Alberty v. United States

• Decision Date: 31 January 1947
• Docket Number: No. 11338.,11338.
• Citation: 159 F.2d 278
• Parties: ALBERTY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 278 (1947)

ALBERTY v. UNITED STATES.

No. 11338.

Circuit Court of Appeals, Ninth Circuit.

January 31, 1947.

Hauerken, Ames & St. Clair and George H. Hauerken, all of San Francisco, Cal., O'Connor & O'Connor and William V. O'Connor, all of Los Angeles, Cal., for appellant.

James M. Carter, U.S. Atty., Ernest A. Tolin and Walter S. Binns, all of Los Angeles, Cal., and Tobias G. Klinger, of Washington, D. C., Asst. U. S. Attys., and William Strong, Sp. Asst. to the U. S. Atty., of Los Angeles, Cal., for appellee.

Before GARRECHT, DENMAN and ORR, Circuit Judges.

DENMAN, Circuit Judge.

Appellant appeals from a judgment sentencing her to three years on probation for violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331(a), 21 U. S.C.A. § 331(a).

The language of the information is that "* * * Ada J. Alberty, * * * doing business * * * at Hollywood, Los Angeles, State of California, did * * * on or about April 18, 1944 then and there, in violation of the Act of Congress * * * 21 U.S.C. 331(a) 21 U.S.C.A. § 331(a),¹ unlawfully introduce and deliver for introduction into interstate commerce, from Hollywood, Los Angeles, State of California, to Kansas City, State of Missouri, consigned to Natural Food Store, a certain consignment, to wit, a number of bottles containing a drug within the meaning of 21 U.S.C. § 321(g) (2) 21 U. S.C.A. § 321(g) (2) * * *

"That displayed upon written, printed, and graphic matter accompanying said drug when introduced and delivered for introduction into interstate commerce, as aforesaid, namely upon a number of leaflets entitled `So it's You again, is it?' relating to said drug which said leaflets were shipped by the said Ada J. Alberty trading and doing business as `Alberty Food Products' to said Natural Food Store prior to the date of the shipment of said drug as aforesaid, to wit, on or about February 7, 1944, were among other things the following statements: * * *

"That said drug, when introduced and delivered for introduction into interstate commerce, as aforesaid, was then and there misbranded within the meaning of the said act of Congress 21 U.S.C. § 352(a), 21 U.S.C.A. § 352(a), in that the statements aforesaid appearing in the leaflets entitled `So it's You again, is it?,' accompanying said drug, as aforesaid were false and misleading in this, that said statements represented and suggested that said drug would be efficacious to restore color to gray hair and would be efficacious to prevent hair from turning gray; whereas in fact and in truth said drug would not be efficacious to restore color to gray hair and would not be efficacious to prevent hair from turning gray." (Emphasis supplied.)

Appellant demurred to the information on the ground that it does not charge an offense within the sections of the Federal Food, Drug, and Cosmetic Act, contending to the court below, as follows: "The Act in question (Secs. 343(a) and 352(a) of Title 21, U.S.C. 21 U.S.C.A. §§ 343(a), 352(a)) provides that a food or drug shall be deemed to be misbranded `if its labeling is false or misleading in any particular.' Another section of the Act (Sec. 321 (m) of Title 21 U.S.C. 21 U.S.C.A. § 321 (m)) defines the term `labeling' to mean `all labels and other written, printed or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.' * * *."

and that the labels did not accompany the drug within Section 321(m).

The district court overruled the demurrer, thus ruling against appellant's contention that the literature did not accompany the drug when it was introduced into interstate commerce. Appellant assigns this ruling as error.

Section 331(a) provides

"Prohibited acts

"The following acts and the causing thereof are hereby prohibited:

"(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." (Emphasis supplied.)

It will be noted that the verb "is" is in the present tense. Section 331(a) confines the offense to a misbranding at the "introduction or delivery for introduction into interstate commerce" as recognized in the information by the use of the words "then and there."

A drug is misbranded "If its labeling is false or misleading in any particular." 21 U.S.C. § 352(a), 21 U.S.C.A. § 352(a). "Labeling" of an article is defined to mean "all labels * * * accompanying such article." 21 U.S.C. § 321(m), 21 U. S.C.A. § 321(m).

The information charges that the false labels were shipped by appellant to the Natural Food Store at Kansas City, Missouri, on February 7, 1944, that is, two months and 11 days before April 18, 1944, when the drug was "then and there" introduced into interstate commerce. It does not allege that the labels were to be placed with the drug or used together with it by the consignee. For all the information alleges, the labels may not have arrived in Missouri. Or they may have been destroyed. Or they may have been distributed to the prospective customers a month before the arrival of the drug in Missouri and hence never accompanied it there. Or they may have been used in connection with other drugs shipped and sold long prior to April 18, 1944, when the charged offense is alleged "then and there" to have been committed.

We do not think that the bald statement that the labels were shipped to the Missouri consignee 71 days before the drug was shipped charges the offense of causing them to be "accompanying" the drug's introduction into interstate commerce on or about April 18, 1944.

Appellee cites our decision United States v. Research Laboratories, Inc., 9 Cir., 126 F.2d 42. In that case, a condemnation proceeding, the libel charged that the false circulars accompanied the drug into...