Colusa Remedy Co. v. United States, 13733.

• Decision Date: 28 July 1949
• Docket Number: No. 13733.,13733.
• Citation: 176 F.2d 554
• Parties: COLUSA REMEDY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

176 F.2d 554 (1949)

COLUSA REMEDY CO. v. UNITED STATES.

No. 13733.

United States Court of Appeals Eighth Circuit.

July 28, 1949.

William G. Boatright, Kansas City, Mo., and B. F. Butler, Waterloo, Iowa (Walter M. Gleason, San Francisco, Cal., was on the brief), for appellant.

Tobias E. Diamond, United States Attorney (Sioux City, Iowa (Alexander M. Campbell, Assistant Attorney General, Wm. B. Danforth, Assistant United States Attorney, Sioux City, Iowa, Vincent A. Kleinfeld and John T. Grigsby, Attorneys, Department of Justice, and Bernard D. Levinson, Attorney, Federal Security Agency, Washington, D. C., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by the claimant from decrees entered under § 304 of the Federal Food, Drug, and Cosmetic Act, 21 U.S. C.A. § 334, condemning shipments in interstate commerce of certain drugs on the ground that they were misbranded within the meaning of § 502(a) of the Act, 21 U.S.C.A. § 352(a).

Six libel proceedings were commenced by the government in three different jurisdictions to condemn six shipments in interstate commerce of Colusa Natural Oil and Colusa Natural Oil Capsules alleged to have been misbranded, and the proceedings were consolidated for trial in the Northern District of Iowa under the provisions of 21 U.S.C.A. § 334(b).

The shipments involved were made in interstate commerce by the Colusa Remedy Company, a Nevada corporation, from Los Angeles, California, to the places and to the consignees named in each of the libels filed in each of the consolidated proceedings. The drug was bottled in two forms, capsule and liquid, it being stipulated that the contents in each case were identical, both containing "natural unrefined petroleum oil." It was further stipulated that the labels attached to the bottles in every case read:

(Bottle label: Colusa Natural Oil.) "A natural unrefined petroleum oil intended for use in treatment of Psoriasis, Eczema, Athlete's foot and Leg Ulcers. Directions: Apply to affected parts and rub it in thoroughly morning and night. For open sores saturate cotton pad with oil and bind on by gauze. Change to fresh dressing morning and night. For tender skin oil can be diluted 50% with olive oil. Continue treatment until skin is smooth and comfortable. We suggest in treatment of Psoriasis, Eczema and Leg Ulcers using Colusa Natural Oil externally as above directed and Colusa Natural Oil capsules internally as directed on bottle containing Colusa Natural Oil capsules."

(Bottle label: Colusa Natural Oil Capsules.) "A natural unrefined petroleum oil in capsules intended for internal use in treatment of Psoriasis, Eczema, Leg Ulcers. Directions: For adults start with one capsule at bedtime then after 3 days change to one capsule after each meal until skin is smooth and comfortable. For children under ten — one capsule or its contents squeezed into milk or water at bedtime until skin is smooth and comfortable. We suggest use of capsules as above directed in conjunction with liquid Colusa Natural Oil applied externally to affected parts as directed on bottle containing Colusa Natural Oil in liquid form."

In each libel it was charged that such labels "are false and misleading in that such statements represent and suggest that the articles when taken individually or in combination are effective in the treatment of psoriasis, eczema, leg ulcers, athlete's foot, and open sores, whereas, the articles when taken as directed are not effective for such purposes."

In each of the consolidated cases the appellant appeared as claimant and filed an answer, admitting the interstate shipments, the accuracy of the quoted labels, and denying that the articles were misbranded in interstate commerce within the meaning of the statute, or that the wording of the labels is false and misleading in the respects alleged, or that they were liable to seizure and condemnation pursuant to the provisions of the Act, and praying for the return of the articles and for such other relief as the case may require.

The Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C.A. § 301 et seq., provides: Section 201(g), 21 U.S.C.A. § 321(g). "The term `drug' means * * * (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals."

Section 304(a), 21 U.S.C.A. § 334, provides that any drug that is misbranded when introduced into or while in interstate commerce, shall be liable to be proceeded against on libel of information in any district court within the jurisdiction of which the article is found.

"(b) The article shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty." When proceedings involving the same claimant and the same issues of misbranding are pending in two or more jurisdictions they may upon application of the claimant be consolidated for trial in any district selected by the claimant where one of the proceedings is pending.

Section 502, 21 U.S.C.A. § 352. "A drug * * * shall be deemed to be misbranded — (a) If its labeling is false or misleading in any particular."

The consolidated cases were tried to the court without a jury and thereafter the court made findings of fact, conclusions of law, and entered the decrees in each of the consolidated cases condemning the articles involved, from which decrees the claimant appeals. United States v. 9 Bottles, More or Less, etc., Colusa Natural Oil, et al., D.C., 78 F.Supp. 721. And see United States v. Colgrove et al., D.C.S.D.Cal., 83 F.Supp. 880.

Under the issues the burden was upon the government to establish that the labeling upon the bottles was false or misleading in some particular. That means in this case that the proof must warrant findings by the court (1) that Colusa Natural Oil and Colusa Natural Oil Capsules are represented in the labeling to be effective or efficacious in the treatment of the skin diseases named in the labels and (2) that they are neither effective nor efficacious in the treatment of those diseases.

Upon the trial the appellant contended that the labeling upon the articles involved is not "false or misleading in any particular" within the meaning of 21 U.S.C.A. § 352(a). Its position was and is here that it does not claim in the labels or otherwise that Colusa Natural Oil will cure any of the diseases named in such labels. Its claim is that the labels represent only that the remedies will assist or relieve in the treatment of the diseases referred to in the labels.

We think the law is settled both as to the issues and as to the review on appeal.

A proceeding to forfeit and condemn property for violation of a federal statute but which does not involve the personal conviction of the wrongdoer for the offense charged is one of a civil nature and not criminal. Dobbins' Distillery v. United States, 96 U.S. 395, 399, 24 L.Ed. 637; United States v. 935 Cases, More or Less, Etc., 6 Cir., 136 F.2d 523, 526.

The provision of § 304(b) of the Federal Food, Drug, and Cosmetic Act, supra, that the procedure to seize misbranded drugs by libel should conform as nearly as may be to the procedure in admiralty was not intended "to liken the proceedings to those in admiralty beyond the seizure of the property by process in rem, then giving the case the character of a law action * * *." Four Hundred and Forty-Three Cans of Frozen Egg Product v. United States, 226 U.S. 172, 183, 33 S.Ct. 50, 53, 57 L.Ed. 174.

The Federal Rules of Civil Procedure govern proceedings on appeals in actions for forfeiture of property for violation of a statute of the United States. Rule 81(a) (2), 28 U.S.C.A.; United States v. Cataldo, 1 Cir., 157 F.2d 802, 803; C. C. Co. v. United States, 5 Cir., 147 F.2d 820; Reynal v. United States, 5 Cir., 153 F.2d 929; United States v. 5 Cases, Etc., D.C., 9 F.R.D. 81.

Since this is an action for the forfeiture of property for violation of a statute of the United States it is governed on appeal by Rule 52(a) of the Rules of Civil Procedure, which provides that "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In the notes to the rules prepared under the direction of the Advisory Committee on rules appointed by the Supreme Court it is said the foregoing rule "accords with the decisions on the scope of the review in modern federal equity practice"; and "It is applicable to all classes of findings in cases tried without a jury whether the finding is of a fact concerning which there was conflict of testimony, or of a fact deduced or inferred from uncontradicted testimony." For a clear statement of the meaning of the rule the notes cite Silver King Coalition Mines Co. v. Silver King Consolidated Mining Co., 8 Cir., 204 F. 166, 177, Ann. Cas.1918B, 571, in which Judge Walter Sanborn, writing the opinion for the court, said: "* * * where a court has considered conflicting evidence, and made a finding or decree, it is presumptively correct, and unless some obvious error of law has intervened, or some serious mistake of fact has been made, the finding or decree must be permitted to stand." The rule has been repeated by the courts in cases too numerous to be cited. But see Johnson v. Cooper, 8 Cir., 172 F.2d 937, and Hudspeth v. Esso Standard Oil Co., 8 Cir., 170 F.2d 418. The Supreme Court recently said in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, that a finding of fact is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."

Upon the trial the government introduced the testimony of ten...