Defence for sector operators and action for injured consumers · Author: Francisco Javier Martín Porras, criminal lawyer and court expert · SCJE team
Before drug trafficking, the public-health title punishes other dangerous markets: harmful substances and chemicals without authorisation, falsified or deteriorated medicines, adulterated food and sports doping. These are company and supply-chain offences, with consumer and health inspections as their antechamber. We defend operators of the sector and act for those harmed by products that make people ill.
In brief. In brief. Producing or dispensing harmful substances without authorisation: prison of 6 months to 3 years (art. 359). Falsified or altered medicines: prison of 6 months to 4 years (arts. 361-362). Harmful food fraud: prison of 1 to 4 years plus fine and disqualification (arts. 363-365). Corporate liability and negligent commission are expressly provided for.
Articles 359 to 367 of the Criminal Code protect public health beyond drugs: producing or dispensing substances that may wreak havoc without the due authorisation (art. 359) or breaching the legal formalities while authorised (art. 360); manufacturing, offering or supplying deteriorated or expired medicines (art. 361); producing or marketing falsified medicines and sanitary products, including online sale and intermediation (arts. 362 to 362 ter); facilitating prohibited substances or methods to athletes (art. 362 quinquies); and the food frauds of arts. 363 to 365, up to the poisoning or adulteration of water and food destined for consumption.
Our practice on both sides: for companies and professionals of the food and pharmaceutical chain, defence built on traceability, counter-samples, documented self-controls and the dolus/negligence gradation of art. 367; for consumers and victims, criminal action against the identifiable chain with full civil recovery for the harm to health.
| Conduct | Article | Content | Penalty |
|---|---|---|---|
| Harmful substances | Art. 359 CP | Production or dispensing without authorisation | 6 months to 3 years of prison |
| Breach of formalities | Art. 360 CP | Authorised operator breaching legal formalities | Fine and disqualification |
| Deteriorated medicines | Art. 361 CP | Expired or non-compliant medicines endangering health | 6 months to 3 years, fine, disqualification |
| Falsified medicines | Arts. 362-362 bis CP | Production, marketing, trafficking, online sale | 6 months to 4 years; aggravations of art. 362 ter |
| Sports doping | Art. 362 quinquies CP | Prohibited substances or methods facilitated to athletes | 6 months to 2 years, fine, disqualification |
| Food frauds | Arts. 363-364 CP | Harmful foodstuffs, corrupted goods, breached requirements | 1 to 4 years plus fine and disqualification |
| Poisoning of food or water | Art. 365 CP | Adulteration of water or food destined for consumption | 2 to 6 years of prison |
| Companies and negligence | Arts. 366-367 CP | Corporate fines and closure; negligent commission | Penalties one degree lower for gross negligence |
Summary drawn from the Spanish source page for orientation purposes. The applicable provisions are those of the Criminal Code in force at the relevant time; each case requires individual analysis by a criminal lawyer.
Original commentary by the firm on articles 359 to 367 CP. These are supply-chain cases: analytics, counter-samples, HACCP self-controls and reaction times decide whether an incident remains an administrative file or becomes a criminal case, and the dolus/negligence gradation of art. 367 frames the defence.
An immobilised lot only becomes criminal with real harmful aptitude and intent or gross negligence: counter-samples, HACCP records and immediate reaction deactivate the criminal route.
The management of expired stock with irregular destination and the online sale of non-compliant products fall under arts. 361 and 362: the circuit and the knowledge of each link are the defence.
Doping punishes the athlete’s environment, not the athlete: facilitating prohibited substances endangering health, aggravated with minors or deceit.
Falsified medicines bought online or a restaurant intoxication: the criminal action against the identifiable chain recovers also the harm to health, and early reporting preserves the evidence.
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