United States v. Buffalo Pharmacal Co.

Citation131 F.2d 500
Decision Date03 December 1942
Docket NumberNo. 68.,68.
PartiesUNITED STATES v. BUFFALO PHARMACAL CO., Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Robert J. Whissel, of Buffalo, N. Y. (Samuel M. Fleischman, of Buffalo, N. Y., of counsel), for appellant.

George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Robert M. Hitchcock, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

The appellant was prosecuted, together with Buffalo Pharmacal Company, Inc., a New York corporation of which he was general manager, for violations of section 301(a) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 331(a). Three counts of the informations were submitted to the jury. The first count was based on an interstate shipment on October 2, 1939, of a bottle of cascara compound which was charged to be misbranded, 21 U.S.C.A. § 352(a); the other two counts related to an interstate shipment on January 9, 1940, of a bottle of digitalis tablets, one of the counts charging adulteration, 21 U.S.C.A. § 351(c), and the other misbranding, 21 U.S. C.A. § 352(a). Each of the shipments was made in filling an order received through the mails by Buffalo Pharmacal Company from a physician resident in a state other than New York. The corporation had purchased the drugs from a wholesale manufacturer; it repackaged them for the shipments under attack. The appellant Dotterweich had no personal connection with either shipment, but he was in general charge of the corporation's business and had given general instructions to its employees to fill orders received from physicians. The jury found him guilty on all three counts. For some unexplainable reason it disagreed as to the corporation's guilt. The sentence imposed on the appellant was a fine of $500 on each count, with payment suspended on the second and third counts, and probation for 60 days on each count to run concurrently.

The bottle of cascara compound carried a label reading "1000 Tablets Cascara Compound * * * (Hinkle)," followed by a list of the ingredients, one of which was strychnine sulphate. The charge of misbranding was based on the fact that this ingredient had been removed from the formula for Hinkle pills stated in the official National Formulary1 promulgated January 1, 1939. The issue left to the jury was whether the label was false and misleading in that it would lead the purchaser or the general public to believe that the tablets contained only the ingredients designated in the official formula for Hinkle pills. Since intention to violate the statute is immaterial in a charge of misbranding,2 we think the jury's finding that the labe was false and misleading was not unsupported by the evidence.

The label on the bottle of digitalis tablets represented that each tablet possessed a potency of one U. S. P. unit of digitalis, whereas in fact analysis proved that the tablets were less than one-half of the represented potency. This was so far below the standard that findings of adulteration and misbranding would seem to be inevitable, unless the deterioration occurred after the bottle of tablets was shipped. It was shipped on January 9, 1940 and its contents were analyzed by government chemists in March 1940. While cross examination brought out that digitalis tablets may deteriorate in potency by lapse of time if not properly stored, there was some testimony to indicate that the bottle in question had been properly cared for. We cannot say that the evidence was insufficient to support the verdict of adulteration and misbranding.

Section 305 of the Act, set forth in the margin,3 provides that before the Administrator reports a violation to any United States attorney for prosecution, "the person against whom such proceeding is contemplated" shall be given notice and a hearing. In the case at bar such notice was addressed only to the corporation. In response thereto the appellant appeared on behalf of the corporation. He contends that a notice addressed to him personally was a condition precedent to his lawful prosecution. The district judge ruled that the provision for notice and a hearing was an administrative direction to the Administrator rather than a jurisdictional requirement for criminal proceedings. We agree with this conclusion. Such was the authoritative construction placed upon a similar provision in the Food and Drugs Act of 1906, 21 U.S.C.A. § 11. United States v. Morgan, 222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198; see also United States v. King & Howe, 2 Cir., 78 F.2d 693, 696. In our opinion the changes in phraseology introduced by the 1938 Act are not such as to render obsolete these decisions. This appears quite clearly from the Congressional debates. 83 Cong.Rec. pp. 7792, 7794, 75th Cong., 3d sess. Articles by certain commentators are cited as expressing the opposite view,4 but we are constrained to disagree with them.

The appellant further urges that the jury's failure to convict the corporation is so inconsistent with the finding of guilt on the part of the appellant that the verdict against him cannot stand. Assuming that the statute includes within its prohibitions an agent who acts for his employer in shipping in interstate commerce misbranded or adulterated articles, the contention is without merit. No authority has been cited in support of the argument that failure to convict the principal will avoid the conviction of an agent who has committed all the elements of a crime. We think the usual principle is applicable that error cannot be asserted for inconsistency in the jury's verdict. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161; United States v. Pandolfi, 2 Cir., 110 F.2d 736.

A more difficult question is presented by the appellant's contention that the statute is aimed only at punishment of the principal and not at punishment of an innocent agent who in good faith and in ignorance of the misbranding or adulteration takes part in an interstate shipment of food or drugs. Section 301, 21 U.S.C.A. § 331, prohibits "the following acts and the causing thereof," namely, "(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." Section 333(a) of Title 21 declares that "any person" who violates any of the provisions of section 331 shall be guilty of a misdemeanor and on conviction be subject to imprisonment or fine or both. The Act defines the term "person" to include "individual, partnership, corporation, and association." 21 U.S.C.A. § 321(e). Who is the person causing "the introduction or delivery for introduction" into interstate commerce of a misbranded drug? Is the clerk who innocently packs or ships it guilty of the offense, as well as the employer for whom he works? While the statutory language seems literally to include all who have any part in causing delivery for introduction into interstate commerce, there are serious objections to so construing it. Subsection (c) of 21...

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10 cases
  • United States v. DeCoster
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 6, 2016
    ...fining him $500 on each of the three misdemeanor counts and imposing 60 days of probation. Id. ; see United States v. Buffalo Pharmacal Co. , 131 F.2d 500, 501 (2d Cir.1942), rev'd , Dotterweich , 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48. There was no incarceration. The circuit court reverse......
  • Fiore v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 13, 1982
    ...States v. Dotterweich, 320 U.S. 277, 282, 64 S.Ct. 134, 137, 88 L.Ed. 48 (1943), the Supreme Court reversed United States v. Buffalo Pharmacal, 131 F.2d 500 (2d Cir.1942) because the lower court's interpretation of the 1938 Food, Drug, and Cosmetic Act would allow that "the penalties of the......
  • Community Nutrition Institute v. Young, 84-5223
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 26, 1985
    ...to present his views, either orally or in writing, with regard to such contemplated proceedings." See United States v. Buffalo Pharmacal Co., 131 F.2d 500, 502 n. 3 (2d Cir.1942), rev'd sub nom. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). The Supreme Court ......
  • United States v. Dotterweich, 5
    • United States
    • U.S. Supreme Court
    • November 22, 1943
    ...with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F.2d 500, 502. Two other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path f......
  • Request a trial to view additional results
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