United States v. John J. Fulton Co.
| Decision Date | 01 July 1929 |
| Docket Number | No. 5709.,5709. |
| Citation | 33 F.2d 506 |
| Parties | UNITED STATES v. JOHN J. FULTON CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash., and John F. Moore, Atty. U. S. Dept. of Agriculture, Washington, D. C.
A. P. Black, of San Francisco, Cal. (Howe & Graham, of Seattle, Wash., of counsel), for appellee.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
Appellant filed a libel of information against 48 bottles of an article of drugs labeled in part "Fulton's Compound RX 1," and 24 bottles of another article of drugs labeled in part "Fulton's Compound RX 2," which it alleges were shipped in interstate commerce from San Francisco to Seattle, and which it charges were misbranded, in violation of paragraph 3 of section 8 of the Food and Drugs Act, as amended (21 USCA § 10). By that provision it is declared that an article of drugs shall be deemed to be misbranded, "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." In the libel are exhibited the labels, wrappers, and attending circulars, followed with the averment that the bottles were so misbranded, in that the labels, wrappers, and circulars "are false and fraudulent, since the articles contain no ingredient or combination of ingredients capable of producing the effect claimed." Sustaining an exception to the libel upon the ground that it failed to state sufficient facts to constitute a cause of action, the court below entered a judgment dismissing it, and libelant appeals.
The point of the exception is that nowhere in the label, wrapper, or attending circular does the proprietor or shipper make any direct statement or representation that the drugs are of curative or therapeutic value. In each case there is the statement, "We have received many letters from physicians reporting," followed by what is represented to be the substance of such "reports," which admittedly would tend to engender a belief in persons suffering from diabetes or Bright's disease that the use of the drugs would likely afford them relief. Unless we discredit their mental competency, such, we must presume, was the intent and expectation of the proprietors. Their contention is that they have such letters or reports, and that that fact constitutes a...
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