59 F.2d 446 (D.Md. 1932), 4317, United States v. Eleven Cartons of Drug Labeled in Part 'Vapex'

Docket Nº:4317.
Citation:59 F.2d 446
Party Name:UNITED STATES v. ELEVEN CARTONS OF DRUG LABELED IN PART 'VAPEX.' In re E. FOUGERA & CO., Inc.
Case Date:June 07, 1932
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 446

59 F.2d 446 (D.Md. 1932)

UNITED STATES

v.

ELEVEN CARTONS OF DRUG LABELED IN PART 'VAPEX.'

In re E. FOUGERA & CO., Inc.

No. 4317.

United States District Court, D. Maryland.

June 7, 1932

Page 447

Simon E. Sobeloff, U.S. Atty., and James K. Cullen, Asst. U.S. Atty., both of Baltimore, Md., and Elton L. Marshall, Sol., and John F. Moore, Asst. to Sol., Department of Agriculture, both of Washington, D. C., for the United States.

Louis J. Burger (of Hinkley, Hisky & Burger), of Baltimore, Md., and Walter L. Post, of New York City, for claimant.

CHESNUT, District Judge.

In this proceeding at law (by the applicable statute called a libel) the Government seeks to condemn a quantity of 'Vapex,' shipped in interstate commerce, on the ground that it is misbranded under section 8, paragraph 2, of the Food and Drugs Act of Congress (United States Code, title 21, § 10 [21 USCA § 10]).

The misbranding is alleged to result from the failure of the package 'to bear a statement on the label of the quantity or proportion of any alcohol * * *, or any derivative or preparation of any such substances contained therein.'

By its second special amended plea filed February 12, 1932, the claimant, E. Fougera & Co., Inc., admits all the allegations of fact contained in the libel but, in opposition to the claimed condemnation, sets up the following contentions, in substance: (1) that the 'Vapex' as shown by the labels on the packages is 'a pure inhalant generally indicated in the treatment of head colds'; (2) that the directions for using it are to place a drop or two in the center of a folded handkerchief and inhale the vapor therefrom; (3) that the alcohol contained in the article 'has no office or property therein other than as a diluent or solvent of the essential oils contained therein.' From these facts in the plea the legal conclusions are drawn that (a) Vapex is not a drug within the meaning of the Act; (b) the Act properly construed does not apply to Vapex; (c) that if construed to apply to Vapex the Act is unconstitutional in the absence 'of a showing that the alcoholic content of said article renders the same noxious or harmful to the public health.'

The Government challenges the sufficiency of the plea to establish these conclusions.

After a study of the excellent briefs submitted by counsel, I have reached the conclusion that the demurrer should be sustained for the following reasons:

The term 'drug' as used in the act is defined to include 'all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals.' U.S. Code, title 21, § 7 (21 USCA § 7). The definition so clearly includes the substance 'Vapex' (as it is described in claimant's plea) that discussion seems unnecessary. The labels on the bottles as quoted in the plea state that the inhalation of the vapor from a drop of Vapex on a handkerchief is effective to relieve a head cold instantly and that its use will stop a cold at the start. It is further described as a new method of treatment for colds. The labels also assert that its use is both curative and preventative, and that breathing the vapor is inimical to the germs of common colds. It is clearly, therefore, a substance 'intended to be used for the cure, mitigation or prevention of disease,' unless it were denied, as it is not, and as I think it could not be, that a head or common cold is a disease. See U.S. v. 23 7/12 Dozen Bottles, 44 F.2d 831 (D. C. Conn.).

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