United States v. Olsen, 11403.
Decision Date | 15 May 1947 |
Docket Number | No. 11403.,11403. |
Parties | UNITED STATES v. OLSEN. |
Court | U.S. Court of Appeals — Ninth Circuit |
Theron L. Caudle, Asst. Atty. Gen., and Henry L. Hess, U. S. Atty., and J. Robert Patterson, Asst. U. S. Atty., both of Portland, Or. (Vincent A. Kleinfeld and John T. Grigsby, Attys., Dept. of Justice, both of Washington, D. C., of counsel), for appellant.
Barnett H. Goldstein, of Portland, Or., for appellee.
Before GARRECHT, MATHEWS, and BONE, Circuit Judges.
On a libel of information, appellant, the United States, proceeded against an article called a Spectro-Chrome found in possession of appellee, William Ray Olsen, in the District of Oregon. Process was issued, and the article was seized. Appellee intervened as claimant of the article, answered the libel and obtained an order directing that the article be returned to him, and it was so returned. Thereafter a trial was had, findings of fact and conclusions of law were stated, and a decree was entered dismissing the libel.1 From that decree this appeal is prosecuted.
The proceeding was under § 304 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334, which provides:
These facts are undisputed: The article in question — the so-called Spectro-Chrome — was an instrument, apparatus, or contrivance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease of man and hence was a device, within the meaning of the Act.4 The article was transported in interstate commerce from Newfield, New Jersey, to Portland, Oregon, in June, 1945. When the article was introduced into and while it was in interstate commerce, its labeling5 was false and misleading. Hence the article was misbranded, within the meaning of the Act,6 when introduced into and while in interstate commerce.
This proceeding was commenced on July 26, 1945. At that time, the article was not in interstate commerce. That, however, is immaterial; for, having been misbranded when introduced into and while in interstate commerce, the article was liable to be proceeded against and condemned at any time thereafter.7
It is immaterial, if true, that appellee had purchased and paid for the article, had it in his home, was satisfied with it and desired to keep it; that the article was not inherently dangerous or harmful; that appellee did not intend to use it commercially or to permit its use by persons other than himself and his mother and brothers, all of whom were over 21 years of age; and that appellee believed that he and his mother had been benefited by its use. Such facts could not and did not exempt the article from the provisions of § 304 of the Act, 21 U.S.C.A. § 334.
It is said that appellee has a right to prescribe for himself and to "seek to cure himself of physical ailments by any means he chooses, so long as the means chosen is not inherently dangerous or harmful."8 Such a right, if it exists, is subordinate to the rights of appellant under § 304 of the Act, 21 U.S.C.A. § 334.
There is no merit in the contention that § 304 of the Act, 21 U.S.C.A. § 334, is unconstitutional. The section is constitutional,9 is applicable to this case and should be followed. Accordingly, the so-called Spectro-Chrome — the article proceeded against in this case — should be seized and condemned.
Decree reversed and case remanded for further proceedings in conformity with this opinion.
2 Section 201(h) of the Act, 21 U.S....
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