Seven Cases v. United States of America No 50 Six Cases v. United States of America No 51

• Decision Date: 10 January 1916
• Docket Number: Nos. 50 and 51,s. 50 and 51
• Citation: 36 S.Ct. 190,60 L.Ed. 411,239 U.S. 510
• Parties: SEVEN CASES (More or Less), Each Containing Twelve Bottles of Eckman's Alterative, Eckman Manufacturing Company, Owner, Plff. in Err., v. UNITED STATES OF AMERICA. NO 50. SIX CASES (More or Less), Each Containing Twelve Bottles of Eckman's Alterative, Eckman Manufacturing Company, Owner, Plff. in Err., v. UNITED STATES OF AMERICA. NO 51
• Court: U.S. Supreme Court

239 U.S. 510

36 S.Ct. 190

60 L.Ed. 411

SEVEN CASES (More or Less), Each Containing Twelve Bottles of Eckman's Alterative, Eckman Manufacturing Company, Owner, Plff. in Err.,

v.

UNITED STATES OF AMERICA.

NO 50.

SIX CASES (More or Less), Each Containing Twelve

Bottles of Eckman's Alterative, Eckman Manufacturing

Company, Owner, Plff. in Err.,

v. UNITED STATES OF AMERICA.

NO 51.

Nos. 50 and 51.

Argued December 2, 1915.

Decided January 10, 1916.

Messrs. Daniel W. Baker and Francis D. Weaver for plaintiff in error.

Assistant Attorney General Underwood for defendant in error.

[Argument of Counsel from page 511 intentionally omitted] Mr. Justice Hughes delivered the opinion of the court:

Libels were filed by the United States, in December, 1912, to condemn certain articles of drugs (known as 'Eckman's Alterative') as misbranded in violation of § 8 of the food and drugs act. The articles had been shipped in interstate commerce, from Chicago to Omaha, and remained at the latter place unsold and in the unbroken original packages. The two causes present the same questions, the libels being identical save with respect to quantities and the persons in possession. In each case demurrers were filed by the shipper, the Eckman Manufacturing Company, which challenged both the sufficiency of the libels under the applicable provision of the statute and the constitutionality of that provision. The demurrers were overruled, and, the Eckman Company having elected to stand on the demurrers, judgments of condemnation were entered.

Section 8 of the food and drugs act, as amended by the act of August 23, 1912, chap. 352, 37 Stat. at L. 416, Comp. Stat. 1913, § 8724, provides, with respect to the misbranding of drugs, as follows:

'Sec. 8. That the term 'misbranded,' as used herein, shall apply to all drugs or articles of food or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the state, territory, or country in which it is manufactured or produced.

'That for the purposes of this act an article shall also be deemed to be misbranded. In case of drugs:

* * * * *

'Third. If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent.'

The amendment of 1912 consisted in the addition of paragraph 'Third,' which is the provision here involved.

It is alleged in each libel that every one of the cases of drugs sought to be condemned contained twelve bottles, each of which was labeled as follows:

'Eckman's Alterative,—contains twelve per cent of alcohol by weight, or fourteen per cent by volume—used as a solvent. For all throat and lung diseases including Bronchitis, Bronchial Catarrh, Asthma, Hay Fever, Coughs and Colds, and Catarrh of the Stomach and Bowels, and Tuberculosis (Consumption) . . . Two dollars a bottle. Prepared only by Eckman Mfg. Co. Laboratory Philadelphia, Penna., U. S. A.'

And in every package, containing one of the bottles, there was contained a circular with this statement:

'Effective as a preventative for Pneumonia.' 'We know it has cured and that it has and will cure Tuberculosis.'

The libel charges that the statement 'effective as a preventative for pneumonia' is 'false, fraudulent, and misleading in this, to wit, that it conveys the impression to purchasers that said article of drugs can be used as an effective preventative for pneumonia, whereas, in truth and in fact, said article of drugs could not be so used;' and that the statement, 'we know it has cured' and that it 'will cure tuberculosis' is 'false, fraudulent, and misleading in this, to wit, that it conveys the impression to purchasers that said article of drugs will cure tuberculosis, or consumption, whereas, in truth and in fact, said article of drugs would not cure tuberculosis, or consumption, there being no medicinal substance nor mixture of substances known at present which can be relied upon for the effective treatment or cure of tuberculosis, or consumption.'

The principal question presented on this writ of error is with respect to the validity of the amendment of 1912.

So far as it is objected that this measure, though relating to articles transported in interstate commerce, is an encroachment upon the reserved powers of the states, the objection is not to be distinguished in substance from that which was overruled in sustaining the white slave act, 36 Stat. at L. 825, chap. 395, Comp. Stat. 1913, § 8812. Hoke v. United States, 227 U. S. 308, 57 L. ed. 523, 43 L.R.A.(N.S.) 906, 33 Sup. Ct. Rep. 281, Ann. Cas. 1913E, 905. There, after stating that 'if the facility of interstate transportation' can be denied in the case of lotteries, obscene literature, diseased cattle and persons, and impure food and drugs, the like facility could be taken away from 'the systematic enticement of and the enslavement in prostitution and debauchery of women,' the court concluded with the reassertion of the simple principle that Congress is not to be denied the exercise of its constitutional authority over interstate commerce, and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations. Id. pp. 322, 323. See Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215, 29 L. ed. 158, 166, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Hipolite Egg Co. v. United States, 220 U. S. 45, 57, 55 L. ed. 364, 368, 31 Sup. Ct. Rep. 364; Lottery Case (Champion v. Ames) 188 U. S. 321, 47 L. ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561.

It is urged that the amendment of 1912 does not embrace circulars contained in the package, but only applies to those statements which appear on the package or on the bottles themselves; that is, it is said that the word 'contain' in the amendment must have the same meaning in the case of both 'package' and 'label.' Reference is made to the original provision in the first sentence of § 8 with respect to the statements, etc., which the package or label shall 'bear.' And it is insisted that if the amendment of 1912 covers statements in circulars which are contained in the package, it is unconstitutional. Such statements, it is said, are not so related to the commodity as to form part of the commerce which is within the regulating power of Congress.

But it appears from the legislative history of the act that the word 'contain' was inserted in the amendment to hit precisely the case of circulars or printed matter placed inside the package, and we think that is due fair import of the provision. Cong. Rec. 62d Cong. 2d Sess. vol. 48, part 11, page 11,322. And the power of Congress manifestly does not depend upon the mere location of the statement accompanying the article, that is, upon the question whether the statement is on or in the package which is transported in interstate commerce. The further contention that Congress may not deal with the package thus transported in the sense of the immediate container of the article as it is intended for consumption is met by McDermott v. Wisconsin, 228 U. S. 115, 57 L. ed. 754, 47 L.R.A.(N.S.) 984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A, 39. There the court said: 'That the word 'package' or its equivalent expression, as used by Congress in §§ 7 and 8 in defining what shall constitute adulteration and what shall constitute misbranding within the meaning of the act [food...