TITLE 26 FOOD, DRUGS, AND COSMETICS

Section 3. Standards, Labeling, and Adulteration of Drugs and Cosmetics, 26-3-1 through 26-3-24.

ARTICLE 17 COOPERATION IN IMPLEMENTATION OF FEDERAL FOOD SAFETY MODERNIZATION ACT

26-3-2. Definitions.

As used in this chapter, the term:

"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.
"Board" means the State Board of Pharmacy.
"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.
"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.
"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.
"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.
"Federal act" means the Federal Food, Drug, and Cosmetic Act (Title 21 U.S.C. Section 301, et seq.; 52 Stat. 1040, et seq.).
"Immediate container" does not include package liners.
"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.
"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.
"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.
"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.
"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).

OPINIONS OF THE ATTORNEY GENERAL

Licensing requirements of former Code 1933, § 79A-102 (see now O.C.G.A. Title 26) do not apply to state and local governments. 1974 Op. Att'y Gen. No. 74-17.

Because O.C.G.A. T. 26, C. 3 applies only to "persons."

- Licensing requirements of former Code 1933, § 79A-102 (see now O.C.G.A. Title 26) are directed toward "persons," a term defined by former Code 1933, § 79A-102 (see now O.C.G.A. § 26-3-2) to include "an individual, a partnership, a corporation or an association"; if there is no other specific reference to the state or the state's political subdivision evidencing an intent to include; that section excludes the state and the state's political subdivisions from the licensing requirements of that title. 1974 Op. Att'y Gen. No. 74-17.

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.

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