United States v. Parfait Powder Puff Co.

Decision Date04 November 1947
Docket NumberNo. 9269.,9269.
Citation163 F.2d 1008
PartiesUNITED STATES v. PARFAIT POWDER PUFF CO., Inc.
CourtU.S. Court of Appeals — Seventh Circuit

Harry H. Ruskin and Joseph Rosenbaum, both of Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Robert C. Eardley, Theron L. Caudle, Asst. Atty. Gen., J. Albert Woll, U. S. Atty, Northern Dist. of Illinois, all of Chicago, Ill. (Vincent A. Kleinfeld, Atty. Dept. of Justice, and Arthur A. Dickerman, Atty., Federal Security Agency, both of Washington, D. C., of counsel), for appellee.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Defendant appeals from a judgment of conviction of a charge of violation of Section 301(a) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., entered after trial without a jury, largely upon stipulated facts.

Section 301(a) prohibits introduction into interstate commerce of any food, drug, device, or cosmetic which is "adulterated or misbranded." Anyone violating this enactment is subject to prosecution under Section 303(a), reading: "Any person who violates any of the provisions of section 301 shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than one year, or a fine of not more than $1,000, or both such imprisonment and fine; * * *." There is no dispute that the cosmetics involved, hair lacquer pads, were adulterated in that they contained a substance which rendered them deleterious in use under the conditions prescribed on their labels, or that they were introduced into interstate commerce.

The only issue here, whether the defendant was rightfully held responsible for the violation, must be determined upon the facts. Defendant, engaged in the manufacture and sale of cosmetic products, in 1943, entered into a contract with Helfrich Laboratories whereby the latter agreed to manufacture, place in packages and distribute to defendant's customers hair lacquer pads. Defendant supplied Helfrich with jars, caps, labels, display cards, flannel pads and shipping containers. Helfrich impregnated the pads with a shellac lacquer, placed them in labeled jars bearing defendant's name, shipped the packages, in accord with shipping directions furnished by defendant, consigned by defendant to its purchasers as consignees, and rendered bills to defendant for the commodity.

The sample submitted by Helfrich, when the arrangement was first made, was tested by defendant and found satisfactory. Later, without defendant's knowledge, so far as this record discloses, Helfrich substituted for shellac in the lacquer, a gum, for the reason, as it claimed, that it was impossible to obtain shellac. This element proved to be deleterious in use. As soon as defendant learned of the substitution it forbade use of the gum.

In this situation, it is defendant's position that the violation was not that of itself but that of Helfrich. It argues that Helfrich was not its agent, but an independent contractor, for whose acts it is not responsible. But we are not concerned with any distinction between independent contractors and agents in the ordinary sense of those words. It is clear that defendant was engaged in procuring the manufacture and distribution of the article in interstate commerce. It saw fit to create out of Helfrich's activities in its behalf an instrumentality and to avail itself of the acts of that instrumentality, which effected an introduction into commerce of an adulterated article violative of the standards fixed by the Act. This we think it could not do without incurring the criminal penalty imposed by the statute. The liability was not incurred because defendant consciously participated in the wrongful act, but because the instrumentality which it employed, acting within the powers which the parties had mutually agreed should be lodged in it, violated the law. The act of the instrumentality is controlled in the interest of public policy by imputing the act to its creator and imposing penalties upon the latter. New York Central and Hudson River Railroad Company v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613.

In United States v. Balint, et al., 258 U. S. 250, 254, 42 S.Ct. 301, 302, 66 L.Ed. 604, the court directed attention to authorities approving legislation in aid of maintenance of a public policy, prohibiting and punishing particular acts, commenting that "he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance" and proceeding as follows: "Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided." And in the comparatively recent case, United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48, the court said: "The offense is committed * * * by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes...

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15 cases
  • Standard Oil Company of Texas v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 15, 1962
    ...250, 42 S.Ct. 301, 66 L. Ed. 604; United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; United States v. Parfait Powder Puff Co., 7 Cir., 1947, 163 F.2d 1008.11 But under such statutes the act is flatly prohibited whether done "knowingly" or "willfully" or not. In none o......
  • United States v. Sene X Eleemosynary Corp., Inc.
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    • U.S. District Court — Southern District of Florida
    • October 29, 1979
    ...281, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Shapiro, 491 F.2d 335, 337 (6th Cir. 1974); United States v. Parfait Powder Puff Company, 163 F.2d 1008, 1009-1010 (7th Cir. 1947), cert. denied 332 U.S. 851, 68 S.Ct. 356, 92 L.Ed. 421 (1948); United States v. Diamond State Poultry Co......
  • U.S. v. Segal
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    • U.S. District Court — Northern District of Illinois
    • January 12, 2004
    ...613 (1909), cited with approval in United States v. Atl. Richfield Co., 465 F.2d 58, 60 (7th Cir.1972); United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1009 (7th Cir.1947). Thus, the greater specificity found in the second superseding indictment is not fundamentally inconsistent wi......
  • U.S. v. H. B. Gregory Co., 73-1744
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 27, 1974
    ...974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957); United States v. Kaadt, 7 Cir., 171 F.2d 600, 604 (1948); United States v. Parfait Powder Puff Co., 7 Cir., 163 F.2d 1008, 1009-1010 (1947), cert. denied, 332 U.S. 851, 68 S.Ct. 356, 92 L.Ed. 421 If the Supreme Court standards of individual crimina......
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3 books & journal articles
  • CORPORATE CRIMINAL LIABILITY
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • July 1, 2021
    ...1982))). 27. Independent contractors may also expose the corporation to criminal liability. See United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1009 (7th Cir. 1947) (aff‌irming conviction of company for violations of federal Food, Drug and Cosmetic Act committed by its independent ......
  • Corporate Criminal Liability
    • United States
    • American Criminal Law Review No. 60-3, July 2023
    • July 1, 2023
    ...U.S. at 494. Independent contractors may also expose the corporation to criminal liability. See United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1009 (7th Cir. 1947). 16. See United States v. A & P Trucking Co., 358 U.S. 121, 126 (1958) (holding partnership entity liable for acts co......
  • Corporate Criminal Liability
    • United States
    • American Criminal Law Review No. 59-3, July 2022
    • July 1, 2022
    ...1982))). 24. Independent contractors may also expose the corporation to criminal liability. See United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1009 (7th Cir. 1947) (aff‌irming conviction of company for violations of federal Food, Drug and Cosmetic Act committed by its independent ......

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