Article 362 BIS

Anyone who, with knowledge of their falsification or counterfeiting, imports, exports, advertises, offers, displays, sells, provides, dispenses, dispatches, packages, supplies, supplies, including intermediation, traffics in, distributes or places on the market any medicinal products, active substances, excipients, medical devices, accessories, elements or elements of the medical device, or any other medical product shall be punished by a prison sentence of six months to four years, a fine of six to eighteen months and special disqualification for one to three years, and shall be disqualified from any profession or trade, packages, supplies, brokers, traffics, distributes or places on the market any of the medicinal products, active substances, excipients, medical devices, accessories, elements or materials referred to in the previous article, and thereby creates a risk to the life or health of persons.

The same penalties shall be imposed on anyone who acquires them or holds them in storage for the purpose of public consumption, use by third parties or any other use which may affect public health.

Article 362 TER

Anyone who draws up any false or misleading document relating to any of the medicinal products, active substances, excipients, medical devices, accessories, elements or materials referred to in Section 1 of Article 362, including their packaging, labelling and method of use, in order to commit or facilitate the commission of one of the offences under Article 362, shall be sentenced to six months to two years' imprisonment, a fine of six to twelve months and special disqualification for six months to two years.

Article 362 QUATER

The penalties higher in degree than those indicated in Articles 361, 362, 362 bis or 362 ter shall be imposed when the offence is perpetrated in any of the following circumstances:

1ª That the offender is an authority, public official, medical practitioner, health professional, teacher, educator, physical or sports trainer, and is acting in the exercise of his or her position, profession or trade.

2ª That the medicines, active substances, excipients, medical devices, accessories, elements or materials referred to in art. 362:

a) have been offered through mass media; or
b) have been offered or provided to minors, disabled persons in need of special protection, or persons who are particularly vulnerable in relation to the product provided.

3ª The offender belonged to a criminal organisation or group whose purpose was to commit this type of offence.

4ª That the acts were carried out in establishments open to the public by the managers or employees of the same.

Article 362 QUINQUIES

1. Those who, without therapeutic justification, prescribe, provide, dispense, supply, administer, offer or facilitate to non-competitive federated sportspersons, non-federated sportspersons practising recreational sport, or sportspersons taking part in competitions organised in Spain by sports bodies, prohibited substances or pharmacological groups, as well as non-regulated methods, intended to increase their physical capacities or to modify the results of the competitions, which, due to their content, repeated ingestion or other concurrent circumstances, endanger their life or health, shall be punished with a prison sentence of six months to two years, a fine of six to eighteen months and special disqualification from public employment or office, profession or trade, for two to five years.

2. The penalties provided for in the previous section shall be imposed in their upper half when the offence is perpetrated in any of the following circumstances:

1ºThat the victim is a minor.
2º That deception or intimidation has been used.
3ºThat the perpetrator has taken advantage of a relationship of work or professional superiority.

Article 362 SEXIES

In the offences provided for in the previous Articles of this Chapter, the substances and products referred to in Articles 359 et seq. shall be subject to confiscation, as well as the goods, means, instruments and proceeds, subject to the provisions of Articles 127 to 128.

Article 363

Producers, distributors or traders who endanger the health of consumers shall be punished with a prison sentence of one to four years, a fine of six to twelve months and special disqualification from profession, trade, industry or commerce for a period of three to six years:

1. By offering food products on the market with omission or alteration of the requirements established in the Laws or regulations on shelf life or composition.
2. By manufacturing or selling beverages or foodstuffs intended for public consumption and harmful to health.
3. Dealing in adulterated goods.
4. By manufacturing or dealing in products the use of which is not authorised and which are injurious to health.
5. Concealing or removing articles intended to be rendered unusable or disinfected, in order to trade in them.

Article 364

1. Anyone who adulterates foodstuffs, substances or beverages intended for the food trade with additives or other unauthorised agents likely to cause harm to human health shall be liable to the penalties set out in the previous article. If the offender is the owner or the person responsible for the production of a foodstuffs factory, he shall also be sentenced to special disqualification from any profession, trade, industry or commerce for a period of six to ten years.

2. The same penalty shall be imposed on anyone who engages in any of the following conducts:

1º) Administering to animals whose meat or products are intended for human consumption substances which are not permitted and which generate a risk to human health, or in higher doses or for purposes other than those authorised.
2º) Slaughtering animals for slaughter or using their products for human consumption, knowing that the substances mentioned in the previous number have been administered to them.
3º) Slaughtering animals for slaughter to which therapeutic treatments have been applied by means of substances referred to in paragraph 1.
4º) Dispatching for public consumption the meat or products of animals for slaughter without respecting the waiting periods provided for in the regulations.

Article 365

Anyone who poisons or adulterates drinking water or foodstuffs intended for public use or for consumption by a community of persons with infectious substances or other substances that may be seriously harmful to health, shall be punished by imprisonment for a term of two to six years.

Article 366

COMPARATIVE MODIFICATIONS

When, in accordance with the provisions of Article 31 bis, a legal person is responsible for the offences set out in the previous Articles of this Chapter, it shall be sentenced to a fine of one to three years, or double to five times the value of the substances and products referred to in Articles 359 and following, or of the benefit that may have been obtained or could have been obtained, whichever amount is higher.

In accordance with the rules laid down in art. 66 bis, the judges and courts may also impose the penalties set out in letters b) to g) of paragraph 7 of art. 33.

Article 367

If the acts provided for in all the previous Articles were committed with gross negligence, the penalties shall be those which are lower in degree, respectively.

Article 368

Those who carry out acts of cultivation, processing or trafficking, or otherwise promote, encourage or facilitate the illegal consumption of toxic drugs, narcotic drugs or psychotropic substances, or possess them for those purposes, shall be punished with a prison sentence of three to six years and a fine of three times the value of the drug that is the object of the offence if it is a substance or product that causes serious damage to health, and a prison sentence of one to three years and a fine of two times the value of the drug in other cases.

Notwithstanding the provisions of the previous paragraph, the Courts may impose a lower penalty than those indicated in view of the minor nature of the offence and the personal circumstances of the offender. This power may not be used if any of the circumstances referred to in articles 369 bis and 370 apply.

Article 369

1. The penalties set out in the previous article and a fine of four times the amount shall be imposed when any of the following circumstances apply:

1st) The guilty party is an authority, public official, medical practitioner, social worker, teacher or educator and is acting in the exercise of his or her position, profession or trade.
2nd) The offender participates in other organised activities or whose execution is facilitated by the commission of the offence.
3rd) The acts were carried out in establishments open to the public by the persons in charge or employees thereof.
4th) The substances referred to in the previous article are provided to minors under 18 years of age, to the mentally handicapped or to persons undergoing treatment for addiction or rehabilitation.
5th) The quantity of the aforementioned substances which are the object of the conduct referred to in the previous article is of notorious importance.
6th) The said substances are adulterated, manipulated or mixed with each other or with others, increasing the possible damage to health.
7th) The conduct described in the previous article takes place in or near educational centres, military centres, establishments or units, penitentiary establishments or rehabilitation or rehabilitation centres.
8th) The offender uses violence or displays or makes use of weapons to commit the act.

Article 369 BIS

When the acts described in art. 368 have been carried out by those who belong to a criminal organisation, the penalties of imprisonment of nine to twelve years and a fine of four times the value of the drugs shall be imposed in the case of substances and products that cause serious damage to health, and imprisonment of four years and six months to ten years and the same fine in other cases.

The heads, managers or administrators of the organisation shall be sentenced to the penalties higher in degree than those indicated in the first paragraph.

When, in accordance with the provisions of art. 31 bis, a legal person is responsible for the offences set out in the two previous articles, the following penalties shall be imposed:

(a) A fine of two to five years, or three to five times the value of the drug when the resulting quantity is higher, if the offence committed by the natural person is punishable by imprisonment for more than five years.
b) A fine of one to three years, or double to four times the value of the drug when the resulting quantity is higher, if the offence committed by the natural person is punishable by a term of imprisonment of more than two years not included in the previous subparagraph.
In accordance with the rules laid down in Art. 66 bis, the judges and courts may also impose the penalties set out in letters b) to g) of paragraph 7 of Art. 33.

Article 370

The penalty shall be imposed that is one or two degrees higher than that indicated in art. 368 when:

1º) Minors under 18 years of age or mentally handicapped persons are used to commit these offences.
2º) It involves the heads, administrators or persons in charge of the organisations referred to in circumstance 2 of section 1 of article 369.
3º) The conduct described in Article 368 is extremely serious.

Cases in which the quantity of the substances referred to in Article 368 significantly exceeds that considered to be of notorious importance, or ships, boats or aircraft have been used as a specific means of transport, or the aforementioned conducts have been carried out by simulating international trade operations between companies, or it involves international networks dedicated to this type of activity, or when three or more of the circumstances provided for in Article 369.1 are present, are considered to be extremely serious.

In the cases of numbers 2 and 3 above, the guilty parties shall also be fined up to three times the value of the drugs which are the object of the offence.

Article 371

1. Anyone who manufactures, transports, distributes, trades or has in his possession equipment, materials or substances listed in Table I and Table II of the United Nations Convention, done at Vienna on 20 December 1988, on illicit traffic in narcotic drugs and psychotropic substances, and any other products added to the same Convention or included in other future Conventions of the same nature, ratified by Spain, knowing that they are to be used in the illicit cultivation, production or manufacture of toxic drugs, narcotic drugs or psychotropic substances, or for these purposes, shall be punished with a prison sentence of three to six years and a fine of three times the value of the goods or effects.

2. The upper half of the above-mentioned penalty shall be imposed when the persons who carry out the acts described in the previous paragraph belong to an organisation dedicated to the purposes indicated therein, and the higher penalty shall be imposed on the heads, administrators or persons in charge of the said organisations or associations.

In such cases, the Judges or Courts shall impose, in addition to the corresponding penalties, that of special disqualification of the offender from exercising their profession or industry for a period of three to six years, and the other measures provided for in Article 369.2.

Article 372

If the acts provided for in this Chapter were committed by a businessman, intermediary in the financial sector, medical practitioner, public official, social worker, teacher or educator, in the exercise of their position, profession or trade, they shall be sentenced, in addition to the corresponding penalty, to special disqualification from public employment or position, profession or trade, industry or commerce, for a period of three to ten years. The penalty of absolute disqualification from ten to twenty years shall be imposed when the aforementioned acts were carried out by an authority or agent of the same, in the exercise of their office.

For this purpose, medical practitioners, psychologists, persons in possession of a health qualification, veterinary surgeons, pharmacists and their assistants are considered to be medical practitioners.

Article 373

Provocation, conspiracy and proposition to commit the offences provided for in articles 368 to 372 shall be punished with a penalty one to two degrees lower than that corresponding, respectively, to the acts provided for in the previous precepts.

Article 374

In the offences provided for in the second paragraph of section 1 of article 301 and in articles 368 to 372, in addition to the penalties applicable to the offence committed, the toxic drugs, narcotics or psychotropic substances, the equipment, materials and substances referred to in article 371, as well as the goods, means, instruments and proceeds shall be subject to confiscation, subject to the provisions of articles 127 to 128 and to the following special rules:

1st Once the sentence has become final, the destruction of the samples that have been set aside shall be carried out, or the destruction of the entirety of what has been seized, in the event that the competent judicial body has ordered their preservation.
2ª The assets, means, instruments and proceeds definitively confiscated by sentence, which may not be used to satisfy the civil liabilities arising from the offence or the procedural costs, shall be awarded in full to the State.

Article 375

Convictions by foreign judges or courts for offences of the same nature as those provided for in Articles 361 to 372 of this Chapter shall produce the effects of recidivism, unless the criminal record has been cancelled or may be cancelled under Spanish law.

Article 376

In the cases provided for in articles 361 to 372, the Judges or Courts, reasoning in the sentence, may impose a sentence one or two degrees lower than that established by law for the offence in question, provided that the subject has voluntarily abandoned his criminal activities and has actively collaborated with the authorities or their agents either to prevent the commission of the offence, or to obtain decisive evidence for the identification or capture of others responsible, or to prevent the action or development of the organisations or associations to which he has belonged or with which he has collaborated.

Likewise, in the cases provided for in articles 368 to 372, the Judges or Courts may impose a sentence of one or two degrees less on the offender who, being a drug addict at the time of the commission of the offence, sufficiently proves that he or she has successfully completed a treatment for addiction, provided that the quantity of toxic drugs, narcotics or psychotropic substances was not of notorious importance or of extreme seriousness.

Article 377

Related documents

For the purpose of determining the amount of the fines imposed in application of articles 368 to 372, the value of the drugs that are the object of the offence or of the goods or effects seized will be the final price of the product or, where appropriate, the reward or profit obtained by the offender, or which he could have obtained.

Article 378

Payments made by the convicted person for one or more of the offences referred to in articles 361 to 372 shall be charged in the following order:

1º. to compensation for the damage caused and damages.
2º. to the compensation of the State for the amount of the expenses incurred on its behalf in the case.
3º. a fine
4º. to the costs of the private prosecutor or private prosecutor when payment thereof is ordered in the judgment.
5º. to the other procedural costs, including those of the defendant's defence, without preference among the interested parties.