§ 6816. Omitting to label drugs, or labeling them wrongly. 1. a. Any
person, who, in putting up any drug, medicine, or food or preparation
used in medical practice, or making up any prescription, or filling any
order for drugs, medicines, food or preparation puts any untrue label,
stamp or other designation of contents upon any box, bottle or other
package containing a drug, medicine, food or preparation used in medical
practice, or substitutes or dispenses a different article for or in lieu
of any article prescribed, ordered, or demanded, except where required
pursuant to section sixty-eight hundred sixteen-a of this article, or
puts up a greater or lesser quantity of any ingredient specified in any
such prescription, order or demand than that prescribed, ordered or
demanded, except where required pursuant to paragraph (g) of subdivision
two of section three hundred sixty-five-a of the social services law, or
otherwise deviates from the terms of the prescription, order or demand
by substituting one drug for another, except where required pursuant to
section sixty-eight hundred sixteen-a of this article, is guilty of a
misdemeanor; provided, however, that except in the case of physicians'
prescriptions, nothing herein contained shall be deemed or construed to
prevent or impair or in any manner affect the right of an apothecary,
druggist, pharmacist or other person to recommend the purchase of an
article other than that ordered, required or demanded, but of a similar
nature, or to sell such other article in place or in lieu of an article
ordered, required or demanded, with the knowledge and consent of the
purchaser. Upon a second conviction for a violation of this section the
offender must be sentenced to the payment of a fine not to exceed one
thousand dollars and may be sentenced to imprisonment for a term not to
exceed one year. The third conviction of a violation of any of the
provisions of this section, in addition to rendering the offender liable
to the penalty prescribed by law for a second conviction, shall forfeit
any right which he may possess under the law of this state at the time
of such conviction, to engage as proprietor, agent, employee or
otherwise, in the business of an apothecary, pharmacist, or druggist, or
to compound, prepare or dispense prescriptions or orders for drugs,
medicines or foods or preparations used in medical practice; and the
offender shall be by reason of such conviction disqualified from
engaging in any such business as proprietor, agent, employee or
otherwise or compounding, preparing or dispensing medical prescriptions
or orders for drugs, medicines, or foods or preparations used in medical
practice.

b. The provisions of this section shall not apply to the practice of a
practitioner who is not the proprietor of a store for the dispensing or
retailing of drugs, medicines and poisons, or who is not in the employ
of such a proprietor, and shall not prevent practitioners from supplying
their patients with such articles as they may deem proper, and except as
to the labeling of poisons shall not apply to the sale of medicines or
poisons at wholesale when not for the use or consumption by the
purchaser; provided, however, that the sale of medicines or poisons at
wholesale shall continue to be subject to such regulations as from time
to time may be lawfully made by the board of pharmacy or by any
competent board of health.

c. The provisions of this section shall not apply to a limited
pharmacy which prepares a formulary containing the brand names and the
generic names of drugs and of manufacturers which it stocks, provided
that it furnishes a copy of such formulary to each physician on its
staff and the physician signs a statement authorizing the hospital to
supply the drug under any generic or non-proprietary name listed therein
and in conformity with the regulations of the commissioner of education.

2. For the purposes set forth in this section, the terms prescription,
order or demand shall apply only to those items subject to provisions of
subdivision one of section sixty-eight hundred ten of this chapter. The
written order of a physician for items not subject to provisions of
subdivision one of section sixty-eight hundred ten of this chapter shall
be construed to be a direction, a fiscal order or a voucher.