, that no county or municipal corporation shall adopt sanitary standards or specifications that are less than those adopted by the Commissioner.

(Ga. L. 1914, p. 148, § 5; Code 1933, § 42-406; Ga. L. 1956, p. 748, § 10.)

OPINIONS OF THE ATTORNEY GENERAL

Violation of section might not be punishable as misdemeanor. - Whether a violation of the provisions of former Code 1933, § 42-406 (see now O.C.G.A. § 26-2-212 ) could be punished as for a misdemeanor as provided for in former Code 1933, § 42-9908 (see now O.C.G.A. § 26-2-215 ) was questionable. 1960-61 Op. Att'y Gen. p. 396.

RESEARCH REFERENCES

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Validity of municipal ordinance imposing requirements on outside producers of milk to be sold in city, 14 A.L.R.2d 103.

Dairy, creamery, or milk distributing plant, as nuisance, 92 A.L.R.2d 974.

26-2-213. Injunctions.

In addition to the remedies provided in this article and notwithstanding the existence of any remedy at law, the Commissioner is authorized to apply to the superior court and such court shall have jurisdiction upon hearing and for cause shown to grant a temporary or permanent injunction, restraining order, or both, restraining any person from violating or continuing to violate this article or for failing or refusing to comply with the requirements of this article or any rule or regulation adopted by the Commissioner pursuant to this article. No ex parte restraining order shall be issued without bond.

(Ga. L. 1959, p. 168, § 3.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 51.

26-2-213.1. Applicability to individuals and entities governed by federal acts.

The requirements of this article shall apply to persons, firms, corporations, establishments, animals, and articles regulated under the federal Meat Inspection Act, 21 U.S.C. Section 601, et seq., or the federal Poultry Products Inspection Act, 21 U.S.C. Section 451, et seq., only to the extent provided for in said federal acts. Consistent with said federal acts, the Commissioner may exercise concurrent jurisdiction with the secretary of agriculture of the United States and may enforce this article and any regulations promulgated pursuant thereto without regard to licensing agency.

(Code 1981, § 26-2-213.1 , enacted by Ga. L. 2007, p. 620, § 4/HB 433.)

26-2-214. Inspection of federally inspected meat, poultry, or dairy products; exception for horse slaughter operations.

  1. This article shall in no way be construed to apply or require further inspection of meat, poultry, or dairy products in this state when meat, poultry, or dairy products are required to be inspected by inspectors of the United States Department of Agriculture, provided the Georgia Department of Agriculture may inspect any business operations involving the slaughter of horses in this state for the purpose of selling or offering for sale the horse meat derived therefrom in order to enforce certain restrictions relating to such slaughter.
  2. Any person, partnership, association, corporation, or firm violating this Code section, including but not limited to refusing to permit an inspection authorized by this Code section, shall be guilty of a misdemeanor.

    (Ga. L. 1959, p. 168, § 4; Ga. L. 1979, p. 846, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 10 et seq., 32, 37 et seq., 49 et seq.

C.J.S. - 36A C.J.S., Food, §§ 8, 19, 22.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

26-2-215. Penalty.

Any person who violates this article or rules and regulations adopted under this article or any sanitary standards or specifications adopted under this article shall be guilty of a misdemeanor.

(Ga. L. 1914, p. 134, § 2; Code 1933, § 42-9908; Ga. L. 1956, p. 748, § 11.)

OPINIONS OF THE ATTORNEY GENERAL

Whether a violation of the provisions of former Code 1933, § 42-406 (see now O.C.G.A. § 26-2-212 ) could be punished as for a misdemeanor as provided for in former Code 1933, § 42-9908 (see now O.C.G.A. § 26-2-215 ) was questionable. 1960-61 Op. Att'y Gen. p. 396.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

ARTICLE 7 MILK AND MILK PRODUCTS

Cross references. - Imposition of monetary penalty rather than suspension, § 2-2-10 .

Southern Dairy Compact, T. 2, C. 20.

Administrative Rules and Regulations. - Sanitation, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Chapter 40-2-4.

Dry Milk, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Chapter 40-2-6.

Standards for Dry Milk Products, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Rule 40-2-6-.01.

Ice Cream - Standards and Requirements, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Chapter 40-2-7.

Ice Cream, Frozen Desserts and Related Products Regulations and Enforcement, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Chapter 40-2-8.

Ice Cream, Frozen Desserts and Related Products, Sanitation Standards, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Chapter 40-2-9.

Milk Shake Definitions and Processing Standards, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Milk Products, Rule 40-2-12-.01.

Pasteurized Milk Ordinance, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Milk and Mild Products, Chapter 40-2-15.

26-2-230. Short title.

This article shall be known and may be cited as the "Georgia Dairy Act of 1980."

(Ga. L. 1980, p. 981, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 7, 37 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 14, 19.

ALR. - What amounts to sale of milk to "public" within statutory regulations as to milk, 111 A.L.R. 725 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-231. Definitions.

  1. As used in this article, the term:
    1. "Commissioner" means the Commissioner of Agriculture for the State of Georgia.
    2. "Cream tester" means any person who performs the act of sampling or testing milk, cream, or other dairy products, the test of which is to be used as a basis for making payment for said products.
    3. "Dairy manufacturing plants" means creameries, condenseries, public dairies, butter factories, cheese factories, ice cream factories, and other like factories, and any other concerns that manufacture dairy products for sale at either retail or wholesale; provided, however, that the term dairy manufacturing plant shall not include a retail frozen dessert packager which is otherwise permitted as a food service establishment pursuant to Article 13 of this chapter.
    4. "Department" means the Department of Agriculture of the State of Georgia.
    5. Reserved.
    6. Reserved.
    7. "Manufactured milk products" means those milk products, including condensed, evaporated, concentrated, sterilized, or powdered milk, made from raw whole milk for manufacturing purposes and processed in such a manner and under such conditions as to remove or sterilize, as far as is possible, any contaminated matter contained in the raw milk from which the products were manufactured, under such rules and regulations as may be prescribed to ensure that result.
    8. Reserved.
    9. Reserved.
    10. "Person" means any individual, partnership, firm, company, or corporation.
    11. "Public dairies" means any place where milk and cream are purchased from producers and sold or kept for sale, either at wholesale or retail.
    12. "Raw whole milk for manufacturing purposes" means fluid whole milk in its natural state from healthy cows, which milk has not been produced and handled in compliance with the requirements for Grade A milk.
    13. Reserved.
    14. "Ungraded milk" means all fluid whole milk in its natural state, which milk fails to meet the requirements of Grade A milk or raw whole milk for manufacturing purposes as defined in this article.
  2. Unless otherwise defined in this article, the following words shall have the meanings respectively ascribed to them in the May, 2001, Amended Version of the Grade A Pasteurized Milk Ordinance Recommendations of the United States Public Health Service - Food and Drug Administration and supplements thereto:
    1. "Grade A buttermilk";
    2. "Grade A chocolate milk";
    3. "Grade A milk, pasteurized";
    4. "Grade A modified solids milk";
    5. "Grade A skim milk";
    6. "Grade A whole milk";
    7. "Pasteurization"; and
    8. "Raw cow's milk."
  3. Unless otherwise defined in this article, the following words shall have the meanings respectively ascribed to them in "Frozen Desserts," 21 C.F.R. Sec. 135.3, 21 C.F.R. Sec. 135.110 - 135.160 (1979):
    1. "Ice cream";
    2. "Frozen custard";
    3. Reserved;
    4. "Sherbet"; and
    5. "Water ices."

      (Ga. L. 1929, p. 280, § 2; Code 1933, § 42-502; Ga. L. 1935, p. 167, § 2; Ga. L. 1937, p. 725, § 1; Ga. L. 1961, p. 501, §§ 1, 3-5; Ga. L. 1980, p. 981, § 2; Ga. L. 1992, p. 1279, § 1; Ga. L. 1999, p. 638, § 1; Ga. L. 2000, p. 1291, § 1; Ga. L. 2002, p. 815, § 2; Ga. L. 2003, p. 140, § 26; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, revised subsection (b) by arranging paragraphs (1) through (8) in alphabetical order.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 7, 37 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 17.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-232. Duties of Commissioner generally.

  1. The Commissioner is charged with the responsibility of enforcing this article.
  2. It shall be the duty of the Commissioner or his authorized representative:
    1. To inspect or cause to be inspected, as often as may be deemed practicable, all creameries, public dairies, condenseries, butter factories, cheese factories, ice cream factories, or any other places where dairy products are produced, manufactured, kept, handled, stored, or sold;
    2. To prohibit the production, sale, or distribution of unclean or unwholesome milk, cream, butter, cheese, ice cream, or other dairy products;
    3. To condemn for food purposes all unclean or unwholesome dairy products, wherever found;
    4. To take samples anywhere of any dairy product or imitation thereof and cause the same to be analyzed or satisfactorily tested;
    5. To weigh and test milk, cream, and other dairy products for the purpose of ascertaining the percentage and weight of butterfat or other ingredients contained therein; provided, however, that it shall not be necessary for the Commissioner to perform the tests if they are being performed by an agency of the federal government;
    6. To inspect and make tests of any instrument or equipment used in the testing or measuring of milk, cream, or other dairy products; and
    7. To compile and publish in print or electronically annually, or at such shorter intervals as he may desire, statistics and information concerning all phases of the dairy industry in this state.

      (Ga. L. 1929, p. 280, §§ 1, 19; Code 1933, §§ 42-503, 42-501; Ga. L. 1935, p. 167, § 2; Ga. L. 1961, p. 501, § 9; Ga. L. 1980, p. 981, § 3; Ga. L. 2010, p. 838, § 10/SB 388.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501, are included in the annotations for this Code section.

Constitutionality of milk regulations. - Production, distribution and sale of milk to the general public is a business that vitally affects the public, and therefore subject to legislative control and regulation. Bohannon v. Duncan, 185 Ga. 840 , 196 S.E. 897 (1938) (decided under former Code 1933, Ch. 42-5).

Purpose of section to protect health and prevent fraud. - Purpose of former Code 1933, §§ 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-230 , 26-2-231 , 26-2-233 ), was to fix standards of sanitation in the production, handling, distribution, and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers reveal the exact nature of the product. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511).

Limitations on commissioner's authority under section. - Nothing contained in former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-232 and 26-2-233 ) authorized the commissioner to do more by rule and regulation than define and set standards for all milk and milk products, and to approve labels to be affixed to or printed upon the containers in which such products are offered for sale. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 6, 49.

C.J.S. - 36A C.J.S., Food, §§ 4, 14.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-233. Promulgation and amendment of rules and regulations by Commissioner.

  1. The Commissioner shall have the power to adopt, amend, and repeal rules and regulations to implement and enforce this article; provided, however, that all rules and regulations shall be of uniform application; and provided, further, that all rules and regulations shall be adopted, amended, or repealed in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The rules and regulations shall include, but not be limited to, the following:
    1. Rules and regulations to provide for the labeling of milk and milk products in such manner so as to indicate that the milk or milk product complies with this article and the rules and regulations promulgated under this article;
    2. Rules and regulations to prescribe the specifications of all glassware, including, but not limited to, bottles, pipettes, test tubes, and burrettes, and such other instruments as may be used in the testing of milk, cream, or other dairy products; and
    3. Rules and regulations to prescribe the specifications for the installation and operation of recording thermometers on bulk farm tanks.
  2. The Commissioner may include as a part of such rules and regulations the adoption of supplements to and changes in the "Grade A Pasteurized Milk Ordinance" referred to in Code Section 26-2-238.

    (Ga. L. 1929, p. 280, § 19; Code 1933, § 42-501; Ga. L. 1935, p. 167, § 2; Ga. L. 1961, p. 501, § 14; Ga. L. 1980, p. 981, § 5; Ga. L. 1983, p. 737, § 1; Ga. L. 1985, p. 149, § 26.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501 are included in the annotations for this Code section.

Constitutionality of milk regulations. - Production, distribution, and sale of milk to the general public is a business that vitally affects the public, and therefore is subject to legislative control and regulation. Bohannon v. Duncan, 185 Ga. 840 , 196 S.E. 897 (1938) (decided under former Code 1933, Ch. 42-5).

Purpose of section to protect health and prevent fraud. - Purpose of former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-232 , 26-2-233 , 26-2-242 ) was to fix standards of sanitation in the production, handling, distribution and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers reveal the exact nature of the product. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

Limitations on commissioner's authority under section. - Nothing contained in former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-231 , 26-2-233 ) authorized the commissioner to do more by rule and regulation than define and set standards for milk and milk products, and to approve labels to be affixed to or printed upon the containers in which such products were offered for sale. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 49 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 14.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-234. Applications for licenses and permits; duration of licenses; renewal of licenses; procedure for denial, revocation, or suspension of licenses.

Application for all licenses and permits provided for in this article shall be made to the Commissioner on such forms as he or she may prescribe. All licenses shall be valid for a period of one year unless revoked or suspended as provided in this article. All licenses shall be renewable upon submission of all required application forms. The Commissioner may deny, refuse, suspend, or revoke any license, after notice and a hearing, for any violation of or failure to comply with this article or the rules and regulations promulgated hereunder; provided, however, that the hearing shall be held in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1933, § 42-606, enacted by Ga. L. 1961, p. 501, § 11; Ga. L. 1972, p. 947, § 1; Ga. L. 1980, p. 981, § 6; Ga. L. 2007, p. 103, § 1/HB 112.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 42, 43.

C.J.S. - 36A C.J.S., Food, §§ 17, 18.

ALR. - What amounts to sale of milk to "public" within statutory regulations as to milk, 111 A.L.R. 725 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-235. License requirements - Cream testers.

No person shall act as a cream tester unless he or she is licensed, and it shall be unlawful for any person to employ as a cream tester any person who does not have a license to operate testing apparatus for milk and cream. The license shall be posted in a conspicuous place in plain view of all persons entering the room in which all testing is done.

(Ga. L. 1929, p. 280, § 4; Code 1933, § 42-505; Ga. L. 1935, p. 167, § 2; Ga. L. 1980, p. 981, § 7; Ga. L. 2007, p. 103, § 2/HB 112.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 37, 42.

C.J.S. - 36A C.J.S., Food, §§ 17, 29 et seq.

ALR. - Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-236. License requirements - Operators of milk and cream buying stations.

Reserved. Repealed by Ga. L. 1999, p. 638, § 2, effective July 1, 1999.

Editor's notes. - This Code section was based on Ga. L. 1929, p. 280, § 14; Code 1933, § 42-515; Ga. L. 1935, p. 167, § 2; Ga. L. 1980, p. 981, § 8.

26-2-237. License requirements - Milk and cream brokers.

Reserved. Repealed by Ga. L. 1999, p. 638, § 3, effective July 1, 1999.

Editor's notes. - This Code section was based on Ga. L. 1929, p. 280, § 15; Code 1933, § 42-520; Ga. L. 1937, p. 725, § 1; Ga. L. 1980, p. 981, § 9.

26-2-238. Standards and requirements generally.

The standards and requirements of the May, 2005, Amended Version of the Grade A Pasteurized Milk Ordinance Recommendations of the United States Public Health Service - Food and Drug Administration and supplements thereto, except as otherwise provided in this article, are expressly adopted as the standards and requirements for this state. Future changes in and supplements to said milk ordinance may be adopted by the Commissioner as a part of the standards and requirements for this state.

(Ga. L. 1929, p. 280, § 8; Code 1933, § 42-509; Ga. L. 1980, p. 981, § 10; Ga. L. 1983, p. 737, § 2; Ga. L. 1999, p. 638, § 4; Ga. L. 2000, p. 1291, § 2; Ga. L. 2002, p. 815, § 3; Ga. L. 2003, p. 140, § 26; Ga. L. 2004, p. 457, § 1; Ga. L. 2006, p. 178, § 1/SB 441.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 42 et seq.

C.J.S. - 36A C.J.S., Food, § 21.

ALR. - Constitutionality of regulations as to milk, 42 A.L.R. 556 ; 58 A.L.R. 672 ; 80 A.L.R. 1225 ; 101 A.L.R. 64 ; 110 A.L.R. 644 ; 119 A.L.R. 243 ; 155 A.L.R. 1383 .

Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-239. Standards and requirements for frozen desserts generally.

The standards and requirements for standardized frozen desserts, specifically ice cream, frozen custard, sherbet, and water ices, as adopted by the Food and Drug Administration of the United States Department of Health and Human Services and contained in "Frozen Desserts," 21 C.F.R. Sec. 135.3, 21 C.F.R. Sec. 135.110 - 135.160 (1979), except as otherwise provided, are expressly adopted as the standards and requirements for this state.

(Code 1933, § 42-612, enacted by Ga. L. 1980, p. 981, § 12; Ga. L. 1999, p. 638, § 5.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501 are included in the annotations for this Code section.

Purpose of section to protect health and prevent fraud. - Purpose of former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-230 , 26-2-231 , 26-2-233 ) was to fix standards of sanitation in the production, handling, distribution, and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers reveal the exact nature of the product. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 42, 46.

C.J.S. - 36A C.J.S., Food, § 29 et seq.

ALR. - Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-240. Adulterated ice cream.

  1. Ice cream shall be deemed to be adulterated:
    1. If it contains any preservative, mineral, or other substance or compound deleterious to health; provided, however, that this Code section shall not be construed to prohibit the use of harmless coloring matter when not used for fraudulent purposes;
    2. If it contains any fats other than milk fat or any oils or paraffin added to, blended with, or compounded with it; provided, however, that chocolate ice cream and the chocolate coating of coated ice cream may contain cocoa butter; or
    3. If it is made, in whole or in part, from any milk product which is unfit for consumption as food.
  2. It shall be unlawful for any person to manufacture, sell, offer or expose for sale, or have in possession with intent to sell or offer or expose for sale under the name of "ice cream" any product or substance deemed adulterated under subsection (a) of this Code section.

    (Ga. L. 1929, p. 280, § 11; Code 1933, § 42-512; Ga. L. 1965, p. 498, § 1; Ga. L. 1980, p. 981, § 13.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 20, 46.

C.J.S. - 36A C.J.S., Food, §§ 23, 29 et seq.

ALR. - Preservative as adulterant within statute in relation to food, 50 A.L.R. 76 .

Validity, construction, and application of statutes or ordinances relating specifically to ice cream or other frozen milk products, 111 A.L.R. 112 .

26-2-241. Testing of milk, cream, or other dairy products.

In determining the value of milk, cream, or other dairy products by the use of the Babcock test, it shall be unlawful to give any false reading or in any way manipulate the test so as to give a higher or lower percent of butterfat than the milk, cream, or other dairy products actually contain, or to cause any inaccuracy in reading the percent of butterfat by securing from any quantity of milk, cream, or other dairy products to be tested an inaccurate sample for the test. None other than the Babcock method, or such method of testing as may be approved by the Commissioner, may be employed when testing milk or cream, the test of which is to be used as a basis for making payment for the milk or cream thus tested. None other than the torsion balanced scales, or such scales as may be approved by the Commissioner, may be used when weighing cream for testing, when the tests are to be used as a basis for making payment for cream. It shall be unlawful to use adjustable scale weights in determining the weight of cream used in the Babcock test. Only such centrifuge shall be used as shall meet the approval of the Commissioner. Specifications for apparatus and chemicals and directions for testing milk and cream must conform to Standard Methods for the Examination of Dairy Products, with such additions as shall be deemed advisable by the Commissioner to make them conform to this article. All test tubes, bottles, pipettes, burettes, or instruments used in connection with testing or determining the value of milk, cream, or other dairy products by the use of the Babcock test must be United States government standard and shall be approved by the Commissioner. All milk and cream tests shall be maintained at a temperature of 135 to 140 degrees Fahrenheit for at least three minutes before the reading of the percent of butterfat shall be made and recorded. In reading cream tests, glymol or its equivalent must be used, and the samples under test must be held for three minutes in a water bath extending up as high on the graduated neck as the sample itself does.

(Ga. L. 1929, p. 280, § 3; Code 1933, § 42-504; Ga. L. 1935, p. 167, § 2; Ga. L. 1951, p. 444, § 1; Ga. L. 1957, p. 628, § 1; Ga. L. 1980, p. 981, § 11; Ga. L. 1999, p. 638, § 6.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "burettes" was substituted for "burrettes" in the seventh sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 12, 37 et seq., 56.

C.J.S. - 36A C.J.S., Food, §§ 4, 19, 20, 29 et seq..

ALR. - Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-242. Standards and requirements as to sale of milk and milk products generally; labeling; sale of ungraded milk, raw whole milk, condensed or evaporated milk.

  1. Milk and milk products which are in compliance with this article and in compliance with the rules and regulations promulgated pursuant to this article may be sold, offered for sale, or delivered to the consuming public for the purpose of human consumption, provided the container in which the milk or milk product is sold, offered for sale, or delivered has affixed thereto or printed thereon labels approved by the Commissioner. No milk or milk product may be sold, offered for sale, or delivered for the purpose of human consumption if it is not in compliance with this article or the standards or rules and regulations prescribed pursuant to this article.
  2. The sale, offering for sale, or delivery of ungraded milk is prohibited.
  3. No raw whole milk for manufacturing purposes may be offered for sale in this state to anyone except processors and manufacturers properly licensed and inspected to manufacture and process manufactured milk products.
  4. It shall be unlawful to sell, keep for sale, or offer for sale any condensed or evaporated milk, concentrated milk, sweetened condensed milk, sweetened evaporated milk, sweetened concentrated milk, sweetened evaporated skimmed milk, or any of the fluid derivatives of any of them, to which shall have been added any fat or oil other than milk fat, either under the name of the products or articles or the derivatives thereof, or under any fictitious or trade name whatsoever.

    (Code 1933, § 42-614, enacted by Ga. L. 1961, p. 501, §§ 6, 7; Ga. L. 1980, p. 981, § 14.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 42-511 and Ga. L. 1961, p. 501, are included in the annotations for this Code section.

Purpose of section to protect health and prevent fraud. - Purpose of former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-232 , 26-2-233 ) was to fix standards of sanitation in the production, handling, distribution, and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers reveal the exact nature of the product. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 37 et seq.

C.J.S. - 36A C.J.S., Food, §§ 29 et seq., 41.

26-2-243. Intermingling of Grade A milk or milk products with other grades; inspections; permit requirements; enforcement powers of Commissioner.

  1. It is the intent and purpose of this Code section to prohibit the intermingling of Grade A milk and Grade A milk products with milk and milk products other than Grade A.
  2. No person producing, handling, processing, manufacturing, or dealing in milk or milk products, which person produces, receives, distributes, or in any manner handles Grade A raw whole milk, Grade A pasteurized whole milk, or Grade A milk products, shall receive, store, handle, distribute, or otherwise allow raw whole milk for manufacturing purposes to be introduced upon the premises where the operations are conducted. At all times, such person shall be subject to inspection by the Commissioner and shall hold a Grade A permit, issued by the Commissioner, to deal in Grade A milk and Grade A milk products and shall conduct business pursuant to the laws of this state and the rules and regulations of the Commissioner made thereunder, to the end that milk products shall be handled only in the manner provided for in this article and that inferior quality milk not be sold to the consuming public as superior quality milk.
  3. No person producing, handling, processing, manufacturing, or dealing in milk or milk products, which person produces, receives, distributes, or in any manner handles raw whole milk for manufacturing purposes, shall introduce any Grade A raw whole milk, Grade A pasteurized milk, or Grade A milk products for other than manufacturing purposes upon the premises where manufactured milk products operations are conducted. At all times such persons shall be subject to inspection by the Commissioner and shall hold a manufacturing permit, issued by the Commissioner, to deal in manufactured milk products and shall conduct business pursuant to the laws of this state and the rules and regulations of the Commissioner made thereunder, to the end that grades of milk shall be handled only in the manner provided for in this article and that inferior quality milk not be sold to the consuming public as superior quality milk.
  4. The prohibitions contained in subsections (b) and (c) of this Code section shall not be applicable where separate systems and other facilities are provided to maintain the separation and identity of the various grades and types of milk.
  5. After making inspections or conducting appropriate tests, if the Commissioner determines that any law, rule, or regulation has been violated or if he has reason to believe that any of the milk or milk products enumerated in subsections (b) and (c) of this Code section are dangerous for human consumption, the Commissioner, after notice, is authorized to place one or more inspectors on such premises upon a 24 hour basis for such a period of time as he deems necessary to satisfy himself that the laws and rules and regulations are being complied with. The cost of the inspection, to be fixed by the Commissioner at a cost not to exceed the actual cost of the inspection, shall be paid by such person to the Commissioner as a condition to the continued validity of the permit or the license under which the business is operated. The inspection charges provided in this subsection may be terminated by a request to the Commissioner for a hearing within two days after a charge of violation or the placing of the inspectors in the plant. Upon hearing and for cause shown, the Commissioner is authorized to impose the cost of inspection as a part of the penalty imposed. Nothing contained in this subsection shall be construed to prohibit the Commissioner from revoking or canceling any permit or license of any person doing business in this state who violates any of the laws of this state or the regulations made pursuant thereto.

    (Ga. L. 1929, p. 280, § 19; Code 1933, § 42-501; Ga. L. 1935, p. 167, § 2; Ga. L. 1961, p. 501, § 11; Ga. L. 1978, p. 1988, § 1; Ga. L. 1980, p. 981, § 15.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501 are included in the annotations for this Code section.

Purpose of section to protect health and prevent fraud. - Purpose of former Code 1933, § 42-511 and Ga. L. 1961, p. 501 (see now O.C.G.A. §§ 26-2-232 , 26-2-233 , 26-2-239 ), was to fix standards of sanitation in the production, handling, distribution, and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers reveal the exact nature of the product. Department of Agric. v. Quality Food Prods., Inc., 224 Ga. 585 , 163 S.E.2d 704 (1968) (decided under former Code 1933, § 42-511 and Ga. L. 1961, p. 501).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 37 et seq.

C.J.S. - 36A C.J.S., Food, § 29 et seq.

26-2-244. Standards and conditions for importation of milk and milk products.

  1. No milk or milk products for human consumption shall be shipped into this state from any other state unless such milk or milk product is produced and handled under sanitary conditions no less adequate for the protection of public health and welfare than the conditions under which milk and milk products are produced, handled, and marketed in this state, and then not until authorization for the shipping of milk or milk products has been issued by the Commissioner after careful investigation; provided, however, that shippers listed on the interstate milk shippers list shall be deemed to be in compliance with this Code section.
  2. Any applicant who is not listed on the interstate milk shippers list but who desires to ship milk or milk products into this state shall furnish certified copies of all laws, rules, and regulations pertaining to the sanitary standards in force in the area where the product which he wishes to bring into this state is produced, processed, handled, and sold, together with certified copies of any and all licenses, permits, certificates, test results, and inspection reports pertaining to the production, processing, marketing, handling, and sale of the milk or milk products. If the Commissioner finds that the milk or milk product is produced, processed, marketed, and handled under sanitary conditions no less adequate than those applicable in this state, he may authorize the shipping of the milk or milk product into this state. If the applicant is unable to comply with this subsection, he may request an inspection under subsection (c) of this Code section.
  3. Upon application from a person who desires authorization to ship any milk or milk product into this state and upon the payment by the person of the amount of actual expense necessary to make an inspection, the Commissioner shall cause an inspection to be made. If, upon inspection, the requirements of this article and the rules and regulations promulgated hereunder are found to be met, the Commissioner shall authorize the shipment of the milk or milk product.

    (Ga. L. 1929, p. 280, § 20; Code 1933, § 42-518; Ga. L. 1937, p. 725, § 1; Ga. L. 1961, p. 501, § 12; Ga. L. 1980, p. 981, § 17.)

OPINIONS OF THE ATTORNEY GENERAL

Milk import permit deniable only when milk unsanitary or when importer cannot show equal sanitary standards. - Permits for the importation into Georgia of milk or milk products may be denied by the Commissioner of Agriculture only when the applicant for such permit cannot show that the sanitary standards for the product in force where it is produced and processed are as adequate as such standards in this state, or when an inspection of the proposed shipment discloses that it does not conform to the sanitary standards of this state; such permits may not be denied solely to protect domestic producers from foreign competition. 1969 Op. Att'y Gen. No. 69-202.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 8, 37 et seq.

C.J.S. - 36A C.J.S., Food, § 29 et seq.

26-2-245. Condemnation and coloring of milk and milk products produced, processed, or delivered in violation of laws of state.

Any milk or milk product shipped into this state or produced, processed, or delivered in this state in violation of the laws of this state or the rules and regulations promulgated by the Commissioner pursuant thereto shall be condemned by the Commissioner and may be rendered unfit for marketing by the addition of a pyoktanin solution or other approved harmless coloring matter to notify the consuming public that the milk or milk product is ungraded and unfit for human consumption.

(Code 1933, § 42-618, enacted by Ga. L. 1937, p. 725, § 1; Ga. L. 1961, p. 501, § 8; Ga. L. 1980, p. 981, § 18.)

OPINIONS OF THE ATTORNEY GENERAL

Milk import permit deniable only when milk unsanitary or when importer cannot show equal sanitary standards. - Permits for the importation into Georgia of milk or milk products may be denied by the Commissioner of Agriculture only when the applicant for such permit cannot show that the sanitary standards for the product in force where it is produced and processed are as adequate as such standards in this state, or when an inspection of the proposed shipment discloses that it does not conform to the sanitary standards of this state; such permits may not be denied solely to protect domestic producers from foreign competition. 1969 Op. Att'y Gen. No. 69-202.

26-2-246. Furnishing of records by persons operating under article.

  1. Any person operating under this article shall furnish, upon the request of the Commissioner, such data and statistics as he may require.
  2. All persons operating under this article shall keep complete and accurate records of their operations, and the Commissioner shall have free access to all such records.

    (Ga. L. 1929, p. 280, §§ 9, 16; Code 1933, §§ 42-510, 42-517; Ga. L. 1935, p. 167, § 2; Ga. L. 1980, p. 981, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 51.

C.J.S. - 36A C.J.S., Food, § 15.

ALR. - Construction and application of regulations as to milk, 122 A.L.R. 1062 .

26-2-247. Enforcement of article generally.

  1. The Commissioner shall be charged with the enforcement of this article; and he shall have the power and authority, in connection with this and other provisions dealing with milk, food, or food products, to revoke or cancel the permit or license of any person doing business in this state who violates the laws of this state or the rules and regulations made pursuant thereto.
  2. The enforcement methods authorized by this article shall be cumulative of those provided otherwise by law, and the same are not superseded by this article.

    (Ga. L. 1929, p. 280, § 19; Code 1933, § 42-501; Ga. L. 1935, p. 167, § 2; Ga. L. 1961, p. 501, § 11; Ga. L. 1978, p. 1988, § 1; Ga. L. 1980, p. 981, § 15.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 57.

C.J.S. - 36A C.J.S., Food, § 43 et seq.

26-2-248. Injunctions.

Any person, firm, or corporation subject to this article and the other milk laws of this state who violates any of said provisions or any valid rules and regulations made thereunder may be enjoined from such continued violation. The Commissioner is authorized to apply for, and for cause shown the superior court having jurisdiction of the defendant in any such action may grant, injunctive relief, by interlocutory injunction, permanent injunction, or temporary restraining order, as the circumstances may warrant. The proceeding may be maintained notwithstanding the pendency of any civil action and notwithstanding the pendency of or conviction in a criminal proceeding arising from the same transaction. Such action may be maintained without bond. The purpose of this Code section is to create a statutory cause of action by way of injunction, and the Commissioner is authorized to bring such proceedings in the same form and manner and in the same court as other equitable proceedings may be brought. This remedy is not exclusive but is cumulative of other remedies afforded to protect the consuming public from unwholesome products which are economic frauds.

(Ga. L. 1929, p. 280, § 19; Code 1933, § 42-501; Ga. L. 1935, p. 167, § 2; Ga. L. 1961, p. 501, § 11; Ga. L. 1978, p. 1988, § 1; Ga. L. 1980, p. 981, § 15.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 57.

C.J.S. - 36A C.J.S., Food, § 51.

26-2-249. Unlawful acts.

It shall be unlawful:

  1. To handle milk, cream, butter, ice cream, or other dairy products in unclean or unsanitary places or in an unsanitary manner;
  2. To keep, store, or prepare for market any milk, cream, or other dairy products in the same building or enclosure where any hide or fur or any cow, horse, nontraditional livestock, hog, or other livestock is kept;
  3. To handle or ship milk, cream, ice cream, or other dairy products in unclean or unsanitary vessels;
  4. To expose milk, cream, ice cream, or other dairy products to flies or to any contaminating influence likely to convey pathogenic or other injurious bacteria;
  5. For any common carrier, railway, or express company to neglect or fail to remove or ship from its depot, on the day of its arrival there for shipment, any milk, cream, or other dairy products left at the depot for transportation;
  6. For any common carrier, railway, or express company to allow merchandise of a contaminating nature to be stored on or with dairy products;
  7. To use or possess any branded or registered cream can or milk can or ice cream container for any purpose other than the handling, storing, or shipping of milk, cream, or ice cream; provided, however, that no person other than the rightful owner thereof shall use or possess any can, bottle, or other receptacle if such receptacle shall be marked with the brand or trademark of the owner. Nothing in this paragraph shall prohibit the temporary possession by a business involved in the normal processing, distribution, or retail sale of dairy products of any can, bottle, or other receptacle which is marked with the brand or trademark of another person or entity prior to its return to the rightful owner in the normal course of business, or if purchased from the rightful owner;
  8. To sell or offer for sale ice cream from a container or a compartment of a cabinet or fountain which contains any article of food other than ice cream or dairy products;
  9. To sell or offer for sale milk, cream, butter, cheese, ice cream, or other dairy products that are not pure and fresh and handled with clean utensils;
  10. To sell or offer for sale milk or cream from diseased or unhealthy animals or which was handled by any person suffering from or coming in contact with persons affected with any contagious disease;
  11. To sell or offer for sale any milk or cream which shall have been exposed to contamination or into which shall have fallen any unsanitary articles or any foreign substance which would render the milk or cream or the product manufactured therefrom unfit for human consumption; or
  12. To sell or offer for sale milk, cream, butter, cheese, ice cream, or other dairy products which do not comply with the standards and requirements of this article or the rules and regulations promulgated hereunder.

    (Ga. L. 1929, p. 280, § 7; Code 1933, § 42-508; Ga. L. 1935, p. 167, § 2; Ga. L. 1980, p. 981, § 16; Ga. L. 1995, p. 244, § 29; Ga. L. 1996, p. 1219, § 18; Ga. L. 2000, p. 1298, § 1; Ga. L. 2008, p. 458, § 25/SB 364; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, inserted "or" at the end of paragraph (11).

Law reviews. - For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 192 (2000).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 20 et seq., 39, 49 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 43 et seq.

ALR. - Knowledge or actual negligence on part of seller which is not an element of criminal offense under penal statute relating to sale of unfit food or other commodity, as condition of civil action in tort in which violation of the statute is relied upon as negligence per se or evidence of negligence, 128 A.L.R. 464 .

26-2-250. Penalties for violations of article.

Any person who violates this article shall be guilty of a misdemeanor.

(Ga. L. 1931, Ex. Sess., p. 61, § 4; Code 1933, § 42-9914; Ga. L. 1961, p. 501, § 22; Ga. L. 1980, p. 981, § 19.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

ARTICLE 8 EGGS

Cross references. - Imposition of penalty authorized in lieu of other action, § 2-2-10 .

Regulation by Commissioner of Agriculture of business of hatchery operators and dealers, T. 4, C. 7.

Administrative Rules and Regulations. - Labeling, Inspection, Violations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Egg Inspector, Chapter 40-3-1.

Egg Processing Plants, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Egg Inspection, Chapter 40-3-2.

Egg Breaking Room Sanitation, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Egg Inspection, Chapter 40-3-3.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 33 et seq.

C.J.S. - 36A C.J.S., Foods, §§ 19, 21, 41.

26-2-260. Definitions.

As used in this article, the term:

  1. "Cold storage" means protected storage in a refrigerated place.
  2. "Commerce" means interstate, foreign, or intrastate commerce.
  3. "Commissioner" means the Commissioner of Agriculture of the State of Georgia.
  4. "Department" means the Department of Agriculture of the State of Georgia.
  5. "Egg" means the shell egg of the domesticated chicken, turkey, duck, goose, or guinea.
  6. "Egg handler" means any person who engages in any business in commerce which involves buying or selling any eggs, as a poultry producer or otherwise, processing any egg products, or otherwise using any eggs in the preparation of human food.
  7. "Egg product" means any dried, frozen, or liquid eggs, with or without added ingredients, except products which contain eggs only in a relatively small proportion or which historically have not been considered by consumers as products of the egg food industry.
  8. "Quality" means the inherent properties of any product which determine its relative degree of excellence.
  9. "Wholesaler" means any person, firm, corporation, association, dealer, or broker selling or offering for sale, in or into this state, more than five cases of eggs in any one week.

    (Ga. L. 1935, p. 364, § 9; Ga. L. 1991, p. 1115, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

For an update of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file identifying data, see 1991 Op. Att'y Gen. No. 91-35.

26-2-261. Classification of eggs.

  1. Within the intent and purpose of this article, eggs classified as:
    1. Storage eggs shall be construed to mean eggs which have been in cold storage for a period of 31 days or longer; and
    2. Fresh eggs shall be construed to mean eggs which have been held in cold storage not longer than 30 days from the date they were packed.
  2. Each container of eggs must be labeled to show size or weight class and standard of quality.
  3. All eggs sold or offered for sale by dealers, as designated by this article, shall be graded as to net weight and standards of quality.
    1. The size or weight classes shall be:

      The weight tolerance, per dozen, where eggs are sold at retail, shall be not more than two eggs of the minimum net weight for individual eggs at the rate per dozen. Not more than 5 percent tolerance of the minimum net weight for individual eggs at the rate per dozen shall be allowed where eggs are sold in wholesale lots.

    2. The quality classifications for individual eggs shall be:
      1. Grade AA:
        1. Shell: clean, unbroken, practically normal.
        2. Air cell: one-eighth inch or less in depth, unlimited movement, and free or bubbly.
        3. Yolk: outline slightly defined, practically free from defects.
        4. White: firm, clear.
      2. Grade A:
        1. Shell: clean, unbroken, practically normal.
        2. Air cell: three-sixteenths inch or less in depth, unlimited movement, and free or bubbly.
        3. Yolk: outline fairly well defined, practically free from defects.
        4. White: reasonably firm, clear.
      3. Grade B:
        1. Shell: clean to slightly stained (but not more than one thirty-second of surface if localized or one-sixteenth of surface if scattered), unbroken, abnormal.
        2. Air cell: over three-sixteenths inch in depth, unlimited movement, and free or bubbly.
        3. Yolk: outline plainly visible, enlarged and flattened, clearly visible germ development but no blood, other serious defects.
        4. White: weak and watery, small blood and meat spots present (but not more than one-eighth inch in diameter aggregate).
  4. The U.S. Standards, Grades, and Weight Classes for Shell Eggs, Part 56, Subpart C, Paragraphs 56,216 and 56,217 established pursuant to the federal Agricultural Marketing Act of 1946 are adopted by reference.
  5. All of the classifications indicated in this Code section shall be determined by candling.

    (Ga. L. 1935, p. 364, § 1; Ga. L. 1937, p. 639, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 49, §§ 1-3; Ga. L. 1956, p. 21, § 1; Ga. L. 1958, p. 27, § 1; Ga. L. 1991, p. 1115, § 1; Ga. L. 2015, p. 5, § 26/HB 90.)

Min. Net Wt. Size or Minimum Net For Indv. Min. Net Weight Wt. Per Eggs at Rate Wt. Per Classes Doz. (Oz.) Per Doz. (Oz.) 30 Doz. (Lbs.) ------- ---------- -------------- -------------- Jumbo 30 29 56 Extra Large 27 26 50 1/2 Large 24 23 45 Medium 21 20 39 1/2 Small 18 17 34 Pee Wee 15 14 28

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, inserted "and" at the end of paragraph (a)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, "three-sixteenths" was substituted for "three-sixteenth" in divisions (c)(2)(B)(ii) and (c)(2)(C)(ii), and "one thirty-second" was substituted for "one-thirtysecond" in division (c)(2)(C)(i).

OPINIONS OF THE ATTORNEY GENERAL

Eggs sold by producer at retail must be classified. - Eggs sold at retail by a producer, including those sold directly to local customers, are subject to the classification requirements. 1970 Op. Att'y Gen. No. U70-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 33.

C.J.S. - 36A C.J.S., Food, § 14.

26-2-262. Registration of entities dealing in eggs.

All wholesalers, commission merchants, brokers, retailers, and dealers of any kind or character who desire to sell or offer eggs for sale in this state shall first file with the Commissioner of Agriculture, upon forms furnished by the Commissioner, the name of the firm or person desiring to offer eggs for sale either by themselves or by their agent, together with the address of said firm or person and the type or kind of eggs to be offered for sale.

(Ga. L. 1935, p. 364, § 4; Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 33.

C.J.S. - 36A C.J.S., Food, § 15.

26-2-263. License required for wholesaler or egg handler; grounds for suspension or revocation; transferability; exemption.

  1. It shall be unlawful for any person to engage in business as a wholesaler or as an egg handler without first obtaining a license from the Commissioner.  No license issued under this article shall be suspended or revoked except for health and sanitation reasons or violations of this article and until the licensee to be affected shall be provided with reasonable notice thereof and an opportunity for hearing, as provided under Chapter 13 of Title 50, known as the "Georgia Administrative Procedure Act."  Licenses issued under this article shall be valid until suspended or revoked and shall not be transferable with respect to persons or location. There shall be no fee for such license.
  2. Food sales establishments licensed under Article 2 of this chapter, known as the "Georgia Food Act," and shell egg handlers registered under the United States Department of Agriculture shell egg surveillance inspection program shall be exempt from the provisions of subsection (a) of this Code section.

    (Ga. L. 1935, p. 364, § 5; Ga. L. 1958, p. 27, § 2; Ga. L. 1991, p. 1115, § 1; Ga. L. 1992, p. 6, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 33.

C.J.S. - 36A C.J.S., Food, §§ 14, 17.

26-2-264. Sales by entities dealing in eggs; exemption of producers from taxation and licensing.

It shall be unlawful for any wholesaler, commission merchant, broker, retailer, or dealer of eggs, either by himself or by his agent, to offer for sale in this state any eggs if this article has not been complied with, provided that nothing in this Code section shall be construed to repeal the exemption given the producer in the sale of commodities of his own production from taxation and licensing by existing laws.

(Ga. L. 1935, p. 364, § 6; Ga. L. 1991, p. 1115, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Eggs sold at retail by producer subject to classification requirements. - Eggs sold at retail by a producer, including those sold directly to local customers, are subject to the classification requirements. 1970 Op. Att'y Gen. No. U70-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 33.

C.J.S. - 36A C.J.S., Food, § 17.

26-2-265. Dealer's invoices of sales to be furnished to Department of Agriculture on request; exception for sales to consumers.

All dealers, wholesale or retail, shall be required to furnish to the Department of Agriculture upon request a copy of the invoice of each sale of eggs, the copy of invoice to show the person or firm to whom the sale was made, the address of such person or firm, and the kind and quantity involved in such sale, provided that nothing contained in this Code section shall be construed to require the filing of a copy of the invoice of a sale to a consumer.

(Ga. L. 1935, p. 364, § 8; Code 1981, § 26-2-266 ; Code 1981, § 26-2-265 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 33.

C.J.S. - 36A C.J.S., Food, § 15.

26-2-266. Inspectors and assistants; confiscation and destruction of eggs found unfit for human consumption.

  1. The Commissioner of Agriculture shall instruct the agricultural sanitarians and agricultural inspectors of the Department of Agriculture to carry out this article. The Commissioner is authorized in his discretion to select and appoint such other additional assistants as in his judgment he deems necessary to enforce this article.
  2. All such employees of the Department of Agriculture are authorized to confiscate and destroy all eggs found to be unfit for human consumption. (Ga. L. 1935, p. 364, § 10; Code 1981, § 26-2-267 ; Code 1981, § 26-2-266 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 12, 33, 58 et seq.

C.J.S. - 36A C.J.S., Food, §§ 14, 19, 20, 65.

26-2-267. Promulgation of rules, regulations, grades, and standards; powers of inspectors.

The Commissioner of Agriculture is authorized to promulgate, issue, and set up such additional rules, regulations, grades, standards, or otherwise as in his judgment are necessary to carry out the intent and purpose of this article. The sanitarians and inspectors authorized in Code Section 26-2-266 are authorized to exercise all the authority, powers, and privileges now delegated to the duly authorized food inspectors of the Department of Agriculture by existing law.

(Ga. L. 1935, p. 364, § 11; Code 1981, § 26-2-268 ; Code 1981, § 26-2-267 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3,12, 49.

C.J.S. - 36A C.J.S., Food, §§ 4, 14, 19.

26-2-268. Information labels affixed to cases of eggs.

  1. At the time of packing and candling of each case of eggs, the producer or dealer shall affix a label not less than two inches by four inches or not less than eight square inches on one end of each case and on this label shall be legibly printed or stamped, in letters not less than one-fourth of an inch in size, the date when the eggs were packed and candled or the expiration date, which shall not exceed 45 days from the date packed; the size and grade of the eggs; and either the name and address of the packer or the U.S.D.A. assigned plant number or a state approved plant identification code. The name of the state of origin may be given. When eggs are sold in cartons, the cartons must show the date packed or the expiration date, which shall not exceed 45 days from the date packed, and the grade and size, together with either the name and address of the packer or the U.S.D.A. assigned plant number or a state approved plant identification code. The state of origin may also be given.
  2. Abbreviations of any words in the classification or in designating the grade and size shall not be permitted. The information pertaining to the grade and size shall be shown in legible letters not less than one-fourth of an inch in size. The information pertaining to the name and address of the packer or the U.S.D.A. assigned plant number or a state approved plant identification code and the date packed or expiration date shall be legibly given. All wording on egg cases and egg cartons must be in the English language and must have prior approval from the Georgia Department of Agriculture before using.
  3. Words or phrases tending to becloud or nullify the proper classification of eggs shall not be permitted. Each word of the classification, including the name of the state of origin, shall appear in the same size type and color in any printed advertisement. Abbreviations of any word in the classification or in designating the size and grade to which eggs belong shall not be permitted. Every person advertising eggs for sale, at retail or wholesale, in newspapers, by window displays, or otherwise shall set forth in the advertisement the classification as to size and grade of the eggs offered for sale. The classification shall be set forth in letters equal in size to those advertising the eggs for sale. (Ga. L. 1935, p. 364, § 2; Ga. L. 1937, p. 639, § 3; Ga. L. 1958, p. 27, § 2; Ga. L. 1980, p. 690, § 1; Code 1981, § 26-2-269 ; Code 1981, § 26-2-268 , as redesignated by Ga. L. 1991, p. 1115, § 1; Ga. L. 2003, p. 223, § 1.)

Cross references. - False advertising generally, § 10-1-420 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 23 et seq., 33.

C.J.S. - 36A C.J.S., Food, § 41.

26-2-269. Placard to be displayed; contents.

All eggs offered for sale at retail shall be properly classified in accordance with the following specifications:

  1. A heavy cardboard or placard, not less than eight by eleven inches, shall be conspicuously displayed at all times on or over each receptacle containing eggs offered for sale, setting forth in letters not less than one inch in height, plainly and legibly, the classification as to quality and weight;
  2. The name of the state of origin of eggs may appear on the placard;
  3. The placard shall not be required when eggs are packed in properly labeled cartons. The eggs therein shall be required to come up to the standard as placarded; and
  4. Restaurants, hotels, or other eating places shall be required to display a placard where it can be easily seen by customers or, in lieu thereof, to place this information on the menu. (Ga. L. 1937, p. 639, § 3; Ga. L. 1953, Jan.-Feb. Sess., p. 49, § 4; Ga. L. 1958, p. 27, § 2; Code 1981, § 26-2-270 ; Code 1981, § 26-2-269 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Eggs sold at retail by producer subject to classification requirements. - Eggs sold at retail by a producer, including those sold directly to local customers, are subject to the classification requirements. 1970 Op. Att'y Gen. No. U70-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 23 et seq., 33.

C.J.S. - 36A C.J.S., Food, § 41.

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

26-2-270. Reciprocal marketing agreement to vary labeling requirements.

The Commissioner of Agriculture is authorized to enter into reciprocal marketing agreements with other states to vary the labeling requirements provided in this article. Such agreements shall not vary the standards of quality and weights provided in this article, it being the purpose and intent of this Code section to promote and encourage interstate marketing of eggs and to authorize variations of labeling as required in this article where such variations will promote and encourage the marketing of eggs.

(Ga. L. 1958, p. 27, § 3; Code 1981, § 26-2-271 ; Code 1981, § 26-2-270 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 23. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 5 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 9, 11. 81A C.J.S., States, §§ 67-70.

26-2-271. "Withhold From Sale Orders"; cost of inspection and release.

  1. Inspectors or sanitarians of the Department of Agriculture, upon determining that this article or the rules and regulations promulgated for its enforcement are being violated, may put "Withhold From Sale Orders" on all eggs being sold or offered for sale in violation of this article or the regulations thereof and shall report the circumstances to the Commissioner of Agriculture for his action.
  2. Eggs upon which "Withhold From Sale Orders" have been issued shall not be sold or otherwise disposed of until such "Withhold From Sale Orders" have been canceled by the Commissioner or his duly authorized agents. The cost of the inspection and release shall be paid by the offender. (Ga. L. 1937, p. 639, § 3; Code 1981, § 26-2-272 ; Code 1981, § 26-2-271 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 61.

C.J.S. - 36A C.J.S., Food, §§ 24, 51.

26-2-272. Licensing of candlers and graders of eggs; promulgation of rules and regulations regarding qualifications; temporary work without license.

Each candler and grader of eggs offered for sale shall obtain a license from the Department of Agriculture at no cost, after demonstrating to the satisfaction of the department his capability and qualifications as an egg candler and grader. The Commissioner of Agriculture is authorized to establish by rule and regulation the minimum qualifications for egg candlers and graders. With the approval of the Commissioner, any person may candle and grade eggs not to exceed 14 days, pending licensing by the department, provided that during this period the employer of such temporary candler and grader shall be accountable for the actions of such candler and grader while acting in such capacity.

(Ga. L. 1956, p. 21, § 2; Code 1981, § 26-2-273 ; Code 1981, § 26-2-272 , as redesignated by Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 12, 33.

C.J.S. - 36A C.J.S., Food, §§ 4, 14, 19.

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

26-2-273. Refrigeration and other handling requirements.

  1. All shell egg producers shall refrigerate eggs upon gathering such eggs.  Eggs shall be graded and packed within a reasonable period of time from gathering.
  2. After washing, processing, and packaging, eggs shall be transported, stored, and displayed at an ambient temperature not to exceed 45 degrees Fahrenheit until sold at retail or used by any commercial establishment or public institution. (Code 1981, § 26-2-273 , enacted by Ga. L. 1991, p. 1115, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1991, "Fahrenheit" was substituted for "Farenheit" in subsection (b).

Editor's notes. - Ga. L. 1991, p. 1115, § 1, redesignated former Code Section 26-2-273 as present Code Section 26-2-272, and enacted the present Code Section 26-2-273.

26-2-274. Penalty; duty of prosecuting attorneys to prosecute violations.

Any person, firm, or corporation who violates any provisions of this article shall be guilty of a misdemeanor. It shall be the duty of the prosecuting attorney of the appropriate court to prosecute all persons charged with the violation of this article as soon as the evidence has been transmitted to them by the Commissioner of Agriculture.

(Ga. L. 1935, p. 364, § 12; Ga. L. 1991, p. 1115, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

ARTICLE 9 GRAINS AND BREAD

Cross references. - Regulation of business of grain dealers, § 2-9-30 et seq.

26-2-290. Definitions.

As used in this article, the term:

  1. "Bread" means the foods commonly known and described as white bread and rolls, including, but not restricted to, Vienna bread, French bread, and Italian bread and rolls of the semibread dough type, such as soft rolls, hamburger, hot dog, parker house, etc., hard rolls, such as Vienna, Kaiser, etc., all made without fillings or icings, but shall not include sweet, yeast-raised rolls or sweet buns, cinnamon rolls or buns, butterfly rolls, etc.
  2. "Commissioner" means the Commissioner of Agriculture.
  3. "Degerminated corn meal" means all ground corn, corn meal, and bolted corn meal intended for human consumption which has undergone a refining process with a resultant loss of more than 10 percent of the germ.
  4. "Degerminated hominy grits" means all corn grits, grits, pearled grits, and endosperm portions of corn intended for human consumption which has undergone a refining process with a resultant loss of more than 10 percent of the germs.
  5. "Enrichment" as applied to flour, bread, meal, or grits means the addition thereto of vitamins and other ingredients of the nature required by this article; and the terms "enriched flour," "enriched bread," "enriched degerminated corn meal," and "enriched degerminated hominy grits" mean bread, flour, corn meal, or grits, as the case may be, which has been enriched to conform to the requirements of this article.
  6. "Flour" means flour of every kind and description made wholly or partly from wheat which conforms to the definition and standard of identity of flour, white flour, wheat flour, phosphated flour, self-rising flour, bromated flour, and plain flour as promulgated in the rules and regulations made by the Commissioner, but excludes whole-wheat flour made only from the whole-wheat berry with no part thereof removed, and also excludes special packaged flours not used for bread baking, such as cake, pancake, cracker, and pastry flours.
  7. "Person" means an individual, firm, corporation, partnership, association, joint stock company, trust, or any unincorporated organization.

    (Ga. L. 1945, p. 425, § 1.)

Cross references. - Grits as official prepared food, § 50-3-78 .

26-2-291. Vitamins and ingredients in flour; specification changes; milling process.

  1. It shall be unlawful for any person to manufacture, mix, compound, sell, or offer for sale, for human consumption in this state, any flour unless the following vitamins and other ingredients are contained in each pound of such flour:
    1. Not less than 2.0 milligrams of vitamin B1 (thiamin);
    2. Not less than 1.2 milligrams of riboflavin;
    3. Not less than 16 milligrams of niacin (nicotinic acid) or niacin amide (nicotinic acid amide); and
    4. Not less than 13 milligrams of iron.
  2. The enrichment of self-rising flour shall require, in addition to the ingredients required in subsection (a) of this Code section, not less than 500 milligrams of calcium.
  3. The Commissioner of Agriculture is authorized to change, or add to, in his discretion, the specifications for ingredients and the amounts thereof, in order that they shall conform to the federal definition of enriched flour when promulgated or as may from time to time be amended.
  4. If other vitamins and minerals are added to flour, they shall be added only in accordance with the regulations of the Commissioner.
  5. Iron shall be added only in forms which are assimilable and harmless and which do not impair the enriched flour.
  6. The enrichment of flour shall be accomplished by a milling process, addition of vitamins from a natural or synthetic source, addition of minerals, or by a combination of these methods, or by any method which is permitted by the Commissioner with respect to flour.

    (Ga. L. 1945, p. 425, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 26 et seq.

C.J.S. - 36A C.J.S., Food, §§ 36, 37.

26-2-292. Vitamins and ingredients in bread; specification changes.

  1. It shall be unlawful for any person to manufacture, bake, sell or offer for sale or to receive an interstate shipment for sale for human consumption in this state any bread unless the following vitamins and other ingredients are contained in each pound of such bread:
    1. Not less than 1.1 milligrams of vitamin B1 (thiamin);
    2. Not less than 0.7 milligrams of riboflavin;
    3. Not less than 10.0 milligrams of niacin (nicotinic acid) or niacin amide (nicotinic acid amide); and
    4. Not less than 10 milligrams of iron.
  2. The enrichment of bread may be accomplished through the use of enriched flour, special yeast, and other enriching ingredients, synthetic vitamins, harmless iron salts, or by any combination of harmless methods which will produce bread enriched so as to meet the requirements of subsection (a) of this Code section.
  3. Iron shall be added only in forms which are assimilable and harmless and which do not impair the enriched bread.
  4. The Commissioner of Agriculture is authorized to change, or add to, in his discretion, the specifications for ingredients and the amounts thereof in order that they shall conform to the federal definition of enriched bread when promulgated or as may from time to time be amended.

    (Ga. L. 1945, p. 425, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 26 et seq., 29.

C.J.S. - 36A C.J.S., Food, §§ 36, 37.

26-2-293. Vitamins and ingredients in degerminated corn meal and degerminated hominy grits; specification changes; milling process.

  1. It shall be unlawful for any person to manufacture, mix, compound, sell, or offer for sale, for human consumption in this state, any degerminated corn meal or degerminated hominy grits unless the following vitamins and other ingredients are contained in each pound of such products:
    1. Not less than 2.0 milligrams of vitamin B1 (thiamin);
    2. Not less than 1.2 milligrams of riboflavin;
    3. Not less than 16 milligrams of niacin (nicotinic acid) or niacin amide (nicotinic acid amide); and
    4. Not less than 13 milligrams of iron.
  2. Iron shall be added only in forms which are assimilable and harmless and which do not harm the enriched corn meal or enriched grits.
  3. The substances referred to in subsection (a) of this Code section may be added in a harmless carrier which does not impair the enriched degerminated corn meal or enriched degerminated hominy grits, provided that such carrier is used only in the quantity necessary to effect an intimate and uniform admixture of such substances with the grits or corn meal.
  4. If other vitamins and minerals are added to degerminated corn meal or degerminated hominy grits, they shall be added only in accordance with such pertinent regulations as may be promulgated by the Commissioner of Agriculture.
  5. The Commissioner of Agriculture is authorized to change, or add to, in his discretion, the specifications for ingredients and the amounts thereof in order that they shall conform to the federal definition of enriched degerminated corn meal or enriched degerminated grits when promulgated or as from time to time may be amended.
  6. The enrichment of degerminated corn meal or degerminated hominy grits may be accomplished by a milling process, addition of vitamins from a natural or synthetic source, other enriching ingredients, harmless and assimilable inorganic salts, or by a combination of these methods which will produce enriched grits or enriched corn meal as herein defined.

    (Ga. L. 1945, p. 425, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 26 et seq.

C.J.S. - 36A C.J.S., Food, §§ 4, 36.

26-2-294. Exemptions.

The terms of this article shall not apply to:

  1. Flour, corn meal, or grits sold to bakers or other commercial secondary processors if, prior to or simultaneously with delivery, the purchaser furnishes to the seller a certificate of intent in such form as the Commissioner shall by regulation prescribe, certifying that such flour, corn meal, or grits shall be used only in the production of flour, bread, corn meal, or grits enriched within the given establishment to meet the requirements of this article or shall be used in the manufacture of products other than those covered by this article. It shall be unlawful for any such purchaser so furnishing any such certificate of intent to use the unenriched flour, corn meal, or grits so purchased in any manner other than as stated in the certificate;
  2. Flour or bread which is made from the entire wheat berry with no parts of the wheat removed from the mixture. In cases of flour or bread containing mixtures of the whole wheat berry and white flour or mixture of various portions of the wheat berry, such products shall have a vitamin and mineral potency at least equal to enriched flour or enriched bread as described herein;
  3. Corn meal or grits which is made from the entire corn with no parts of the corn removed from the mixture, but shall not be construed to prevent the enrichment of such products if so desired by the manufacturer. Any products so enriched must conform to standards and labeling provisions as provided in this article as modified by the Commissioner;
  4. Flour, corn meal, or grits for the wheat and corn producer whereby the miller is paid in wheat or corn or feed for the grinding service rendered, except in so far as such a mill may produce flour or degerminated corn meal or grits and sell or offer for sale such products, whereupon this article shall be applicable; nor shall this article apply to farmers in exchanging their corn for corn meal and wheat for flour, or having the same ground into flour, corn meal, or grits and disposing of the same for their own use or the use of the farm labor on their farms; or
  5. Mills doing custom grinding of wheat, whose capacity is 20 bushels of wheat per hour or less, and for custom mills that do not use artificial methods for bleaching flour.

    (Ga. L. 1945, p. 425, § 5.)

26-2-295. Labeling requirements.

It shall be unlawful to sell or offer for sale in this state any enriched flour, enriched bread, enriched degerminated corn meal, or enriched degerminated hominy grits which, if wrapped, fails to conform to the labeling requirements of the Commissioner of Agriculture.

(Ga. L. 1945, p. 425, § 6.)

RESEARCH REFERENCES

ALR. - Constitutionality of statutes, requiring notice by label or otherwise of the fact that product is imported or as to place of production, 124 A.L.R. 572 .

26-2-296. Duties of Commissioner of Agriculture.

  1. The Commissioner of Agriculture is authorized as the administrative agency and is directed:
    1. To make, amend, and rescind such rules and regulations, in his discretion, as may be necessary to carry out this article, including, but without being limited to, such orders, rules, and regulations as he is hereinafter specifically authorized and directed to make; and
    2. From time to time to adopt, in his discretion, such regulations changing or adding to the required ingredients for flour, bread, corn meal, or grits, specified in Code Sections 26-2-291 through 26-2-293, as shall be necessary to conform to the definitions and standards of identity of enriched flour, enriched bread, enriched degerminated corn meal, and enriched degerminated hominy grits, from time to time promulgated by the rules and regulations made by the Commissioner.
  2. All orders, rules, and regulations adopted by the Department of Agriculture pursuant to this article shall be published as provided for in subsection (c) of this Code section, and, within the limits specified by this article, shall become effective upon such date as the Commissioner shall fix.
  3. Whenever under this article publication of any notice, order, rule, or regulation is required, such publication shall be made at least three times in ten days in newspapers of general circulation in three different sections of the state.
  4. The Commissioner is authorized to collect samples for analysis and to conduct examinations and investigations for the purposes of this article through any officers or employees under his supervision; and all such officers and employees shall have authority to enter to inspect any factory, mill, warehouse, shop, or establishment where flour, bread, corn meal, or grits is manufactured, processed, packed, sold, or held, or to inspect any vehicle and any flour, bread, corn meal, or grits therein, and all pertinent equipment, materials, containers, and labeling.

    (Ga. L. 1945, p. 425, § 7; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, substituted "; and" for a concluding period at the end of paragraph (a)(1).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 6, 49.

C.J.S. - 36A C.J.S., Food, §§ 4, 10, 14.

ALR. - Liability of owner or occupant of premises to building or construction inspector coming upon premises in discharge of duty, 28 A.L.R.3d 891.

26-2-297. Penalty.

Any person who violates this article or the orders, rules, or regulations promulgated by the Department of Agriculture under authority of this article shall, upon conviction thereof, be subject to a fine for each and every offense in a sum not exceeding $100.00 or to imprisonment for not more than 30 days, or both.

(Ga. L. 1945, p. 425, § 8.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

ARTICLE 10 FISH AND OTHER SEAFOODS

Cross references. - Imposition of penalty authorized in lieu of other action, § 2-2-10 .

Regulation of commercial fishing and fish dealing generally, § 27-4-70 et seq.

Administrative Rules and Regulations. - Additional Regulations Applicable to Crab Meat Plants, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Division Regulations, Chapter 40-7-4.

The Handling, Storage, Shucking, Packing, Shipping and/or Sale of Shellfish, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Division Regulations, Chapter 40-7-12.

26-2-310. Definitions.

As used in this article, the term:

  1. "Nonresident of the State of Georgia" means a person who has not maintained a continuous residence in this state for one year and not resided therein for six months next preceding the time when he makes application for a license.
  2. "Resident of the State of Georgia" means a person who has maintained a continuous residence in this state for one year and has resided therein for the six-month period preceding the time when he makes application for a license and a corporation organized under the laws of this state, of which a majority of the stockholders are residents of this state, or a foreign corporation which has become domesticated and qualified with the Secretary of State to do business in this state six months before it makes application for a license.
  3. "Seafood" means all fresh or frozen fish and all fresh or frozen shellfish, such as shrimp, oysters, clams, scallops, lobsters, crayfish, and other similar fresh or frozen edible products. However, nothing in this article shall apply to any canned or salted seafoods.
  4. "Wholesale fish dealer" means any person, firm, association of persons, or corporation who sells fish or seafood of any kind to a retail dealer, a wholesale dealer, hotels, restaurants, or other public eating places of any kind or nature whatsoever.

    (Ga. L. 1937-38, Ex. Sess., p. 332, § 4.)

26-2-311. Administration by Commissioner of Agriculture.

It shall be the duty of the Commissioner of Agriculture to administer this article.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 3.)

26-2-312. Wholesale fish dealers' licenses.

  1. No person, firm, association of persons, or corporation shall be authorized or permitted to engage in the business of wholesale fish dealer in this state without first having paid to the Commissioner of Agriculture the annual license fees required in this Code section and having procured a license from the Commissioner authorizing such person to engage in the business of wholesale fish dealer. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1. The annual license fee applicable to and required of wholesale fish dealers shall be as follows:
    1. The annual license fee for each resident wholesale fish dealer shall be $60.00 for each place of business, fixed or movable; and
    2. The annual license fee for each nonresident or alien wholesale fish dealer shall be $60.00 for each place of business, fixed or movable, provided that the annual license fee for each nonresident or alien wholesale fish dealer who is a resident of a state which charges Georgia resident wholesale fish dealers a fee in excess of $60.00 shall be the same as the fee such state charges Georgia resident wholesale fish dealers for each place of business, fixed or movable. The Commissioner of Agriculture of the State of Georgia may enter into a reciprocal agreement with any other state to limit the fees such state charges a Georgia resident who operates as a wholesale fish dealer or its equivalent in such other state.
  2. Each truck or movable unit from which fish are sold at wholesale shall be deemed a place of business within the meaning of this article.
  3. A resident who produces the fish and other seafood he or she sells at retail or wholesale shall not be required to pay the license fee provided in paragraph (1) of subsection (a) of this Code section; nor shall any commercial fisherman licensed to catch fish or seafood by the state game and fish laws, rules, and regulations be required to pay the license fee provided for in this Code section.

    (Ga. L. 1937-38, Ex. Sess., p. 332, § 5; Ga. L. 1939, p. 316, § 1; Ga. L. 1945, p. 315, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 521, § 2; Ga. L. 1987, p. 908, § 1; Ga. L. 2002, p. 819, § 1; Ga. L. 2010, p. 9, § 1-58/HB 1055; Ga. L. 2011, p. 752, § 26/HB 142.)

Cross references. - Commercial fishing and fish dealing generally, § 27-4-70 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Commercial fishermen licensed by the Game and Fish Commission are not required to obtain wholesale fish dealer's license to sell their catch. 1954-56 Op. Att'y Gen. p. 554.

Veteran's certificate of exemption does not apply to the regulatory fee imposed on wholesale fish dealers. 1945-47 Op. Att'y Gen. p. 484.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Fish, Game, and Wildlife Conservation, §§ 43, 51. 35A Am. Jur. 2d, Food, § 11.

C.J.S. - 36A C.J.S., Food, § 17.

26-2-313. Applications for wholesale fish dealers' licenses.

  1. Each and every person desiring to engage in the business of wholesale fish dealer in this state shall annually on or before January 1 in every year make application to the Commissioner of Agriculture for a license in which such applicant shall state his name, his post office address, the nature of business in which he desires to engage, and the place at which he proposes to conduct his business. Such applicant shall also furnish to the Commissioner such other and additional information as the Commissioner may require. When such information is furnished, the Commissioner shall advise the applicant the amount of the license tax required of such applicant, and when said annual license tax is paid, the Commissioner shall issue to such applicant a license which shall particularly state the nature of the business which the applicant thereunder is authorized to conduct in this state and the place or places from which it may be conducted.
  2. The annual license fee shall be payable on or before January 1 of each and every year thereafter; provided, however, that whenever an application is submitted after July 1 of any year, the annual license fee for the remaining portion of such year shall be one-half of the annual license fee provided for in Code Section 26-2-312.

    (Ga. L. 1937-38, Ex. Sess., p. 332, § 6.)

OPINIONS OF THE ATTORNEY GENERAL

Commercial fishermen licensed by the Game and Fish Commission are not required to obtain wholesale fish dealer's license to sell their catch. 1954-56 Op. Att'y Gen. p. 554.

Veteran's certificate of exemption does not apply to the regulatory fee imposed on wholesale fish dealers. 1945-47 Op. Att'y Gen. p. 484.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Fish, Game, and Wildlife Conservation, § 51. 35A Am. Jur. 2d, Food, § 11.

C.J.S. - 36A C.J.S., Food, § 17.

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

26-2-314. License revocation.

The license of any wholesale fish dealer is subject to revocation by the Commissioner of Agriculture for violation of any law, rule, or regulation pertaining to the sale or distribution of seafoods or fish.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 14.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 11.

C.J.S. - 36A C.J.S., Food, § 18.

26-2-315. Promulgation of rules and regulations regarding sanitation, distribution, and transportation of fish and seafoods.

The Commissioner of Agriculture is authorized to regulate and prescribe rules and regulations with respect to the proper method of sanitation, distribution, and transportation of all fish and seafoods in this state and, as well, all fish and seafood transported from all other states. To this end the Commissioner may require that all fish and seafoods transported into and in and through this state shall be in refrigerated cars or by refrigerated trucks with insulated bodies or in containers disconnected from the body of the truck or by express or in boxes or other containers adequately iced. When fish and seafoods are transported from this state by truck, they shall be equipped with enclosed insulated bodies or containers disconnected from the body of the truck with proper refrigeration to carry the fish and seafood in good condition with 50 percent weight of ice to weight of fish or seafoods.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 7; Ga. L. 1992, p. 6, § 26.)

Cross references. - Shellfish sanitation program for interstate shipment of oysters and clams produced in state, § 27-4-197 .

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 3 et seq.

C.J.S. - 36A C.J.S., Food, § 5.

26-2-316. Suitable equipment and sanitation for wholesale fish dealers.

The Commissioner of Agriculture is authorized to require each wholesale fish dealer having a fixed place of business to provide suitable equipment and sanitation to handle and care for fish and seafoods in a sanitary manner; and that each wholesale dealer having a fixed place of business shall have in his place of business a refrigerated or insulated box or cooler in which a degree of not higher than 40 degrees temperature shall be maintained and that his place of business shall have proper drainage and sewerage for the care of waste in the proper dressing or processing of fish and seafoods.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 8.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 15, 18.

26-2-317. Traveling fish dealers; equipment.

No person shall be permitted as a traveling fish dealer to conduct a business in this state unless he is so equipped with refrigerated and insulated containers and unless his vehicle is so equipped with proper refrigeration or insulation as to provide adequate safeguards to prevent the sale of unsanitary products.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 9.)

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, § 19.

26-2-318. Inspection of fish and seafoods.

It shall be the duty of the Commissioner of Agriculture to provide the proper and necessary inspection of all fish and seafoods sold or distributed in this state or transported into this state from other states.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 10.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 12.

C.J.S. - 36A C.J.S., Food, § 19.

26-2-319. Allocation of license fees.

Reserved. Repealed by Ga. L. 2010, p. 9, § 1-58.1/HB 1055, effective May 12, 2010.

Editor's notes. - This Code section was based on Ga. L. 1937-38, Ex. Sess., p. 332, § 11.

26-2-320. Penalty.

Any person who violates any provision of this article or any valid rule or regulation promulgated by the Commissioner of Agriculture pursuant to the terms of this article shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not less than 30 days nor more than six months or by a fine of not less than $50.00 nor more than $500.00, or by both fine and imprisonment, in the discretion of the court.

(Ga. L. 1937-38, Ex. Sess., p. 332, § 12.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

ARTICLE 11 KOSHER FOODS

26-2-330 through 26-2-335.

Reserved. Repealed by Ga. L. 2010, p. 114, § 2/HB 1345, effective May 20, 2010.

Editor's notes. - This article was based on Ga. L. 1980, p. 1767, § 1.

Ga. L. 2010, p. 114, § 1/HB 1345, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Kosher Food Consumer Protection Act.'"

ARTICLE 12 SOFT DRINKS

Cross references. - Imposition of penalty authorized in lieu of other action, § 2-2-10 .

Law reviews. - For note, "Beer, Liquor, or a Little Bit of Both? Getting to the Bottom of Properly Classifying Flavored Malt Beverages in the United States and Australia," see 39 Ga. J. Int'l & Comp. L. 471 (2011).

26-2-350. Definitions.

As used in this article, the term:

  1. "Bottled soft drink" means all nonalcoholic beverages, whether carbonated or not, such as soda water, carbonated water, orangeade, lemonade, fruit juice when any plain or carbonated water, flavoring, or syrup is added, or any and all preparations commonly referred to as "soft drinks" of whatever kind, which are closed and sealed in glass, paper, metal, or any other type of container or bottle, whether manufactured with or without the use of any syrup. This term shall not include fluid milk to which no flavoring has been added, or natural undiluted fruit or vegetable juice but shall include these drinks when mixed with any syrup, flavoring, water, or additive.
  2. "Commissioner" means the Commissioner of Agriculture.
  3. "Person" means any person, firm, corporation, association, or any combination thereof.
  4. "Soft drink syrup" means the compound mixture or the basic ingredients, whether dry or liquid, practically and commercially usable in making, mixing, or compounding soft drinks at soda fountains by the mixing thereof with carbonated or plain water, ice, fruit, milk, or any other product suitable to make a soft drink, or any such syrup used in the manufacture, bottling, or distribution of a bottled soft drink.

    (Ga. L. 1956, p. 611, § 1.)

26-2-351. License for manufacture and bottling; separate license for each business or bottling or manufacturing plant.

  1. In addition to complying with the food laws of this state, no person shall manufacture or bottle any soft drink or soft drink syrup within this state unless he or she has a current food sales establishment license from the Commissioner.
  2. Each place of business or bottling or manufacturing plant shall be required to obtain a separate license.

    (Ga. L. 1956, p. 611, § 2; Ga. L. 2007, p. 103, § 3/HB 112.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 34.

C.J.S. - 36A C.J.S., Food, §§ 17, 39.

ALR. - Power to require license for sale of soft drinks, 6 A.L.R. 1417 .

26-2-352. Sanitary standards and specifications for manufacture, bottling, and distribution of soft drinks or soft drink syrup; adoption; compliance with food laws.

The Commissioner is charged with the enforcement of this article and is authorized to adopt sanitary standards and specifications for the manufacture, bottling, and distribution of a bottled soft drink or a soft drink syrup. No person shall manufacture, bottle, or distribute any bottled soft drink or soft drink syrup that has been produced, manufactured, bottled, or distributed under sanitary conditions and specifications that are less than those adopted by the Commissioner; provided, however, that such standards and specifications shall be no less than those adopted pursuant to the food laws of this state.

(Ga. L. 1956, p. 611, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Bottled soft drinks subject to section on misbranding. - Provisions of Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28 ) apply to bottled soft drinks. 1958-59 Op. Att'y Gen. p. 7.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 7, 34.

C.J.S. - 36A C.J.S., Food, §§ 4, 39.

ALR. - Validity of regulations as to ingredients of nonalcoholic soft drinks, 41 A.L.R. 930 .

Presumption or prima facie case of negligence based on presence of foreign substance in bottled or canned beverage, 52 A.L.R.2d 117.

Liability of manufacturer or seller for injury caused by beverage sold, 77 A.L.R.2d 215.

26-2-353. Promulgation of rules and regulations; administrative personnel.

The Commissioner is authorized to promulgate reasonable rules and regulations to effectuate this article. He shall employ the necessary personnel and fix their compensation to assist him in the administration of this article.

(Ga. L. 1956, p. 611, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 7, 34.

C.J.S. - 36A C.J.S., Food, §§ 4, 14.

ALR. - Validity of regulations as to ingredients of nonalcoholic soft drinks, 41 A.L.R. 930 .

26-2-354. Suspension or revocation of license; hearing.

Any license issued pursuant to this article may be suspended or revoked by the Commissioner for the violation of this article or of any of the sanitary standards and specifications or rules and regulations issued pursuant to this article. The Commissioner shall notify the person whose license is to be suspended or revoked, by registered or certified mail or statutory overnight delivery, of his intent to suspend or revoke the license and shall afford such person a hearing before him, within ten days after receipt of the notice, to show cause why the license should not be suspended or revoked.

(Ga. L. 1956, p. 611, § 5; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 11, 34.

C.J.S. - 36A C.J.S., Food, § 18.

ALR. - Validity of regulations as to ingredients of nonalcoholic soft drinks, 41 A.L.R. 930 .

26-2-355. Sanitary inspection of building, area, structure, plant, or vehicle used in manufacture, bottling, or distribution.

The Commissioner or his authorized representatives shall have access, at any reasonable hour, to any building, area, structure, plant, or vehicle used in the manufacture, bottling, or distribution of a bottled soft drink or soft drink syrup to inspect sanitary conditions therein.

(Ga. L. 1956, p. 611, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 12, 34.

C.J.S. - 36A C.J.S., Food, §§ 21, 39.

26-2-356. Applicability of article to dairy or milk processing or distributing plants otherwise licensed.

Any dairy or milk processing or distributing plant licensed under other laws of this state shall not be required to obtain the license provided for in this article but shall be subject to all other provisions of this article.

(Ga. L. 1956, p. 611, § 8.)

RESEARCH REFERENCES

ALR. - Soft drinks, ice cream, and the like, as food within Sunday Law, 21 A.L.R. 754 .

26-2-357. Penalty.

Any person who violates this article or any sanitary standard or specification or rule or regulation adopted pursuant to this article shall be guilty of a misdemeanor.

(Ga. L. 1956, p. 611, § 7.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, § 53 et seq.

C.J.S. - 36A C.J.S., Food, § 52 et seq.

ALR. - Penal offense predicated upon violation of food law as affected by ignorance or mistake of fact, lack of criminal intent, or presence of good faith, 152 A.L.R. 755 .

Liability of manufacturer or seller for injury caused by beverage sold, 77 A.L.R.2d 215.

Liability for injury or death allegedly caused by spoilage or contamination of beverage, 87 A.L.R.4th 804.

Liability for injury or death allegedly caused by foreign substance in beverage, 90 A.L.R.4th 12.

ARTICLE 13 FOOD SERVICE ESTABLISHMENTS

Administrative Rules and Regulations. - Food Service, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Public Health, Chapter 290-5-14.

26-2-370. (See Editor's notes.) Definitions.

As used in this article, the term:

  1. "Food nutrition information" means the content of food including, but not limited to, the caloric, fat, carbohydrate, cholesterol, fiber, sugar, potassium, protein, vitamin, mineral, and sodium content.
  2. "Food service establishment" means establishments for the preparation and serving of meals, lunches, short orders, sandwiches, frozen desserts, or other edible products either for carry out or service within the establishment. This term includes restaurants; coffee shops; cafeterias; short order cafes; luncheonettes; taverns; lunchrooms; places which retail sandwiches or salads; soda fountains; institutions, both public and private; food carts; itinerant restaurants; industrial cafeterias; catering establishments; and similar facilities by whatever name called. Within a food service establishment, there may be a food sales component, not separately operated. This food sales component shall be considered as part of the food service establishment. This term shall not include:
    1. A food sales establishment, as defined in Code Section 26-2-21, except as otherwise stated in this paragraph;
    2. The food service component of any food sales establishment defined in Code Section 26-2-21;
    3. Any outdoor recreation activity sponsored by the state, a county, a municipality, or any department or entity thereof, any outdoor or indoor (other than school cafeteria food service) public school function, or any outdoor private school function;
    4. Any organization which is operating on its own property or on the property of a party that has provided written consent for the use of such property for such purpose and which is exempt from taxes under paragraph (1) of subsection (a) of Code Section 48-7-25 or under Section 501(d) or paragraphs (1) through (8) or paragraph (10) of Section 501(c) of the Internal Revenue Code for the purpose of operating a house or other residential structures where seriously ill or injured children and their families are provided temporary accommodations in proximity to their treatment hospitals and where food is prepared, served, transported, or stored by volunteer personnel;
    5. Establishments for the preparation and serving of meals, lunches, short orders, sandwiches, frozen desserts, or other edible products if such preparation or serving is an authorized part of and occurs upon the site of an event which:
      1. Is sponsored by a political subdivision of this state;
      2. Is held on the property of such sponsor or on the property of a party that has provided written consent for use of such property for such event; and
      3. Lasts 120 hours or less; or
    6. Nonprofit food sales and food service provided under a permit issued pursuant to Article 14 of this chapter.
  3. "Person" or "persons" means any individual, firm, partnership, corporation, trustee, or association, or combination thereof.

    (Ga. L. 1958, p. 371, § 1; Code 1933, § 88-1001, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1985, p. 660, § 1; Ga. L. 1992, p. 1174, § 2; Ga. L. 1998, p. 1220, § 2; Ga. L. 2000, p. 1558, § 3; Ga. L. 2001, p. 1216, § 1; Ga. L. 2008, p. 361, § 1/HB 1303; Ga. L. 2011, p. 308, § 4/HB 457; Ga. L. 2013, p. 760, § 1/HB 101; Ga. L. 2014, p. 857, § 1/HB 778; Ga. L. 2020, p. 808, § 3/SB 345.)

The 2013 amendment, effective July 1, 2013, in paragraph (2), substituted "an event" for "a fair or festival" at the end of the introductory language, added present subparagraph (2)(B), and redesignated former subparagraphs (2)(B) and (2)(C) as present subparagraphs (2)(C) and (2)(D), respectively.

The 2014 amendment, effective July 1, 2014, added the next-to-the last sentence in paragraph (2).

The 2020 amendment, effective August 5, 2020, rewrote paragraph (2).

For application of this statute in 2020, see Executive Orders 05.12.20.02, 05.28.20.02, 06.11.20.01, 06.29.20.02, 07.15.20.01, 07.31.20.02. 08.15.20.01, and 08.31.20.02.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "lunchrooms" was substituted for "lunch rooms" in the second sentence of paragraph (1) (now paragraph (2)).

Pursuant to Code Section 28-9-5, in 1986, a semicolon was substituted for a comma following "lunchrooms" in the second sentence of paragraph (1) (now paragraph (2)).

Law reviews. - For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 147 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Food retailers with seating subject to inspection. - Food sales establishments defined in Ga. L. 1956, p. 195, § 2 (see now O.C.G.A. § 26-2-21(a)(5)) providing seating arrangements and other conveniences within its premises for customers to use in eating food items purchased in that store shall be subject to inspection as a "food service establishment," as defined in former Code 1933, § 88-1001 (see now O.C.G.A. § 26-2-370 ). 1978 Op. Att'y Gen. No. 78-65.

Establishments selling food on a "walk-up" or "drive-up" basis are food service establishments and as such are subject to regulation by the Department of Human Resources. 1991 Op. Att'y Gen. No. U91-9.

RESEARCH REFERENCES

Am. Jur. 2d. - 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, §§ 9, 10, 27.

C.J.S. - 36A C.J.S., Food, § 1. 43A C.J.S., Inns, Hotels, and Eating Places, § 5.

ALR. - What is "restaurant," "cafe," or "victualing house" within Sunday Law, 9 A.L.R. 428 .

Validity, construction, and application of statutes or ordinances prohibiting or regulating automatic vending machines, 111 A.L.R. 755 ; 151 A.L.R. 1195 .

26-2-371. Permits - Required; issued by county board of health or Department of Public Health; validity; transferability; rules and regulations by municipalities.

It shall be unlawful for any person to operate a food service establishment without having first obtained a valid food service establishment permit. Such permits shall be issued by the county board of health or its duly authorized representative, subject to supervision and direction by the Department of Public Health; but, where the county board of health is not functioning, such permit shall be issued by the Department of Public Health. Such permits shall be valid until suspended or revoked and shall not be transferable with respect to person or location. Nothing contained in this article shall prevent any municipality from adopting rules and regulations governing the licensing and operation of food service establishments.

(Ga. L. 1958, p. 371, § 2; Code 1933, § 88-1002, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Cited in Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234 , 304 S.E.2d 708 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, §§ 26 et seq., 37 et seq.

C.J.S. - 43A C.J.S., Inns, Hotels, and Eating Places, §§ 6, 14-16.

ALR. - Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669 .

26-2-372. Permits - Issuance; suspension, revocation, or denial; notice and hearing.

The Department of Public Health, or county boards of health acting as agents of the department, shall have the power and authority to issue permits to operate food service establishments and to suspend or revoke such permits in accordance with the rules and regulations adopted and promulgated as provided for in this article. When, in the judgment of the department or the county board of health, acting as agent of the former, it is necessary and proper that such application for a permit be denied or that the permit previously granted be suspended or revoked, the applicant or holder thereof shall be afforded notice and hearing as provided in Article 1 of Chapter 5 of Title 31. In the event that such application is finally denied, suspended, or revoked, the applicant or holder of the permit shall be notified in writing. Such written notice shall specifically state any and all reasons why the application has been denied or the permit has been suspended or revoked.

(Ga. L. 1958, p. 371, § 3; Code 1933, § 88-1003, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, §§ 29, 37 et seq.

C.J.S. - 43A C.J.S., Inns, Hotels, and Eating Places, §§ 6, 14-16.

ALR. - Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669 .

26-2-373. Promulgation of rules, regulations, and standards by Department of Public Health and county boards of health; exemption for nonprofit schools and institutions producing own milk.

  1. For the purpose of protecting the public health, the Department of Public Health shall have the power to adopt and promulgate such rules and regulations as it deems necessary and proper to carry out the purpose and intent of this article, including the establishment of reasonable standards of sanitation for food service establishments and such establishments which are also retail frozen dessert packagers and the examination and condemnation of unwholesome food therein. County boards of health are authorized to adopt and promulgate supplementary rules and regulations, including the establishment of reasonable standards of sanitation for food service establishments, consistent with those adopted and promulgated by the department; provided, however, that no county board of health or political subdivision of this state shall enact any ordinance or issue any rules and regulations pertaining to the provision of food nutrition information at food service establishments. As used in this subsection, the term "political subdivision" means any municipality, county, local government authority, board, or commission; however, such term shall not include any state agency or state authority. The department and the county boards of health may obtain technical and laboratory assistance from the Department of Agriculture.
  2. Nonprofit schools and institutions serving family-style meals shall not be included under the present law or any future law or any rule or regulation promulgated pursuant to such laws regulating the dispensing of milk in the kitchens and dining halls of such schools and institutions, provided such school or institution produces the milk on the school's or institution's farm which passes Department of Public Health and local health department sanitary requirements.

    (Ga. L. 1958, p. 371, § 4; Code 1933, § 88-1004, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1992, p. 1279, § 2; Ga. L. 2008, p. 361, § 2/HB 1303; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Cross references. - Inspection by Commissioner of Agriculture of meat and meat products located within or held for sale or consumption in food service establishments, § 26-2-106 .

Administrative Rules and Regulations. - Food Service, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Public Health, Chapter 290-5-14.

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 3, 7. 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, § 29.

C.J.S. - 36A C.J.S., Food, §§ 3, 4. 43A C.J.S., Inns, Hotels, and Eating Places, § 6.

ALR. - Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669 .

26-2-373.1. Use of hair nets or hats by food preparers; penalty.

  1. A person who, in the ordinary course of business in a food service establishment, prepares food which is to be consumed by humans shall wear, when preparing food, appropriate hair nets or hats or restraints to prevent contamination of such food.
  2. Notwithstanding the provisions of Code Section 26-2-377, any person who violates subsection (a) of this Code section shall be subject to a civil penalty as follows:
    1. For a first offense, neither fine nor punishment, but only a warning; and
    2. For a second or subsequent offense, a civil penalty not to exceed $50.00.
  3. The county board of health or its representative which issues food service establishment permits under this article shall be authorized to impose the penalties authorized under subsection (b) of this Code section and shall provide the permit holder with notice of any violation of subsection (a) of this Code section.
  4. Hair nets shall not be required of food preparers when the preparer is a volunteer without payment for his or her services and the food is being prepared for a religious, educational, charitable, or nonprofit corporation. (Code 1981, § 26-2-373.1 , enacted by Ga. L. 1997, p. 836, § 1; Ga. L. 1998, p. 128, § 26.)

26-2-374. Contents and posting of notices relating to assistance to persons choking; relief from civil liability of persons rendering emergency aid.

  1. The Department of Public Health shall print and distribute notices to every food service establishment in this state explaining the proper procedures to be taken to assist or aid persons who are choking. The notices shall contain such information as is found appropriate or necessary by the department and shall be posted and maintained by the food service establishment in a conspicuous place or places on the premises as required by the department.
  2. Any person who renders emergency aid in good faith to persons who are choking, without any charge for his services, shall not be liable for any civil damages for any act or omission in rendering such emergency aid or as a result of any act or failure to act to provide or arrange for further treatment or care for such persons.

    (Code 1933, § 88-1004.1, enacted by Ga. L. 1979, p. 1272, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For comment, "Good Samaritan Laws - Legal Disarray: An Update," see 38 Mercer L. Rev. 1439 (1987).

Cross references. - Relief from civil liability of persons rendering emergency care generally, § 51-1-29 .

RESEARCH REFERENCES

ALR. - Construction and application of "Good Samaritan" statutes, 68 A.L.R.4th 294.

26-2-375. Enforcement of article; inspection of food service and food sales establishments.

  1. The Department of Public Health and the county boards of health, acting as duly authorized agents of the department, are authorized to enforce this article and rules, regulations, and standards adopted and promulgated under this article in establishments that have the majority of square footage of building floor space, including indoor and outdoor dining areas, used for the operation of food service as defined in Code Section 26-2-370. Their duly authorized representatives are authorized to enter upon and inspect the premises of any food service establishment as provided in Article 2 of Chapter 5 of Title 31.
  2. Notwithstanding any other provisions of this article, food sales establishments as defined in Code Section 26-2-21 shall be inspected and regulated under Article 2 of this chapter and shall not be subject to inspection or enforcement under this article.

    (Ga. L. 1958, p. 371, § 7; Code 1933, § 88-1006, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1985, p. 660, § 2; Ga. L. 2000, p. 1558, § 4; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 7, 12. 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, §§ 29, 32.

C.J.S. - 36A C.J.S., Food, § 4. 43A C.J.S., Inns, Hotels, and Eating Places, § 12.

26-2-376. Review of final order or determination by Department of Public Health; appeal to superior court.

Any person aggrieved by any final order or determination of any county board of health denying, suspending, or revoking any permit authorized in this article may secure review thereof by the Department of Public Health by appeal in the manner prescribed in Article 1 of Chapter 5 of Title 31. Any person aggrieved by any final order or determination made by the Department of Public Health, whether originally or on appeal, may secure review thereof by appeal to the superior court in the manner prescribed in Article 1 of Chapter 5 of Title 31.

(Ga. L. 1958, p. 371, § 8; Code 1933, § 88-1007, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

RESEARCH REFERENCES

C.J.S. - 36A C.J.S., Food, §§ 4, 16. 43A C.J.S., Inns, Hotels, and Eating Places, § 16.

26-2-377. Penalty for violation of article.

Any person who violates any provision of this article or any rule or regulation promulgated under this article by the Department of Public Health or by any county board of health shall be guilty of a misdemeanor.

(Ga. L. 1958, p. 371, § 11; Code 1933, § 88-1008, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Cited in Cobb County Health Dep't v. Henson, 226 Ga. 801 , 177 S.E.2d 710 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, § 28.

C.J.S. - 43A C.J.S., Inns, Hotels, and Eating Places, § 171.

26-2-378. Meat products that contain extenders to be displayed on menus or placards; applicability to minor amounts of extenders.

  1. All food service establishments in this state which serve meat products that contain extenders, such as textured vegetable protein, textured soy flour, fortified textured vegetable protein, or other such products, shall display on their menus, or by placards visible to the public, information stating that the meat product contains extenders. Products which contain extenders shall not be advertised using names which designate all meat products. The menu or other advertisement must bear the same name that appears on the package when received from the processor and the ingredients statement as listed on the label.
  2. This Code section shall not be applicable to the serving of meat products which do not contain such an amount of extenders as to require additional labeling in accordance with other laws of the United States and laws of this state relating to meat products.

    (Code 1933, § 88-1009, enacted by Ga. L. 1974, p. 1116, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Food, §§ 23, 26, 31. 40A Am. Jur. 2d, Hotels, Motels, and Restaurants, § 30.

C.J.S. - 36A C.J.S., Food, § 41. 37 C.J.S., Fraud, § 85 et seq. 43A C.J.S., Inns, Hotels, and Eating Places, § 17.

ARTICLE 14 NONPROFIT FOOD SALES AND FOOD SERVICE

26-2-390. Definitions.

As used in this article, the term:

  1. "Nonprofit food sales and food service" means the temporary sale or service of food items by an organization at an event sponsored by a county, municipality, or organization or the temporary sale of food items by an organization if such sale is sponsored by a religious, charitable, or nonprofit corporation, including but not limited to churches, schools, clubs, lodges, or other such organizations.
  2. "Organization" means an organization exempt from taxes under paragraph (1) of subsection (a) of Code Section 48-7-25 or under Section 501(d) or paragraphs (1) through (8) or paragraph (10) of Section 501(c) of the Internal Revenue Code, as that code is defined in Code Section 48-1-2 . (Code 1981, § 26-2-390 , enacted by Ga. L. 1992, p. 1174, § 3; Ga. L. 1998, p. 1220, § 3; Ga. L. 2020, p. 808, § 4/SB 345.)

Editor's notes. - Ga. L. 2020, p. 808, § 4/SB 345, effective August 5, 2020, reenacted this Code section without change.

26-2-391. Permits for nonprofit food sales and food service at events; duration of permit; issuance of subsequent permits.

  1. A county or municipality shall be authorized to issue permits for the operation of nonprofit food sales and food service at events sponsored by the county, municipality, or an organization. For any permit issued pursuant to this Code section to be valid, the event must be held on property belonging to the sponsoring county, municipality, or organization or on the property of a party that has provided consent for use of such property for such event.
  2. A permit shall be valid for:
    1. A period of up to 120 consecutive hours and another permit shall not be issued to the organization holding such permit until five days have elapsed from the date of the expiration of the permit; or
    2. A continuous period of up to 12 weeks between May 15 and August 15 and four additional weeks during the calendar year, which may be composed of nonconsecutive periods, coinciding with holidays during which local school systems are not in session, provided that all food items are provided free of charge and the organization does not receive funding from the United States Department of Agriculture to operate a food program.
  3. At the request of the county or municipality issuing a permit pursuant to this Code section or at the request of a county or municipality sponsoring an event pursuant to subparagraph (a)(5)(C) of Code Section 26-2-21 or subparagraph (2)(E) of Code Section 26-2-370, the county board of health shall:
    1. Supply educational materials regarding food safety which may be provided to event organizers and the public; and
    2. Conduct food safety inspections to ensure compliance with the provisions of Code Section 26-2-392.
  4. No fees shall be charged to an organization for the issuance of any permit pursuant to this Code section; provided, however, that the county board of health shall be authorized to impose a fee for inspections performed at the request of the issuing county or municipality. Such fee shall be fixed in a reasonable amount such that the proceeds of the fee do not exceed the total direct and indirect costs of conducting the inspection.
  5. For purposes of this Code section, an event may include the provision of food at a third-party location within the same county. (Code 1981, § 26-2-391 , enacted by Ga. L. 1992, p. 1174, § 3; Ga. L. 1998, p. 1220, § 3; Ga. L. 2013, p. 760, § 2/HB 101; Ga. L. 2020, p. 808, § 4/SB 345.)

The 2013 amendment, effective July 1, 2013, inserted the proviso at the end of the first sentence; added the second sentence; and deleted "by a county or municipality" following "such permit" at the end of the last sentence.

The 2020 amendment, effective August 5, 2020, designated the existing provisions as subsection (a), (b), and (d); deleted "; provided, however, that the county or municipality may delegate the authority to issue such permits to the county board of health" following "organization" at the end of the first sentence of subsection (a); rewrote subsection (b); in subsection (d), substituted "any permit pursuant to this Code section; provided, however, that the county board of health shall be authorized to impose a fee for inspections performed at the request of the issuing county or municipality" for "any such permit" and added the second sentence; and added subsections (c) and (e).

Law reviews. - For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 147 (2013).

26-2-392. Standards for food, labeling, and containers; protection from contamination; temperature; prohibited foods; utensils and equipment; ice; transport to other location; reuse at another event; handwashing facilities; unapproved facilities; use of offsite kitchens.

  1. This Code section applies to food items prepared and offered for sale or service by organizations at events covered under this article. Food shall be in sound condition, free from spoilage, filth, or other contamination and shall be safe for human consumption. Food shall be obtained from sources that comply with all laws relating to food and food labeling. The use of food in hermetically sealed containers that was not prepared in a licensed food processing establishment is prohibited.
  2. At all times, including while being stored, prepared, displayed, served, or transported, food shall be protected from potential contamination, including dust, insects, rodents, unclean equipment and utensils, unnecessary handling, flooding, drainage, and overhead leakage or overhead drippage from condensation.
  3. Meat, poultry, seafood, and other animal products shall be cooked to at least the safe minimum cooking temperatures recommended by the United States Department of Agriculture. No raw or undercooked animal products shall be served.
  4. Time/temperature control for safety foods to be served at an event shall be maintained at 41 degrees Fahrenheit or less if held cold or 135 degrees Fahrenheit or more if held hot. A thin probe thermometer shall be used to check temperatures of such foods. The preparation of the following time/temperature control for safety foods is prohibited unless the organization has an established hazard control program:
    1. Pastries filled with cream or synthetic cream;
    2. Custards;
    3. Products similar to the products listed in paragraphs (1) and (2) of this subsection; or
    4. Salads containing meat, poultry, eggs, or fish.
  5. Frozen desserts shall only be produced using commercially pasteurized mixes or ingredients.
  6. Suitable utensils, as needed for serving, must be provided to eliminate bare-hand contact with cooked or ready-to-eat foods. All utensils and equipment shall be washed, rinsed, and sanitized periodically as necessary to prevent contamination or a buildup of food, using separate basins for washing, rinsing, and sanitizing. Disposable utensils may be utilized to meet such requirement.
  7. Ice that is consumed or that contacts food shall be from an approved source and protected from contamination until used. Ice used for cooling stored food shall not be used for human consumption. Food shall be served in an individual-meal type of container and handed to the customer. Food items shall not be transported for sale at any other location or sold, held, or reused at another event.
  8. A convenient handwashing facility shall be available for use by individuals preparing and serving food. This facility shall consist of, at least, warm running water, soap, and individual paper towels. Individuals who prepare or serve food shall not make bare-hand contact with ready-to-eat food. Individuals who have a known communicable or transmittable disease, as defined by the Department of Public Health for these purposes, shall not prepare or serve food at an event.
  9. This Code section shall in no way be construed to allow the sale of food items which have been packaged, bottled, or canned in unapproved facilities. Food items prepared in private homes are prohibited; provided, however, that this shall not apply to any food item produced in compliance with a license issued by the Department of Agriculture pursuant to Article 2 of this chapter.
  10. County boards of health are authorized to provide staff assistance to organizations at events covered under this article for the purpose of providing food safety instruction.
  11. Nothing in this Code section shall prohibit an organization from using an offsite kitchen to prepare food for an event permitted under this article, so long as the offsite kitchen complies with the provisions of this Code section. (Code 1981, § 26-2-392 , enacted by Ga. L. 1992, p. 1174, § 3; Ga. L. 1998, p. 1220, § 3; Ga. L. 2020, p. 808, § 4/SB 345.)

The 2020 amendment, effective August 5, 2020, inserted "or service" in the first sentence of subsection (a); deleted the former second sentence of subsection (b), which read: "The temperature of potentially hazardous food shall be either 45 degrees Fahrenheit or below or 140 degrees Fahrenheit or above at all times"; added subsection (c); redesignated former subsections (c) and (d) as present subsections (d) and (e), respectively; in subsection (d), added the first and second sentences and substituted "time/temperature control for safety" for "potentially hazardous" in the third sentence; rewrote subsection (f); redesignated former subsections (e) through (h) as present subsections (g) through (j), respectively; added the second sentence in subsection (i); and added subsection (k).

26-2-393. Enforcement of article.

The county or municipality issuing a permit for the operation of a nonprofit food sales and food service event shall be authorized to enforce the provisions of this article and any party whose property is used for the operation of a nonprofit food sales or food service event without such party's consent may seek legal and equitable remedies including, but not limited to, damages and injunctive relief against unauthorized users.

(Code 1981, § 26-2-393 , enacted by Ga. L. 1992, p. 1174, § 3; Ga. L. 1998, p. 1220, § 3; Ga. L. 2009, p. 453, § 1-6/HB 228; Ga. L. 2011, p. 705, § 6-5/HB 214; Ga. L. 2013, p. 760, § 3/HB 101; Ga. L. 2020, p. 808, § 4/SB 345.)

The 2013 amendment, effective July 1, 2013, substituted "and any party whose property is used for the operation of a nonprofit food sales or food service event without such party's written authorization may seek legal and equitable remedies including, but not limited to, damages and injunctive relief against unauthorized users" for "; provided, however, no adverse action against an organization may be taken by a county or municipality or any agent of a county or municipality, including a denial of a permit or revocation of a permit, or citation for violation of this article, without the written approval of such action by the district health director" at the end of subsection (a).

The 2020 amendment, effective August 5, 2020, deleted the subsection (a) designation; substituted "consent" for "written authorization"; and deleted former subsection (b), which read: "Any organization which is aggrieved or adversely affected by any final order or action of a county board of health or district health director may have review thereof by appeal to the commissioner of public health or his or her designee. Appeals to the commissioner shall be heard after not more than eight hours."

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 147 (2013).

ARTICLE 15 SALE OF MEAT, POULTRY, OR SEAFOOD FROM MOBILE VEHICLES

Administrative Rules and Regulations. - Additional Regulations Applicable to Retail Sale of Fresh and Frozen Seafood, Meat, Poultry and Other Foods from Mobile Vehicles, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Food Division Regulations, Chapter 40-7-5.

26-2-410. Definitions.

As used in this article, the term:

  1. "Meat" means the carcass or any part of any carcass of any animal or any by-product thereof in any form.
  2. "Mobile vehicle" means any vehicle that is mobile and includes land vehicles, air vehicles, and water vehicles.
  3. "Poultry" means domestic fowl including, but not limited to, water fowl such as geese and ducks; birds which are bred for meat or egg production; game birds such as pheasants, partridge, quail, and grouse, as well as guinea fowl, pigeons, doves, and peafowl; ratites; and all other avian species.
  4. "Seafood" means all fresh or frozen fish and all fresh or frozen shellfish, such as shrimp, oysters, clams, scallops, lobsters, crayfish, and other similar fresh or frozen edible products, but such term shall not include canned or salted seafood. (Code 1981, § 26-2-410 , enacted by Ga. L. 1998, p. 1377, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 2008, p. 458, § 26/SB 364.)

26-2-411. Licensing and inspection of mobile vehicles.

  1. Any person who sells, displays for sale, or offers for sale at retail any fresh or frozen meat, poultry, or seafood in, on, or from a mobile vehicle shall prominently display in such mobile vehicle a current and valid license issued by the Department of Agriculture. Such license shall be issued by the department following the satisfactory inspection of such mobile vehicle and the meat, poultry, or seafood offered for sale therefrom to determine compliance with the laws of this state and the rules and regulations of the Commissioner and the payment of a license fee of $100.00 per vehicle per year or any portion thereof. All licenses shall expire 12 months from the date of issue. Any license may be renewed for any subsequent year upon a satisfactory inspection of the mobile vehicle and its contents and the payment of the license fee. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
  2. As a condition for retaining a license issued pursuant to this article, a mobile vehicle shall be inspected by the department a minimum of once every six months and a stamp, seal, or other marking showing the date of such inspection shall be affixed to the license by the department or its inspector. There shall be no charge or fee for such semi-annual inspection stamp, seal, or other marking. It shall be the duty of the owner or operator of each mobile vehicle licensed or required to be licensed under this article to make such mobile vehicle available to the department for inspection a minimum of once every six months at a reasonable time and place specified by the department. Said place shall be within 100 miles of the county in which the license is issued. (Code 1981, § 26-2-411 , enacted by Ga. L. 1998, p. 1377, § 1; Ga. L. 2010, p. 9, § 1-59/HB 1055.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required. - Offense under O.C.G.A. § 26-2-411 would not be designated as one which requires fingerprinting. 1998 Op. Att'y Gen. No. 98-20.

26-2-412. Rules and regulations.

The Commissioner is authorized to promulgate and adopt such rules and regulations as are necessary to effectuate the purpose of this article.

(Code 1981, § 26-2-412 , enacted by Ga. L. 1998, p. 1377, § 1.)

26-2-413. Penalty for violations.

Any person who violates this article shall be guilty of a misdemeanor.

(Code 1981, § 26-2-413 , enacted by Ga. L. 1998, p. 1377, § 1.)

ARTICLE 16 COMMON-SENSE CONSUMPTION

26-2-430. Short title.

This article shall be known and may be cited as the "Common-sense Consumption Act."

(Code 1981, § 26-2-430 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

Law reviews. - For article on 2004 enactment of this article, see 21 Ga. St. U.L. Rev. 165 (2004).

26-2-431. Definitions.

As used in this article, the term:

  1. "Claim" means any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any other person.
  2. "Federal act" means the Federal Food, Drug, and Cosmetic Act (Title 21 U.S.C. Section 301, et seq., 52 Stat. Section 1040, et seq.).
  3. "Generally known condition allegedly caused by or allegedly likely to result from long-term consumption" means a condition generally known to result or likely to result from the cumulative effect of consumption and not from a single instance of consumption.
  4. "Knowing and willful" means that:
    1. The conduct constituting a violation of federal or state law was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and
    2. The conduct constituting such violation was not required by regulations, orders, rules, or other pronouncement of, or any statute administered by, a federal, state, or local government agency.
  5. "Other person" means any individual, corporation, company, association, firm, partnership, society, joint-stock company, or other entity, including any governmental entity or private attorney general. (Code 1981, § 26-2-431 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

26-2-432. Exemption from liability of food distributors for long-term consumption of food.

Except as provided in Code Section 26-2-433, a manufacturer, packer, distributor, carrier, holder, seller, marketer, or advertiser of a food, as defined in Section 201(f) of the federal act, 21 U.S.C. Section 321(f), or an association of one or more such entities, shall not be subject to civil liability arising under any law of this state for any claim arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food.

(Code 1981, § 26-2-432 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

26-2-433. Exception to nonliability of food distributors.

The limitation of liability provided for in Code Section 26-2-432 shall not preclude civil liability that might otherwise exist under the law of this state where the claimed injury does not arise out of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food but is instead based on other cognizable injuries arising from:

  1. A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of this state or of the United States and the claimed injury was proximately caused by such violation; or
  2. Any other material violation of federal or state statutes or regulations applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that such violation is knowing and willful, the claim is brought by a party authorized to bring suit under such law, and the claimed injury was proximately caused by such violation. (Code 1981, § 26-2-433 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

26-2-434. Requirements of complaint.

  1. In any action exempted under paragraph (1) of Code Section 26-2-433, the complaint initiating such action shall state with particularity the following:
    1. The statute, regulation, or other law of this state or of the United States that was allegedly violated;
    2. The facts that are alleged to constitute a material violation of such statute, regulation, or other law; and
    3. The facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff.
  2. In any action exempted under paragraph (2) of Code Section 26-2-433, in addition to the requirements of subsection (a) of this Code section, the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was with intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers.
  3. For purposes of applying this article, the requirements of this Code section are hereby deemed part of the substantive law of this state and not merely in the nature of procedural provisions. (Code 1981, § 26-2-434 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

26-2-435. Discovery.

In any action exempted under Code Section 26-2-433, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. During the pendency of any stay of discovery pursuant to this Code section, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of such party and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party under Title 9.

(Code 1981, § 26-2-435 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

26-2-436. Applicability.

The provisions of this article shall apply to all covered claims pending on July 1, 2005, and all claims filed thereafter, regardless of when the claim arose.

(Code 1981, § 26-2-436 , enacted by Ga. L. 2004, p. 767, § 1; Ga. L. 2005, p. 469, § 1/HB 196.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, "July 1, 2005," was substituted for "the effective date of this Code section" in this Code section.

ARTICLE 17 COOPERATION IN IMPLEMENTATION OF FEDERAL FOOD SAFETY MODERNIZATION ACT

Effective date. - This article became effective July 1, 2017.

26-2-440. Definitions.

As used in this article, the term:

  1. "Administration" means the United States Food and Drug Administration.
  2. "Department" means the Georgia Department of Agriculture.
  3. "Federal act" means the federal Food Safety Modernization Act, 21 U.S.C. Section 301, et seq. (Code 1981, § 26-2-440 , enacted by Ga. L. 2017, p. 215, § 1/HB 176; Ga. L. 2018, p. 1112, § 26/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in the introductory language of this Code section.

26-2-441. Designation of cooperating agency.

  1. The department, acting by and through its commissioner, is designated as the state agency responsible for cooperating with the administration under the provisions of the federal act.
  2. In furtherance of its responsibilities under subsection (a) of this Code section, the department may:
    1. Conduct inspections and take other regulatory actions as necessary to assist the administration in enforcement of the federal act; and
    2. Enter into cooperative agreements with the administration to carry out the provisions of the federal act. (Code 1981, § 26-2-441 , enacted by Ga. L. 2017, p. 215, § 1/HB 176.)

CHAPTER 3 STANDARDS, LABELING, AND ADULTERATION OF DRUGS AND COSMETICS

Sec.

Cross references. - Permits for persons producing and manufacturing serums and vaccines for use in poultry and animals, T. 4, C. 9.

Law reviews. - For article, "Liability for Vaccine Injury: The United States, the European Union, and the Developing World," see 67 Emory L.J. 415 (2018). For article, "Free Speech and Off-Label Rights," see 54 Ga. L. Rev. 463 (2020). For comment, "Process Is Due: The World Health Organization Prequalification of Medicines," see 68 Emory L.J. 645 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 47, 189 et seq.

C.J.S. - 28 C.J.S. Drugs and Narcotics, § 210 et seq.

28A C.J.S. Drugs and Narcotics, § 342 et seq.

ALR. - Products liability: sufficiency of evidence to support product misuse defense in actions concerning food, drugs, and other products intended for ingestion, 58 A.L.R.4th 7.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning cosmetics and other personal care products, 58 A.L.R.4th 40.

Products liability: mascara and other eye cosmetics, 63 A.L.R.4th 105.

26-3-1. Short title.

This chapter may be cited as the "Georgia Drug and Cosmetic Act."

(Ga. L. 1961, p. 529, § 1; Code 1933, § 79A-1001, enacted by Ga. L. 1967, p. 296, § 1.)

JUDICIAL DECISIONS

Georgia Drug and Cosmetic Act is not unconstitutional as violating the provisions of Ga. Const. 1945, Art. III, Sec. VII, Para. VIII (see now Ga. Const. 1983, Art. III, Sec. V, Para. III) which prohibits the inclusion of more than one subject matter in any act of the General Assembly. Crumley v. Head, 225 Ga. 246 , 167 S.E.2d 651 (1969) (decided under former Ga. Const. 1945, Art. III, Sec. VII, Para. VIII).

26-3-2. Definitions.

As used in this chapter, the term:

  1. "Advertisement" means all representations disseminated in any manner or by any means other than by labeling for the purpose of inducing or which are likely to induce, directly or indirectly, the purchase of drugs, devices, or cosmetics.
  2. "Board" means the State Board of Pharmacy.
  3. "Contaminated with filth" applies to any drug, device, or cosmetic not securely protected from dust, dirt, and, as far as may be necessary by all reasonable means, from all foreign or injurious contamination.
  4. "Cosmetic" means:
    1. Articles intended to be rubbed, poured, sprinkled, sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; and
    2. Articles intended for use as a component of any such articles, except that such term shall not include soap.
  5. "Device" (except when used in paragraph (10) of Code Section 26-3-3, paragraph (3) of Code Section 26-3-8, paragraph (3) of Code Section 26-3-12, and Code Section 26-3-14) means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended:
    1. For use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man; or
    2. To affect the structure or any function of the body of man.
  6. "Drug" means:
    1. Articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;
    3. Articles other than food intended to affect the structure or any function of the body of man;
    4. Articles intended for use as a component of any article specified in subparagraph (A), (B), or (C), but does not include devices or their components, parts, or accessories.
  7. "Federal act" means the Federal Food, Drug, and Cosmetic Act (Title 21 U.S.C. Section 301, et seq.; 52 Stat. 1040, et seq.).
  8. "Immediate container" does not include package liners.
  9. "Label" means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this chapter that any word, statement, or other information appearing on the label shall not be considered to be complied with unless such word, statement, or other information also appears on or is easily legible through any existing outside container or wrapper.
  10. "Labeling" means all labels and other written, printed, or graphic matters:
    1. Upon an article or any of its containers or wrappers; or
    2. Accompanying such article.
  11. "New drug" means:
    1. Any drug the composition of which is such that such drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety of drugs as safe for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or
    2. Any drug the composition of which is such that such drug, as a result of investigations to determine its safety for use under such conditions, has become so recognized, but which has not been used to a material extent or for a material time under such conditions other than in such investigations.
  12. "Official compendium" means the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them.
  13. "Person" means an individual, partnership, corporation, company, or association.

    (Ga. L. 1961, p. 529, § 2; Code 1933, § 79A-1002, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1982, p. 3, § 26; Ga. L. 2003, p. 140, § 26.)

Cross references. - State Board of Pharmacy generally, § 26-4-20 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1895, § 2103 are included in the annotations for this Code section.

Adulterated drugs can include those in official compendia. - Former Code 1895, § 2103 referred only to drugs and preparations recognized by standard compendia, such as the United States Pharmacopoeia or the Homeopathic Pharmacopoeia of the United States, but also to drugs not part of the official compendia. Lewis v. Brannen, 6 Ga. App. 419 , 65 S.E. 189 (1909) (decided under former Code 1895, § 2103).

Vitamins, minerals, and food supplements may be treated as drugs under the Georgia Chiropractic Practices Act, O.C.G.A. § 43-9-1 et seq., even though such substances are treated as foods under the Georgia Drug and Cosmetic Act, O.C.G.A. § 26-3-1 et seq. Foster v. Georgia Bd. of Chiropractic Exmrs., 257 Ga. 409 , 359 S.E.2d 877 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, §§ 2, 6. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 1. 32 Am. Jur. 2d, False Pretenses, § 75.

C.J.S. - 20 C.J.S., Cosmetic, § 1 et seq. 28 C.J.S., Drugs and Narcotics, §§ 19-21. 37 C.J.S., Fraud, § 85 et seq.

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

What is "device" within meaning of § 201(h) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(h)), 129 A.L.R. Fed. 343.

What is "new drug" within meaning of § 201(p) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(p)), 133 A.L.R. Fed. 229.

26-3-3. Prohibited acts.

The following acts and the causing thereof within this state are prohibited:

  1. The manufacture, sale or delivery, or holding or offering for sale of any drug, device, or cosmetic that is adulterated or misbranded;

    (1.1) The holding of any drug, device, or cosmetic that is adulterated or misbranded;

  2. The adulteration or misbranding of any drug, device, or cosmetic;
  3. The receipt in commerce of any drug, device, or cosmetic that is adulterated or misbranded and the delivery or proffered delivery thereof for pay or otherwise;
  4. The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of Code Section 26-3-10;
  5. The dissemination of any false advertisement;
  6. The refusal to permit entry or inspection or to permit the taking of a sample as authorized by Code Section 26-3-17;
  7. The giving of a guarantee or undertaking which is false except by a person who relied on a guarantee or undertaking to the same effect signed by and containing the name and address of the person residing in this state from whom he received the drug, device, or cosmetic in good faith;
  8. The removal or disposal of a detained or embargoed article in violation of Code Section 26-3-4;
  9. The alteration, mutilation, destruction, obliteration, removal of the whole or any part of the labeling of, or the doing of any other act with respect to a drug, device, or cosmetic if such act is done while such article is held for sale and results in such article being misbranded;
  10. Forging, counterfeiting, simulating, falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by regulations promulgated under this chapter; and
  11. The use on the labeling of any drug or in any advertisement relating to such drug of any representation or suggestion that any application with respect to such drug is effective under or complies with Code Section 26-3-10.

    (Ga. L. 1961, p. 529, § 3; Code 1933, § 79A-1003, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1996, p. 1609, § 1.)

Law reviews. - For article, "Products Liability Law in Georgia: Is Change Coming?," see 10 Ga. St. B.J. 353 (1974).

JUDICIAL DECISIONS

Failure to warn claims against generic drug manufacturers not preempted by federal law. - Trial court erred by dismissing the plaintiff's state-law failure to warn claims asserted against the generic drug manufacturers because the court improperly concluded that those claims were preempted by federal law. PLIVA, Inc. v. Dement, 335 Ga. App. 398 , 780 S.E.2d 735 (2015), cert. denied, No. S16C0503, 2016 Ga. LEXIS 234 (Ga. 2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 19-21, 65-68.

ALR. - Validity, construction, and application of statutes or ordinances directed against false or fraudulent statements in advertisements, 89 A.L.R. 1004 .

Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Liability of manufacturer or seller for injury caused by drug or medicine sold, 79 A.L.R.2d 301.

Liability of manufacturer or seller of hair preparations, cosmetics, soaps and other personal cleansers, and the like, for injury caused by the product, 79 A.L.R.2d 431; 46 A.L.R.4th 1197; 54 A.L.R.4th 574; 63 A.L.R.4th 105.

Validity of statute or ordinance forbidding pharmacist to advertise prices of drugs or medicines, 44 A.L.R.3d 1301.

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

26-3-4. Detention of adulterated or misbranded drugs and cosmetics.

  1. Whenever a duly authorized agent of the State Board of Pharmacy finds or has probable cause to believe that any drug or cosmetic is adulterated or so misbranded as to be dangerous or fraudulent within the meaning of this chapter, 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 the 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 permission.
  2. When an article detained or embargoed under subsection (a) of this Code section has been found by such agent to be adulterated or misbranded, he shall petition the judge of the superior court of the appropriate county for an action 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 tags or other markings.
  3. 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 the State Board of Pharmacy; and all court costs and fees, storage, and other proper expenses shall be taxed against the claimant of such articles 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 proper order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the State Board of Pharmacy. The expense of such supervision shall be paid by the claimant. Such article shall be returned to the claimant of the article on representation to the court by the State Board of Pharmacy that the article is no longer in violation of this chapter and that the expense of such supervision has been paid.
  4. Whenever the State Board of Pharmacy or any of its authorized agents shall find in any room, building, vehicle for transportation, or other structure any drug, device, or cosmetic which is unsound or contains any filthy, decomposed, or putrid substance or that may be poisonous or deleterious to health or otherwise unsafe, the same being declared to be a nuisance, the State Board of Pharmacy or its authorized agents shall immediately condemn or destroy the same.

    (Ga. L. 1961, p. 529, § 6; Code 1933, § 79A-1005, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1984, p. 22, § 26.)

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 171-173.

ALR. - Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568 ; 50 A.L.R. 97 .

Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-5. Duty of prosecuting attorney upon report of violation; notice to possible defendant.

It shall be the duty of each prosecuting attorney to whom the State Board of Pharmacy reports any violation of this chapter to cause appropriate criminal proceedings to be instituted in the appropriate court without delay and to prosecute same in the manner provided by law. Before any violation of this chapter is reported to any prosecuting attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the State Board of Pharmacy or its designated agent, either orally or in writing, in person, or by attorney with regard to such contemplated proceedings.

(Ga. L. 1961, p. 529, § 7; Code 1933, § 79A-1006, enacted by Ga. L. 1967, p. 296, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Board can still notify federal authorities when violator outside jurisdiction. - When the alleged violator is outside the jurisdiction of the State Board of Pharmacy, the recourse of the Board lies in the notification of the federal authorities charged with the enforcement of federal laws in the area of nonmailable items and the regulation of drugs, medicines, and poisons. 1969 Op. Att'y Gen. No. 69-121.

RESEARCH REFERENCES

C.J.S. - 28 C.J.S. Drugs and Narcotics, § 188 et seq.

26-3-6. Minor violations.

Nothing in this chapter shall be construed as requiring the State Board of Pharmacy to report minor violations of this chapter for the institution of proceedings under this chapter, whenever the State Board of Pharmacy believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

(Ga. L. 1961, p. 529, § 8; Code 1933, § 79A-1007, enacted by Ga. L. 1967, p. 296, § 1.)

26-3-7. When a drug or device deemed adulterated.

A drug or device shall be deemed to be adulterated:

    1. If it consists in whole or in part of any filthy, putrid, or decomposed substance;
    2. If it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have been rendered injurious to health;
    3. If it is a drug and its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health; or
    4. If it is a drug and it bears or contains for purposes of coloring only a coal-tar color other than one from a batch certified under the authority of the federal act;
  1. If it purports to be or is represented as a drug the name of which is recognized in an official compendium and its strength differs from or its quality or purity falls below the standard set forth in such compendium. Such determination as to strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in such compendium or, in the absence of or inadequacy of such tests or methods of assay, those prescribed under authority of the federal act. No drug defined in an official compendium shall be deemed to be adulterated under this paragraph because it differs from the standard of strength, quality, or purity therefor set forth in such compendium if its difference in strength, quality, or purity from such standard is plainly stated on its label. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia;
  2. If it is not subject to the provisions of paragraph (2) of this Code section and its strength differs from or its purity or quality falls below that which it purports or is represented to possess; or
  3. If it is a drug and any substance has been:
    1. Mixed or packed therewith so as to reduce its quality or strength; or
    2. Substituted wholly or in part therefor.

      (Ga. L. 1961, p. 529, § 9; Code 1933, § 79A-1008, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1984, p. 22, § 26.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, a comma was deleted following "differs from" in the first sentence of paragraph (2).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2103 are included in the annotations for this Code section.

Adulterated drugs can include those not in official compendia. - Former Code 1895, § 2103 referred not only to drugs and preparations recognized by the standard United States or Homeopathic Pharmacopoeia but also to drugs not part of the official compendia. Lewis v. Brannen, 6 Ga. App. 419 , 65 S.E. 189 (1909) (decided under former Code 1895, § 2103).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14 et seq.

26-3-8. When a drug or device deemed misbranded.

  1. A drug or device shall be deemed to be misbranded:
    1. If its labeling is false or misleading in any particular;
    2. If in package form unless it bears a label containing:
      1. The name and place of business of the manufacturer, packer, or distributor; and
      2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, provided that reasonable variations shall be permitted and exemptions as to small packages shall be established by regulations prescribed by the State Board of Pharmacy;
    3. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with conspicuousness as compared with other words, statements, designs, or devices in the labeling and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
    4. If it is for use by man and contains any quantity of the narcotic or hypnotic substance alphaeucaine, barbituric acid, betaeucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote, sulfonmethane, or any chemical derivative of such substance which has been found after investigation by the State Board of Pharmacy to be and by regulations under this chapter designated as habit forming, or any synthetic narcotic or drug unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement "Warning - May be habit forming";
    5. If it is a drug and is not designated solely by a name recognized in an official compendium unless its label bears:
      1. The common or usual name of the drug if there is such; and
      2. In case it is fabricated from two or more ingredients, the common or usual name of each active ingredient including the kind and quantity or proportion of any alcohol and also including, whether active or not, the name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of any such substance contained therein, provided that to the extent that compliance with the requirements of this subparagraph is impracticable, exemptions shall be established by regulations promulgated by the State Board of Pharmacy;
      1. Unless its labeling bears:
        1. Adequate directions for use; and
        2. Adequate warnings against use by children or in those pathological conditions where its use may be dangerous to health or against unsafe dosage or methods or duration of administration or application in such manner and form as are necessary for the protection of users.
      2. Where any requirement of division (i) of subparagraph (A) of this paragraph as applied to any drug or device is not necessary for the protection of the public health, the State Board of Pharmacy shall promulgate regulations exempting such drug or device from such requirements;
    6. If it is purported to be a drug the name of which is recognized in an official compendium unless it is packaged and labeled as prescribed therein, provided that the method of packing may be modified with consent of the State Board of Pharmacy. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be subject to the requirements of the United States Pharmacopoeia with respect to packaging and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia;
    7. If it has been found by the State Board of Pharmacy to be a drug liable to deterioration unless it is packaged in such form and manner and its label bears a statement or such precautions as the State Board of Pharmacy shall by regulations require as necessary for the protection of public health. No such regulation shall be established for any drug recognized in an official compendium until the State Board of Pharmacy shall have informed the appropriate body charged with the revision of such compendium of the need for such packaging or labeling requirements and such body shall have failed within a reasonable time to prescribe such requirements;
      1. If it is a drug and its container is so made, formed, or filled as to be misleading;
      2. If it is an imitation of another drug; or
      3. If it is offered for sale under the name of another drug;
    8. If it is dangerous to health when used in the dosage or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof; or
    9. If it is a drug intended for use by man which:
      1. Is a habit-forming drug to which paragraph (4) of this subsection applies;
      2. Because of its toxicity or other potentiality for harmful effect, the method of use, or the collateral measures necessary to its use is not safe for use except under the supervision of a practitioner licensed by law to administer such drug; or
      3. Is limited by an effective application under Section 505 of the federal act to use under the professional supervision of a practitioner licensed by law to administer such drug unless it is dispensed only:
        1. Upon a written prescription of a practitioner licensed by law to administer such drug;
        2. Upon an oral prescription of such practitioner which is reduced promptly to writing and filed by the pharmacist; or
        3. By refilling any such written or oral prescription if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist.
  2. Any drug dispensed by filling or refilling a written or oral prescription of a practitioner licensed by law to administer such drug shall be exempt from the requirements of this Code section except paragraphs (1) and (9) of subsection (a) of this Code section if the drug bears a label containing the name and address of the dispenser, the serial number and date of the prescription or of its filling, the name of the prescriber, and, if stated in the prescription, the name of the patient and the directions for use and cautionary statements, if any, contained in such prescription. This exemption shall not apply to any drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail or to a drug dispensed in violation of paragraph (11) of subsection (a) of this Code section.

    (Ga. L. 1906, p. 83, § 5; Civil Code 1910, § 2104; Ga. L. 1913, p. 44, §§ 1, 2; Code 1933, § 42-110; Ga. L. 1947, p. 1463, § 2; Ga. L. 1961, p. 529, § 10; Code 1933, § 79A-1009, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1984, p. 22, § 26; Ga. L. 1985, p. 149, § 26; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, inserted "or" at the end of paragraph (a)(10).

Cross references. - Deceptive trade practices generally, § 10-1-370 et seq.

Controlled substances and dangerous drugs, T. 16, C. 13.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, in subparagraph (a)(2)(B), ", provided that" was substituted for "; provided, that" and a semicolon was substituted for a period following "Pharmacy"; in paragraph (a)(4), a comma was deleted following "Pharmacy"; and, in subparagraph (a)(5)(B), a comma was deleted following "such substance".

U.S. Code. - Section 505 of the Federal Food, Drug, and Cosmetic Act, referred to in subparagraph (a)(11)(C) of this Code section, is codified at 21 U.S.C. § 355.

Law reviews. - For note, "Does the National Childhood Vaccine Injury Compensation Act Really Prohibit Design Defect Claims?: Examining Federal Preemption in Light of American Home Products Corp. v. Ferrari," see 26 Ga. St. U.L. Rev. 617 (2010). For comment on Givens v. Lederle, 556 F.2d 1341 (5th Cir. 1977) which extends a manufacturer's duty to warn physicians about affects the drugs may have on third person bystanders, see 29 Mercer L. Rev. 643 (1978).

JUDICIAL DECISIONS

Failure to warn claims against generic drug manufacturers not preempted by federal law. - Trial court erred by dismissing the plaintiff's state-law failure to warn claims asserted against the generic drug manufacturers because the court improperly concluded that those claims were preempted by federal law. PLIVA, Inc. v. Dement, 335 Ga. App. 398 , 780 S.E.2d 735 (2015), cert. denied, No. S16C0503, 2016 Ga. LEXIS 234 (Ga. 2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14.

ALR. - Constitutionality of requirement of disclosure by label of materials or ingredients of articles sold or offered for sale, 57 A.L.R. 686 .

Mistake as to chemical or product furnished or misdescription thereof by label or otherwise as basis of liability for personal injury or death resulting from combination with other chemical, 123 A.L.R. 939 .

Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Liability of manufacturer or seller for injury or death allegedly caused by failure to warn regarding danger in use of vaccine or prescription drug, 94 A.L.R.3d 748.

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-9. Name and address of manufacturer on label of drugs requiring prescription.

  1. Any drug product designed for human usage which is branded as follows:

    "Caution: Federal law prohibits dispensing without prescription"

    shall bear on the label the name and address of the manufacturer.

  2. For the purposes of this Code section, the term "manufacturer" includes any of the following parties:
    1. The person who is responsible for the production of the drug and maintains control over the processing of same;
    2. The person to whose specifications the drug is manufactured and who reviews adherence to such specifications through a drug testing program;
    3. The person who manufactures the drug product and then packs and ships the said drug products on behalf of the person designated on the label as being responsible for the drug product; or
    4. The person who manufactures the drug product and which product is distributed by the person designated on the label as being responsible for the drug without testing to determine adherence to specifications for manufacture.
  3. Where the drug product is manufactured by an affiliated or subsidiary company of the distributor, the name and address of the distributor only need appear.

    (Code 1933, § 79A-1009.1, enacted by Ga. L. 1975, p. 691, § 1; Ga. L. 1982, p. 3, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14.

26-3-10. Selling, delivering, or giving away of new drugs; exemptions.

  1. No person shall sell, deliver, offer for sale, hold for sale, or give away any new drug unless:
    1. An application with respect thereto has become effective under Section 505 of the federal act; or
    2. When not subject to the federal act unless such drug has been tested and has not been found to be unsafe for use under the conditions prescribed, recommended, or suggested in the labeling thereof and prior to selling or offering such drug for sale, there has been filed with the State Board of Pharmacy an application setting forth:
      1. Full reports of investigations which have been made to show whether or not such drug is safe for use;
      2. A full list of the articles used as components of such drug;
      3. A full statement of the composition of such drug;
      4. A full description of the methods used in and the facilities and controls used for the manufacture, processing, and packing of such drug;
      5. Such samples of such drug and of the articles used as components thereof as the State Board of Pharmacy may require; and
      6. Specimens of the labeling proposed to be used for such drug.
  2. An application provided for in paragraph (2) of subsection (a) of this Code section shall become effective 60 days after the filing thereof, except that if the State Board of Pharmacy finds after due notice to the applicant and after giving him an opportunity for a hearing that the drug is not safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof, he shall prior to the effective date of the application issue an order refusing to permit the application to become effective.
  3. This Code section shall not apply:
    1. To a drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety in drugs, provided the drug is plainly labeled "For investigational use only"; or
    2. To a drug sold in the state at any time prior to the enactment of this chapter or introduced into interstate commerce at any time prior to the enactment of the federal act; or
    3. To any drug manufactured, labeled, and sold for veterinary purposes.
  4. An order refusing to permit an application under this Code section to become effective may be revoked by the State Board of Pharmacy.

    (Ga. L. 1961, p. 529, § 11; Code 1933, § 79A-1010, enacted by Ga. L. 1967, p. 296, § 1.)

U.S. Code. - Section 505 of the Federal Food, Drug, and Cosmetic Act, referred to in paragraph (a)(1) of this Code section, is codified at 21 U.S.C. § 355.

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 14 et seq., 51 et seq.

ALR. - What is "new drug" within meaning of § 201(p) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(p)), 133 A.L.R. Fed. 229.

26-3-11. When a cosmetic deemed adulterated.

  1. A cosmetic shall be deemed to be adulterated:
    1. If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual, provided that this paragraph shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: "Caution - This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness," and the labeling of which bears adequate directions for such preliminary testing;
    2. If it consists in whole or in part of any filthy, putrid, or decomposed substance;
    3. If it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered injurious to health;
    4. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or
    5. If it is not a hair dye and it bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.
  2. For the purpose of paragraphs (1) and (5) of subsection (a) of this Code section, the term "hair dye" shall not include eyelash dyes or eyebrow dyes.

    (Ga. L. 1961, p. 529, § 12; Code 1933, § 79A-1011, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

C.J.S. - 2 C.J.S., Adulteration, §§ 2, 4.

ALR. - Liability of manufacturer or seller for injury or death allegedly caused by failure to warn regarding danger in use of vaccine or prescription drug, 94 A.L.R.3d 748.

26-3-12. When a cosmetic deemed misbranded.

A cosmetic shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular;
  2. If in package form unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor; and
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, provided that reasonable variations shall be permitted and exemptions as to small packages shall be established by regulations prescribed by the State Board of Pharmacy;
  3. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs, or devices in the labeling and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; or
  4. If its container is so made, formed, or filled as to be misleading.

    (Ga. L. 1961, p. 529, § 13; Code 1933, § 79A-1012, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1984, p. 22, § 26.)

Cross references. - Deceptive trade practices generally, § 10-1-370 et seq.

RESEARCH REFERENCES

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

26-3-13. When a drug, device, or cosmetic advertisement deemed false.

  1. An advertisement of a drug, device, or cosmetic shall be deemed to be completely false if it is false or misleading in any particular.
  2. For the purpose of this chapter the advertisement of a drug or device representing it to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poisoning, bone disease, Bright's disease, cancer, carbuncles, cholecystitis, diabetes, diphtheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis or infantile paralysis, prostate gland disorders, pylelitis, scarlet fever, sexual impotence, sinus infection, smallpox, tuberculosis, tumors, typhoid, uremia, or sexually transmitted disease shall also be deemed to be false, except that no advertisement not in violation of subsection (a) of this Code section shall be deemed to be false under this subsection if it is disseminated only to members of the medical, dental, or veterinary professions, appears only in the scientific periodicals of these professions, or is disseminated only for the purpose of public health education by persons not commercially interested directly or indirectly in the sale of such drugs or devices, provided that whenever the State Board of Pharmacy determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named in this subsection, the board shall by regulation authorize the advertisement of drugs having curative or therapeutic effect for such disease subject to such conditions and restrictions as the board may deem necessary in the interest of public health, provided that this subsection shall not be construed as indicating that self-medication for diseases other than those named herein is safe or efficacious.

    (Ga. L. 1961, p. 529, § 14; Code 1933, § 79A-1013, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1982, p. 3, § 26; Ga. L. 2020, p. 55, § 8/SB 372.)

The 2020 amendment, effective July 1, 2020, substituted "sexually transmitted" for "venereal" in the middle of subsection (b).

Cross references. - False advertising generally, § 10-1-420 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, §§ 2, 6. 32 Am. Jur. 2d, False Pretenses, § 75.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 14-20. 37 C.J.S., Fraud, § 67 et seq.

ALR. - Validity, construction, and application of statutes or ordinances directed against false or fraudulent statements in advertisements, 89 A.L.R. 1004 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-14. Factors taken into account in determining whether label or advertisement is misleading.

If an article is alleged to be misbranded because the labeling is misleading or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading there shall be taken into account, among other things not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual.

(Ga. L. 1961, p. 529, § 2; Code 1933, § 79A-1002, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, §§ 2, 6. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 1. 32 Am. Jur. 2d, False Pretenses, § 75.

C.J.S. - 20 C.J.S., Cosmetic, 1 et seq. 28 C.J.S., Drugs and Narcotics, §§ 2, 19-21. 37 C.J.S., Fraud, § 85 et seq.

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-15. Labeling or advertisement of a drug as an antiseptic.

The representation of a drug in its labeling or advertisement as an antiseptic shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be or represented as an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or such other use as involves prolonged contact with the body.

(Ga. L. 1961, p. 529, § 2; Code 1933, § 79A-1002, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, §§ 2, 6. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 1. 32 Am. Jur. 2d, False Pretenses, § 75.

C.J.S. - 20 C.J.S., Cosmetic, 1 et seq. 28 C.J.S., Drugs and Narcotics, §§ 2, 19-21. 37 C.J.S., Fraud, § 85 et seq.

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-16. Promulgation of regulations; conformity with federal act.

  1. The authority to promulgate regulations for the efficient enforcement of this chapter is vested in the State Board of Pharmacy. The board is authorized to make the regulations promulgated under this chapter conform insofar as practicable with those promulgated under the federal act.
  2. No drug, device, or cosmetic which is subject to and complies with regulations promulgated under the provisions of the Federal Food, Drug, and Cosmetic Act relating to adulteration and misbranding shall be deemed to be adulterated or misbranded in violation of this chapter because of its failure to comply with regulations promulgated under this chapter insofar as the regulations are in conflict with regulations relating to adulteration and misbranding under the Federal Food, Drug, and Cosmetic Act.

    (Ga. L. 1961, p. 529, § 15; Code 1933, § 79A-1014, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82, 107. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 1119 et seq.

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14 et seq.

26-3-17. Inspection of factories, warehouses, establishments, or vehicles; samples and specimens.

The State Board of Pharmacy or its duly authorized agent shall have free access at all reasonable times to any factory, warehouse, or establishment in which drugs, devices, or cosmetics are manufactured, processed, packed, or held for introduction into commerce or to enter any vehicle being used to transport or hold such drugs, devices, or cosmetics in commerce for the purpose:

  1. Of inspecting such factory, warehouse, establishment, or vehicle to determine if any of the provisions of this chapter are being violated; or
  2. To secure samples or specimens of any drug, device, or cosmetic after paying or offering to pay for such sample. It shall be the duty of the State Board of Pharmacy to make or cause to be made examinations of samples secured under this Code section to determine whether or not this chapter is being violated.

    (Ga. L. 1961, p. 529, § 16; Code 1933, § 79A-1015, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14.

26-3-18. Assistance in enforcement from Department of Agriculture or Department of Public Health.

In addition to the remedies provided in this chapter and to provide for more efficient enforcement of this chapter, the State Board of Pharmacy or the director of the Georgia Drugs and Narcotics Agency may ask the Department of Agriculture and the Department of Public Health for assistance; and, in such event, either or both such departments may render such assistance. Any employee or agent of either such department engaged in the rendering of such assistance shall be an authorized agent of the board.

(Ga. L. 1961, p. 529, § 16A; Code 1933, § 79A-1016, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1977, p. 625, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

26-3-19. Reports and publications by State Board of Pharmacy.

  1. The State Board of Pharmacy may cause to be published from time to time reports summarizing all judgments, decrees, and court orders which have been rendered under this chapter, including the nature of the charge and the disposition thereof.
  2. The board may also cause to be disseminated such information regarding drugs, devices, and cosmetics as the board deems necessary in the interest of public health and the protection of the consumer against fraud.
  3. Nothing in this Code section shall be construed to prohibit the board from collecting, reporting, and illustrating the results of the investigations of the board.

    (Ga. L. 1961, p. 529, § 17; Code 1933, § 79A-1017, enacted by Ga. L. 1967, p. 296, § 1.)

26-3-20. Injunctions for violations of Code Section 26-3-3.

In addition to the remedies provided for in this chapter, the State Board of Pharmacy is authorized to bring an action in the appropriate court of the county for an injunction. Such court shall have jurisdiction, upon hearing and for cause shown to grant a temporary or permanent injunction restraining any person from violating Code Section 26-3-3, notwithstanding whether or not there exists an adequate remedy at law.

(Ga. L. 1961, p. 529, § 4; Code 1933, § 79A-1004, enacted by Ga. L. 1967, p. 296, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Board's remedies when violator outside Board's jurisdiction. - When the alleged violator is outside the jurisdiction of the State Board of Pharmacy, the recourse of the Board lies in the notification of the federal authorities charged with the enforcement of federal laws in the area of nonmailable items and the regulation of drugs, medicines, and poisons. 1969 Op. Att'y Gen. No. 69-121.

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 168.

26-3-21. Construction of chapter.

The provisions of this chapter regarding the selling of drugs, devices, or cosmetics shall be considered to include the manufacture, production, processing, packing, exposure, offering, possession, and holding of any such article for sale, the sale, dispensing, and giving of any such article, and the supplying or applying of any such articles in the conduct of any drug or cosmetic establishment.

(Ga. L. 1961, p. 529, § 2; Code 1933, § 79A-1002, enacted by Ga. L. 1967, p. 296, § 1.)

Cross references. - Insurance coverage for prescription drugs used in manner different than use authorized by FDA, § 33-24-59.11 .

JUDICIAL DECISIONS

Georgia Drug and Cosmetic Act is not unconstitutional as violating the provisions of Ga. Const. 1945, Art. III, Sec. VII, Para. VIII (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), which prohibits the inclusion of more than one subject matter in any act of the General Assembly. Crumley v. Head, 225 Ga. 246 , 167 S.E.2d 651 (1969) (decided under former Ga. Const. 1945, Art. III, Sec. VII, Para. VIII).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Advertising, §§ 2, 6. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 1. 32 Am. Jur. 2d, False Pretenses, § 75.

C.J.S. - 20 C.J.S., Cosmetic, 1 et seq. 28 C.J.S., Drugs and Narcotics, §§ 2, 14-20. 37 C.J.S., Fraud, § 85 et seq.

ALR. - Provisions of statutes against misbranding or false labeling of food, drug, or cosmetic products, as applicable to literature other than that attached to product itself, 143 A.L.R. 1453 .

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

26-3-22. Other laws unaffected by chapter.

  1. This chapter shall be cumulative and supplemental to any and all existing laws relating to the subject matter of drugs. Specifically, nothing contained in this chapter shall be so construed as to relieve any person, firm, or corporation from complying with any requirements as prescribed by Chapter 4 of this title, Article 3 of Chapter 13 of Title 16, the "Dangerous Drug Act," Article 2 of Chapter 13 of Title 16, the "Georgia Controlled Substances Act," or Title 21 C.F.R. 210, the federal "current good manufacturing practices in manufacturing, processing, packing, or holding of drugs: general."
  2. Nothing contained in this chapter shall amend, alter, supersede, or replace the laws of this state relative to feed, food, animal remedies, hog cholera serum or virus, drugs permitted to be added to feeds, bottling supplies, nor the duty and authority of the Commissioner of Agriculture.

    (Code 1933, § 79A-1018, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1986, p. 1555, § 8; Ga. L. 1999, p. 81, § 26.)

JUDICIAL DECISIONS

Ga. L. 1967, p. 296, § 1 is not unconstitutional as violating the provisions of Ga. Const. 1945, Art. III, Sec. VII, Para. VIII (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), which prohibits the inclusion of more than one subject matter in any act of the General Assembly. Crumley v. Head, 225 Ga. 246 , 167 S.E.2d 651 (1969).

26-3-23. Penalty for impeding, obstructing, hindering, or preventing drug agent from performance of duty.

Any manufacturer, dealer, wholesaler, or other person who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent any drug agent or other person in the performance of his duty in collecting samples or otherwise in connection with this chapter shall be guilty of a misdemeanor.

(Code 1933, § 79A-9914, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1977, p. 625, § 1.)

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 65-68, 188 et seq.

26-3-24. Penalty for violation of chapter.

Any person who violates this chapter shall be guilty of a misdemeanor.

(Code 1933, § 79A-9912, enacted by Ga. L. 1967, p. 296, § 1.)

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 188 et seq.

ALR. - Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568 ; 50 A.L.R. 97 .

CHAPTER 4 PHARMACISTS AND PHARMACIES

General Provisions.

State Board of Pharmacy.

Practice of Pharmacy.

Discipline.

Prescription Drugs.

Pharmacies.

Practitioners of the Healing Arts.

Third-Party Prescription Programs.

Poisons.

Nuclear Pharmacy Law.

Utilization of Unused Prescription Drugs.

Prescription Medication Integrity Act.

Safe Medications Practice Act.

Editor's notes. - Ga. L. 1998, p. 686, § 1, effective July 1, 1998, repealed the Code sections formerly codified at this chapter and enacted the current chapter. The former chapter consisted of Code Sections 26-4-1 through 26-4-12 (Article 1), 26-4-30 through 26-4-41 (Article 2, Part 1), 26-4-50 through 26-4-55 (Article 2, Part 2), 26-4-70 through 26-4-87 (Article 2, Part 3), 26-4-100 through 26-4-123 (Article 2, Part 4), 26-4-130 through 26-4-138 (Article 2, Part 4A), 26-4-140 through 26-4-148 (Article 2, Part 5), 26-4-160 through 26-4-163 (Article 2, Part 6), and was based on Code 1933, § 79A-101 et seq., enacted by Ga. L. 1967, p. 296, § 1 and Ga. L. 1860, p. 54, § 1, Ga. L. 1876, p. 24 §§ 1-3, Ga. L. 1882, § 4557(a) et seq., Penal Code 1895, § 470 et seq., Penal Code 1910, § 454 et seq., Ga. L. 1927, p. 291, § 14, Ga. L. 1931, p. 7, § 89, Ga. L. 1933, § 42-701 et seq., Ga. L. 1933, § 84-1314, Ga. L. 1939, p. 228, § 1-3, Ga. L. 1945, p. 421, § 1, Ga. L. 1947, p. 734, §§ 1-2, Ga. L. 1947, p. 1463, §§ 1, 4, Ga. L. 1947, p. 1471, §§ 5, 7, Ga. L. 1953, p. 395, § 1, Ga. L. 1956, p. 345, § 1, Ga. L. 1956, p. 724, § 2, Ga. L. 1957, p. 92, § 1, Ga. L. 1961, p. 529, §§ 19-20, 25, Ga. L. 1962, p. 105, §§ 17, 18, 20, 21, Ga. L. 1964, p. 276, § 1, Ga. L. 1966, p. 254, § 1, Ga. L. 1969, p. 936, § 1, Ga. L. 1970, p. 215, § 1, Ga. L. 1970, p. 465, § 1, Ga. L. 1972, p. 1015, §§ 19, 21, Ga. L. 1974, p. 221, § 2, Ga. L. 1974, p. 535, § 1-2, Ga. L. 1975, p. 97, § 1, Ga. L. 1976, p. 675, § 1, Ga. L. 1977, p. 625, §§ 1-6, Ga. L. 1977, p. 1093, § 1, Ga. L. 1978, p. 1668, §§ 1, 4, Ga. L. 1978, p. 1962, §§ 1-3, Ga. L. 1978, p. 1668, § 1-4, Ga. L. 1978, p. 1962, §§ 1, 3, Ga. L. 1979, p. 859, § 1-2, Ga. L. 1980, p. 1746, §§ 1, 1.1, 1.2, 1.3, Ga. L. 1980, p. 1761, § 1, Ga. L. 1981, p. 557, §§ 1, 6, Ga. L. 1981, p. 782, § 1-2, Ga. L. 1982, p. 3, § 26, Ga. L. 1982, p. 1156, §§ 1, 2, 4, 6, 7, 8, 9, Ga. L. 1982, p. 1264, §§ 1,4, Ga. L. 1982, p. 2403, §§ 1, 2, 22, 23, Ga. L. 1983, p. 3, § 19, Ga. L. 1983, p. 790, §§ 1, 2, Ga. L. 1983, p. 1441, § 1, Ga. L. 1984, p. 22, § 26, Ga. L. 1985, p. 149, § 26, Ga. L. 1986, p. 10, § 26, Ga. L. 1986, p. 929, § 1, Ga. L. 1986, p. 1031, §§ 2-4, Ga. L. 1986, p. 1603, §§ 1-3, Ga. L. 1987, p. 1131, §§ 1-3, Ga. L. 1989, p. 261, § 1, Ga. L. 1989, p. 509, § 1, Ga. L. 1992, p. 6, § 26, Ga. L. 1992, p. 1307, § 1, Ga. L. 1992, p. 3137, § 43, Ga. L. 1996, p. 1425, § 1, Ga. L. 1996, p. 1609, §§ 2-9.

Administrative Rules and Regulations. - Licensure of a Pharmacist, Official Compilation of the Rules and Regulations of the State of Georgia, Joint Secretary, Professional Licensing Boards, Chapter 480-2.

Pharmacy Regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-10.

Pharmaceutical Compounding, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-11.

Hospice Emergency Drug Kits, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Nursing Homes, Long Term Care Facilities and Hospice Emergency Drug Kits, Rule 480-24-.07.

Remote Automated Medication Systems, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-37.

Law reviews. - For comment, "Process Is Due: The World Health Organization Prequalification of Medicines," see 68 Emory L.J. 645 (2019).

RESEARCH REFERENCES

Injuries from Drugs, 7 POF3d 1.

Drug Products Liability and Malpractice Cases, 17 Am. Jur. Trials 1.

Pharmacist Liability, 32 Am. Jur. Trials 375.

Pharmacist Malpractice: Trial and Litigation Strategy, 78 Am. Jur. Trials 407.

ALR. - State and local administrative inspection of and administrative warrants to search pharmacies, 29 A.L.R.4th 264.

Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.

ARTICLE 1 GENERAL PROVISIONS

26-4-1. Short title.

This chapter shall be known and may be cited as the "Georgia Pharmacy Practice Act."

(Code 1981, § 26-4-1 , enacted by Ga. L. 1998, p. 686, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-518 are included in the annotations for this Code section.

Word "apothecary" in business title not misleading if business clearly not pharmacy. - Purpose of former Code 1933, § 79A-518 (see now O.C.G.A. § 26-4-117 ) was to safeguard the public health, safety, and welfare by preventing the creation of business establishments which tend to mislead the public into believing the establishments are pharmacies when they are not; a lounge with the business title "Apothecary Lounge" would not likely mislead the public into believing that this establishment was a pharmacy. 1970 Op. Att'y Gen. No. 70-143 (decided under former Code 1933, § 79A-518).

JUDICIAL DECISIONS

Cited in Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., F. Supp. 2d (N.D. Ga. Sept. 29, 2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, § 14 et seq.

ALR. - Constitutionality of statute regulating sale of poisons, drugs, or medicines, 54 A.L.R. 730 .

Constitutionality of statute regulating sale or dispensation of medicines or drugs in original package, 54 A.L.R. 744 .

26-4-2. Liberal construction of chapter.

The practice of pharmacy in this state is declared to be a learned profession and the practice of pharmacy affects the public health, safety, and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy in this state as a learned profession, as defined in this chapter, should merit and receive the confidence of the public and that only qualified persons be permitted to engage in the practice of pharmacy to ensure the quality of drugs and related devices distributed in this state. This chapter shall be liberally construed to carry out these objectives and purposes.

(Code 1981, § 26-4-2 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-3. Legislative intent.

It is the purpose of this chapter to promote, preserve, and protect the public health, safety, and welfare by and through the effective control and regulation of the practice of pharmacy; the licensure of pharmacists; the licensure, control, and regulation of all sites or persons, in or out of this state that distribute, manufacture, or sell drugs or devices used in the dispensing and administration of drugs within this state; and the regulation and control of such other materials as may be used in the diagnosis, treatment, and prevention of injury, illness, and disease of a patient or other individual.

(Code 1981, § 26-4-3 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-4. Definition of "practice of pharmacy."

The "practice of pharmacy" means the interpretation, evaluation, or dispensing of prescription drug orders in the patient's best interest; participation in drug and device selection, drug administration, drug regimen reviews, and drug or drug related research; provision of patient counseling and the provision of those acts or services necessary to provide pharmacy care; performing capillary blood tests and interpreting the results as a means to screen for or monitor disease risk factors and facilitate patient education, and a pharmacist performing such functions shall report the results obtained from such blood tests to the patient's physician of choice; and the responsibility for compounding and labeling of drugs and devices.

(Code 1981, § 26-4-4 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 277, § 1.)

26-4-5. Definitions.

As used in this chapter, the term:

  1. "Administer" or "administration" means the provision of a unit dose of medication to an individual patient as a result of the order of an authorized practitioner of the healing arts.

    (1.05) "Authorized" means, in the case of a wholesale distributor, having a valid license pursuant to this chapter or 21 U.S.C. Section 360eee-1(a)(6) and complying with the licensure reporting requirements under 21 U.S.C. Section 360eee-3(b).

    (1.1) "Biological product" means a biological product as defined in subsection (i) of section 351 of the Public Health Service Act, 42 U.S.C. Section 262.

  2. "Board of pharmacy" or "board" means the Georgia State Board of Pharmacy.
  3. "Brand name drug" means the proprietary, specialty, or trade name used by a drug manufacturer for a generic drug and placed upon the drug, its container, label, or wrapping at the time of packaging.

    (3.1) "Cognizant member" means that member of the Georgia State Board of Pharmacy who is charged with conducting investigative interviews relating to investigations involving licensees, registrants, and permit holders.

  4. "Compounding" means the preparation, mixing, assembling, packaging, or labeling of a drug by a pharmacist or pharmacy licensed or registered by the board or by a practitioner in compliance with rules established by the board regarding pharmaceutical compounding:
    1. As the result of a practitioner's prescription drug order or initiative for a specific patient based on the relationship between the practitioner, patient, and pharmacist in the course of professional practice;
    2. For use by a practitioner in the administration of a dangerous drug or controlled substance to a patient in his or her professional practice office or setting;
    3. For use within the hospital or health system in which the pharmacy is located or in which the practitioner or pharmacist practices or for use within clinics or other entities owned or operated by such hospital or health system; or
    4. For the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale or dispensing.

      Compounding also includes the preparation of drugs in anticipation of prescription drug orders based on routine and regularly observed prescribing patterns.

  5. "Confidential information" means information maintained by the pharmacist in the patient's records or which is communicated to the patient as part of patient counseling which is privileged and may be released only to the patient or, as the patient directs, to those practitioners and other pharmacists where, in the pharmacist's professional judgment, such release is necessary to protect the patient's health and well-being; and to such other persons or governmental agencies authorized by law to receive such confidential information.
  6. "Controlled substance" means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29, Schedules I through V of 21 C.F.R. Part 1308, or both.
  7. "Dangerous drug" means any drug, substance, medicine, or medication as defined in Code Section 16-13-71.
  8. "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a drug or device from one person to another, whether or not for a consideration.
  9. "Device" means an instrument, apparatus, contrivance, or other similar or related article, including any component part or accessory, which is required under federal law to bear the label, "Caution: federal or state law requires dispensing by or on the order of a physician."
  10. "Dispense" or "dispensing" means the preparation and delivery of a drug or device to a patient, patient's caregiver, or patient's agent pursuant to a lawful order of a practitioner in a suitable container appropriately labeled for subsequent administration to, or use by, a patient.
  11. "Distribute" means the delivery of a drug or device other than by administering or dispensing.
  12. "Drug" means:
    1. Articles recognized as drugs in any official compendium, or supplement thereto, designated from time to time by the board for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;
    3. Articles, other than food, intended to affect the structure or any function of the body of humans or animals; and
    4. Articles intended for use as a component of any articles specified in subparagraph (A), (B), or (C) of this paragraph but does not include devices.
  13. "Drug regimen review" includes but is not limited to the following activities:
    1. Evaluation of any prescription drug order and patient record for:
      1. Known allergies;
      2. Rational therapy-contraindications;
      3. Reasonable dose and route of administration; and
      4. Reasonable directions for use;
    2. Evaluation of any prescription drug order and patient record for duplication of therapy;
    3. Evaluation of any prescription drug order and patient record for the following interactions:
      1. Drug-drug;
      2. Drug-food;
      3. Drug-disease; and
      4. Adverse drug reactions; and
    4. Evaluation of any prescription drug order and patient record for proper utilization, including overutilization or underutilization, and optimum therapeutic outcomes.
  14. "Drug researcher" means a person, firm, corporation, agency, department, or other entity which handles, possesses, or utilizes controlled substances or dangerous drugs, as defined in Chapter 13 of Title 16, for purposes of conducting research, drug analysis, animal training, or drug education, as such purposes may be further defined by the board, and is not otherwise registered as a pharmacist, pharmacy, drug wholesaler, distributor, supplier, or medical practitioner.

    (14.05) "Durable medical equipment" means equipment for which a prescription is required, including repair and replacement parts for such equipment, and which:

    (14.1) "Electronic data prescription drug order" means any digitalized prescription drug order transmitted to a pharmacy, by a means other than by facsimile, which contains the secure, personalized digital key, code, number, or other identifier used to identify and authenticate the prescribing practitioner in a manner required by state laws and board regulations and includes all other information required by state laws and board regulations. "Electronic data prescription drug order" also includes any digitalized prescription drug order transmitted to a pharmacy that is converted into a visual image of a prescription order during the transmission process, is received by the pharmacy through a facsimile, and includes the practitioner's electronic signature.

    (14.2) "Electronic data signature" means:

    (14.3) "Electronic signature" means an electronic visual image signature or an electronic data signature of a practitioner which appears on an electronic prescription drug order.

    (14.4) "Electronic visual image prescription drug order" means any exact visual image of a prescription drug order issued by a practitioner electronically and which bears an electronic reproduction of the visual image of the practitioner's signature, is either printed on security paper and presented as a hard copy to the patient or transmitted by the practitioner via facsimile machine or equipment to a pharmacy, and contains all information required by state law and regulations of the board.

    (14.5) "Electronic visual image signature" means any exact visual image of a practitioner's signature reproduced electronically on a hard copy prescription drug order presented to the patient by the practitioner or is a prescription drug order transmitted to a pharmacy by a practitioner via facsimile machine or equipment.

    1. Can withstand repeated use;
    2. Has an expected life of at least three years;
    3. Is primarily and customarily used to serve a medical purpose;
    4. Generally is not useful to a person in the absence of illness or injury; and
    5. Is appropriate for use in the home.
      1. A secure, personalized digital key, code, number, or other identifier used for secure electronic data transmissions which identifies and authenticates the prescribing practitioner as a part of an electronic data prescription drug order transmitted to a pharmacy; or
      2. An electronic symbol or process attached to or logically associated with a record and executed or adopted by a prescribing practitioner with the intent to sign an electronic data prescription drug order, which identifies the prescribing practitioner, as a part of an electronic data prescription drug order transmitted to a pharmacy.
  15. "Emergency service provider" means licensed ambulance services, first responder services or neonatal services, or any combination thereof.

    (15.1) "Executive director" means the executive director appointed by the Georgia State Board of Pharmacy pursuant to Code Section 26-4-20.

  16. "Extern" or "pharmacy extern" means an individual who is a student currently enrolled in an approved school or college of pharmacy and who has been assigned by the school or college of pharmacy to a licensed pharmacy for the purposes of obtaining practical experience and completing a degree in pharmacy. For the purposes of this chapter, a pharmacy extern may engage in any activity or perform any function which a pharmacy intern may perform under the direct supervision of a licensed pharmacist.
  17. "Federal act" or "Federal Food, Drug, and Cosmetic Act" means the Federal Food, Drug, and Cosmetic Act of the United States of America, approved June 25, 1938, officially cited as Public Document 717, 75th Congress (Chapter 675-3rd Sess.) and all amendments thereto, and all regulations promulgated thereunder by the commissioner of the Federal Food and Drug Administration.
  18. "Generic name" means a chemical name, a common or public name, or an official name used in an official compendium recognized by the Federal Food, Drug, and Cosmetic Act, as amended.

    (18.05) "Hard copy prescription drug order" means a written, typed, reproduced, or printed prescription drug order prepared on a piece of paper.

    (18.1) "Institution" means any licensed hospital, nursing home, assisted living community, personal care home, hospice, health clinic, or prison clinic.

    (18.2) "Interchangeable biological product" means a biological product that the federal Food and Drug Administration has determined meets the standards set forth in subsection (k)(4) of 42 U.S.C. Section 262 or has been deemed therapeutically equivalent by the federal Food and Drug Administration.

  19. "Intern" or "pharmacy intern" means an individual who is:
    1. A student who is currently enrolled in an approved school or college of pharmacy, has registered with the board, and has been licensed as a pharmacy intern;
    2. A graduate of an approved school or college of pharmacy who is currently licensed by the board for the purpose of obtaining practical experience as a requirement for licensure as a pharmacist; or
    3. An individual who does not otherwise meet the requirements of subparagraph (A) or (B) of this paragraph and who has established educational equivalency by obtaining a Foreign Pharmacy Graduate Examination Committee (FPGEC) certificate and is currently licensed by the board for the purpose of obtaining practical experience as a requirement for licensure as a pharmacist.
  20. Reserved.
  21. "Labeling" means the process of preparing and affixing a label to any drug container exclusive, however, of the labeling by a manufacturer, packer, or distributor of a nonprescription drug or commercially packaged legend drug or device. Any such label shall include all information required by federal, state, or federal and state law or rule.
  22. "Manufacturer" means a person engaged in the manufacturing of drugs or devices.
  23. "Manufacturing" means the production, preparation, propagation, conversion, or processing of a drug or device, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical or biological synthesis and includes any packaging or repackaging of any substance or labeling or relabeling of its container and the promotion and marketing of such drugs or devices. Manufacturing also includes the preparation and promotion of commercially available products from bulk compounds for resale by pharmacies, practitioners, or other persons.

    (23.5) "Narcotic treatment program clinic pharmacy" means a pharmacy which is attached to, located in, or otherwise a part of and operated by a narcotic treatment program which provides an opiate replacement treatment program, as designated or defined by the Department of Behavioral Health and Developmental Disabilities or such other state agency as may be designated as the state authority for the purposes of implementing the narcotic treatment program authorized by federal and state laws and regulations.

  24. "Nonprescription drug" means a drug which may be sold without a prescription and which is labeled for use by the consumer in accordance with the requirements of the laws and rules of this state and the federal government.

    (24.1) "Outsourcing facility" means a facility that is engaged in the compounding of drugs and is registered with the federal Food and Drug Administration as an outsourcing facility pursuant to Section 503b of the federal act.

  25. "Patient counseling" means the oral communication by the pharmacist of information, as defined in the rules of the board, to the patient, patient's caregiver, or patient's agent, in order to improve therapy by ensuring proper use of drugs and devices.
  26. "Person" means an individual, corporation, partnership, or association.
  27. "Pharmaceutically equivalent" means drug products that contain identical amounts of the identical active ingredient, in identical dosage forms, but not necessarily containing the same inactive ingredients.
  28. "Pharmacist" means an individual currently licensed by this state to engage in the practice of pharmacy. This recognizes a pharmacist as a learned professional who is authorized to provide patient services and pharmacy care.
  29. "Pharmacist in charge" means a pharmacist currently licensed in this state who accepts responsibility for the operation of a pharmacy in conformance with all laws and rules pertinent to the practice of pharmacy and the distribution of drugs and who is personally in full and actual charge of such pharmacy and personnel.
  30. "Pharmacy" means:
    1. The profession, art, and science that deals with pharmacy care, drugs, or both, medicines, and medications, their nature, preparation, administration, dispensing, or effect; or
    2. Any place licensed in accordance with this chapter wherein the possessing, displaying, compounding, dispensing, or selling of drugs may be conducted, including any and all portions of the building or structure leased, used, or controlled by the licensee in the conduct of the business or profession licensed by the board at the address for which the license was issued.
  31. "Pharmacy care" means those services related to the interpretation, evaluation, or dispensing of prescription drug orders, the participation in drug and device selection, drug administration, and drug regimen reviews, and the provision of patient counseling related thereto.
  32. "Pharmacy technician" means those support persons utilized in pharmacies whose responsibilities are to provide nonjudgmental technical services concerned with the preparation for dispensing of drugs under the direct supervision and responsibility of a pharmacist.
  33. "Practitioner" or "practitioner of the healing arts" means a physician, dentist, podiatrist, optometrist, or veterinarian and shall include any other person licensed under the laws of this state to use, mix, prepare, dispense, prescribe, and administer drugs in connection with medical treatment to the extent provided by the laws of this state.
  34. "Preceptor" means an individual who is currently licensed as a pharmacist by the board, meets the qualifications as a preceptor under the rules of the board, and participates in the instructional training of pharmacy interns.
  35. "Prescription drug" or "legend drug" means a drug which, under federal law, is required, prior to being dispensed or delivered, to be labeled with either of the following statements: "Caution: federal law prohibits dispensing without prescription" or "Caution: federal law restricts this drug to use by, or on the order of, a licensed veterinarian"; or a drug which is required by any applicable federal or state law or rule to be dispensed pursuant only to a prescription drug order or is restricted to use by practitioners only; or a controlled substance, as defined in paragraph (6) of this Code section or a dangerous drug as defined in paragraph (7) of this Code section.
  36. "Prescription drug order" means a lawful order of a practitioner for a drug or device for a specific patient; such order includes an electronic visual image prescription drug order and an electronic data prescription drug order.
  37. "Prospective drug use review" means a review of the patient's drug therapy and prescription drug order, as defined in the rules of the board, prior to dispensing the drug as part of a drug regimen review.

    (37.1) "Remote automated medication system" means an automated mechanical system that is located in a skilled nursing facility or hospice licensed as such pursuant to Chapter 7 of Title 31 that does not have an on-site pharmacy and in which medication may be dispensed in a manner that may be specific to a patient.

    (37.2) "Remote order entry" means the entry made by a pharmacist licensed in this state, who is an employee or contractor of a pharmacy licensed in this state or that holds a nonresident pharmacy permit issued pursuant to Code Section 26-4-114.1, from a remote location anywhere in the United States indicating that the pharmacist has reviewed the patient specific drug order for a hospital patient, has approved or disapproved the administration of the drug for such patient, and has entered the information in the hospital's patient record system.

  38. "Reverse drug distributor" means a person, firm, or corporation which receives and handles drugs from within this state which are expired, discontinued, adulterated, or misbranded, under the provisions of Chapter 3 of this title, the "Georgia Drug and Cosmetic Act," from a pharmacy, drug distributor, or manufacturer for the purposes of destruction or other final disposition or for return to the original manufacturer of a drug.

    (38.5) "Security paper" means:

    1. A prescription pad or paper that has been approved by the board for use and contains the following characteristics:
      1. One or more industry recognized features designed to prevent unauthorized copying of a completed or blank prescription form;
      2. One or more industry recognized features designed to prevent the erasure or modification of information written on the prescription form by the practitioner; and
      3. One or more industry recognized features designed to prevent the use of counterfeit prescription forms; or
    2. A prescription pad or paper that is an approved prescription pad or paper of the Centers for Medicare and Medicaid Services on January 1, 2013.
  39. "Significant adverse drug reaction" means a drug related incident that may result in serious harm, injury, or death to the patient.
  40. "Substitution" means to dispense pharmaceutically equivalent and therapeutically equivalent drug products as regulated by the board in place of the drug prescribed.

    (40.1) "Third-party logistics provider" means an entity that provides or coordinates warehousing, distribution, or other services on behalf of a manufacturer, wholesale distributor, or chain pharmacy but does not take title to a drug or have general responsibility to direct the sale or other disposition of the drug.

    (40.5) "USP-NF" means the United States Pharmacopeia and National Formulary.

  41. "Wholesale distributor" means any person engaged in wholesale distribution of drugs, including but not limited to manufacturers; repackagers; own label distributors; private label distributors; jobbers; brokers; warehouses, including manufacturers' and distributors' warehouses, chain drug warehouses, and wholesale drug warehouses; independent wholesale drug traders; and retail and hospital pharmacies that conduct wholesale distributions. (Code 1981, § 26-4-5 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 277, § 1.1; Ga. L. 2000, p. 1706, § 22; Ga. L. 2004, p. 738, §§ 2, 3; Ga. L. 2007, p. 47, § 26/SB 103; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2010, p. 266, § 1/SB 195; Ga. L. 2011, p. 227, § 7/SB 178; Ga. L. 2011, p. 308, § 5/HB 457; Ga. L. 2011, p. 659, § 3/SB 36; Ga. L. 2012, p. 1092, § 1A/SB 346; Ga. L. 2013, p. 127, § 1/HB 209; Ga. L. 2013, p. 192, § 1-1/HB 132; Ga. L. 2015, p. 5, § 26/HB 90; Ga. L. 2015, p. 585, § 1/SB 194; Ga. L. 2015, p. 1209, § 1/SB 51; Ga. L. 2016, p. 855, § 1/HB 926; Ga. L. 2017, p. 614, § 1/SB 41; Ga. L. 2018, p. 132, § 1/HB 769; Ga. L. 2019, p. 1056, § 26/SB 52.)

The 2012 amendment, effective July 1, 2012, added paragraph (37.2).

The 2013 amendments. The first 2013 amendment, effective July 1, 2013, substituted the present provisions of paragraph (4) for the former provisions, which read: "'Compounding' means the preparation, mixing, assembling, packaging, or labeling of a drug or device as the result of a practitioner's prescription drug order or initiative based on the relationship between the practitioner, patient, and pharmacist in the course of professional practice or for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale or dispensing. Compounding also includes the preparation of drugs or devices in anticipation of prescription drug orders based on routine and regularly observed prescribing patterns."; in paragraph (38.5), added a colon following "means" near the beginning, substituted "(A) A prescription" for "a prescription", redesignated former subparagraphs (38.5)(A) through (38.5)(C) as present divisions (38.5)(A)(i) through (38.5)(A)(iii), respectively, substituted "; or" for a period at the end in division (38.5)(A)(iii), deleted the ending undesignated paragraph following division (38.5)(A)(iii), which read: "Where security paper is in the form of a prescription pad, each pad shall bear an identifying lot number, and each piece of paper in the pad shall be numbered sequentially beginning with the number one.", and added paragraph (38.5)(B); and added paragraph (40.5). The second 2013 amendment, effective July 1, 2013, added paragraph (3.1); deleted former paragraph (11.1), which read: " 'Division director' means the division director of the professional licensing boards division, as provided in Chapter 1 of Title 43."; and added paragraph (15.1).

The 2015 amendments. The first 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, corrected a misspelling of "similar" in paragraph (9). The second 2015 amendment, effective July 1, 2015, inserted "optometrist," in paragraph (33). The third 2015 amendment, effective July 1, 2015, added paragraphs (1.1) and (18.2).

The 2016 amendment, effective July 1, 2016, added paragraphs (1.05), (24.1), and (40.1).

The 2017 amendment, effective July 1, 2017, added paragraph (14.05).

The 2018 amendment, effective January 1, 2019, in the middle of paragraph (37.2), substituted "licensed in this state, who is an employee or contractor of a pharmacy licensed in this state or that holds a nonresident pharmacy permit issued pursuant to Code Section 26-4-114.1," for "located within the State of Georgia" and inserted "anywhere in the United States".

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "Section" following "21 U.S.C." in two places in paragraph (1.05).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, "chapter" was substituted for "Chapter" in the first sentence of subparagraph (30)(B).

Pursuant to Code Section 28-9-5, in 2000, and due to the redesignation of paragraph (20) as paragraph (11.1), paragraph (20) has been set out as reserved.

Editor's notes. - Ga. L. 2004, p. 738, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Patient Safe Prescription Drug Act.'"

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 269 (2011).

JUDICIAL DECISIONS

Editor's note. - In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1972, pp. 948 and 949, are included in the annotations for this Code section.

Label. - Inscription "714" signifies something associated with methaqualone and this inscription on the caps of bottles containing an unidentified substance is a label falsely identifying the contents as methaqualone. Luck v. State, 163 Ga. App. 657 , 295 S.E.2d 584 (1982);(decided under former Ga. L. 1972, pp. 948 and 949).

Ga. L. 1972, pp. 948, 949 was not unconstitutionally vague or in violation of Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). State v. Bonini, 236 Ga. 896 , 225 S.E.2d 907 (1976);(decided under former Ga. Const. 1945, Art. I, Sec. I, Para. III and Ga. L. 1972, pp. 948 and 949).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-102 and former O.C.G.A. § 26-4-2 are included in the annotations for this Code section.

Licensing requirements for state and local agencies. - While state and local agencies are subject to the requirements of the Georgia Controlled Substances Act (O.C.G.A. § 16-13-20 et seq.) because of O.C.G.A. § 16-13-21(20) , they are not subject to the requirements of the Dangerous Drug Act (O.C.G.A. § 16-13-70 et seq.), and if the State Board of Pharmacy desires the requirements of the Dangerous Drug Act to be imposed upon state agencies and their practitioners, legislation should be offered changing the definition of "person" in O.C.G.A. Title 26, Chapter 4 to coincide with the definition now found in the Controlled Substances Act, and to also make that definition applicable to the Dangerous Drug Act. 1986 Op. Att'y Gen. No. 86-28 (decided under former O.C.G.A. § 26-4-2 ).

Nurse can telephone in prescription ordered by registered practitioner. - If the registered practitioner has actually ordered the controlled substance with the nurse merely relaying the prescription by telephone, former Code 1933, §§ 79A-820 and 79A-102 (see now O.C.G.A. §§ 16-13-41 and 26-4-5 ) did not specifically proscribe this activity. 1979 Op. Att'y Gen. No. 79-32 (decided under former Code 1933, § 79A-102).

Nurses may not write or telephone in prescriptions by referring to a written protocol. 1988 Op. Att'y Gen. No. 88-9 (decided under former O.C.G.A. § 26-4-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 1, 15 et seq.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 1, 4, 5.

ALR. - What is "device" within meaning of § 201(h) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(h)), 129 A.L.R. Fed. 343.

26-4-6. Provisions of chapter not applicable to facilities engaged solely in distribution of dialysate drugs or certain dialysis equipment under certain conditions.

The provisions of this chapter shall not apply to a facility engaged solely in the distribution of dialysate drugs, or devices necessary to perform home kidney dialysis to patients with end stage renal disease, provided that the following criteria are met:

  1. The dialysate drugs, or devices are approved or cleared by the federal Food and Drug Administration as required by federal law;
  2. The dialysate drugs, or devices are lawfully held by a manufacturer or manufacturer's agent that is properly registered with the board as a manufacturer or wholesale distributor;
  3. The dialysate drugs, or devices are held and delivered in their original, sealed packaging from the manufacturing facility;
  4. The dialysate drugs, or devices are delivered only by the manufacturer or the manufacturer's agent and only upon receipt of a physician's order; and
  5. The manufacturer or manufacturer's agent delivers the dialysate drugs, or devices directly to:
    1. A patient with end stage renal disease or such patient's designee for the patient's self-administration of the dialysis therapy; or
    2. A health care provider or institution for administration or delivery of the dialysis therapy to a patient with end stage renal disease. (Code 1981, § 26-4-6 , enacted by Ga. L. 2015, p. 585, § 2/SB 194.)

Effective date. - This Code section became effective July 1, 2015.

ARTICLE 2 STATE BOARD OF PHARMACY

26-4-20. State Board of Pharmacy continued; enforcement of provisions of chapter vested in board; board to be autonomous division of Department of Community Health; compensation; venue for actions involving board members.

  1. The Georgia State Board of Pharmacy existing immediately preceding July 1, 2013, is continued in existence, and members serving on the board immediately preceding that date shall continue to serve out their terms of office and until their respective successors are appointed and qualified.
  2. The responsibility for enforcement of the provisions of this chapter shall be vested in the Georgia State Board of Pharmacy. The board shall have all of the duties, powers, and authority specifically granted by or necessary for the enforcement of this chapter, as well as such other duties, powers, and authority as it may be granted from time to time by applicable law.
  3. On and after July 1, 2013, the board shall not be under the jurisdiction of the Secretary of State but shall be a division of the Department of Community Health; provided, however, that except as otherwise specifically provided, the board shall be autonomous from the Board of Community Health and the commissioner of community health and shall exercise its quasi-judicial, rule-making, licensing, or policy-making functions independently of the department and without approval or control of the department and prepare its budget and submit its budgetary requests, if any, through the department. Such transfer shall in no way affect any existing obligations, liabilities, or rights of the board, as such existed on June 30, 2013. The board shall have with respect to all matters within the jurisdiction of the board as provided under this chapter the powers, duties, and functions of professional licensing boards as provided in Chapter 1 of Title 43.
  4. The board shall appoint and fix the compensation, which shall be approved by the Board of Community Health, of an executive director of such board who shall serve at the pleasure of the board.
  5. The venue of any action involving members of the board shall be the county in which is found the primary office of the board. The executive director of the board shall not be considered a member of the board in determining the venue of any such action, and no court shall have jurisdiction over any such action solely by virtue of the executive director residing or maintaining a residence within its jurisdiction. (Code 1981, § 26-4-20 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-2/HB 132.)

The 2013 amendment, effective July 1, 2013, substituted "July 1, 2013" for "July 1, 1998" in subsection (a); and added subsections (c) through (e).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-301 are included in the annotations for this Code section.

Board and board members immune from damage actions. - Because of the control the state exercises over the State Board of Pharmacy, and because the board appears to be an entity of the state as defined by Georgia law, the board, and the board members in their official capacities, is immune from the damage action by virtue of its Eleventh Amendment immunity. Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984) (decided under former Code 1933, § 79A-301).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, Ch. 79A-3 are included in the annotations for this Code section.

State Board of Pharmacy and State Drug Inspector control dangerous drugs. - Control of rabies generally is delegated to county boards of health, and the control of dangerous drugs is vested with the State Board of Pharmacy and the State Drug Inspector. 1975 Op. Att'y Gen. No. 75-23 (decided under former Code 1933, Ch. 79A-3).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 81, 82.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 69, 70.

26-4-21. Eligibility requirements for board members; oath of office.

  1. Each of the seven pharmacist members of the board shall, at the time of appointment:
    1. Be a resident of this state for not less than six months;
    2. Be currently licensed and in good standing to engage in the practice of pharmacy in this state;
    3. Be actively engaged in the practice of pharmacy in this state;
    4. Have five years of experience in the practice of pharmacy in this state after licensure; and
    5. Not be officially employed as a full-time faculty member by any school or college of pharmacy.
  2. The one consumer member of the board shall be a resident of Georgia who has attained the age of majority and shall not have any connection whatsoever with the pharmaceutical industry.
  3. Appointees to the board shall immediately after their appointment take and subscribe to an oath or affirmation before a qualified officer that they will faithfully and impartially perform the duties of the office, and the oath shall be filed with the office of the Governor, whereupon the office of the Governor shall issue to each appointee a certificate of appointment. (Code 1981, § 26-4-21 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-3/HB 132; Ga. L. 2015, p. 5, § 26/HB 90.)

The 2013 amendment, effective July 1, 2013, substituted "and the oath shall be filed with the Office of the Governor, whereupon the Office of the Governor" for "which oath shall be filed with the Secretary of State, whereupon the Secretary of State" in subsection (c).

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, revised language in subsection (c).

26-4-22. Number and terms of members; appointment; vacancies.

  1. The board shall consist of seven members possessing the qualification specified in subsection (a) of Code Section 26-4-21 and one additional member possessing the qualifications specified in subsection (b) of Code Section 26-4-21 who shall be appointed by the Governor and confirmed by the Senate for a term of five years or until their successors are appointed and qualified. Pharmacist members shall represent a diversity of practice settings and geographic dispersion of practitioners across this state.
  2. At the annual meeting of the Georgia Pharmacy Association, there may be nominated by such licensed pharmacists as may be present three practicing registered pharmacists who shall meet the qualifications imposed by subsection (a) of Code Section 26-4-21 to fill the next vacancy occurring on the board, except a vacancy in the consumer member position on said board, by reason of expiration of term. The secretary of said association may regularly submit to the Governor the names of the three pharmacists so nominated and the Governor may make the appointment to fill such vacancy from the names so submitted. Should any vacancy occur upon the board, other than in the consumer member position on the board and other than by reason of expiration of term, such vacancy may be filled by appointment by the Governor for the unexpired term from a group of three practicing registered pharmacists nominated as provided in this subsection at any regular or special meeting of the Georgia Pharmacy Association.
  3. The consumer member of the board shall also be appointed by the Governor. Such member shall vote only on matters relating to administration and policy which do not directly relate to practical and scientific examination of pharmacists for licensing in Georgia. Vacancies occurring in the membership of the board occupied by a consumer shall be filled by the Governor for the unexpired term of office. (Code 1981, § 26-4-22 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-4/HB 132.)

The 2013 amendment, effective July 1, 2013, in subsection (a), inserted "and confirmed by the Senate" near the middle, and substituted "this state" for "the state" near the end.

26-4-23. Removal of board members.

Any member who has failed to attend three consecutive regular monthly meetings of the board for any reason other than illness of such member shall be subject to removal by the Governor upon request of the board. The president of the board shall notify the Governor in writing when any such member has failed to attend three consecutive regular monthly meetings. Any member of the board may be removed by the Governor in the same manner as provided in Code Section 43-1-17.

(Code 1981, § 26-4-23 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-5/HB 132.)

The 2013 amendment, effective July 1, 2013, inserted "in the same manner" in the last sentence of this Code section.

26-4-24. Meetings and organization; appeals; serving of notices and legal process.

The board shall meet at least annually to organize and elect a president and a vice president from its members. The vice president shall serve as the cognizant member of the board. All appeals from the decision of the board, all documents or applications required by law to be filed with the board, and any notice or legal process to be served upon the board may be filed with or served upon the executive director at his or her office in the county of domicile of the board.

(Code 1981, § 26-4-24 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 23; Ga. L. 2013, p. 192, § 1-6/HB 132.)

The 2013 amendment, effective July 1, 2013, in this Code section, substituted "vice president" for "vice-president" in the first sentence; deleted the former second sentence, which read: "The division director shall be the secretary of the board and shall have all the power, duties, and authority with reference to such board as shall be prescribed by Chapter 1 of Title 43 and shall perform such other duties as may be prescribed by the board."; added the present second sentence, and in the third sentence, substituted "executive director" for "division director" and substituted "board" for "professional licensing boards division" at the end.

26-4-25. Expense and mileage allowances; reimbursement of certain costs and fees.

Each member of the board may receive the expense allowance as provided by subsection (b) of Code Section 45-7-21 and the same mileage allowance for the use of a personal car as that received by other state officials and employees or a travel allowance of actual transportation costs if traveling by public carrier within this state. Each board member shall also be reimbursed for any conference or meeting registration fee incurred in the performance of his or her duties as a board member. For each day's service outside of this state as a board member, such member shall receive actual expenses as an expense allowance as well as the mileage allowance for the use of a personal car equal to that received by other state officials and employees or a travel allowance of actual transportation costs if traveling by public carrier or by rental motor vehicle. Expense vouchers submitted by board members shall be subject to approval of the president and executive director. Out-of-state travel by board members shall be approved by the board president and the executive director.

(Code 1981, § 26-4-25 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-7/HB 132.)

The 2013 amendment, effective July 1, 2013, substituted the present provisions of this Code section for the former provisions, which read: "Each member of the board shall be reimbursed as provided for in subsection (f) of Code Section 43-1-2."

26-4-26. Meetings; notice; quorum; open meetings.

  1. To transact its business, the board shall hold regular meetings at least once each month unless, in the discretion of the president, it is deemed unnecessary for a particular month. The board shall meet at such additional times as it may determine. Such additional meetings may be called by the president of the board or by at least two-thirds of the members of the board.
  2. Notice of all meetings of the board shall be given in the manner and pursuant to requirements prescribed by Chapter 14 of Title 50 relating to open meetings.
  3. A majority of the members of the board shall constitute a quorum for the conduct of a board meeting and, except where a greater number is required by this chapter or by any rule of the board, all actions of the board shall be by a majority of a quorum.
  4. Meetings and hearings of the board shall be held at the site of the office of the board or at such other site as may be specified by the president of the board.
  5. All board meetings and hearings shall be open to the public. The board may, in its discretion and according to law, conduct any portion of its meeting in executive session closed to the public.
  6. Proceedings before the board wherein a licensee's or permit holder's right to practice pursuant to this chapter in this state is terminated, suspended, or limited or wherein a public reprimand is administered shall require prior notice to the licensee and an opportunity for hearing; and such proceedings shall be considered contested cases within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Neither refusal of a license or permit nor a private reprimand nor a letter of concern shall be considered a contested case within the meaning of Chapter 13 of Title 50; provided, however, that the applicant shall be allowed to appear before the board, if the applicant so requests, prior to the board making a final decision regarding the issuance of the license or permit. The power to subpoena as set forth in Chapter 13 of Title 50 shall include the power to subpoena any relevant book, writing, paper, or document. If any licensee or permit holder fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against such licensee or permit holder and take action as if such licensee or permit holder had been present. (Code 1981, § 26-4-26 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 192, § 1-8/HB 132.)

The 2013 amendment, effective July 1, 2013, rewrote the first sentence of subsection (a); added subsections (d) and (f); and redesignated former subsection (d) as present subsection (e).

26-4-27. Authority to establish rules and regulations.

The board may establish such rules and regulations not inconsistent with this chapter and as in its judgment will best carry out the requirements thereof.

Administrative Rules and Regulations. - Hospital Pharmacy Regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-13.

(Code 1981, § 26-4-27 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-28. Powers, duties, and authority.

  1. The board shall have the power, duty, and authority for the control and regulation of the practice of pharmacy in the State of Georgia, including, but not limited to, the following:
    1. The licensing by examination or by license transfer of applicants who are qualified to engage in the practice of pharmacy under the provisions of this chapter;
    2. The renewal of licenses to engage in the practice of pharmacy;
    3. The establishment and enforcement of compliance with professional standards and rules of conduct of pharmacists engaged in the practice of pharmacy;
    4. The determination and issuance of standards for recognition and approval of degree programs of schools and colleges of pharmacy whose graduates shall be eligible for licensure in this state, and the specification and enforcement of requirements for practical training including internship;
    5. The enforcement of those provisions of this chapter relating to the conduct or competence of pharmacists practicing in this state and the suspension, revocation, or restriction of licenses to engage in the practice of pharmacy;
    6. The licensure and regulation of pharmacies and pharmacy interns;
      1. The regulation of other employees in the prescription or pharmacy department, including but not limited to the registration and regulation of pharmacy technicians. The board shall be required to establish the minimum qualifications for the registration of pharmacy technicians and shall be authorized to require the completion of a background check and criminal history record check for each person applying for registration as a pharmacy technician in this state. The certificate of registration, once issued, may be valid for no more than two years and shall be renewable biennially upon payment of a renewal fee and compliance with such other conditions as the board may establish by rule or regulation. The board shall be authorized to deny registration, to deny renewal, or to revoke or suspend the registration of a pharmacy technician for any of the grounds set forth in Code Section 26-4-60 or Code Section 43-1-19. However, said denial of a technician application, denial of the renewal of a certificate, or suspension or revocation of a technician registration shall not be considered a contested case under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," but said applicant or registrant shall be entitled to an appearance before the board. The board shall be required to establish and maintain a registry of pharmacy technicians in this state which contains the name and home address of each pharmacy technician and his or her employer and location of employment. The board shall establish a process by which the pharmacist in charge of each pharmacy shall provide updated information on the pharmacy technicians in the pharmacy. The board may establish and collect fees from pharmacy technicians, their employers, or both for the registration of pharmacy technicians and maintenance of the registry.
        1. In enforcing this paragraph, the board may, upon reasonable grounds, require a registrant or applicant to submit to a mental or physical examination by licensed health care providers designated by the board. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing as a pharmacy technician in this state or who shall file an application for a certificate of registration to practice pharmacy in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a registrant or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any registrant or applicant who is prohibited from practicing as a pharmacy technician under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin practicing as a pharmacy technician with reasonable skill and safety to patients.
        2. For the purposes of this paragraph, the board may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a registrant or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing as a pharmacy technician in this state or who shall file an application for a certificate of registration to practice as a pharmacy technician in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitutes a privileged communication.
        3. If any registrant or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in division (i) of this subparagraph or the records relating to the mental or physical condition of such registrant or applicant obtained pursuant to division (ii) of this subparagraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any registrant or applicant in any other type of proceeding;
    7. The collection of professional demographic data;
    8. The right to seize any such drugs and devices found by the board to constitute an imminent danger to the public health and welfare;
    9. The establishment of minimum specifications for the physical facilities, technical equipment, environment, supplies, personnel, and procedures for the storage, compounding, and dispensing of such drugs or devices utilized within the practice of pharmacy;
    10. The establishment of minimum standards for the purity and quality of such drugs utilized within the practice of pharmacy;
    11. The establishment of minimum standards for the purity and quality of such devices and other materials utilized within the practice of pharmacy;

      (12.1) (A) The licensure for the use of remote automated medication systems and the regulation and establishment of minimum standards for the use and operation of remote automated medication systems to ensure safe and efficient dispensing, including, but not limited to, appropriate security measures, requirements for skilled nursing facilities and hospices that utilize such systems, training requirements, accuracy and quality assurance measures, recordkeeping requirements, and such other appropriate requirements as determined by the board.

      (B) The regulation and establishment of minimum standards for the use and operation of remote automated medication systems by the board as provided for in subparagraph (A) of this paragraph shall permit a pharmacy technician registered pursuant to this chapter to fill a remote automated medication system. If the remote automated medication system utilizes radio frequency identification or bar coding in the filling process, the pharmacy shall retain an electronic record of the filling activities of the pharmacy technician. If the remote automated medication system does not utilize radio frequency identification or bar coding in the filling process, a pharmacist shall supervise continuously the filling activities of the pharmacy technician through a two-way audiovisual system.

      (C) The board may establish rules and regulations to implement the requirements of this paragraph;

    12. The issuance and renewal of licenses or permits of all persons engaged in the manufacture and distribution of drugs, including but not limited to all types of drug manufacturers, wholesale distributors, reverse drug distributors, outsourcing facilities, and third-party logistics providers. The board shall be authorized to establish all licensing and permit requirements of such entities by rule and regulation;
    13. The issuance and renewal of licenses of all persons engaged in the manufacture and distribution of devices utilized within the practice of pharmacy;

      (14.1) The issuance, suspension, denial, and renewal of licenses for suppliers of durable medical equipment pursuant to Code Section 26-4-51;

    14. The inspection of any licensed person at all reasonable hours for the purpose of determining if any provisions of the laws governing the legal distribution of drugs or devices or the practice of pharmacy are being violated. The board and its officers, agents, and designees shall cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to drugs, devices, and the practice of pharmacy;
    15. The investigation of alleged violations of this chapter or any other law in this state pertaining to, or in connection with, persons or firms licensed by the board or otherwise authorized by the laws of this state to manufacture, sell, distribute, dispense, or possess drugs, medicines, poisons, cosmetics, or devices, as related to misbranded or counterfeit drugs, or any rules and regulations promulgated by the board under this chapter; the conducting of investigative interviews or full board hearings, with or without the necessity of utilizing the Office of State Administrative Hearings, in respect thereto when in its discretion it appears to be necessary; and the bringing of such violations to the notice of the Attorney General;
    16. The listing at any time upon either a list under Article 3 of Chapter 13 of Title 16, the "Dangerous Drug Act," or upon a schedule under Article 2 of Chapter 13 of Title 16, the "Georgia Controlled Substances Act," of any drug found to be potentially dangerous to public safety if dispensed without prescription;
    17. The expunging of the pharmacy related practice record of any pharmacist whose record consists of a sole sanction resulting from alcohol impairment and whose pharmacy related practice record during a five-year time period dating from the time of the sanction has incurred no additional charges or infractions;
    18. Restricting the inspection or examination of records or access to any area licensed and under the control of any registrant, which has been issued a permit by the board, to members of the board, agents for the Georgia Drugs and Narcotics Agency, the United States Drug Enforcement Administration, the Department of Community Health, or other federal agencies or agencies of this state otherwise entitled to such inspections or examinations by law, subpoena, or court order. This paragraph specifically prohibits inspections or examinations of board registrants or any requirement which forces board registrants to allow inspection or examination, or both, of their records by representatives for any nongovernment affiliated, private organization for any purpose since the access of patient prescription records is restricted by this chapter and access by such private organizations is unnecessary in that this access only duplicates existing record-keeping and inspection requirements already addressed by the laws and regulations of the board and other government organizations. This restriction shall also prohibit a private, nongovernment affiliated organization from examining or copying continuing education certificates maintained by individual registrants. Nothing in this paragraph shall prohibit the pharmacist in charge from voluntarily allowing appropriate agencies and organizations to inspect or examine the records and pharmacy area under the control of the pharmacist in charge provided such inspections or examinations are for the purposes of ensuring the quality of care provided to patients;
    19. The requiring of background checks, including, but not limited to, criminal history record checks, on any persons or firms applying for licensure or registration pursuant to this chapter;
    20. Serving as the sole governmental or other authority which shall have the authority to approve or recognize accreditation or certification programs for specialty pharmacy practice or to determine the acceptability of entities which may accredit pharmacies or certify pharmacists in a specialty of pharmacy practice, and the board may require such accreditation or certification as a prerequisite for specialty or advanced pharmacy practice. Such accreditation and certification standards for specialties shall be set forth in rules promulgated by the board with such rules to contain the required qualifications or limitations. Any accreditation or certification for specialty pharmacy practice approved or recognized by the board shall be deemed sufficient to meet any and all standards, licensure, or requirements, or any combination thereof, otherwise set forth by any private entity or other government agency to satisfy its stated goals and standards for such accreditation or certification. Nothing in this paragraph shall prohibit private entities, government agencies, professional organizations, or educational institutions from submitting accreditation or certification programs for the review and potential approval or recognition by the board. Accreditation and certification for specialty pharmacy practice under this paragraph shall be subject to the following conditions:
      1. Applications shall be submitted as set forth in rules promulgated or approved by the board for accreditation or certification;
      2. Only a pharmacist registered by this state and maintaining an active license in good standing is eligible for certification in a specialty pharmacy practice by the board;
      3. Only a pharmacy registered by this state and maintaining an active license in good standing is eligible for accreditation for specialty pharmacy practice by the board;
      4. Any board approved or recognized accreditation for a specialty pharmacy practice of a pharmacy is to be deemed sufficient and shall satisfy any standards or qualifications required for payment of services rendered as set forth by any insurance company, carrier, or similar third-party payor plan in any policy or contract issued, issued for delivery, delivered, or renewed on or after July 1, 1999;
      5. Any board approved or recognized specialty certification issued to a pharmacist is deemed sufficient and shall satisfy any standards or qualifications required for payment of services rendered as set forth by any insurance company, carrier, or similar third-party payor plan in any policy or contract issued, issued for delivery, delivered, or renewed on or after July 1, 1999; and
      6. The board may deny, revoke, limit, suspend, probate, or fail to renew the accreditation or specialty certification of a pharmacy, pharmacist, or both for cause as set forth in Code Section 26-4-60 or for a violation of Chapter 13 of Title 16 or if the board determines that a pharmacy, pharmacist, or both no longer meet the accreditation or certification requirements of the board. Before such action, the board shall serve upon the pharmacist in charge of a pharmacy or pharmacist an order to show cause why accreditation or certification should not be denied, revoked, limited, suspended, or probated or why the renewal should not be refused. The order to show cause shall contain a statement for the basis therefor and shall call upon the pharmacist in charge of a pharmacy, the pharmacist, or both to appear before the board at a time and place not more than 60 days after the date of the service of the order;
    21. To adopt a seal by which the board shall authenticate the acts of the board;
    22. To keep a docket of public proceedings, actions, and filings;
    23. To set its office hours;
    24. To require licensees and permit holders to report a change of business address or personal address within ten days of the change in either address;
    25. To adopt necessary rules concerning proceedings, hearings, review hearings, actions, filings, depositions, and motions related to uncontested cases;
      1. To authorize the Georgia Drugs and Narcotics Agency to conduct inspections and initiate investigations on its behalf for the purpose of discovering violations of this chapter, Chapter 3 of this title, and Chapter 13 of Title 16.
      2. When conducting investigations and inspections on behalf of the board, the Georgia Drugs and Narcotics Agency shall have the same access to and may examine any relevant writing, document, or other material relating to any licensee, registrant, permittee, or applicant as the board. The executive director may issue subpoenas to compel access to any writing, document, or other material upon a determination that reasonable grounds exist for the belief that a violation of this chapter, Chapter 3 of this title, Chapter 13 of Title 16, or any other law relating to the practice of pharmacy may have taken place. The results of all investigations and inspections initiated by the Georgia Drugs and Narcotics Agency which relate to an individual licensed or permitted by the board shall be reported by the Georgia Drugs and Narcotics Agency to the board, and the records of such investigations shall be kept for the board by the director of the Georgia Drugs and Narcotics Agency, and the board shall retain the right to have access to such records at any time. Notwithstanding the provisions of this subparagraph, Code Section 16-13-60 shall control the access to or release of information.
      3. Nothing in this chapter shall be construed to prohibit or limit the authority of the executive director or the director of the Georgia Drugs and Narcotics Agency to conduct inspections and initiate investigations on its own initiative for the purpose of discovering violations of this chapter, Chapter 3 of this title, and Chapter 13 of Title 16 and disclose such information to any law enforcement agency or prosecuting attorney. Notwithstanding the provisions of this subparagraph, Code Section 16-13-60 shall control the access to or release of information.
      4. The executive director or the director of the Georgia Drugs and Narcotics Agency may also disclose to any person or entity information concerning the existence of any investigation for unlicensed practice being conducted against any person who is neither licensed nor an applicant for licensure by the board;
    26. To administer oaths, subpoena witnesses and documentary evidence, including relevant medical records, and take testimony in all matters relating to its duties;
    27. To conduct hearings, reviews, and other proceedings according to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act";
    28. To have the cognizant member of the board conduct investigative interviews in conjunction with the Georgia Drugs and Narcotics Agency and thereafter to report his or her findings, with recommendations, to the board. In order to obtain a nonprejudicial decision, such report and recommendations shall not disclose the identity of the subject of the investigation. The cognizant member shall not vote on matters which he or she has presented to the board as the cognizant member;
    29. To issue cease and desist orders to stop the unlicensed practice of pharmacy or other professions licensed, certified, or permitted under this chapter and impose penalties for such violations;
    30. To refer cases for criminal prosecution or injunctive relief to appropriate prosecuting attorneys or other law enforcement authorities of this state, another state, or the United States;
    31. To release investigative or applicant files to another enforcement agency or lawful licensing authority in another state;
    32. To sue and be sued in a court of competent jurisdiction;
    33. To enter into contracts;
    34. To assess fines for violations of this chapter or board rules; and
    35. To set all reasonable fees by adoption of a schedule of fees approved by the board. The board shall set such fees sufficient to cover costs of operation.
  2. Proceedings by the board in the exercise of its authority to cancel, suspend, or revoke any license issued under the terms of this chapter shall be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." In all such proceedings, the board shall have authority to compel the attendance of witnesses and the production of any book, writing, or document upon the issuance of a subpoena therefor signed by the secretary of the board. In any hearing in which the fitness of a licensee or applicant to practice pharmacy or another business or profession licensed by the board under this chapter is in question, the board may exclude all persons from its deliberation of the appropriate action to be taken and may, when it deems it necessary, speak to a licensee or applicant and his or her legal counsel in private.
  3. The board shall have such other duties, powers, and authority as may be necessary to the enforcement of this chapter and to the enforcement of board rules made pursuant thereto which shall include, but are not limited to, the following:
    1. The board may join such professional organizations and associations organized exclusively to promote the improvement of the standards of the practice of pharmacy for the protection of the health and welfare of the public and whose activities assist and facilitate the work of the board;
    2. The board may place under seal all drugs or devices that are owned by or in the possession, custody, or control of a licensee at the time his or her license is suspended or revoked or at the time the board refuses to renew his or her license. Except as otherwise provided in this Code section, drugs or devices so sealed shall not be disposed of until appeal rights under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," have expired, or an appeal filed pursuant to such chapter has been determined. The court involved in an appeal filed pursuant to such chapter may order the board, during the pendency of the appeal, to sell sealed drugs that are perishable. The proceeds of such a sale shall be deposited with that court;
    3. Except as otherwise provided to the contrary, the board shall exercise all of its duties, powers, and authority in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act";
    4. In addition to the fees specifically provided for in this chapter, the board may assess additional reasonable fees for services rendered to carry out its duties and responsibilities as required or authorized by this chapter or the rules and regulations promulgated by the board. Such services rendered shall include but not be limited to the following:
      1. Issuance of duplicate certificates or identification cards;
      2. Certification of documents;
      3. License transfer;
      4. Examination administration to a licensure applicant; and
      5. Examination materials; and
    5. Cost recovery.
      1. For any order issued in resolution of a disciplinary proceeding before the board, the board may direct any licensee found guilty of a charge involving a violation of any drug laws or rules to pay to the board a sum not to exceed the reasonable costs of the investigation and prosecution of the case and, in any case, not to exceed $25,000.00. The costs to be assessed shall be fixed by the board and the costs so recovered shall be paid to the state treasury; and
      2. In the case of a pharmacy or wholesale distributor, the order issued may be made to the corporate owner, if any, and to any pharmacist, officer, owner, or partner of the pharmacy or wholesale distributor who is found to have had knowledge of or have participated knowingly in one or more of the violations set forth in this Code section. Where an order for recovery of costs is made and timely payment is not made as directed in the board's decision, the board may enforce the order for payment in the court in the county where the administrative hearing was held. This right of enforcement shall be in addition to any other rights the board may have as to any person directed to pay costs. In any action for recovery of costs, proof of the board's decision shall be conclusive proof of the validity of the order of payment and the terms for payment. (Code 1981, § 26-4-28 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 277, §§ 2, 3; Ga. L. 2007, p. 229, § 1/HB 330; Ga. L. 2011, p. 308, § 6/HB 457; Ga. L. 2011, p. 541, § 1/SB 81; Ga. L. 2012, p. 775, § 26/HB 942; Ga. L. 2013, p. 141, § 26/HB 79; Ga. L. 2013, p. 192, § 1-9/HB 132; Ga. L. 2015, p. 1360, § 1/HB 511; Ga. L. 2016, p. 855, § 2/HB 926; Ga. L. 2017, p. 614, § 2/SB 41; Ga. L. 2017, p. 774, § 26/HB 323.)

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation at the end of paragraph (a)(12.1).

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "the Department of Community Health" for "the Georgia Department of Medical Assistance" in the first sentence of paragraph (a)(19). The second 2013 amendment, effective July 1, 2013, deleted "and" from the end of paragraph (a)(20); substituted a semicolon for a period at the end in subparagraph (a)(21)(F); added paragraphs (a)(22) through (a)(37); and, in the last sentence of subsection (b), inserted "or another business or profession licensed by the board under this chapter" near the middle, and inserted "and his or her legal counsel in private" near the end.

The 2015 amendment, effective July 1, 2015, in paragraph (a)(12.1), added the subparagraph (A) and (C) designations and added subparagraph (a)(12.1)(B).

The 2016 amendment, effective July 1, 2016, substituted the present provisions of paragraph (a)(13) for the former provisions, which read: "The issuance and renewal of licenses of all persons engaged in the manufacture and distribution of drugs;".

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, added paragraph (a)(14.1). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (a) and substituted "Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';" for "Chapter 13 of Title 50;" in paragraph (a)(29).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, "$25,000.00" was substituted for "$25,000" at the end of the first sentence in subparagraph (c)(5)(A).

Editor's notes. - Ga. L. 2007, p. 229, § 5/HB 330, not codified by the General Assembly, provides that the 2007 amendment becomes effective only if funds are specifically appropriated for purposes of the Act and shall become effective when funds so appropriated become available for expenditure. Funds were appropriated at the 2010 session of the General Assembly and thus the 2007 amendment became effective July 1, 2010.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-302 are included in the annotations for this Code section.

Drug criminal investigations transferred from board to Department of Public Safety's Division of Investigation. - Under the Executive Reorganization Act of 1972, Ga. L. 1972, p. 1015, §§ 19, 20, the functions of the Georgia State Board of Pharmacy relating to alleged violations pertaining to drugs were transferred to the Department of Public Safety, and the criminal investigative functions so transferred were assigned to the Division of Investigation. Smith v. State, 131 Ga. App. 722 , 206 S.E.2d 711 (1974) (decided under former Code 1933, § 79A-302).

Cited in Baxter v. State, 134 Ga. App. 286 , 214 S.E.2d 578 (1975); Strong v. State, 246 Ga. 612 , 272 S.E.2d 281 (1980); Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1967, p. 296, and former Code Section 26-4-37 are included in the annotations for this Code section.

Board's power to regulate dangerous drugs, but not rabies. - Control of rabies generally is delegated to county boards of health, and the control of dangerous drugs is vested with the State Board of Pharmacy and the State Drug Inspector. 1975 Op. Att'y Gen. No. 75-23 (decided under Ga. L. 1967, p. 296).

Any law enforcement official who has obtained a search warrant may lawfully search for and seize prescriptions retained for inspection by a pharmacy as required by Georgia law. 1970 Op. Att'y Gen. No. 70-112 (decided under Ga. L. 1967, p. 296).

Chief Drug Inspector of the board can seize evidence under a warrant and make arrests. - Chief Drug Inspector of the State Board of Pharmacy and the Inspector's assistants have the authority to make arrests for violations of Ga. L. 1967, p. 296 (see now O.C.G.A. Title 16, Chapter 13, Article 26), and to search and seize evidence necessary for the presentation before courts of this state or before the State Board of Pharmacy; the Chief Drug Inspector and the Inspector's assistants do not have the authority to seize prescriptions from a pharmacy without properly acquiring a search warrant. 1970 Op. Att'y Gen. No. 70-112 (decided under Ga. L. 1967, p. 296).

Board's power to regulate dispensing of drugs in hospitals. - Dispensing of drugs in hospitals by machine or otherwise is a matter which the legislature has left to the State Board of Pharmacy to regulate through the Board's rule making power. 1969 Op. Att'y Gen. No. 69-85 (decided under Ga. L. 1967, p. 296).

Board's powers when violator not within its jurisdiction. - When the alleged violator is without the jurisdiction of the State Board of Pharmacy, the recourse of the board lies in the notification of the federal authorities charged with the enforcement of federal laws in the area of nonmailable items and the regulation of drugs, medicines, and poisons. 1969 Op. Att'y Gen. No. 69-121 (decided under Ga. L. 1967, p. 296).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 81, 82, 89.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 14 et seq., 65 et seq., 79 et seq.

26-4-28.1. Power, duties, and authority of the executive director.

  1. The executive director:
    1. Shall be a full-time employee of the board and shall serve as the chief executive officer and secretary of the board. Any person, in order to qualify for appointment as the executive director, shall be of good moral character and shall possess such qualifications as the board may require. The executive director shall have, with respect to the board, the same powers, duties, and functions granted to the division director with respect to professional licensing boards under Chapter 1 of Title 43 but shall not be subject to any approval or other powers exercised by the Secretary of State;
    2. With the approval of the board, may employ or contract with and fix the compensation of administrative assistants, secretaries, and any other such staff as deemed necessary to assist in the duties of the board. The director of the Georgia Drugs and Narcotics Agency shall serve as the assistant executive director, who shall act on behalf of the executive director in his or her absence. The executive director and other board staff shall be allowed reimbursement for travel and other expenses necessarily incurred in the performance of their duties in the same manner as other state officers and employees, and shall receive payment of the same in the manner provided for the board;
    3. Shall take an oath to discharge faithfully the duties of the office; and
    4. Shall be charged with the duties and powers as prescribed by the board.
  2. The executive director shall prepare and maintain a public roster containing the names and business addresses of all current licensees, registration holders, and permit holders for each of the various registrants regulated by the board. A copy of the roster shall be available to any person upon request at a fee prescribed by the board sufficient to cover the cost of printing and distribution. The following shall be treated as confidential, not subject to Article 4 of Chapter 18 of Title 50, relating to open records, and shall not be disclosed without the approval of the board:
    1. Applications and other personal information submitted by applicants, except to the applicant, the staff, and the board;
    2. Information, favorable or unfavorable, submitted by a reference source concerning an applicant, except to the staff and the board;
    3. Examination questions and other examination materials, except to the staff and the board; and
    4. The deliberations of the board with respect to an application, an examination, a complaint, an investigation, or a disciplinary proceeding, except as may be contained in official board minutes; provided, however, that such deliberations may be released to a law enforcement agency or prosecuting attorney of this state or to another state or federal enforcement agency or lawful licensing authority. Releasing the documents pursuant to this paragraph shall not subject any otherwise privileged documents to the provisions of Code Section 50-18-70 . (Code 1981, § 26-4-28.1 , enacted by Ga. L. 2013, p. 192, § 1-10/HB 132.)

Effective date. - This Code section became effective July 1, 2013.

26-4-28.2. Notification to board of convictions.

Any licensee, registration holder, or permit holder who is convicted under the laws of this state, the United States, or any other state, territory, or country of a felony shall be required to notify the board of the conviction within ten days of the conviction. The failure to notify the board of a conviction shall be considered grounds for revocation of his or her license, registration, permit, or other authorization to engage in the practice of pharmacy or another profession regulated under this chapter.

(Code 1981, § 26-4-28.2 , enacted by Ga. L. 2013, p. 192, § 1-10/HB 132.)

Effective date. - This Code section became effective July 1, 2013.

26-4-29. Georgia Drugs and Narcotics Agency; continuance; appointment, requirements, and duties of director; power to make arrests; report of violations of drug laws; investigations; dangerous drug list.

  1. The agency created in 1908 as the Office of the Chief Drug Inspector and known as the Georgia Drugs and Narcotics Agency since 1976 is continued in existence as the Georgia Drugs and Narcotics Agency. This agency shall be a budget unit as defined under Code Section 45-12-71; provided, however, that the agency shall be assigned for administrative purposes only, as defined in Code Section 50-4-3, to the Department of Community Health, except that such department shall prepare and submit the budget for the Georgia Drugs and Narcotics Agency. The Georgia Drugs and Narcotics Agency is authorized by this Code section to enforce the drug laws of this state. The board shall appoint a director who shall be charged with supervision and control of such agency. The Georgia Drugs and Narcotics Agency shall employ the number of personnel deemed necessary to properly protect the health, safety, and welfare of the citizens of this state. Such personnel shall be pharmacists registered in this state when employed as either special agents or the deputy director.
  2. The director shall hold office at the pleasure of the board, and should any vacancy occur in such office for any cause whatsoever, the board shall appoint a successor at a regular or called meeting. The director shall be a pharmacist registered in this state. The director shall serve as the assistant executive director for the board and act on behalf of the executive director during his or her absence. The salary of the director shall be fixed by the board. The whole time of the director shall be at the disposal of the board. The director, or Georgia Drugs and Narcotics Agency personnel acting on behalf of the director, shall have the duty and the power to:
    1. Visit and inspect factories, warehouses, wholesaling establishments, retailing establishments, chemical laboratories, and such other establishments in which any drugs, devices, cosmetics, and such articles known as family remedies, grocer's drugs, and toilet articles are manufactured, processed, packaged, sold at wholesale, sold at retail, or otherwise held for introduction into commerce;
    2. Enter and inspect any vehicle used to transport or hold any drugs, devices, cosmetics, or any of the articles listed in paragraph (1) of this subsection;
    3. Investigate alleged violations of laws and regulations regarding drugs, devices, cosmetics, or any of the articles listed in paragraph (1) of this subsection;
    4. Take up samples of the articles listed in paragraph (1) of this subsection from any of such establishments for examination and analysis by the state chemist, or under such person's direction and supervision, as provided by Code Section 26-4-131;
    5. Seize and take possession of all articles which are declared to be contraband under Chapter 13 of Title 16 and Chapter 3 of this title and this chapter and deliver such articles to the agency;
    6. Compel the attendance of witnesses and the production of evidence on behalf of the board via a subpoena issued by the director, when there is reason to believe any violations of laws or regulations concerning drugs, devices, cosmetics, or any of the articles listed in paragraph (1) of this subsection have occurred; and
    7. Perform such other duties as may be directed by the board.
    1. The director, deputy director, and special agents of the Georgia Drugs and Narcotics Agency shall have the authority and power that sheriffs possess to make arrests of any persons violating or charged with violating Chapter 13 of Title 16 and Chapter 3 of this title and this chapter. The deputy director and special agents shall be required to be P.O.S.T. certified peace officers under Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act."
    2. In case of such arrest, the director, deputy director, or any of the special agents shall immediately deliver the person so arrested to the custody of the sheriff of the county wherein the offense is alleged to have been committed. The duty of the sheriff in regard to the person delivered to the sheriff by any such person arrested under power of this Code section shall be the same as if the sheriff had made the original arrest.
  3. When the deputy director or a special agent employed by the Georgia Drugs and Narcotics Agency leaves the agency under honorable conditions after accumulating 25 years of service in the agency, as a result of a disability arising in the line of duty, or pursuant to approval by the State Board of Pharmacy, such director or agent shall be entitled to retain his or her weapon and badge pursuant to approval by the State Board of Pharmacy, and, upon leaving the agency, the director of the Georgia Drugs and Narcotics Agency shall retain his or her weapon and badge pursuant to approval by the State Board of Pharmacy.
  4. The Georgia Drugs and Narcotics Agency may employ personnel who are not special agents to conduct and assist with inspections.
  5. Except as otherwise provided in this chapter, upon receiving a summary report from agency personnel, the director shall report to the board what have been determined to be violations of the drug laws and rules over which the board has authority. After such reports have been made to the board, the board may instruct the director to:
    1. Cite any such person or establishment to appear before the cognizant member of the board for an investigative interview;
    2. Forward such reports to the Attorney General's office for action decided on by the board; or
    3. Take whatever other action the board deems necessary.
  6. The Georgia Drugs and Narcotics Agency may contract with and submit invoices for payment of services rendered to other professional licensing boards for the purposes of conducting investigations on their behalf and under the authority of such other professional licensing boards. Such investigations and subsequent reports and summaries shall be subject to the same confidentiality restrictions and disclosure as required for investigations and reports for the requesting professional licensing board. Any such payment of services received by the agency shall be deposited into the general fund of the state treasury.
  7. The Georgia Drugs and Narcotics Agency shall compile and submit to the General Assembly during each annual legislative session a list of known dangerous drugs as defined in subsection (a) of Code Section 16-13-71 and any other drugs or devices which the board has determined may be dangerous or detrimental to the public health and safety and should require a prescription, and the Georgia Drugs and Narcotics Agency shall assist the State Board of Pharmacy during each annual legislative session by compiling and submitting a list of substances to add to or reschedule substances enumerated in the schedules in Code Sections 16-13-25 through 16-13-29 by using the guidelines set forth in Code Section 16-13-22.
  8. The State Board of Pharmacy is authorized and directed to publish in print or electronically and distribute the "Dangerous Drug List" as prepared by the Georgia Drugs and Narcotics Agency and the "Georgia Controlled Substances Act" as enacted by law.
  9. The Georgia State Board of Pharmacy shall provide for a fee as deemed reasonable, or at no cost, such number of copies of the "Dangerous Drug List" and "Georgia Controlled Substances Act" to law enforcement officials, school officials, parents, and other interested citizens as are required. (Code 1981, § 26-4-29 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2013, p. 141, § 26/HB 79; Ga. L. 2013, p. 192, § 1-11/HB 132.)

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "in such office" for "in said office" in the introductory language of subsection (b); substituted "of such establishments" for "of the said establishments" in paragraph (b)(4); and substituted "the board may instruct" for "the board can instruct" in the introductory language of subsection (d) (now subsection (f)). The second 2013 amendment, effective July 1, 2013, in subsection (a), substituted "to the Department of Community Health, except that such department shall prepare and submit the budget of the Georgia Drugs and Narcotics Agency" for "to the office of the Secretary of State" in the second sentence, and substituted "The Georgia Drugs and Narcotics Agency" for "The agency"; in the introductory paragraph of subsection (b), substituted "such office" for "said office" and "the board" for "said board" near the middle of the first sentence, added the third sentence, and substituted "Georgia Drugs and Narcotics Agency" for "agency" in the sixth sentence; in paragraph (b)(4), substituted "such establishments" for "the said establishments"; added subsections (e) and (g); redesignated former subsections (c.1) and (d) as present subsections (d) and (f), respectively; and redesignated former subsection (e) as present subsections (h), (i), and (j).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, "45-12-71" was substituted for "45-12-7" in the second sentence of subsection (a).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-208 are included in the annotations for this Code section.

Agents immune from federal civil rights actions. - Neither a federal civil rights action for damages nor a pendent claim of malicious prosecution may proceed against agents of the Georgia Drug and Narcotics Agency in their official capacities by virtue of the Eleventh Amendment. Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984);(decided under former law).

Department of Public Safety's Division of Investigation investigates drug violations. - Under the Executive Reorganization Act of 1972, Ga. L. 1972, p. 1015, §§ 19, 20, the functions of the Georgia State Board of Pharmacy relating to alleged violations pertaining to drugs under former Code 1933, § 79A-208 (see now O.C.G.A. § 26-4-37 et seq.,) were transferred to the Department of Public Safety, and the criminal investigative functions were assigned to the Division of Investigation. Smith v. State, 131 Ga. App. 722 , 206 S.E.2d 711 (1974);(decided under former Code 1933, § 79A-208).

Cited in Ward v. State, 248 Ga. 60 , 281 S.E.2d 503 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1967, p. 296, and former Code Section 26-4-51 are included in the annotations for this Code section.

Any law enforcement official who has obtained a search warrant may lawfully search for and seize prescriptions retained for inspection by a pharmacy as required by Georgia law. 1970 Op. Att'y Gen. No. 70-112 (decided under Ga. L. 1967, p. 296).

Right of Chief Drug Inspector with warrant, to seize evidence. - Chief Drug Inspector of the State Board of Pharmacy and the Inspector's assistants have the authority to make arrests for violations of O.C.G.A. Title 16, Chapter 13, Article 3 and Ga. L. 1967, p. 296 (see now O.C.G.A. Title 16, Chapter 13, Article 2), and to search and seize evidence necessary for the presentation before courts of this state or before the State Board of Pharmacy; the Chief Drug Inspector and the Inspector's assistants do not have the authority to seize prescriptions from a pharmacy without properly acquiring a search warrant. 1970 Op. Att'y Gen. No. 70-112 (decided under Ga. L. 1967, p. 296).

Board's recourse to federal authorities when violator not within board's jurisdiction. - When the alleged violator is without the jurisdiction of the State Board of Pharmacy, the recourse of the board lies in the notification of the federal authorities charged with the enforcement of federal laws in the area of nonmailable items and the regulation of drugs, medicines, and poisons. 1969 Op. Att'y Gen. No. 69-121 (decided under Ga. L. 1967, p. 296).

RESEARCH REFERENCES

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 171, 213.

ALR. - Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Federal prosecutions based on manufacture, importation, transportation, possession, sale, or use of LSD, 22 A.L.R.3d 1325.

Marijuana, psilocybin, peyote, or similar drugs of vegetable origin as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1164.

LSD, STP, MDA, or other chemically synthesized hallucinogenic or psychedelic substances as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1284.

Odor of narcotics as providing probable cause for warrantless search, 5 A.L.R.4th 681.

26-4-30. Construction of chapter.

This chapter shall not be construed to prohibit the sale by general merchants or other nonpharmacy retailers of nonprescription drugs when sold only in their original and unbroken packages.

(Code 1981, § 26-4-30 , enacted by Ga. L. 1998, p. 686, § 1.)

ARTICLE 3 PRACTICE OF PHARMACY

Administrative Rules and Regulations. - Pharmacy Technicians and Other Pharmacy Personnel, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State of Pharmacy, Chapter 480-15.

26-4-40. Unlawful to practice pharmacy without license; exception; fine.

  1. Except as otherwise provided in this chapter, it shall be unlawful for any individual to engage in the practice of pharmacy unless currently licensed to practice under the provisions of this chapter.
  2. Practitioners authorized under the laws of this state to compound drugs and to dispense drugs to their patients in the practice of their respective professions shall not be required to be licensed under the provisions of this chapter; however, practitioners shall meet the same standards, record-keeping requirements, and all other requirements for the dispensing of drugs applicable to pharmacists.
  3. Any individual who, after hearing, shall be found by the board to have unlawfully engaged in the practice of pharmacy shall be subject to a fine to be imposed by the board for each offense. Each violation of this chapter pertaining to unlawfully engaging in the practice of pharmacy shall also constitute a felony punishable upon conviction thereof by a fine of not less than $500.00 nor more than $1,000.00 or by imprisonment for not less than two nor more than five years, or both. (Code 1981, § 26-4-40 , enacted by Ga. L. 1998, p. 686, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, a period was substituted for a semicolon at the end of subsection (a).

26-4-41. Qualifications for license; examination; internship and other training programs.

  1. Qualifications. To obtain a license to engage in the practice of pharmacy, an applicant for licensure by examination shall:
    1. Have submitted an application in the form prescribed by the board;
    2. Have attained the age of majority;
    3. Be of good moral character;
    4. Have graduated and received a professional undergraduate degree from a college or school of pharmacy as the same may be approved by the board; provided, however, that, since it would be impractical for the board to evaluate a school or college of pharmacy located in another country, the board may accept a graduate from such a school or college so long as the graduate has completed all requirements of the Foreign Pharmacy Equivalency Certification Program administered by the National Association of Boards of Pharmacy. This shall include successful completion of all required examinations and the issuance of the equivalency certificate and be based upon an individual evaluation by the board of the applicant's educational experience, professional background, and proficiency in the English language;
    5. Have completed an internship or other program that has been approved by the board or demonstrated to the board's satisfaction that experience in the practice of pharmacy which meets or exceeds the minimum internship requirements of the board;
    6. Have successfully passed an examination or examinations approved by the board; and
    7. Have paid the fees specified by the board for the examination and any related materials and have paid for the issuance of the license.
  2. Examinations.
    1. The examination for licensure required under paragraph (6) of subsection (a) of this Code section shall be made available at least two times during each year. The board shall determine the content and subject matter of each examination, and the place, time, and date of administration of the examination.
    2. The examination shall be prepared to measure the competence of the applicant to engage in the practice of pharmacy. The board may employ, cooperate, and contract with any organization or consultant in the preparation and grading of an examination, but shall retain the sole discretion and responsibility for determining which applicants have successfully passed such an examination.
    3. Any person who takes the board approved examination and fails the examination may repeat the examination at regular intervals of administration; however, a person shall not take the examination more than three times without permission from the board. A person who has taken the board approved examination and failed the examination for the third time shall not practice as a pharmacy intern. A person who takes the board approved examination and successfully completes the examination must become licensed within two years of the examination date or the results of the examination shall become invalid.
  3. Internship and other training programs.
    1. All applicants for licensure by examination shall obtain practical experience in the practice of pharmacy concurrent with or after college attendance or both under such terms and conditions as the board shall determine.
    2. The board shall establish such licensure requirements for interns and standards for internship or any other experiential program necessary to qualify an applicant for the licensure examination and shall also determine the qualifications of preceptors used in practical experience programs. (Code 1981, § 26-4-41 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 277, § 4; Ga. L. 2000, p. 136, § 26; Ga. L. 2010, p. 266, § 2/SB 195; Ga. L. 2011, p. 752, § 26/HB 142.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, "Internship and other training programs" was substituted for "Internship and Other Training Programs" in subsection (c).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 84-1313 are included in the annotations for this Code section.

Licensed pharmacist presumed to know effects of habit-forming drugs. - Pharmacist in this state must be a graduate of a recognized college of pharmacy and must have had 12 months of practical experience before being licensed; it is thus not necessary to allege that a licensed pharmacist would know the effects of habit-forming drugs. Morris v. Owen, 102 Ga. App. 71 , 115 S.E.2d 604 (1960) (decided under former Code 1933, § 84-1313).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 84-13, and former Code Section 26-4-72 are included in the annotations for this Code section.

Applicants not graduates of recognized schools of pharmacy may not take examination. - State Board of Pharmacy may not grant an examination to an applicant who is not a graduate of a recognized school or college of pharmacy. 1945-47 Op. Att'y Gen. p. 509 (decided under former Code 1933, § 84-1313).

Person who fails to pass the first pharmacist examination may take another one. 1950-51 Op. Att'y Gen. p. 143 (decided under former Code 1933, § 84-1314).

Alien may take examination for a license as a pharmacist but may not be licensed until the alien has become a citizen. 1948-49 Op. Att'y Gen. p. 330 (decided under former Code 1933, § 84-1311).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, § 89.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 65 et seq., 79 et seq.

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

26-4-42. License transfers for pharmacists licensed in another jurisdiction.

  1. In order for a pharmacist currently licensed in another jurisdiction to obtain a license as a pharmacist by license transfer in this state, an applicant shall:
    1. Complete and file a form applying for licensure with the board, which form shall include the applicant's name, address, and other such information as prescribed by the board, and, after an investigation by agents acting on behalf of the board, if so requested by the board, produce evidence satisfactory to the board which shows the applicant has the age, moral character, background, education, and experience demanded of applicants for registration by examination under this chapter and by the rules and regulations promulgated under this chapter;
    2. Have attained the age of majority;
    3. Be of good moral character;
    4. Have possessed at the time of initial licensure as a pharmacist all qualifications necessary to have been eligible for licensure at that time in this state;
    5. Have presented to the board proof of initial licensure by examination and proof that such license is in good standing;
    6. Have presented to the board proof that any other license granted to the applicant by any other state has not been suspended, revoked, or otherwise restricted for any reason except nonrenewal or for the failure to obtain the required continuing education credits in any state where the applicant is currently licensed but not engaged in the practice of pharmacy;
    7. Have successfully passed examinations as determined by the board, one of which shall include an examination on Georgia pharmacy law and board regulations; and
    8. Have paid the fees specified by the board.
  2. No applicant shall be eligible for license transfer unless the state in which the applicant was licensed as a pharmacist also grants licensure transfer to pharmacists duly licensed by examination in this state under like circumstances and conditions.
  3. To obtain a license to engage in the practice of pharmacy in this state, a pharmacist who is a graduate of a pharmacy school or college located in another country must complete all requirements of the Foreign Pharmacy Equivalency Certification Program administered by the National Association of Boards of Pharmacy. This shall include without being limited to successful completion of all required examinations, the issuance of the equivalency certificate, and an individual evaluation by the board of the applicant's proficiency in the English language. Additionally, a foreign pharmacy graduate applicant shall:
    1. Have submitted an application in the form prescribed by the board;
    2. Have attained the age of majority;
    3. Be of good moral character;
    4. Have possessed at the time of initial licensure as a pharmacist all qualifications necessary to have been eligible for licensure at that time in this state;
    5. Have graduated and been granted a pharmacy degree from a college or school of pharmacy recognized by the National Association of Boards of Pharmacy Foreign Pharmacy Graduate Examination Committee;
    6. Have successfully passed an examination approved by the board; and
    7. Have paid the fees specified by the board. (Code 1981, § 26-4-42 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 277, § 5; Ga. L. 2010, p. 266, § 3/SB 195; Ga. L. 2013, p. 127, § 2/HB 209.)

The 2013 amendment, effective July 1, 2013, in paragraph (a)(7), substituted "examinations as determined" for "an examination", and inserted ", one of which shall include an examination".

26-4-43. Temporary licenses.

  1. A temporary license may be issued by the executive director upon the approval of the president of the board if an applicant produces satisfactory evidence of fulfilling the requirements for licensure under this article, except the examination requirement, and evidence of an emergency situation justifying such temporary license. Except as provided in subsection (b) of this Code section, temporary licenses shall expire at the end of the month following the third board meeting conducted after the issuance of such license and may not be reissued or renewed.
  2. A temporary license may be issued to a service member, as defined in Code Section 26-4-44.2, for a period of six months. The board shall promulgate rules and regulations to effectuate this subsection.
  3. Notwithstanding subsection (a) of this Code section, applicants who have been accepted for a pharmacy resident position in this state may be issued a temporary license if they meet the examination requirement for licensure as specified by the board. (Code 1981, § 26-4-43 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2013, p. 192, § 1-12/HB 132; Ga. L. 2016, p. 855, § 3/HB 926.)

The 2013 amendment, effective July 1, 2013, substituted "executive director" for "division director" near the beginning of this Code section.

The 2016 amendment, effective July 1, 2016, designated the previously existing provisions of this Code section as subsection (a), and, in subsection (a), in the second sentence, substituted "Except as provided in subsection (b) of this Code section," for "All" and substituted "month following the third board meeting conducted after" for "month during which the first board meeting is conducted following"; and added subsections (b) and (c).

26-4-44. Renewal of licenses.

  1. Each pharmacist shall apply for renewal of his or her license biennially pursuant to the rules and regulations promulgated by the board. A pharmacist who desires to continue in the practice of pharmacy in this state shall file with the board an application in such form and containing such data as the board may require for renewal of the license. Notice of any change of employment or change of business address shall be filed with the executive director within ten days after such change. If the board finds that the applicant has been licensed and that such license has not been revoked or placed under suspension and that the applicant has paid the renewal fee, has continued his or her pharmacy education in accordance with Code Section 26-4-45 and the rules and regulations of the board, and is entitled to continue in the practice of pharmacy, then the board shall issue a license to the applicant.
  2. If a pharmacist fails to make application to the board for renewal of his or her license as set forth in and in accordance with the provisions of this chapter, the pharmacist must apply for reinstatement pursuant to the rules of the board. (Code 1981, § 26-4-44 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2013, p. 192, § 1-13/HB 132.)

The 2013 amendment, effective July 1, 2013, substituted "executive director" for "division director" in the third sentence of subsection (a).

26-4-44.1. Inactive license status.

  1. The board shall provide by rule for an inactive pharmacist license status for those individuals who elect to apply for such status. Persons who are granted inactive status shall be exempt from the requirements of continuing pharmaceuticals education.
  2. The board shall provide by rule for reactivation of a pharmacist license for those persons who wish to have an active license. Such individuals must first file a reactivation application with the board and comply with the requirements for reactivation as set forth by board rule. (Code 1981, § 26-4-44.1 , enacted by Ga. L. 1999, p. 277, § 6.)

26-4-44.2. Exceptions for active duty service members.

  1. As used in this Code section, the term "service member" means an active duty member of the regular or reserve component of the United States Armed forces, the United States Coast Guard, the Georgia National Guard, or the Georgia Air National Guard who was on ordered federal duty for a period of 90 days or longer.
  2. Any service member whose license issued pursuant to this article expired while such service member was serving on active duty outside the state shall be permitted to practice pharmacy in accordance with such expired license and shall not be charged with a violation of this chapter related to practicing pharmacy with an expired license for a period of six months from the date of his or her discharge from active duty or reassignment to a location within the state. Any such service member shall be entitled to renew such expired license without penalty within six months after the date of his or her discharge from active duty or reassignment to a location within the state. The service member must present to the board either a copy of the official military orders or a written verification signed by the service member's commanding officer to waive any charges. (Code 1981, § 26-4-44.2 , enacted by Ga. L. 2005, p. 213, § 2/SB 258.)

26-4-45. Continuing professional pharmaceutical education requirements.

The board shall establish a program of continuing professional pharmaceutical education for the renewal of pharmacist licenses. Notwithstanding any other provision of this chapter, no pharmacist license shall be renewed by the board or the executive director until the pharmacist submits to the board satisfactory proof of his or her participation, during the biennium preceding his or her application for renewal, in a minimum of 30 hours of approved programs of continuing professional pharmacy education as defined in this Code section. Continuing professional pharmacy education shall consist of educational programs providing training pertinent to the practice of pharmacy and approved by the board under this Code section. The board shall approve educational programs for persons practicing pharmacy in this state on a reasonable nondiscriminatory fee basis and may contract with institutions of higher learning, professional organizations, or qualified individuals for the providing of approved programs. In addition to such programs, the board shall allow the continuing professional pharmacy education requirement to be fulfilled by the completion of approved correspondence courses which provide the required hours of approved programs of continuing professional pharmaceutical education or to be fulfilled by a combination of approved correspondence courses and other approved educational programs. The board may, consistent with the requirements of this Code section, promulgate rules and regulations to implement and administer this Code section, including the establishment of a committee to prescribe standards, approve and contract for educational programs, and set the required minimum number of hours per year.

(Code 1981, § 26-4-45 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2013, p. 192, § 1-14/HB 132.)

The 2013 amendment, effective July 1, 2013, substituted "executive director" for "division director" in the second sentence of this Code section.

26-4-46. Pharmacy interns - Eligibility and requirements for licenses.

  1. To obtain a license as a pharmacy intern, an applicant shall:
    1. Have submitted an application in the form prescribed by the board of pharmacy;
    2. Have attained the age of majority;
    3. Be of good moral character; and
    4. Have paid the fees specified by the board for the issuance of the license.
  2. The following individuals shall be eligible to be licensed as a pharmacy intern:
    1. A student who is currently enrolled in an approved school or college of pharmacy;
    2. An individual who is a graduate of an approved school or college of pharmacy who is currently licensed by the board for the purpose of obtaining practical experience as a requirement for licensure as a pharmacist; or
    3. An individual who does not meet the requirements of paragraphs (1) and (2) of this subsection and is a graduate of a pharmacy school or college located in another country but who has completed all requirements of the Foreign Pharmacy Equivalency Certification Program administered by the National Association of Boards of Pharmacy. This shall include without being limited to successful completion of all required examinations, the issuance of the equivalency certificate, and an individual evaluation by the board of the applicant's proficiency in the English language.
  3. The board shall approve all internship programs for the purpose of providing the practical experience necessary for licensure as a pharmacist. A pharmacy intern is authorized to engage in the practice of pharmacy under the supervision of a pharmacist. The board shall adopt rules regarding the licensure of interns and the standards for internship programs. (Code 1981, § 26-4-46 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 277, § 7; Ga. L. 2010, p. 266, § 4/SB 195.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "paragraphs" was substituted for "paragraph" in paragraph (b)(3).

26-4-47. Pharmacy interns - Validity of licenses.

  1. Licenses issued under Code Section 26-4-46 shall bear the date of issuance and shall be valid for up to five years. Unless said license is renewed by the board, the license shall expire.
  2. Any license issued pursuant to Code Section 26-4-46 shall expire at the time a pharmacy intern is expelled, suspended, dismissed, or withdraws from an approved school or college of pharmacy or is otherwise licensed as a pharmacist pursuant to this title.
  3. Any license issued pursuant to Code Section 26-4-46 shall expire upon notification that a person has taken and failed the board examination for the third time. (Code 1981, § 26-4-47 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-48. Pharmacy interns - Renewal of licenses; exceptions.

Licenses issued pursuant to Code Section 26-4-46 which shall expire by lapse of time may be renewed upon application, unless, at the time of expiration, there shall be pending action before the board to suspend or revoke such license.

(Code 1981, § 26-4-48 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-49. Drug researcher permits; application for registration; fees; suspension or revocation; penalty for violations.

  1. Every person, firm, corporation, agency, department, or other entity located within this state which handles, possesses, or utilizes controlled substances or dangerous drugs, as defined in Chapter 13 of Title 16, for the purposes of conducting research, analysis, animal training, or drug education, as such purposes may be further defined by the board, and is not otherwise registered as a pharmacist, pharmacy, drug wholesaler, distributor, supplier, or practitioner shall biennially register with the State Board of Pharmacy for a drug researcher permit which shall entitle the holder thereof to purchase, receive, possess, or dispose of such controlled substances and dangerous drugs for such purposes. In applying for the permit:
    1. The application for registration shall be made on a form to be prescribed and furnished by said board and shall show at a minimum the name of the person responsible for filing the application, the name of the applying firm, corporation, agency, department, or other entity, if applicable, the address where the controlled substances or dangerous drugs will be kept secured and can be inspected by the board, together with such other information as may be required by the board;
    2. The person filing the application for the permit shall be the responsible person for the safe and proper storage and accountability, as defined under Chapter 13 of Title 16, for any and all controlled substances and dangerous drugs. Such person shall be responsible for maintaining exact and accurate records regarding the purchase, receipt, utilization, and disposal of all controlled substances and dangerous drugs utilized for purposes granted by this permit. All records must be maintained for a minimum of two years and be readily available for inspection by agents of the board; and
    3. Before approval by the board for any permit issued under this Code section, the application for registration must successfully undergo a thorough investigation by agents of the board to ensure the applicant complies with all applicable laws, rules, and regulations pursuant to handling controlled substances and dangerous drugs as defined under Chapter 13 of Title 16.
  2. The board may require that the application for registration as a drug researcher be accompanied by a fee in an amount established under rules promulgated by the board, and the board may establish conditions for exemptions from such fees. Such registration shall not be transferable and shall expire on the expiration date established by the executive director and may be renewed pursuant to rules and regulations promulgated by the board. If not renewed, the registration shall lapse and become null and void.
  3. The board shall have the authority to promulgate rules and regulations governing the holder of a drug researcher permit as defined under this Code section.
  4. A drug researcher permit may be suspended or revoked or the registrant may be reprimanded, fined, or placed on probation by the board if the registrant fails to comply with all applicable local, state, or federal laws, rules, and regulations.
  5. A holder of a drug researcher permit who is not also licensed as a pharmacist practicing in a duly licensed pharmacy shall not engage in the sale, distribution, or dispensing of controlled substances or dangerous drugs.
  6. Any person, firm, or corporation which violates any provision of this Code section shall be guilty of a felony and, upon conviction thereof, be punished by imprisonment for not less than one year nor more than five years or by a fine not to exceed $10,000.00 or both. (Code 1981, § 26-4-49 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2003, p. 140, § 26; Ga. L. 2013, p. 192, § 1-15/HB 132.)

The 2013 amendment, effective July 1, 2013, substituted "executive director" for "division director" in the second sentence of subsection (b).

26-4-50. Drug therapy modification certification.

  1. No pharmacist shall be authorized to modify drug therapy pursuant to Code Section 43-34-24 unless that pharmacist:
    1. Is licensed to practice as a pharmacist in this state;
    2. Has successfully completed a course of study regarding modification of drug therapy and approved by the board;
    3. Annually successfully completes a continuing education program regarding modification of drug therapy and approved by the board; and
    4. Is certified by the board as meeting the requirements of paragraphs (1) through (3) of this subsection.
  2. Nothing in this Code section shall be construed to expand or change any existing authority for a pharmacist to substitute drugs. (Code 1981, § 26-4-50 , enacted by Ga. L. 2000, p. 558, § 1; Ga. L. 2009, p. 859, § 6/HB 509.)

26-4-51. Durable medical equipment supplier license; requirements; exemptions; rules and regulations.

  1. Any person who supplies durable medical equipment to a consumer and submits a claim for reimbursement by a third party, either directly or through a contractual arrangement, shall possess a durable medical equipment supplier license issued by the board pursuant to this Code section.
  2. The board shall be authorized to issue a license to an applicant for licensure as a durable medical equipment supplier if the applicant:
    1. Submits an application in the form prescribed by the board;
    2. Maintains an office or place of business within this state;
    3. Pays the license fee established by the board pursuant to paragraph (37) of subsection (a) of Code Section 26-4-28; and
    4. Meets all safety standards and requirements established by the board, including but not limited to the establishment of written procedures for:
      1. Ensuring that all personnel engaged in delivery, maintenance, and repair of durable medical equipment receives annual continuing education;
      2. Instructing the patient or patient's caregiver on how to use the durable medical equipment provided;
      3. Receiving and responding to complaints from patients;
      4. Maintaining records of all patients receiving durable medical equipment; and
      5. Management, maintenance, and servicing of durable medical equipment.
  3. The board may issue a license to a Medicare enrolled out-of-state manufacturer or wholesale distributor that provides durable medical equipment directly to consumers if such manufacturer or wholesale distributor possesses a valid license from another state. Such manufacturer or wholesale distributor shall be exempt from the requirements of paragraph (2) of subsection (b) of this Code section.
  4. Licenses issued pursuant to this Code section shall be effective for 36 months from the date of issuance and shall not be transferable or assignable.
  5. The board may refuse to issue or renew, or may suspend, revoke, or restrict the licenses of, or fine any person pursuant to the procedures set forth in Code Section 26-4-60 for any of the grounds set forth in subsection (a) of such Code section or upon a finding that the applicant or licensee:
    1. Has violated any state or federal law or regulation related to the provision of durable medical equipment; or
    2. Fails to meet the safety standards established by the board.
  6. The board reserves the right to initially and periodically inspect the applicant's or licensee's office or place of business within this state. Such applicant or licensee shall be required to pay a reasonable and adequate fee established by the board pursuant to paragraph (37) of subsection (a) of Code Section 26-4-28 to cover the cost of such inspections.
  7. The following persons and entities shall be exempt from the requirements of this Code section unless any such person or entity has a separate company, corporation, or division that is in the business of supplying durable medical equipment to consumers and submits a claim for reimbursement by a third party:
    1. Pharmacies and pharmacists;
    2. Hospitals;
    3. Ambulatory surgical centers;
    4. Health care facilities owned or operated by the state or federal government;
    5. Skilled nursing facilities;
    6. Assisted living facilities;
    7. Health care practitioners who:
      1. Provide durable medical equipment within the scope of practice of the health care practitioner's profession; and
      2. Are licensed in this state to practice the health care practitioner's profession;
    8. Suppliers of insulin infusion pumps and related supplies or services;
    9. Manufacturers or wholesale distributors that do not sell or rent durable medical equipment directly to consumers;
    10. Renal dialysis providers licensed under Code Section 31-44-4 and persons or entities that distribute devices necessary to perform home renal dialysis to patients with chronic kidney disease; and
    11. Suppliers of osteogenesis stimulators, transcutaneous electrical nerve stimulators, pneumatic compression devices, and related supplies or services.
  8. The board shall promulgate rules and regulations necessary to implement the provisions of this Code section. Such rules and regulations shall be established with the intent of ensuring patient safety and quality of durable medical equipment. The board may provide by rules and regulations that any person accredited by organizations recognized by the federal Centers for Medicare and Medicaid Services is deemed to meet all or some of the requirements of this Code section. Further, the board shall be authorized to require the completion of background checks, including, but not limited to, criminal history record checks, on any applicants or licensees, on any persons who will have direct contact with patients, and on any other licensee personnel deemed necessary for purposes of patient safety.
  9. Nothing in this Code section shall be construed to restrict or prohibit the ability of a person or business to engage in a private transaction between two parties. (Code 1981, § 26-4-51 , enacted by Ga. L. 2017, p. 614, § 3/SB 41.)

Effective date. - This Code section became effective July 1, 2017.

ARTICLE 4 DISCIPLINE

26-4-60. Grounds for suspension, revocation, or refusal to grant licenses.

  1. The board of pharmacy may refuse to issue or renew, or may suspend, revoke, or restrict the licenses of, or fine any person pursuant to the procedures set forth in this Code section, upon one or more of the following grounds:
    1. Engaging in any unprofessional, immoral, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice materially affects the fitness of the licensee or applicant to practice pharmacy or another business or profession licensed under this chapter, or of a nature likely to jeopardize the interest of the public, which conduct or practice need not have resulted in actual injury to any person or be directly related to the practice of pharmacy or another licensed business or profession but shows that the licensee or applicant has committed any act or omission which is indicative of bad moral character or untrustworthiness; unprofessional conduct shall also include any departure from, or the failure to conform to, the minimal reasonable standards of acceptable and prevailing practices of the business or profession licensed under this chapter;
    2. Incapacity that prevents a licensee from engaging in the practice of pharmacy or another business or profession licensed under this chapter with reasonable skill, competence, and safety to the public;
    3. Being:
      1. Convicted of a felony;
      2. Convicted of any crime involving moral turpitude in this state or any other state, territory, or country or in the courts of the United States; or
      3. Convicted or guilty of violations of the pharmacy or drug laws of this state, or rules and regulations pertaining thereto, or of laws, rules, and regulations of any other state, or of the federal government;
    4. Knowingly making misleading, deceptive, untrue, or fraudulent representations in the practice of a business or profession licensed under this chapter or on any document connected therewith; practicing fraud or deceit or intentionally making any false statement in obtaining a license to practice the licensed business or profession; or making a false statement or deceptive registration with the board;
    5. Engaging or aiding and abetting an individual to engage in the practice of pharmacy without a license falsely using the title of "pharmacist" or "pharmacy intern," or falsely using the term "pharmacy" in any manner;
    6. Failing to pay the costs assessed in a disciplinary hearing pursuant to subsection (c) of Code Section 26-4-28;
      1. Becoming unfit or incompetent to practice pharmacy by reason of:
        1. Intemperance in the use of alcoholic beverages, narcotics, or habit-forming drugs or stimulants; or
        2. Any abnormal physical or mental condition which threatens the safety of persons to whom such person may compound or dispense prescriptions, drugs, or devices or for whom he or she might manufacture, prepare, or package or supervise the manufacturing, preparation, or packaging of prescriptions, drugs, or devices.
      2. In enforcing this paragraph, the board may, upon reasonable grounds, require a licensee or applicant to submit to a mental or physical examination by licensed health care providers designated by the board. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who accepts the privilege of practicing pharmacy in this state or who files an application for a license to practice pharmacy in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a licensee or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee or applicant who is prohibited from practicing pharmacy under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin the practice of pharmacy with reasonable skill and safety to patients.
      3. For the purposes of this paragraph, the board may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a licensee or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who accepts the privilege of practicing pharmacy in this state or who files an application for a license to practice pharmacy in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitutes a privileged communication.
      4. If any licensee or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in subparagraph (B) of this paragraph or the records relating to the mental or physical condition of such licensee or applicant obtained pursuant to subparagraph (C) of this paragraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any licensee or applicant in any other type of proceeding;
    7. Being adjudged mentally incompetent by a court of competent jurisdiction within or outside this state; any such adjudication shall automatically suspend the license of any such person and shall prevent the reissuance or renewal of any license so suspended for as long as the adjudication of incompetence is in effect;
    8. Violating any rules and regulations promulgated by the board;
    9. Promoting to the public in any manner a drug which may be dispensed only pursuant to prescription;
    10. Regularly employing the mails or other common carriers to sell, distribute, and deliver a drug which requires a prescription directly to a patient; provided, however, that this provision shall not prohibit the use of the mails or other common carriers to sell, distribute, and deliver a prescription drug directly to:
      1. A patient or directly to a patient's guardian or caregiver or a physician or physician acting as the patient's agent for whom the prescription drug was prescribed if:
        1. Such prescription drugs are prescribed for complex chronic, terminal, or rare conditions;
        2. Such prescription drugs require special administration, comprehensive patient training, or the provision of supplies and medical devices or have unique patient compliance and safety monitoring requirements;
        3. Due to the prescription drug's high monetary cost, short shelf life, special manufacturer specified packaging and shipping requirements or instructions which require temperature sensitive storage and handling, limited availability or distribution, or other factors, the drugs are not carried in the regular inventories of retail pharmacies such that the drugs could be immediately dispensed to multiple retail walk-in patients;
        4. Such prescription drug has an annual retail value to the patient of more than $10,000.00;
        5. The patient receiving the prescription drug consents to the delivery of the prescription drug via expedited overnight common carrier and designates the specialty pharmacy to receive the prescription drug on his or her behalf;
        6. The specialty pharmacy utilizes a shipping method, as appropriate and in accordance with standards of the manufacturer, United States Pharmacopeia, and Federal Drug Administration and other recognized standards. The shipping method may include the use of temperature tags, time temperature strips, insulated packaging, or a combination of these;
        7. The specialty pharmacy establishes and notifies the enrollee of its policies and procedures to address instances in which medications do not arrive in a timely manner or in which they have been compromised during shipment and to assure that the pharmacy replaces or makes provisions to replace such drugs; and
        8. Except as otherwise provided in division (vi) of this subparagraph, the specialty pharmacy complies with the rules and regulations of the State Board of Pharmacy regarding delivery by mail;
      2. An institution or to sell, distribute, or deliver prescription drugs, upon his or her request, to an enrollee in a health benefits plan of a group model health maintenance organization or its affiliates by a pharmacy which is operated by that same group model health maintenance organization and licensed under Code Section 26-4-110 or to a patient on behalf of a pharmacy. Any pharmacy using the mails or other common carriers to dispense prescriptions pursuant to this paragraph shall comply with the following conditions:
        1. The pharmacy shall provide an electronic, telephonic, or written communications mechanism which reasonably determines whether the medications distributed by the mails or other common carriers have been received by the enrollee and through which a pharmacist employed by the group model health maintenance organization or a pharmacy intern under his or her direct supervision is enabled to offer counseling to the enrollee as authorized by and in accordance with his or her obligations under Code Section 26-4-85, unless the enrollee refuses such consultation or counseling pursuant to subsection (e) of such Code section. In addition, the enrollee shall receive information indicating what he or she should do if the integrity of the packaging or medication has been compromised during shipment;
        2. Except as otherwise provided in division (iii) of this subparagraph, the pharmacy complies with the rules and regulations of the State Board of Pharmacy regarding delivery by mail, including special conditions on the mailing of certain drugs and, if necessary, restriction from delivery of certain substances by mail; provided, however, that the State Board of Pharmacy shall not promulgate a list of medications which may not be delivered by the mails or other common carriers. If, however, the State Board of Pharmacy bans a medication from being sold in this state, either over the counter or otherwise, then such medication shall not be delivered by mail. Nothing herein shall require a dispensing pharmacy to deliver by mail those medications which, in the professional opinion of the dispensing pharmacist, may be clinically compromised by distribution through the mails or other common carriers;
        3. The pharmacy shall utilize a shipping method, as appropriate and in accordance with standards of the manufacturer, United States Pharmacopeia, and Federal Drug Administration and other recognized standards. The shipping method may include the use of temperature tags, time temperature strips, insulated packaging, or a combination of these; and
        4. The pharmacy shall establish and notify the enrollee of its policies and procedures to address instances in which medications do not arrive in a timely manner or in which they have been compromised during shipment and to assure that the pharmacy replaces or makes provisions to replace such drugs.

          For purposes of this subparagraph, the term "group model health maintenance organization" means a health maintenance organization that has an exclusive contract with a medical group practice to provide or arrange for the provision of substantially all physician services to enrollees in health benefits plans of the health maintenance organization; or

      3. A pharmacist or pharmacy to dispense a prescription and deliver it to another pharmacist or pharmacy to make available for a patient to receive the prescription and patient counseling according to Code Section 26-4-85. The State Board of Pharmacy shall adopt any rules and regulations necessary to implement this subparagraph;
    11. Unless otherwise authorized by law, dispensing or causing to be dispensed a different drug or brand of drug in place of the drug or brand of drug ordered or prescribed without the prior authorization of the practitioner ordering or prescribing the same;
    12. Violating or attempting to violate a statute, law, or any lawfully promulgated rule or regulation of this state, any other state, the board, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, when such statute, law, rule, or regulation relates to or in part regulates the practice of pharmacy or another business or profession licensed under this chapter, when the licensee or applicant knows or should know that such action violates such statute, law, or rule; or violating either a public or confidential lawful order of the board previously entered by the board in a disciplinary hearing, consent decree, or license reinstatement;
    13. Having his or her license to practice pharmacy or another business or profession licensed under this chapter revoked, suspended, or annulled by any lawful licensing authority of this or any other state, having disciplinary action taken against him or her by any lawful licensing authority of this or any other state, or being denied a license or renewal by any lawful licensing authority of this or any other state;
    14. Failure to demonstrate the qualifications or standards for a license contained in this Code section or under the laws, rules, or regulations under which licensure is sought or held; it shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all the requirements for the issuance of a license, and if the board is not satisfied as to the applicant's qualifications, it may deny a license without a prior hearing; provided, however, that the applicant shall be allowed to appear before the board if he or she so desires; or
    15. Knowingly performing any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or any licensee whose license has been suspended or revoked by the board to practice pharmacy or another business or profession licensed under this chapter or to practice outside the scope of any disciplinary limitation placed upon the licensee by the board.
  2. The board shall have the power to suspend or revoke the license of the pharmacist in charge when a complete and accurate record of all controlled substances on hand, received, manufactured, sold, dispensed, or otherwise disposed of has not been kept by the pharmacy in conformance with the record-keeping and inventory requirements of federal law and the rules of the board.
  3. Any person whose license to practice pharmacy in this state has been suspended, revoked, or restricted pursuant to this chapter, whether voluntarily or by action of the board, shall have the right, at reasonable intervals, to petition the board for reinstatement of such license pursuant to rules and regulations promulgated by the board. Such petition shall be made in writing and in the form prescribed by the board. The board may, in its discretion, grant or deny such petition, or it may modify its original finding to reflect any circumstances which have changed sufficiently to warrant such modifications.
  4. Nothing in this Code section shall be construed as barring criminal prosecutions for violations of this chapter.
  5. All final decisions by the board shall be subject to judicial review pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  6. Any individual or entity whose license to practice pharmacy is revoked, suspended, or not renewed shall return his or her license to the offices of the board within ten days after receipt of notice of such action.
  7. For purposes of this Code section, a conviction shall include a finding or verdict of guilty or a plea of guilty, nolo contendere, or no contest in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon.
  8. Nothing in this Code section shall be construed as barring or prohibiting pharmacists from providing or distributing health or drug product information or materials to patients which are intended to improve the health care of patients.
  9. The board shall have the power to suspend any license issued under Article 3 of this chapter when such holder is not in compliance with a court order for child support as provided in Code Section 19-6-28.1 or 19-11-9.3. The board shall also have the power to deny the application for issuance or renewal of a license under Article 3 of this chapter when such applicant is not in compliance with a court order for child support as provided in either of such Code sections. The hearings and appeals procedures provided for in such Code sections shall be the only such procedures required to suspend or deny any license issued under Article 3 of this chapter.
  10. Nothing in this chapter shall prohibit any person from assisting any duly licensed pharmacist or practitioner in the measuring of quantities of medication and the typing of labels therefor, but excluding the dispensing, compounding, or mixing of drugs, provided that such duly licensed pharmacist or practitioner shall be physically present in the dispensing area and actually observing the actions of such person in doing such measuring and typing, and provided, further, that no prescription shall be given to the person requesting the same unless the contents and the label thereof shall have been verified by a licensed pharmacist or practitioner.
  11. The board shall not have the power to suspend any license issued under Article 3 of this chapter because such holder is a borrower in default who is not in satisfactory repayment status under the Georgia Higher Education Loan Program as determined by the Georgia Higher Education Assistance Corporation or who has been certified by any entity of the federal government for nonpayment or default or breach of a repayment or service obligation under any federal educational loan, loan repayment, or service conditional scholarship program. The board shall also not have the power to deny the application for issuance or renewal of a license under Article 3 of this chapter because such applicant is a borrower in default under the Georgia Higher Education Loan Program as determined by the Georgia Higher Education Assistance Corporation or has been certified by any entity of the federal government for nonpayment or default or breach of a repayment or service obligation under any federal educational loan, loan repayment, or service conditional scholarship program.
    1. The executive director is vested with the power and authority to make or cause to be made through employees or agents of the board or the Georgia Drugs and Narcotics Agency such investigations as he or she or the board may deem necessary or proper for the enforcement of the provisions of this Code section and the laws relating to the practice of pharmacy and other businesses and professions licensed by the board. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material relating to the fitness of any licensee or applicant. The executive director or his or her appointed representative may issue subpoenas to compel access to any writing, document, or other material upon a determination that reasonable grounds exist for the belief that a violation of this Code section or any other law relating to the practice of pharmacy or other business or profession subject to regulation or licensing by the board may have taken place. Notwithstanding the provisions of this paragraph, Code Section 16-13-60 shall control the access to or release of information.
    2. If a licensee is the subject of a board inquiry, all records relating to any person who receives services rendered by that licensee in his or her capacity as licensee shall be admissible at any hearing held to determine whether a violation of this chapter has taken place, regardless of any statutory privilege; provided, however, that any documentary evidence relating to a person who received those services shall be reviewed in camera and shall not be disclosed to the public.
  12. A person, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee or applicant which violate the provisions of subsection (a) of this Code section or any other provision of law relating to a licensee's or applicant's fitness to practice a business or profession licensed under this chapter, or for initiating or conducting proceedings against such licensee or applicant, if such report is made or action is taken in good faith, without fraud or malice. Any person who testifies or who makes a recommendation to the board in the nature of peer review, in good faith, without fraud or malice, before the board in any proceeding involving the provisions of subsection (a) of this Code section or any other law relating to a licensee's or applicant's fitness to practice the business or profession licensed by the board shall be immune from civil and criminal liability for so testifying.
  13. Neither the issuance of a private reprimand nor the denial of a license by reciprocity nor the denial of a request for reinstatement of a revoked license nor the refusal to issue a previously denied license shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; notice and hearing within the meaning of such chapter shall not be required, but the applicant or licensee shall be allowed to appear before the board if he or she so requests. The board may resolve a pending action by the issuance of a letter of concern. Such letter shall not be considered a disciplinary action or a contested case under Chapter 13 of Title 50 and shall not be disclosed to any person except the licensee or applicant.
  14. If any licensee or applicant after reasonable notice fails to appear at any hearing of the board for that licensee or applicant, the board may proceed to hear the evidence against such licensee or applicant and take action as if such licensee or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served personally upon the licensee or applicant or served by certified mail or statutory overnight delivery, return receipt requested, to the last known address of record with the board. If such material is served by certified mail or statutory overnight delivery and is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee or applicant cannot, after diligent effort, be located, the executive director, or his or her designee, shall be deemed to be the agent for service for such licensee or applicant for purposes of this Code section, and service upon the executive director, or his or her designee, shall be deemed to be service upon the licensee or applicant.
  15. Board proceedings that result in the voluntary surrender of a license or the failure to renew a license by the end of an established penalty period shall have the same effect as a revocation of such license, subject to reinstatement in the discretion of the board. The board may restore and reissue a license to practice under this chapter and, as a condition thereof, may impose any disciplinary sanction provided by this Code section or the provisions of this chapter.
  16. This Code section shall apply equally to all licensees or applicants whether individuals, partners, or members of any other incorporated or unincorporated associations, corporations, limited liability companies, or other associations of any kind whatsoever. (Code 1981, § 26-4-60 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 277, § 8; Ga. L. 2006, p. 444, § 1/HB 246; Ga. L. 2007, p. 463, § 1/SB 205; Ga. L. 2011, p. 541, § 2/SB 81; Ga. L. 2012, p. 1092, § 1/SB 346; Ga. L. 2013, p. 192, § 1-16/HB 132; Ga. L. 2016, p. 521, § 1/HB 886; Ga. L. 2017, p. 774, § 26/HB 323; Ga. L. 2019, p. 462, § 1-7/SB 214.)

The 2012 amendment, effective July 1, 2012, deleted "or " at the end of division (a)(11)(A)(vii); in subparagraph (a)(11)(B), in the first sentence, substituted "prescription drugs " for "prescription drug refills " near the beginning, and inserted "or to a patient on behalf of a pharmacy " at the end; added "or " at the end of the undesignated text following division (a)(11)(B)(iv); and added subparagraph (a)(11)(C).

The 2013 amendment, effective July 1, 2013, rewrote subsection (a); substituted "guilty or a plea of guilty, nolo contendere, or no contest" for "guilty, a plea of guilty, or a plea of nolo contendere" in subsection (g); and added subsections (l) through (q).

The 2016 amendment, effective July 1, 2016, in division (a)(11)(A)(vi), inserted "a shipping method" near the beginning, substituted "recognized standards. The shipping method may include the use of" for "standards adopted by the State Board of Pharmacy," near the end, and deleted "and" at the end; in division (a)(11)(A)(vii), added "and" at the end; added division (a)(11)(A)(viii); rewrote division (a)(11)(B)(ii); and, in division (a)(11)(B)(iii), inserted "a shipping method" near the beginning and substituted "recognized standards. The shipping method may include the use of" for "standards adopted by the State Board of Pharmacy," near the end.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in division (a)(11)(B)(ii).

The 2019 amendment, effective July 1, 2019, rewrote subsection (k), which read: "The board shall have the power to suspend any license issued under Article 3 of this chapter when such holder is a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295. The board shall also have the power to deny the application for issuance or renewal of a license under Article 3 of this chapter when such applicant is a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295. The hearings and appeals procedures provided for in Code Section 20-3-295 shall be the only such procedures required to suspend or deny any license issued under Article 3 of this chapter."

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, the provisions enacted as subsection (d) of Code Section 26-4-78 by Ga. L. 1998, p. 1094, § 7, were redesignated as subsection (k) of this Code section and "are" was substituted for "is" near the end of subsection (h).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 1729 and former Code 1910, § 1654 are included in the annotations for this Code section.

Pharmacy license as defense to drug possession charge. - Whether an individual has a license or is otherwise lawfully permitted to have in the individual's possession narcotic drugs is a matter of defense and not an element of the offense. Woods v. State, 233 Ga. 347 , 211 S.E.2d 300 (1974), appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2623 , 45 L. Ed. 2 d 667 (1975).

Merchant may not compound medicines. Lewis v. Brannen, 6 Ga. App. 419 , 65 S.E. 189 (1909) (decided under former Code 1895, § 1729).

Licensed pharmacist must be present when drugs sold or made. - Former Code 1895, § 1729 did not require the owner of a drugstore to be licensed if the owner employs a licensed manager, but other members of the firm cannot sell drugs or compound prescriptions during the absence of manager. Sconyers v. State, 6 Ga. App. 804 , 65 S.E. 814 (1909) (decided under former Code 1895, § 1729).

Including all pharmaceutical preparations. - Former Code 1895, § 1729, which confined the compounding and vending of drugs and medicines (with only certain enumerated exceptions) to licensed druggists, apothecaries, and pharmacists, relates to all pharmaceutical and medical preparations, whether recognized by the pharmacopoeia and other standard works or not. Lewis v. Brannen, 6 Ga. App. 419 , 65 S.E. 189 (1909) (decided under former Code 1895, § 1729).

Employee or proprietor chargeable for selling morphine without prescription. - One who sells morphine not on the order or prescription of a licensed physician, dentist, or veterinary surgeon, is guilty of a misdemeanor without reference to whether the seller is the proprietor of a drugstore, or merely the employee of such proprietor. Oppenheim v. State, 12 Ga. App. 480 , 77 S.E. 652 (1913) (decided under former Code 1910, § 1654).

Indictment showing defendant sold drugs and poisons without license sufficient. - Indictment charging the defendants with vending drugs and poisons without license contained the necessary allegations and exceptions, and was therefore a good and valid indictment. Carter v. State, 122 Ga. 175 , 50 S.E. 64 (1905) (decided under former Code 1895, § 1729).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 79A-410 and 84-1317, are included in the annotations for this Code section.

Mailing of prescription drugs by pharmacists employed by the Veterans Administration does not violate Georgia law. 1973 Op. Att'y Gen. No. 73-59 (decided under former Code 1933, § 79A-410).

Federal regulations preempt state law against mailing drugs. - Georgia law had no effect on a federal employee involved in a federal governmental function; because Veterans Administration pharmacists are authorized to dispense prescription drugs by mail, federal policy conflicts with state law; where federal regulations promulgated to carry out federal statutes conflict with a state statute, the former will govern. 1973 Op. Att'y Gen. No. 73-59 (decided under former Code 1933, § 79A-410).

Anyone not pharmacist or intern may only measure quantities of medication and type labels. - Individual working in a pharmacy who is neither a licensed pharmacist nor a licensed pharmacy intern may assist a pharmacist only to the extent of measuring the quantities of medication and/or the typing of labels. 1974 Op. Att'y Gen. No. U74-63 (decided under former Code 1933, § 79A-410).

Board regulates dispensing of drugs in hospitals by machine or otherwise. - Dispensing of drugs in hospitals by machine or otherwise is a matter which the legislature has left to the State Board of Pharmacy to regulate through the board's rule making power. 1969 Op. Att'y Gen. No. 69-85 (decided under former Code 1933, § 79A-410).

Merchant may sell home remedies (which probably would include mineral oil) without qualifying as a pharmacist. 1945-47 Op. Att'y Gen. p. 508 (decided under former Code 1933, § 84-1317).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Drugs and Controlled Substances, § 89 et seq.

C.J.S. - 28 C.J.S., Drugs and Narcotics, §§ 65 et seq., 87 et seq.

ALR. - Revocation or suspension of license or permit to practice pharmacy or operate drugstore because of improper sale or distribution of narcotic or stimulant drugs, 17 A.L.R.3d 1408.

Validity and construction of prescription drug insurance plans, 42 A.L.R.3d 897.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Right of medical patient to obtain, or physician to prescribe, laetrile for treatment of illness - state cases, 5 A.L.R.4th 219.

26-4-61. Temporary suspension of license; notice; disciplinary hearings.

  1. The provisions of subsection (c) of Code Section 50-13-18 with respect to emergency action by a professional licensing board and summary suspension of a license are adopted and incorporated by reference into this Code section.
  2. Whenever a notice of summary suspension, notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding is docketed, it shall be personally served upon the licensee or applicant or served by certified mail or statutory overnight delivery, return receipt requested, to the last known address of record with the board. If such material is served by certified mail or statutory overnight delivery and is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee or applicant cannot, after reasonable effort, be located, the director for the board shall be deemed to be the agent for service for such licensee or applicant for purposes of this Code section and service upon the director shall be deemed to be service upon the licensee or applicant.
  3. If any licensee or applicant after reasonable notice fails to appear at any hearing of the board for that licensee or applicant, the board may proceed to hear the evidence against such licensee or applicant and take action as if such licensee or applicant had been present. (Code 1981, § 26-4-61 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 277, § 9; Ga. L. 2000, p. 1589, § 3; Ga. L. 2000, p. 1706, § 19.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the amendment to subsection (b) is applicable with respect to notices delivered on or after July 1, 2000.

26-4-62. Penalty for violation of chapter.

Except as otherwise provided in this chapter or in Chapter 13 of Title 16, any violation of this chapter shall constitute a misdemeanor.

(Code 1981, § 26-4-62 , enacted by Ga. L. 1998, p. 686, § 1.)

ARTICLE 5 PRESCRIPTION DRUGS

Administrative Rules and Regulations. - Georgia Drugs and Narcotics Agency (GDNA) Classifications and Minimum Requirements for Special Agents and Deputy Director, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-14-.01.

Requirements of a Prescription Drug Order When Utilizing A Computer or Other Electronic Means, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Chapter 480-27.

RESEARCH REFERENCES

ALR. - Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.

26-4-80. License required for practice of pharmacy; dispensing of prescription drugs; prescription drug orders; electronically transmitted drug orders; refills; Schedule II controlled substance prescriptions.

  1. All persons engaging in the practice of pharmacy in this state must be licensed by the board.
  2. Prescription drugs shall be dispensed only pursuant to a valid prescription drug order. A pharmacist shall not dispense a prescription which the pharmacist knows or should know is not a valid prescription. A pharmacist shall have the same corresponding liability for prescriptions as an issuing practitioner as set forth in 21 C.F.R. Part 1304 as such regulation exists on January 1, 2013. Valid prescription drug orders shall include those issued by a physician, dentist, podiatrist, veterinarian, or other person licensed, registered, or otherwise authorized under the laws of this state, or of any state or territory of the United States, to prescribe dangerous drugs or controlled substances or both.
  3. A prescription drug order may be accepted by a pharmacist or pharmacy intern or extern in written form, orally, via an electronic visual image prescription drug order, or via an electronic data prescription drug order as set forth in this chapter or as set forth in regulations promulgated by the board. Provisions for accepting a prescription drug order for a Schedule II controlled substance are set forth in subsection (l) of this Code section, the board's regulations, or the regulations of the United States Drug Enforcement Administration in 21 C.F.R. 1306. Electronic prescription drug orders shall either be an electronic visual image of a prescription drug order or an electronic data prescription drug order and shall meet the requirements set forth in regulations promulgated by the board. A hard copy prescription prepared by a practitioner or a practitioner's agent, which bears an electronic visual image of the practitioner's signature and is not sent by facsimile, must be printed on security paper. Prescriptions transmitted either electronically or via facsimile shall meet the following requirements:
    1. Electronically transmitted prescription drug orders shall be transmitted by the practitioner or, in the case of a prescription drug order to be transmitted via facsimile, by the practitioner or the practitioner's agent under supervision of the practitioner, to the pharmacy of the patient's choice with no intervening person or intermediary having access to the prescription drug order. For purposes of this paragraph, "intervening person or intermediary" shall not include a person who electronically formats or reconfigures data or information for purposes of integrating into and between computer or facsimile systems of practitioners and pharmacists;
    2. Prescription drug orders transmitted by facsimile or computer shall include:
      1. In the case of a prescription drug order for a dangerous drug, the complete name and address of the practitioner;
      2. In the case of a prescription drug order for a controlled substance, the complete name, address, and DEA registration number of the practitioner;
      3. The telephone number of the practitioner for verbal confirmation;
      4. The name and address of the patient, unless the prescription drug order is prescribed pursuant to expedited partner therapy in accordance with Code Section 31-17-7.1 for use by a sexual partner of a patient clinically diagnosed with chlamydia or gonorrhea, in which case, the name and address of such sexual partner of the patient;
      5. The time and date of the transmission;
      6. The full name of the person transmitting the order; and
      7. The signature of the practitioner in a manner as defined in regulations promulgated by the board or, in the case of a controlled substances prescription, in accordance with 21 C.F.R. 1301.22;
    3. An electronically transmitted, issued, or produced prescription drug order which meets the requirements of this Code section shall be deemed the original order;
    4. The pharmacist shall exercise professional judgment regarding the accuracy and authenticity of any electronically transmitted, issued, or produced prescription drug order consistent with federal and state laws and rules and regulations adopted pursuant to the same;
    5. An electronically encrypted, issued, or produced prescription drug order transmitted from a practitioner to a pharmacist shall be considered a highly confidential transaction and such transmission, issuance, or production shall not be compromised by unauthorized interventions, control, change, altering, manipulation, or accessing patient record information by any other person or party in any manner whatsoever between the time after the practitioner has electronically transmitted, issued, or produced a prescription drug order and such order has been received by the pharmacy of the patient's choice. For purposes of this paragraph, "unauthorized interventions, control, change, altering, manipulation, or accessing patient record information" shall not include electronic formatting or reconfiguring of data or information for purposes of integrating into and between computer or facsimile systems of practitioners and pharmacists;
    6. Any pharmacist who transmits, receives, or maintains any prescription or prescription refill either orally, in writing, or electronically shall ensure the security, integrity, and confidentiality of the prescription and any information contained therein; and
      1. The board shall promulgate rules and regulations under this Code section for institutional settings such as hospital pharmacies, nursing home pharmacies, clinic pharmacies, or pharmacies owned or operated directly by health maintenance organizations.
      2. The rules established pursuant to subparagraph (A) of this paragraph shall specifically authorize hospital pharmacies to use remote order entry when:
        1. The licensed pharmacist is not physically present in the hospital, the hospital pharmacy is closed, and a licensed pharmacist will be physically present in the hospital pharmacy within 24 hours or the next business day;
        2. At least one licensed pharmacist is physically present in the hospital; or
        3. At least one licensed pharmacist is physically present in another hospital within this state which remotely serves only on weekends not more than four other hospitals under the same ownership or management which have an average daily census of less than 12 acute patients.
      3. Before a hospital may engage in remote order entry as provided in this paragraph, the director of pharmacy of the hospital shall submit to the board written policies and procedures for the use of remote order entry. The required policies and procedures to be submitted to the board shall be in accordance with the American Society of Health-System Pharmacists and shall contain provisions addressing quality assurance and safety, mechanisms to clarify medication orders, processes for reporting medication errors, documentation and record keeping, secure electronic access to the hospital pharmacy's patient information system and to other electronic systems that the on-site pharmacist has access to, access to hospital policies and procedures, confidentiality and security, and mechanisms for real-time communication with prescribers, nurses, and other caregivers responsible for the patient's health care.
      4. If the board concludes that the hospital's actual use of remote order entry does not comply with this paragraph or the rules adopted pursuant to this chapter, it may issue a cease and desist order after notice and hearing.
      5. The dispensing pharmacist notifies the prescriber of the emergency dispensing within 48 hours after such dispensing and each such dispensing thereafter.
  4. Information contained in the patient medication record or profile shall be considered confidential information as defined in this title. Confidential information may be released to the patient or the patient's authorized representative, the prescriber or other licensed health care practitioners then caring for the patient, another licensed pharmacist, the board or its representative, or any other person duly authorized to receive such information. In accordance with Code Section 24-12-1, confidential information may be released to others only on the written release of the patient, court order, or subpoena.
  5. Except as authorized under subsection (j) of this Code section, a prescription may not be refilled without authorization. When refills are dispensed pursuant to authorization contained on the original prescription or when no refills are authorized on the original prescription but refills are subsequently authorized by the practitioner, the refill authorization shall be recorded on the original prescription document and the record of any refill made shall be maintained on the back of the original prescription document or on some other uniformly maintained record and the dispensing pharmacist shall record the date of the refill, the quantity of the drug dispensed, and the dispensing pharmacist's initials; provided, however, that an original prescription for a Schedule III, IV, or V controlled substance which contains no refill information may not be authorized to be refilled more than five times or after six months from the date of issuance, whichever occurs first. Authorization for any additional refill of a Schedule III, IV, or V controlled substance prescription in excess of five refills or after six months from the date of issuance of the prescription shall be treated as a new prescription.
    1. When filling a prescription or refilling a prescription which may be refilled, the pharmacist shall exercise professional judgment in the matter. No prescription shall be filled or refilled with greater frequency than the approximate interval of time that the dosage regimen ordered by the practitioner would indicate, unless extenuating circumstances are documented which would justify a shorter interval of time before the filling or refilling of the prescription. Such circumstances may include but are not limited to instances in which, with regard to a particular county or area of this state, the Governor has issued an executive order or proclamation declaring a state of emergency or the National Weather Service has issued a hurricane warning, the pharmacist may dispense up to a 30 day supply in the counties or areas affected by such order, proclamation, or warning, provided that:

      (A) The prescription is not for a Schedule II controlled substance as set out in Code Section 16-13-26;

      (B) In the pharmacist's professional judgment, the prescription is essential to the maintenance of life or to the continuation of therapy for a chronic condition;

      (C) In the pharmacist's professional judgment, the interruption of such therapy might reasonably produce undesirable health consequences or cause physical or mental discomfort;

      (D) The dispensing pharmacist creates and signs a written order containing all of the prescription information required by this article and by Chapter 13 of Title 16; and

    2. Notwithstanding paragraph (1) of this subsection, in order to prevent unintended interruptions in drug therapy for topical ophthalmic products:
      1. A pharmacist shall be authorized, without obtaining subsequent authorization from the practitioner or obtaining a new prescription from the practitioner, to permit refills at 70 percent of the predicted days of use; and
      2. At the patient's request, a practitioner shall be permitted to authorize refills earlier than 70 percent of the predicted days of use.

        This paragraph shall apply to refills purchased through retail pharmacies and mail order sources.

  6. The pharmacist who fills or refills a prescription shall record the date of dispensing and indicate the identity of the dispensing pharmacist on the prescription document or some other appropriate and uniformly maintained record. If this record is maintained on the original prescription document, the original dispensing and any refills must be recorded on the back of the prescription.
  7. When the patient no longer seeks personal consultation or treatment from the practitioner, the practitioner and patient relationship is terminated. A prescription becomes invalid after the practitioner and patient relationship is terminated which is defined as a reasonable period of time not to exceed six months in which the patient could have established a new practitioner and patient relationship as established by the board through the promulgation of rules and regulations.
  8. All prescription drug orders must bear the signature of the prescribing practitioner as defined in Code Section 16-13-21. Physician assistants must comply with all applicable laws regarding signatures. Further, the nature of such signature must meet the requirements set forth in regulations promulgated by the board. A physically applied signature stamp is not acceptable in lieu of an original signature. Except as otherwise provided for in this subsection, when an oral prescription drug order or the oral authorization for the refilling of a prescription drug order is received which has been transmitted by someone other than the practitioner, the name of the individual making the transmission and the date, time, and location of the origin of the transmission must be recorded on the original prescription drug order or other record by the pharmacist receiving the transmission. No one other than the practitioner or an agent authorized by the practitioner shall transmit such prescriptions in any manner. In institutional settings such as hospital pharmacies, nursing home pharmacies, clinic pharmacies, or pharmacies owned or operated directly by health maintenance organizations, the name of the individual making the transmission is not required to be placed on the order.
  9. A pharmacist licensed by the board may dispense up to a 72 hour supply of a prescribed medication in the event the pharmacist is unable to contact the practitioner to obtain refill authorization, provided that:
    1. The prescription is not for a controlled substance;
    2. In the pharmacist's professional judgment, the interruption of therapy might reasonably produce undesirable health consequences or may cause physical or mental discomfort;
    3. The dispensing pharmacist notifies the practitioner or his or her agent of the dispensing within seven working days after the prescription is refilled pursuant to this subsection;
    4. The pharmacist properly records the dispensing as a separate nonrefillable prescription. Said document shall be filed as is required of all other prescription records. This document shall be serially numbered and contain all information required of other prescriptions. In addition it shall contain the number of the prescription from which it was refilled;
    5. The pharmacist shall record on the patient's record and on the new document the circumstances which warrant such dispensing; and
    6. The pharmacist does not employ this provision regularly for the same patient on the same medication.
  10. All out-patient prescription drug orders which are dispensed shall be appropriately labeled in accordance with the rules and regulations promulgated by the board as follows:
    1. Before an out-patient prescription drug is released from the dispensing area, the prescription drug shall bear a label containing the name and address of the pharmacy, a prescription number, the name of the prescriber, the name of the patient, directions for taking the medication, the date of the filling or refilling of the prescription, the initials or identifying code of the dispensing pharmacist, and any other information which is necessary, required, or, in the pharmacist's professional judgment, appropriate; and
    2. The pharmacist who fills an out-patient prescription drug order shall indicate the identity of the dispensing pharmacist on the label of the prescription drug. Identification may be made by placing initials on the label of the dispensed drug. The label shall be affixed to the outside of the container of the dispensed drug by means of adhesive or tape or any other means which will assure that the label remains attached to the container.
  11. A Schedule II controlled substance prescription drug order in written form signed in indelible ink by the practitioner may be accepted by a pharmacist and the Schedule II controlled substance may be dispensed by such pharmacist. Other forms of Schedule II controlled substance prescription drug orders may be accepted by a pharmacist and the Schedule II controlled substance may be dispensed by such pharmacist in accordance with regulations promulgated by the board and in accordance with DEA regulations found in 21 C.F.R. 1306. A pharmacist shall require a person picking up a Schedule II controlled substance prescription to present a government issued photo identification document or such other form of identification which documents legibly the full name of the person taking possession of the Schedule II controlled substance subject to the rules adopted by the board.
  12. No licensee nor any other entity shall be permitted to provide facsimile machines or equipment, computer software, technology, hardware, or supplies related to the electronic transmission of prescription drug orders to any practitioner which restricts such practitioner from issuing prescription drug orders for certain prescription drugs or restricts a patient from choosing the retail pharmacy to which an electronic prescription drug order may be transmitted.
  13. Institutions including, but not limited to, hospitals, long-term care facilities, and inpatient hospice facilities which utilize electronic medical record systems that meet the information requirements for prescription drug orders for patients pursuant to this Code section shall be considered to be in compliance with this Code section.
  14. Nothing in this Code section shall be construed to prohibit any insurance company, hospital or medical service plan, health care provider network, health maintenance organization, health care plan, employer, or other similar entity providing health insurance from offering incentives to pharmacies, pharmacists, and practitioners that accept or utilize electronic data prescription drug orders.
  15. Pharmacists dispensing prescriptions pursuant to a remote automated medication system in accordance with the rules and regulations adopted by the State Board of Pharmacy pursuant to paragraph (12.1) of subsection (a) of Code Section 26-4-28 shall be considered in compliance with this Code section.
    1. A pharmacist may, in the exercise of his or her professional judgment and in consultation with the patient, dispense up to a 90 day supply of maintenance medication for treatment of chronic illnesses up to the total number of dosage units as authorized by the prescriber on the prescription, including any refills, unless:
      1. The prescriber has specified on the prescription that concurrently dispensing initial amounts and refills of such maintenance medication is not allowed; or
      2. It is the initial filling of a prescription for a new maintenance medication or dosage for the patient.
    2. Paragraph (1) of this subsection shall not apply to Schedule II, III, IV, or V controlled substances. (Code 1981, § 26-4-80 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 2004, p. 738, §§ 4, 5; Ga. L. 2006, p. 444, § 2/HB 246; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2011, p. 99, § 39/HB 24; Ga. L. 2011, p. 308, § 7/HB 457; Ga. L. 2011, p. 659, § 4/SB 36; Ga. L. 2012, p. 1092, § 1B/SB 346; Ga. L. 2013, p. 127, § 3/HB 209; Ga. L. 2013, p. 141, § 26/HB 79; Ga. L. 2013, p. 736, § 1/SB 216; Ga. L. 2015, p. 585, § 3/SB 194; Ga. L. 2017, p. 764, § 3-1/SB 193; Ga. L. 2018, p. 132, § 2/HB 769; Ga. L. 2020, p. 802, § 4/SB 391; Ga. L. 2020, p. 805, § 4/HB 791.)

The 2012 amendment, effective July 1, 2012, designated the existing provisions of paragraph (c)(7) as subparagraph (c)(7)(A); deleted "which may provide specific exceptions" following "rules and regulations" in subparagraph (c)(7)(A); and added subparagraphs (c)(7)(B) through (c)(7)(D).

The 2013 amendments. The first 2013 amendment, effective July 1, 2013, added the third and fourth sentences in subsection (b); substituted "within 24 hours;" for "within 16 hours; or" in division (c)(7)(B)(i); in division (c)(7)(B)(ii), substituted "At least" for "When at least" at the beginning, and added "; or" at the end; and added division (c)(7)(B)(iii). The second 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "such transmission" for "the said transmission" in the first sentence of paragraph (c)(5), substituted "pharmacist who transmits" for "pharmacist that transmits" in paragraph (c)(6), and revised language in subparagraph (c)(7)(C). The third 2013 amendment, effective May 6, 2013, substituted "24 hours" for "16 hours; or" at the end of division (c)(7)(B)(i); in division (c)(7)(B)(ii), substituted "At least" for "When at least" at the beginning, and added "; or" at the end; and added division (c)(7)(B)(iii).

The 2015 amendment, effective July 1, 2015, designated the previously existing provisions of subsection (f) as paragraph (f)(1), and, in the second sentence of that paragraph, substituted "practitioner" for "prescriber"; and added paragraph (f)(2).

The 2017 amendment, effective July 1, 2017, added ", unless the prescription drug order is prescribed pursuant to expedited partner therapy in accordance with Code Section 31-17-7.1 for use by a sexual partner of a patient clinically diagnosed with chlamydia or gonorrhea, in which case, the name and address of such sexual partner of the patient" to subparagraph (c)(2)(D).

The 2018 amendment, effective July 1, 2018, added "or the next business day" at the end of division (c)(7)(B)(i); deleted "pharmacy and at least one other licensed pharmacist is practicing pharmacy in the hospital but not physically present in the hospital pharmacy" following "hospital" in division (c)(7)(B)(ii); and substituted "in another hospital" for "in a hospital" near the middle of division (c)(7)(B)(iii).

The 2020 amendments. The first 2020 amendment, effective August 5, 2020, added the last sentence in paragraph (f)(1), and added subparagraphs (f)(1)(A) through (f)(1)(E). The second 2020 amendment, effective August 5, 2020, added the last sentence in paragraph (f)(1); added subparagraphs (f)(1)(A) through (f)(1)(E); and added subsection (q).

Cross references. - Insurer obligations for early prescription refills during emergencies, § 33-24-59.28 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "pharmacist or pharmacy intern" was substituted for "pharmacist, pharmacy intern," and "or via an" was substituted for "or an" in the first sentence of subsection (c).

Pursuant to Code Section 28-9-5 , in 2013, the amendment of subdivision (c)(7)(B) of this Code section by Ga. L. 2013, p. 127, § 3/HB 209, was treated as impliedly repealed and superseded by Ga. L. 2013, p. 736, § 1/SB 216, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974), and Ga. L. 2013, p. 141, § 54(d)/HB 79.

Editor's notes. - Ga. L. 2004, p. 738, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Patient Safe Prescription Drug Act.'"

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

Ga. L. 2020, p. 802, § 1/SB 391 and Ga. L. 2020, p. 805, § 1/HB 791, not codified by the General Assembly, provide that: "This Act shall be known and may be cited as the 'Early Prescription Refills During Emergencies Act.'"

Ga. L. 2020, p. 802, § 1/SB 391 and Ga. L. 2020, p. 805, § 1/HB 791, not codified by the General Assembly, provide that: "The General Assembly finds that:

"(1) Prescription drug medications may be essential to the maintenance of life or the continuation of therapy for a Georgian with a chronic health condition;

"(2) During times of natural disaster, many Georgians experience significant delays obtaining necessary prescription medication refills; and

"(3) Delays in obtaining such medication may result in serious, undesirable health consequences."

Law reviews. - For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 269 (2011).

JUDICIAL DECISIONS

Class action. - Trial court erred in finding that a customer and the proposed class shared common questions of law and fact and that the customer was a sufficiently typical representative of that class under O.C.G.A. § 9-11-23(a)(2) and (a)(3) because the customer did not suffer any actual financial or physical injury as a result of a pharmacy's sale of the customer's medication information to another pharmacy; there was no evidence of any "public" disclosure of the customer's data, and such cases were bound to turn on individual rather than common questions. Rite Aid of Ga., Inc. v. Peacock, 315 Ga. App. 573 , 726 S.E.2d 577 (2012).

RESEARCH REFERENCES

ALR. - Civil liability of pharmacist or druggists for failure to warn of potential drug interactions in use of prescription drug, 79 A.L.R.5th 409.

26-4-80.1. Use of security paper for hard copy prescription drug orders.

  1. Effective October 1, 2011, every hard copy prescription drug order for any Schedule II controlled substance written in this state by a practitioner shall be written on security paper.
  2. A pharmacist shall not fill a hard copy prescription drug order for any Schedule II controlled substance from a practitioner unless it is written on security paper, except that a pharmacist may provide emergency supplies in accordance with the board and other insurance contract requirements.
  3. If a hard copy of an electronic data prescription drug order for any Schedule II controlled substance is given directly to the patient, the manually signed hard copy prescription drug order must be on security paper approved by the board that meets the requirements of subparagraph (A) of paragraph (38.5) of Code Section 26-4-5 or security paper that meets the requirements of subparagraph (B) of paragraph (38.5) of Code Section 26-4-5.
  4. Practitioners shall employ reasonable safeguards to assure against theft or unauthorized use of security paper and shall promptly report to appropriate authorities any theft or unauthorized use.
  5. The board shall create a seal of approval that confirms that security paper contains all three industry recognized characteristics required by paragraph (38.5) of Code Section 26-4-5. The seal shall be affixed to all security paper used in this state; provided, however, that security paper which meets the requirements of subparagraph (B) of paragraph (38.5) of Code Section 26-4-5 shall not be required to have such affixed seal.
  6. The board may adopt rules necessary for the administration of this Code section.
  7. The security paper requirements in this Code section shall not apply to:
    1. Prescriptions that are transmitted to the pharmacy by telephone, facsimile, or electronic means; or
    2. Prescriptions written for inpatients of a hospital, outpatients of a hospital, residents of a nursing home, inpatients or residents of a mental health facility, or individuals incarcerated in a local, state, or federal correctional facility when the health care practitioner authorized to write prescriptions writes the order into the patient's medical or clinical record, the order is given directly to the pharmacy, and the patient never has the opportunity to handle the written order. (Code 1981, § 26-4-80.1 , enacted by Ga. L. 2011, p. 659, § 5/SB 36; Ga. L. 2013, p. 127, § 4/HB 209.)

The 2013 amendment, effective July 1, 2013, substituted "shall be written" for "must be written" in subsection (a); in subsection (c), substituted "security paper approved by the board that meets the requirements of subparagraph (A) of paragraph (38.5) of Code Section 26-4-5 or security paper that meets the requirements of subparagraph (B) of paragraph (38.5) of Code Section 26-4-5" for "approved security paper that meets the requirements of paragraph (38.5) of Code Section 26-4-5"; deleted former subsection (e), which read: "All vendors shall have their security paper approved by the board prior to marketing or sale in this state."; redesignated former subsections (f) through (h) as present subsections (e) through (g), respectively; and, in subsection (e), added the proviso.

Law reviews. - For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 269 (2011).

26-4-81. Substitution of generic drugs or interchangeable biological products for brand name drugs and prescribed biological products.

  1. In accordance with this Code section, a pharmacist may substitute:
    1. A drug with the same generic name in the same strength, quantity, dose, and dosage form as the prescribed brand name drug product which is, in the pharmacist's reasonable professional opinion, pharmaceutically equivalent; or
    2. A biological product with an interchangeable biological product.
  2. If a practitioner of the healing arts prescribes:
    1. A drug by its generic name, the pharmacist shall dispense the lowest retail priced drug product which is in stock and which is, in the pharmacist's reasonable professional opinion, pharmaceutically equivalent; or
    2. A biological product by its nonproprietary name, the pharmacist shall dispense the lowest retail priced interchangeable biological product which is in stock.
  3. Substitutions as provided for in subsections (a) and (b) of this Code section are authorized for the express purpose of making available to the consumer the lowest retail priced:
    1. Drug product which is in stock and which is, in the pharmacist's reasonable professional opinion, both therapeutically equivalent and pharmaceutically equivalent; or
    2. Interchangeable biological product which is in stock.
    1. Whenever a substitution is made, the pharmacist shall record on the original prescription the fact that there has been a substitution and the identity of the dispensed drug product or interchangeable biological product and its manufacturer. Such prescription shall be made available for inspection by the board or its representative in accordance with the rules of the board.
    2. If a pharmacist substitutes a generic drug product for a brand name prescribed drug product when dispensing a prescribed medication, the brand name and the generic name of the drug product, with an explanation of "generic for (insert name of brand name prescribed drug product)" or similar language to indicate substitution has occurred, must appear on the prescription label and be affixed to the container or an auxiliary label, unless the prescribing practitioner indicated that the name of the drug may not appear upon the prescription label; provided, however, that this paragraph shall not apply to medication dispensed for in-patient hospital services or to medications in specialty packaging for dosing purposes as defined by the board.
    3. If a pharmacist substitutes an interchangeable biological product for a prescribed biological product when dispensing a prescribed medication, the name of the interchangeable biological product, with an explanation of "interchangeable biological product for (insert name of prescribed biological product)" or similar language to indicate substitution has occurred, must appear on the prescription label and be affixed to the container or an auxiliary label, unless the prescribing practitioner indicated that the name of the biological product may not appear upon the prescription label; provided, however, that this paragraph shall not apply to biological products dispensed for in-patient hospital services, to hospital administered biological products for outpatients, or to biological products in specialty packaging for dosing purposes as defined by the board. This paragraph shall apply to hospital retail pharmacies and to any biological products dispensed by a hospital for a patient's use or administration at home.
  4. The substitution of any drug or biological product by a registered pharmacist pursuant to this Code section does not constitute the practice of medicine.
  5. A patient for whom a prescription drug or biological product order is intended may instruct a pharmacist not to substitute a generic name drug in lieu of a brand name drug or an interchangeable biological product in lieu of a prescribed biological product.
  6. A practitioner of the healing arts may instruct the pharmacist not to substitute a generic name drug in lieu of a brand name drug or an interchangeable biological product in lieu of a prescribed biological product by including the words "brand necessary" in the body of the prescription. When a prescription is a hard copy prescription drug or biological product order, such indication of brand necessary must be in the practitioner's own handwriting and shall not be printed, applied by rubber stamp, or any such similar means. When the prescription is an electronic prescription drug or biological product order, the words "brand necessary" are not required to be in the practitioner's own handwriting and may be included on the prescription in any manner or by any method. When a practitioner has designated "brand necessary" on an electronic prescription drug or biological product order, a generic drug or interchangeable biological product shall not be substituted without the practitioner's express consent, which shall be documented by the pharmacist on the prescription and by the practitioner in the patient's medical record.
  7. Within 48 hours, excluding weekends and holidays, following the dispensing of a biological product, the dispensing pharmacist or the pharmacist's designee shall communicate to the prescriber the specific product provided to the patient, including the name of the biological product and the manufacturer. The communication shall be conveyed by making an entry into an interoperable electronic medical records system or through electronic prescribing technology or a pharmacy record that is electronically accessible by the prescriber. Otherwise, the pharmacist shall communicate the biological product dispensed to the prescriber by using facsimile, telephone, electronic transmission, or other prevailing means, provided that communication shall not be required where:
    1. There is no interchangeable biological product approved by the federal Food and Drug Administration for the prescribed product; or
    2. A refill prescription is not changed from the product dispensed on the prior filling of the prescription.
  8. The board shall maintain a link on its website to the current list of all biological products determined by the federal Food and Drug Administration to be interchangeable with a specific biological product.
  9. Code Section 26-4-118 , "The Pharmacy Audit Bill of Rights," shall apply to biological products and interchangeable biological products dispensed pursuant to this Code section. (Code 1981, § 26-4-81 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2004, p. 738, § 6; Ga. L. 2009, p. 8, § 26/SB 46; Ga. L. 2010, p. 266, § 5/SB 195; Ga. L. 2010, p. 554, § 1/HB 194; Ga. L. 2015, p. 1209, § 2/SB 51.)

The 2015 amendment, effective July 1, 2015, in subsections (a), (b), and (c), added the paragraph (1) designation, added paragraph (2), and made related punctuation and grammatical changes; inserted "or interchangeable biological product" in the first sentence of paragraph (d)(1); added paragraph (d)(3); inserted "or biological product" in subsections (e), (f), and (g); inserted "or an interchangeable biological product in lieu of a prescribed biological product" in subsections (f) and (g); inserted "or interchangeable biological product" near the end of subsection (g); and added subsections (h) through (j).

Editor's notes. - Ga. L. 2004, p. 738, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Patient Safe Prescription Drug Act.'"

RESEARCH REFERENCES

ALR. - Liability of name brand drug manufacturer for injury or death resulting from use of prescription drug's generic equivalent, 56 A.L.R.6th 161.

26-4-82. (See Editor's notes.) Duties requiring professional judgment; responsibilities of licensed pharmacist.

  1. In dispensing drugs, no individual other than a licensed pharmacist shall perform or conduct those duties or functions which require professional judgment. It shall be the responsibility of the supervising pharmacist to ensure that no other employee of the pharmacy, including pharmacy technicians, performs or conducts those duties or functions which require professional judgment.
  2. For all prescriptions, it shall be the responsibility of the pharmacist on duty at a facility to ensure that only a pharmacist or a pharmacy intern under the direct supervision of a pharmacist provides professional consultation and counseling with patients or other licensed health care professionals, and that only a pharmacist or a pharmacy intern under the direct supervision of a pharmacist accepts initial telephoned prescription orders or provides information in any manner relative to prescriptions or prescription drugs.
  3. In the dispensing of all prescription drug orders:
    1. The pharmacist shall be responsible for all activities of the pharmacy technician in the preparation of the drug for delivery to the patient;
    2. The pharmacist shall be present and personally supervising the activities of the pharmacy technician at all times;
    3. When electronic systems are employed within the pharmacy, pharmacy technicians may enter information into the system and prepare labels; provided, however, that it shall be the responsibility of the pharmacist to verify the accuracy of the information entered and the label produced in conjunction with the prescription drug order;
    4. When a prescription drug order is presented for refilling, it shall be the responsibility of the pharmacist to review all appropriate information and make the determination as to whether to refill the prescription drug order; and
    5. Pharmacy technicians in the dispensing area shall be easily identifiable.
  4. The board of pharmacy shall promulgate rules and regulations regarding the activities and utilization of pharmacy technicians in pharmacies, including the establishment of a registry as required in paragraph (7) of subsection (a) of Code Section 26-4-28; provided, however, that the pharmacist to pharmacy technician ratio shall not exceed one pharmacist providing direct supervision of three pharmacy technicians. The board may consider and approve an application to increase the ratio in a pharmacy located in a licensed hospital. Such application must be made in writing and must be submitted to the board by the pharmacist in charge of a specific hospital pharmacy in this state. One of the three technicians must:
    1. Have successfully passed a certification program approved by the board of pharmacy;
    2. Have successfully passed an employer's training and assessment program which has been approved by the board of pharmacy; or
    3. Have been certified by either the Pharmacy Technician Certification Board or any other nationally recognized certifying body approved by the board of pharmacy.
  5. In addition to the utilization of pharmacy technicians, a pharmacist may be assisted by and directly supervise one pharmacy intern and one pharmacy extern. (Code 1981, § 26-4-82 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2002, p. 1492, § 1; Ga. L. 2007, p. 229, § 2/HB 330.)

Editor's notes. - Ga. L. 2007, p. 229, § 5/HB 330, not codified by the General Assembly, provides that the 2007 amendment becomes effective only if funds are specifically appropriated for purposes of the Act and shall become effective when funds so appropriated become available for expenditure. Funds were appropriated at the 2010 session of the General Assembly and thus, the 2007 amendment became effective July 1, 2010.

For application of this statute in 2020, see Executive Order 03.31.20.04.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

26-4-83. Patient record systems.

  1. The board of pharmacy may refuse to renew or may suspend, revoke, or restrict the licenses of or fine any person or pharmacy pursuant to the procedures set forth in this Code section and rules and regulations established by the board upon the failure to maintain an appropriate patient record system.
  2. A patient record system shall be maintained by all pharmacies for patients for whom prescription drug orders are dispensed. The patient record system shall provide for the immediate retrieval of information necessary by the pharmacist to identify previously dispensed drugs at the time a prescription drug order is presented for dispensing. The pharmacist or the pharmacist's designee shall make a reasonable effort to obtain, record, and maintain the following information:
    1. The full name of the patient for whom the drug is intended;
    2. The address and telephone number of the patient;
    3. The date of birth of the patient; and
    4. The gender of the patient.
  3. The pharmacist shall make a reasonable effort to obtain from the patient or the patient's agent and shall record any known allergies, drug reactions, idiosyncrasies, and chronic conditions or disease states of the patient and identify any other drugs, including over-the-counter drugs or devices, currently being used by the patient which may relate to prospective drug use review unless the patient or the patient's agent refuses to provide such information. The pharmacist shall make a reasonable effort to obtain, record, and maintain the following information:
    1. A list of all prescription drug orders obtained by the patient at the pharmacy where the prescription drug order is being filled for at least the preceding two years, showing the prescription number, the name and strength of the drug, the quantity and date dispensed, and the name of the prescribing practitioner; and
    2. Comments from the pharmacist relevant to the individual's drug therapy, including any other information peculiar to the specific patient or drug.
  4. A patient record shall be maintained for a period of not less than two years from the date of the last entry in the profile record. This record may be a hard copy of a computerized form. (Code 1981, § 26-4-83 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-84. Restriction of license for failure to review patient records and prescription drug orders.

  1. The board of pharmacy may refuse to renew or may suspend, revoke, or restrict the licenses of or fine any person or pharmacy pursuant to the procedures set forth in this Code section upon the failure to review patient records and prescription drug orders.
  2. A pharmacist shall review the patient record and each prescription drug order presented for dispensing for the purposes of promoting therapeutic appropriateness by identifying:
    1. Overutilization or underutilization;
    2. Therapeutic duplications;
    3. Drug-disease contraindications;
    4. Drug-drug interactions;
    5. Incorrect drug dosage, dosage form, or duration of drug therapy;
    6. Drug-allergy interactions; and
    7. Clinical abuse or misuse.
  3. Upon recognizing any of the above situations, the pharmacist shall take appropriate steps to avoid or resolve the situation or problem which shall, if necessary, include consultation with the prescribing practitioner. (Code 1981, § 26-4-84 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-85. Patient counseling; optimizing drug therapy.

  1. The board of pharmacy may refuse to renew or may suspend, revoke, or restrict the licenses of or fine any person or pharmacy pursuant to the procedures set forth in this Code section upon the failure to offer to counsel patients.
  2. Upon receipt of a prescription drug order and following a review of the patient's record, the pharmacist or the pharmacy intern operating under the direct supervision of the pharmacist shall personally offer to discuss matters which will enhance or optimize drug therapy with each patient or caregiver of such a patient. Such discussion shall be in person, whenever practicable, or by telephone and shall include appropriate elements of patient counseling, based on the professional judgment of the pharmacist. Such elements may include but are not limited to the following:
    1. The name and description of the drug;
    2. The dosage form, dose, route of administration and duration of therapy;
    3. The intended use of the drug and expected action or result;
    4. Any special directions or precautions for preparation, administration, or use by the patient;
    5. Common severe side effects or adverse effects or interactions and therapeutic contraindications that may be encountered, including their avoidance, and the action required if such side effect, adverse effect, interaction, or therapeutic contraindication occurs;
    6. Techniques for self-monitoring of drug therapy;
    7. The proper storage of the drug;
    8. Prescription refill information;
    9. The action to be taken in the event of a missed dose; and
    10. The comments of the pharmacist relevant to the patient's drug therapy, including any other information peculiar to the specific patient or drug.
  3. Additional forms of patient information may be used to supplement verbal patient counseling when appropriate or available.
  4. Patient counseling, as described in this Code section, shall not be required for:
    1. In-patients of a hospital or institution where other health care professionals are authorized to administer the drug or drugs;
    2. Inmates of corrections institutions where pharmacy services are provided by the Department of Corrections or by a county or municipal political subdivision either directly or by a subcontractor of the above; or
    3. Patients receiving drugs from the Department of Public Health; provided, however, that pharmacists who provide drugs to patients in accordance with Code Section 43-34-23 shall include in all dispensing procedures a written process whereby the patient or the caregiver of the patient is provided with the information required under this Code section.
  5. A pharmacist shall not be required to counsel a patient or the caregiver of the patient when the patient or the caregiver of the patient refuses such consultation or counseling. (Code 1981, § 26-4-85 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2007, p. 229, § 3/HB 330; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2009, p. 859, § 7/HB 509; Ga. L. 2011, p. 705, § 5-7/HB 214.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, a comma was inserted following "administration" in paragraph (b)(4) and "taken" was substituted for "take" in paragraph (b)(9).

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

26-4-86. Compounding and distribution of drug products.

  1. The board shall establish rules and regulations governing the compounding and distribution of drug products by pharmacists, practitioners, and pharmacies licensed or registered by this state. Such rules and regulations shall include provisions ensuring compliance with USP-NF standards.
    1. All drug products compounded and labeled in accordance with board rules regarding pharmaceutical compounding shall be deemed to meet the labeling requirements of Chapter 13 of Title 16 and Chapters 3 and 4 of this title.
    2. All drug products compounded by a licensed outsourcing facility shall also be compounded in accordance with applicable current good manufacturing practices established by the federal Food and Drug Administration.
  2. In regards to pharmacists compounding nonpatient-specific sterile drugs to be provided to practitioners to use in patient care or altering or repackaging such drugs for practitioners to use in patient care in the practitioner's office, such nonpatient-specific sterile compounding shall only be conducted by an outsourcing facility and as allowed by applicable federal law and board rule for pharmaceutical compounding using USP-NF standards for sterile compounding. Such sterile drugs may be compounded only in quantities determined by board rule following consultation with the Georgia Composite Medical Board. No Schedule II, III, IV, or V controlled substance, as defined in Article 2 of Chapter 13 of Title 16, shall be eligible for such designation. Nothing in this subsection shall be construed to apply to pharmacies owned or operated by institutions or to pharmacists or practitioners within or employed by an institution or affiliated entity; provided, however, that pharmacies owned or operated by institutions and pharmacists and practitioners within or employed by institutions or affiliated entities shall remain subject to other requirements, rules, and regulations established by the board and the federal Food and Drug Administration governing the compounding of medication.
    1. Practitioners who may lawfully compound drugs for administering or dispensing to their own patients pursuant to Code Section 26-4-130 shall comply with all provisions of this Code section and board rules regarding pharmaceutical compounding.
    2. Nothing in this Code section shall be construed to prohibit or interfere with the ability of a practitioner to compound drugs for administering or dispensing to their own patients pursuant to Code Section 26-4-130 . (Code 1981, § 26-4-86 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 127, § 5/HB 209; Ga. L. 2016, p. 855, § 4/HB 926; Ga. L. 2017, p. 774, § 26/HB 323.)

The 2013 amendment, effective July 1, 2013, substituted the present provisions of this Code section for the former provisions, which read: "The board may establish regulations governing the compounding of medication by pharmacists and pharmacies licensed in this state."

The 2016 amendment, effective July 1, 2016, in subsection (b), designated the previously existing provisions as paragraph (b)(1) and added paragraph (b)(2); in subsection (c), in the first sentence, twice inserted "nonpatient specific" and inserted "by an outsourcing facility and", near the end of the fourth sentence, substituted "requirements, rules, and regulations" for "rules and regulations" and inserted "and the federal Food and Drug Administration"; and, in subsection (d), designated the previously existing provisions as paragraph (d)(1) and added paragraph (d)(2).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, added a hyphen to "nonpatient-specific" twice in the first sentence of subsection (c).

26-4-87. Storage and handling of controlled substances and dangerous drugs.

The board shall promulgate rules and regulations governing the appropriate and proper storage and handling of controlled substances and dangerous drugs as defined in Chapter 13 of Title 16 which are consistent with those standards established by the United States Pharmacopeial Convention.

(Code 1981, § 26-4-87 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-88. Restrictions on dispensing of medicines, drugs, or poisons; functions which require the professional judgment of a pharmacist.

  1. No person shall engage in the dispensing of any medicines, drugs, or poisons unless said person is a pharmacist licensed in accordance with this chapter or a pharmacy intern dispensing such items in accordance with this chapter.
  2. Except as otherwise required pursuant to Code Section 26-4-86, this chapter shall not apply to practitioners of the healing arts prescribing, compounding their own prescriptions, or dispensing drugs or medicines except as provided in Code Section 26-4-130.
  3. Nothing in this Code section shall prohibit any person from assisting any duly licensed pharmacist or practitioner, provided that such duly licensed pharmacist or practitioner shall be physically present in the prescription area and actually observing the actions of such person performing such tasks; provided, further, that no prescription shall be given to the person requesting the same unless the contents and the label thereof shall have been verified by a licensed pharmacist or practitioner.
  4. With respect to pharmacy technicians, the following functions require the professional judgment of a pharmacist, or pharmacy intern under the supervision of a pharmacist, and may not be performed by a pharmacy technician:
    1. Acceptance of initial oral prescriptions;
    2. Certification of a filled or finished prescription or prescription drug order;
    3. Weighing or measuring active ingredients without a mechanism of verification;
    4. Reconstitution of prefabricated medication without a mechanism of verification;
    5. Verification of the constituents of final IV admixtures for accuracy, efficacy, and patient utilization;
    6. Entry of orders on patient medication profiles without verification by a pharmacist; and
    7. Provision of drug information that has not been prepared or approved by the pharmacist. (Code 1981, § 26-4-88 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 127, § 6/HB 209.)

The 2013 amendment, effective July 1, 2013, substituted "Except as otherwise required pursuant to Code Section 26-4-86, this chapter shall not apply" for "This chapter shall not apply" at the beginning of subsection (b).

26-4-89. Selling drugs in vending machines prohibited; remote automated medication system excluded.

  1. Any person who shall sell or dispense drugs by the use of vending machines shall be guilty of a misdemeanor.
  2. A remote automated medication system shall not be considered a vending machine for purposes of this Code section. (Code 1981, § 26-4-89 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 2011, p. 308, § 8/HB 457.)

26-4-90. Remuneration for professional pharmacy care services.

Nothing in this chapter shall be interpreted to prohibit a pharmacist or pharmacy from being remunerated for professional pharmacy care services.

(Code 1981, § 26-4-90 , enacted by Ga. L. 1998, p. 686, § 1.)

ARTICLE 6 PHARMACIES

26-4-110. Pharmacy licenses - Classifications; applications; fees; investigations; prescription department requirements.

  1. All facilities engaged in the manufacture, production, sale, or distribution of drugs or devices utilized in the practice of pharmacy or pharmacies where drugs or devices are dispensed or pharmacy care is provided shall be licensed by the board and shall biennially renew their license with the board. Where operations are conducted at more than one location, each such location shall be licensed by the board.
  2. The board may by rule determine the licensure classifications of all persons and facilities licensed as a pharmacy under this article and establish minimum standards for such persons and facilities.
    1. The board shall establish by rule, under the powers granted to it under Article 2 of this chapter and as may be required from time to time under federal law the criteria which each person must meet to qualify for licensure as a pharmacy in each classification. The board may issue licenses with varying restrictions to such persons where the board deems it necessary.
    2. All applications for a new license shall be accompanied by a fee. Upon the filing of an application for a license, the board may cause a thorough investigation of the applicant to be made, and, if satisfied that the applicant possesses the necessary qualifications and that the pharmacy will be conducted in accordance with law, shall issue a license.
  3. Each pharmacy shall have a pharmacist in charge. Whenever an applicable rule requires or prohibits action by a pharmacy, responsibility shall be that of the owner and the pharmacist in charge of the pharmacy, whether the owner is a sole proprietor, partnership, association, corporation, or otherwise. The pharmacist in charge shall be responsible for notifying the board in accordance with its rules and regulations of updated information regarding the registration of pharmacy technicians.
  4. The board may enter into agreements with other states or with third parties for the purpose of exchanging information concerning licensure of any pharmacy.
  5. The board may deny or refuse to renew a pharmacy license if it determines that the granting or renewing of such license would not be in the public interest.
  6. It shall be unlawful for any person in connection with any place of business or in any manner to take, use, or exhibit the title "drug store," "pharmacy," "apothecary," or any combination of such titles or any title or designation of like import or other term to take the place of such title, unless such place of business is licensed as a pharmacy under the provisions of this chapter, has submitted a written request to the board and received a waiver from this subsection, or meets the provisions of any rule or regulation regarding use of such titles and promulgated by the board.
  7. Every pharmacy licensed under this chapter shall have a prescription department which shall be kept clean and free of all materials not currently in use in the practice of compounding or preparing a medication for dispensing. The space behind the prescription counter shall be kept free of obstruction at all times.
  8. During hours of operation, every pharmacy licensed pursuant to this chapter shall have a prescription department under the personal supervision of a duly licensed pharmacist who shall have personal supervision of not more than one pharmacy at the same time, provided that nothing in this chapter shall be construed to prohibit any pharmacist from having personal supervision of a pharmacy located in a hospital, nursing home, college of pharmacy, or a pharmacy owned and operated directly by a health maintenance organization. Every pharmacy licensed under this chapter, except those located within and owned and operated by a duly licensed and accredited hospital, nursing home, or college of pharmacy or a pharmacy complying with subsection (j) of this Code section, shall have a prescription department open for business at all times that the business establishment is open to the public, except that during temporary absences of any licensed pharmacist not to exceed three hours daily or more than one and one-half hours at any one time the prescription department shall be closed and no prescription shall be filled or dispensed.
  9. If a pharmacy is located in a general merchandising establishment, or if the owner of the pharmacy so chooses, a portion of the space of the business establishment may be set aside and permanently enclosed or otherwise secured. Only that permanently enclosed or otherwise secured area shall be subject to the provisions of this chapter and shall be registered as a pharmacy. In such case, the area to be registered as a pharmacy shall be permanently enclosed with a partition built from the floor to the ceiling or otherwise secured in a manner as provided by the board through rules and regulations. (Code 1981, § 26-4-110 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 757, § 1; Ga. L. 2007, p. 229, § 4/HB 330.)

Editor's notes. - Ga. L. 2007, p. 229, § 5/HB 330, not codified by the General Assembly, provides that the 2007 amendment becomes effective only if funds are specifically appropriated for purposes of this Act and shall become effective when funds so appropriated become available for expenditure. Funds were appropriated at the 2010 session of the General Assembly and thus, the 2007 amendment became effective July 1, 2010.

26-4-110.1. (Repealed effective January 1, 2021) Definitions; license required; condition for licensing.

  1. As used in this Code section, the term:
    1. "Enrollee" means a person eligible to receive health care benefits under a health benefit plan.
    2. "Health benefit plan" means any hospital or medical insurance policy or certificate, health care plan contract or certificate, qualified higher deductible health plan, health maintenance organization subscriber contract, or any managed care plan.
    3. "Insurer" means a corporation or other entity which is licensed or otherwise authorized to offer a health benefit plan in this state.
    4. "Pharmacy benefits manager" means any person, corporation, or other entity that administers the prescription drug, prescription device, or both prescription drug and device portion of a health benefit plan on behalf of an insurer but shall not include any pharmacy benefits manager offered pursuant to Chapter 18 of Title 45 or offered on behalf of recipients of medical assistance under Titles XIX and XXI of the federal Social Security Act.
  2. Every pharmacy benefit manager providing services or benefits in this state which constitutes the practice of pharmacy as defined in Code Section 26-4-4 shall be licensed to practice as a pharmacy in this state and shall comply with those provisions of Code Section 26-4-110 , except subsections (h), (i), and (j) thereof. As a condition for licensing, every pharmacy benefit manager shall permit the board or agents or employees thereof to inspect the premises of such pharmacy benefit manager whether those premises are located within or outside this state. (Code 1981, § 26-4-110 .1, enacted by Ga. L. 2002, p. 1492, § 2.)

Editor's notes. - Ga. L. 2020, p. 654, § 1/HB 918, provides for the repeal of this Code section effective January 1, 2021.

26-4-111. Pharmacy licenses - Minimum standards; transferability.

  1. The board shall specify by rule the pharmacy licensure procedures to be followed, including but not limited to specification of forms for use in applying for such licensure and times, places, and applicable fees.
  2. Applicants for licensure to distribute, manufacture, sell, purchase, or produce drugs or devices within this state shall file with the board a verified application containing such information as the board requires of the applicant relative to the qualifications for a license.
  3. Pharmacy licenses issued by the board pursuant to this chapter shall not be transferable or assignable.
  4. The board shall specify by rule minimum standards for responsibility of any person or pharmacy that has employees or personnel engaged in the practice of pharmacy, manufacture, distribution, production, sale, or use of drugs or devices in the conduct of their business. If the licensed person is a pharmacy located in this state, that portion of the facility to which such license applies shall be operated only under the direct supervision of a pharmacist licensed to practice in this state. (Code 1981, § 26-4-111 , enacted by Ga. L. 1998, p. 686, § 1.)

RESEARCH REFERENCES

8C Am. Jur. Pleading and Practice Forms, Drugs, Narcotics, and Poisons, § 2.

26-4-112. Occurrences requiring immediate notification to board.

The board shall be notified immediately upon the occurrence of any of the following:

  1. Permanent closing of a licensed pharmacy;
  2. Change of ownership, management, or location of a licensed pharmacy;
  3. Change of the pharmacist in charge of a licensed pharmacy. If upon the board being notified of such change a replacement pharmacist in charge is not named in said notification, the license of that pharmacy shall stand suspended pending further findings by the board;
  4. Any theft or loss of drugs or devices of a licensed pharmacy;
  5. Any known conviction of any employee of a licensed pharmacy of any state or federal drug laws;
  6. Disasters, accidents, theft, destruction, or loss of records of a licensed pharmacy required to be maintained by state or federal law;
  7. Occurrence at a licensed pharmacy of a significant adverse drug reaction as defined by rules of the board; or
  8. Any and all other matters and occurrences at a licensed pharmacy as the board may require by rule. (Code 1981, § 26-4-112 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2013, p. 127, § 7/HB 209.)

The 2013 amendment, effective July 1, 2013, added the second sentence in paragraph (3).

26-4-113. Wholesale distributors; licensing requirements; suspension or revocation of license; reinstatement.

  1. No person shall operate as a pharmacy until a pharmacy license has been issued to such person by the board.
  2. Except where otherwise permitted by law, it shall be unlawful for any type of manufacturer, wholesale distributor, reverse drug distributor, outsourcing facility, or third-party logistics provider to distribute or deliver drugs or devices to or receive drugs or devices from any person or firm in this state not licensed under this chapter; provided, however, that out-of-state firms that conduct intracompany transfers of drugs or devices to and have the same ownership as a licensed firm in this state shall not be required to be licensed in this state pursuant to this chapter; and provided, further, that out-of-state third-party logistics providers that are licensed by their resident state or by the federal Food and Drug Administration shall not be required to obtain a license pursuant to this chapter. Any person who distributes or delivers drugs or devices to or receives drugs or devices from a person or firm not licensed under this chapter shall be subject to a fine to be imposed by the board for each offense in addition to such other disciplinary action the board may take under this chapter. Each such violation shall also constitute a misdemeanor.
  3. The board may suspend, revoke, deny, or refuse to renew the pharmacy license of, reprimand, issue a letter of concern to, or fine any person licensed under this article on any of the following grounds:
    1. The finding by the board of violations of any federal or state laws relating to the practice of pharmacy, drug samples, wholesale or retail drug or device distribution, or distribution of controlled substances;
    2. Any felony convictions under federal or state laws;
    3. The furnishing of false or fraudulent material in any application made in connection with drug or device manufacturing or distribution;
    4. Suspension or revocation by the federal or state government of any license currently or previously held by the applicant for the manufacture or distribution of any drugs or devices including controlled substances;
    5. Obtaining any remuneration by fraud, misrepresentation, or deception;
    6. Dealing with drugs or devices that are known or should have been known to be stolen drugs or devices;
    7. Purchasing or receiving of a drug or device from a source other than a person or pharmacy licensed under the laws of the state except where otherwise provided;
    8. Wholesale drug distributors, other than pharmacies, dispensing or distributing drugs or devices directly to patients; or
    9. Violations of any of the provisions of this chapter or of any of the rules adopted by the board under this chapter.
  4. Reinstatement of a pharmacy license that has been suspended, revoked, or restricted by the board may be granted in accordance with the rules of the board. (Code 1981, § 26-4-113 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2016, p. 855, § 5/HB 926.)

The 2016 amendment, effective July 1, 2016, substituted the present provisions of the first sentence of subsection (b) for the former provisions, which read: "Except where otherwise permitted by law, it shall be unlawful for a manufacturer, wholesale distributor, or a reverse drug distributor to distribute or deliver drugs or devices to or receive drugs or devices from any person or firm in this state not licensed under this chapter."

26-4-114. Special pharmacy permits.

  1. A pharmacy located within and owned and operated by a school or college of pharmacy in this state may apply to the board for a special pharmacy permit which shall entitle the holder thereof to purchase, receive, possess, or dispose of drugs for educational or research purposes. The application shall include the name of a registered pharmacist who shall be responsible for maintaining accurate records regarding the purchase, receipt, possession, and disposal of drugs utilized for educational or research purposes. If the board certifies that the application complies with applicable laws and rules and regulations, the board shall issue the permit.
  2. A holder of a special pharmacy permit under subsection (a) of this Code section shall not engage in the sale or dispensing of drugs.
  3. The board shall have the authority to promulgate rules and regulations governing the holder of a special pharmacy permit under this Code section and may exempt the holder thereof from requirements otherwise applicable to other pharmacies. (Code 1981, § 26-4-114 , enacted by Ga. L. 1998, p. 686, § 1.)

26-4-114.1. Application to board for nonresident pharmacy permits; requirements.

  1. Any person, pharmacy, or facility located outside this state may apply to the board for a nonresident pharmacy permit which shall entitle the holder thereof to ship, mail, or deliver dispensed drugs, including but not limited to dangerous drugs and controlled substances, into this state. The board shall establish an application and require such information as the board deems reasonably necessary to carry out a background investigation of applicants and to ensure that the purposes of this Code section are met. Such application shall include:
    1. Proof of a valid, unexpired license, permit, or registration to operate a pharmacy in compliance with the laws and rules of each state in which the applicant receives and dispenses prescription drug orders, including but not limited to orders for prescription drugs, dangerous drugs, and controlled substances;
    2. Addresses, names, and titles of all principal corporate officers and the pharmacist in charge of dispensing drugs to residents of this state; and
    3. A statement of whether the applicant is in compliance with all lawful directions and requests for information from the regulatory or licensing agencies of each state in which the applicant is licensed as well as all requests for information made by the board pursuant to this Code section.
  2. The board shall establish by rule an application fee and the biennial renewal fee for a permit under this Code section.
  3. The board may only deny an application for a nonresident pharmacy permit for failure to comply with rules of the board or any requirements of this Code section or for good cause related to substantial evidence of misfeasance or malfeasance by the applicant. Applicants granted a permit under this Code section shall provide pharmacy care in a manner which does not endanger life and protects the health, safety, and welfare of the residents of this state. A pharmacy, facility, or entity licensed under Title 33 shall not be required to hold a nonresident pharmacy permit.
  4. After an effective date established by rule of the board for the enforcement of the nonresident pharmacy permits, it shall be unlawful for any person, pharmacy, or facility that is located outside this state and that does not possess a nonresident pharmacy permit to ship, mail, or deliver prescription drug orders or to advertise its services in this state, or for any person who is a resident of this state to advertise the services of such person, pharmacy, or facility with the knowledge that the advertisement will or is likely to induce residents of this state to use such person, pharmacy, or facility for pharmacy care. Nothing in this subsection shall be construed to limit or prohibit interstate commerce, including but not limited to the practice of pharmacy by mail.
  5. The board shall have the authority to promulgate rules and regulations governing the holder of a nonresident pharmacy permit under this Code section. Such rules and regulations shall minimally include the following requirements for nonresident pharmacy permit holders:
    1. A permit holder's pharmacist in charge of dispensing drugs to residents of this state shall be licensed in his or her state of location;
    2. A permit holder shall provide written notification to the board within ten days of any change of a permit holder's principal corporate officers or pharmacist in charge of dispensing drugs to residents of this state;
    3. A permit holder shall file a change of location application upon any change to the permit holder's state of registration in addition to proof of the license, permit, or registration from the permit holder's new state of registration and the United States Drug Enforcement Administration registration for such new location;
    4. A permit holder shall respond within ten calendar days to all communications from the board concerning emergency circumstances arising from errors in the dispensing of any drugs to residents of this state;
    5. A permit holder shall provide written notification to the board of each location at which the permit holder maintains its records for all prescription drug orders dispensed to patients in this state so that the records are readily retrievable from the business records of the permit holder; and
    6. A permit holder shall maintain a toll-free telephone number operational during the permit holder's regular hours of operation but not less than six days per week for a minimum of 60 hours per week that shall be used to provide and facilitate patient counseling. Such toll-free number shall be capable of receiving inbound calls from patients to the permit holder and shall be disclosed on the label affixed to each container of all dispensed and distributed drugs.
  6. The board may revoke, suspend, or refuse to renew a permit of a permit holder for failure to comply with rules of the board or with any requirement of this Code section or for conduct which causes serious bodily or psychological injury to a resident of this state, provided that the board has referred the matter involving the conduct to the regulatory or licensing agency in the state in which the permit holder is located and the regulatory or licensing agency fails to initiate an investigation into the matter within 180 days of such referral or fails, in the board's judgment, to render sufficient resolution.
    1. As a prerequisite to registering or renewing a registration with the board, a nonresident pharmacy conducting sterile or nonsterile compounding for practitioners to use in patient care in the practitioner's office shall submit a copy of the most recent and current inspection report resulting from an inspection conducted by the regulatory or licensing agency of the jurisdiction in which it is located that indicates compliance with the requirements of this chapter, including compliance with USP-NF standards for pharmacies performing sterile and nonsterile compounding. The inspection report required by this subsection shall not be required if the compounding within the facility is done pursuant to a prescription. Such inspection report shall be deemed current for the purpose of this subsection if the inspection was conducted:
      1. No more than six months prior to the date of submission of an application for registration with the board; or
      2. No more than two years prior to the date of submission of an application for renewal of a registration with the board.
    2. If the nonresident pharmacy conducting sterile or nonsterile compounding has not been inspected by the regulatory or licensing agency of the jurisdiction in which it is located within the timeframes required in paragraph (1) of this subsection, the board may:
      1. Accept an inspection report or other documentation from another entity that is satisfactory to the board; or
      2. Make a request of the appropriate regulatory or licensing agency of the jurisdiction where the pharmacy is located to cause an inspection to be conducted by an agent duly authorized by the board. A nonresident pharmacy shall be responsible for paying any inspection fee incurred pursuant to this paragraph. (Code 1981, § 26-4-114.1 , enacted by Ga. L. 2013, p. 127, § 8/HB 209.)

Effective date. - This Code section became effective July 1, 2013.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "with" was inserted near the end of the first sentence of paragraph (g)(1).

26-4-115. Wholesale drug distributors; registration; fees; reports of excessive purchases; penalty for violations; transfers of drugs.

  1. All persons, firms, or corporations, whether located in this state or in any other state, engaged in the business of selling or distributing drugs at wholesale in this state, in the business of supplying drugs to manufacturers, compounders, and processors in this state, or in the business of a reverse drug distributor shall biennially register with the board as a drug wholesaler, distributor, reverse drug distributor, supplier, outsourcing facility, or third-party logistics provider; provided, however, that out-of-state firms that conduct intracompany transfers of drugs to and have the same ownership as a licensed firm in this state shall not be required to register pursuant to this subsection; and provided, further, that out-of-state third-party logistics providers that are licensed by their resident state or by the federal Food and Drug Administration shall not be required to register pursuant to this subsection. The application for registration shall be made on a form to be prescribed and furnished by the board and shall show each place of business of the applicant for registration, together with such other information as may be required by the board. The application shall be accompanied by a fee in an amount established by the board for each place of business registered by the applicant. Such registration shall not be transferable and shall expire on the expiration date established by the executive director. Registration shall be renewed pursuant to the rules and regulations of the board, and a renewal fee prescribed by the board shall be required. If not renewed, the registration shall lapse and become null and void. Registrants shall be subject to such rules and regulations with respect to sanitation or equipment as the board may, from time to time, adopt for the protection of the public health and safety. Such registration may be suspended or revoked or the registrant may be reprimanded, fined, or placed on probation by the board if the registrant fails to comply with any law of this state, the United States, or any other state having to do with the control of pharmacists, pharmacies, wholesale distribution, reverse drug distribution, or outsourcing facility distribution of controlled substances or dangerous drugs as defined in Chapter 13 of Title 16; if the registrant fails to comply with any rule or regulation promulgated by the board; or if any registration or license issued to the registrant under the federal act is suspended or revoked.
  2. Every drug wholesaler, distributor, supplier, or outsourcing facility registered as provided in Chapter 13 of Title 16 or in subsection (a) of this Code section, except reverse drug distributors, shall:
    1. Submit reports, upon request from the Georgia Drugs and Narcotics Agency, to account for all transactions with licensed persons or firms located within this state; such reportable transactions shall include all dangerous drugs and controlled substances as defined in Chapter 13 of Title 16. Such reports shall be submitted to the Georgia Drugs and Narcotics Agency;
    2. Automatically submit reports of any excessive purchases of controlled substances by licensed persons or firms located within this state using the federal Drug Enforcement Administration guidelines to define excessive purchases as set forth under the provisions of 21 C.F.R. Section 1301. Such reports shall be submitted to the Georgia Drugs and Narcotics Agency; and
      1. Comply with the requirements of Section 360eee, et seq., of the federal act, relating to drug supply chain security.
      2. Each manufacturer of a drug subject to Section 360eee, et seq., of the federal act shall maintain at its corporate offices a current list of the authorized wholesale distributors of such drug.
      3. The board shall establish rules and regulations relating to drug supply chain security based on the requirements of Section 360eee, et seq., of the federal act which are not inconsistent with, more stringent than, or in addition to any requirements applicable under Section 353(e) or Section 360eee of the federal act or any regulations issued thereunder and which are not inconsistent with any waiver, exception, or exemption pursuant to Section 360eee, et seq., of the federal act or any restrictions specified in Section 360eee-1 of the federal act.
  3. The board shall be authorized to promulgate rules and regulations to facilitate compliance with this Code section. Such rules and regulations shall include a requirement that all wholesale drug distributors required to register pursuant to this Code section shall make adequate provision for the return of outdated drugs, both full and partial containers, for up to six months after the labeled expiration date for prompt full credit or replacement; provided, however, that such rules and regulations may also include a list of drugs exempted from the requirements of such provision that have been determined by the board as essential to health care treatment and having an expiration date of less than one year from the date such drug is manufactured.
  4. The provisions of subsection (b) of this Code section shall not apply to any wholesaler, manufacturer, distributor, or supplier that only ships controlled substances directly to a licensed wholesaler within this state.
  5. Any person, firm, or corporation which violates any provision of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than five years or by a fine not to exceed $25,000.00, or both.
  6. Any practitioner who knowingly transfers any controlled substance or dangerous drug as such terms are defined in Chapter 13 of Title 16 by purchasing from or returning to a person, firm, or corporation which is not registered as required in subsection (a) of this Code section or as required in Chapter 13 of Title 16 shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than three years or by a fine not to exceed $10,000.00, or both.
  7. Transfers of drugs from a licensed hospital pharmacy to an entity that is affiliated with or owned by the hospital shall not be deemed wholesale distributors of drugs. (Code 1981, § 26-4-115 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2002, p. 1492, § 3; Ga. L. 2013, p. 192, § 1-17/HB 132; Ga. L. 2016, p. 855, § 6/HB 926; Ga. L. 2017, p. 417, § 8-1/SB 104.)

The 2013 amendment, effective July 1, 2013, in subsection (a), substituted "the board" for "said board" in the second sentence, and substituted "executive director" for "division director" in the fourth sentence.

The 2016 amendment, effective July 1, 2016, in subsection (a), in the first sentence, near the end, deleted "or" preceding "supplier", and added the language beginning with ", outsourcing facility, or" and ending with "pursuant to this subsection", in the last sentence, substituted "reverse drug distribution, or outsourcing facility distribution" for "or reverse drug distribution" in the middle; substituted "distributor, supplier, or outsourcing facility registered" for "distributor, or supplier registered" in the introductory paragraph of subsection (b); deleted "and" at the end of paragraph (b)(1); in paragraph (b)(2), in the first sentence, substituted "excessive purchases" for "'excessive purchases'", and substituted "Section 1301" for "Sec. 1301", and, in the second sentence, substituted "; and" for a period at the end; added paragraph (b)(3); added the proviso at the end of subsection (c); and substituted "supplier that" for "supplier who" in subsection (d).

The 2017 amendment, effective May 8, 2017, added subsection (g).

Law reviews. - For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).

26-4-115.1. Requirement that certain wholesale distributors of controlled substances and dangerous drugs provide price and quantity information.

Every wholesale distributor registered as provided in Chapter 13 of Title 16 or subsection (a) of Code Section 26-4-115, except those which are exclusively reverse drug distributors, shall provide to the Department of Community Health such information, with regard to the controlled substances and dangerous drugs which are distributed by that wholesale distributor, as is determined by that department to be necessary or useful in the department's efficient administration of the state plan for medical assistance, as defined in Code Section 49-4-141, and in the department's determination of possible violations of Chapter 13 of Title 16, which information shall include but not be limited to price and quantity information.

(Code 1981, § 26-4-115.1 , enacted by Ga. L. 2001, p. 816, § 6.1.)

26-4-116. Emergency service providers; contracts with issuing pharmacy; record keeping; inspections.

  1. Dangerous drugs and controlled substances as defined under Chapter 13 of Title 16 shall only be issued to the medical director of an emergency service provider from pharmacies licensed in this state only in accordance with the provisions of this Code section.
  2. The medical director of an emergency service provider and an issuing pharmacy must have a signed contract or agreement designating such pharmacy as a provider of drugs and consultant services and a copy must be filed with the state board and the Department of Public Health prior to any drugs being issued.
  3. A manual of policies and procedures for the handling, storage, labeling, and record keeping of all drugs must be written, approved, and signed by the medical director of an emergency service provider and the pharmacist in charge of an issuing pharmacy. The manual shall contain procedures for the safe and effective use of drugs from acquisition to final disposition.
  4. A written record of all drugs issued to the medical director of an emergency service provider must be maintained by the issuing pharmacy and emergency service provider. Agents of the Georgia Drugs and Narcotics Agency may review all records to determine the accuracy and proper accountability for the use of all drugs.
  5. To provide for the proper control and accountability of drugs, a written record of all drugs used by such emergency service provider shall be provided to the issuing pharmacy within 72 hours of use.
  6. A pharmacist from a contracting issuing pharmacy shall physically inspect the drugs of such emergency service provider to determine compliance with appropriate policies and procedures for the handling, storage, labeling, and record keeping of all drugs not less than annually and maintain records of such inspection for a period of not less than two years. Such an inspection shall, at a minimum, verify that:
    1. Drugs are properly stored, especially those requiring special storage conditions;
    2. Drugs are properly accounted for by personnel of such emergency service provider;
    3. Proper security measures to prohibit unauthorized access to the drugs are implemented; and
    4. All policies and procedures are followed and enforced.
  7. All outdated, expired, unused, or unusable drugs shall be returned to the issuing pharmacy for proper disposition in a manner acceptable to the board. (Code 1981, § 26-4-116 , enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2013, p. 736, § 2/SB 216.)

The 2013 amendment, effective May 6, 2013, substituted "pharmacies" for "a pharmacy" in subsection (a); in subsection (b), substituted "an issuing" for "the issuing" near the beginning, and substituted "such pharmacy as a" for "the issuing pharmacy as the" and deleted the last sentence, which read: "The medical director of an emergency service provider may only have one contractual relationship with one pharmacy per county serviced by such emergency service provider."; substituted "an issuing" for "the issuing" in the first sentence of subsection (c); and substituted "a contracting" for "the contracting" near the beginning of the introductory language of subsection (f).

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

26-4-116.1. Licensed health practitioners authorized to prescribe auto-injectable epinephrine for schools; pharmacists authorized to fill prescriptions.

  1. A physician licensed to practice medicine in this state, an advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25, and a physician assistant acting pursuant to the authority of subsection (e.1) of Code Section 43-34-103 may prescribe auto-injectable epinephrine in the name of a public or private school for use in accordance with Code Section 20-2-776.2 and in accordance with protocol specified by such physician, advanced practice registered nurse, or physician assistant.
  2. A physician licensed to practice medicine in this state, an advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25, and a physician assistant acting pursuant to the authority of subsection (e.1) of Code Section 43-34-103 may prescribe auto-injectable epinephrine in the name of an authorized entity in accordance with Code Section 31-1-14.
  3. A pharmacist may dispense auto-injectable epinephrine pursuant to a prescription issued in accordance with subsection (a) or (b) of this Code section. (Code 1981, § 26-4-116.1 , enacted by Ga. L. 2013, p. 1039, § 2/HB 337; Ga. L. 2015, p. 312, § 1/SB 126; Ga. L. 2016, p. 864, § 26/HB 737.)

Effective date. - This Code section became effective May 7, 2013.