Gellman v. United States, No. 13412.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, WOODROUGH, and RIDDICK, Circuit
Citation159 F.2d 881
PartiesGELLMAN et al. v. UNITED STATES.
Decision Date04 March 1947
Docket NumberNo. 13412.

159 F.2d 881 (1947)

GELLMAN et al.
v.
UNITED STATES.

No. 13412.

Circuit Court of Appeals, Eighth Circuit.

March 4, 1947.


Maurice Weinstein, of Milwaukee, Wis., for appellants.

Victor E. Anderson, U. S. Atty., of St. Paul, Minn. (Theron L. Caudle, Asst. Atty. Gen., Clifford F. Hansen, Asst. U. S. Atty., of St. Paul, Minn., and Vincent A. Kleinfeld, Atty., Department of Justice, and James B. Goding, Atty., Federal Security Agency, both of Washington, D. C., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is to reverse a judgment of condemnation entered after trial by the court upon a libel of information by the United States against a shipment of rubber prophylactics transported in interstate commerce from Akron, Ohio, to Minneapolis, Minnesota, and there seized from appellants who are the owners. The articles are sold ostensibly for the purpose of preventing transmission of venereal disease and were labelled in part Xcellos' Prophylactics and in part Silver Tex Prophylactics, and the condemnation was ordered pursuant to the Federal Food, Drug, and Cosmetic Act, § 304, 21 U.S.C.A. § 334, upon the findings and conclusions of the court that the articles were adulterated within the meaning of 21 U.S.C.A. § 351(c) and were misbranded within the meaning of 21 U.S.C.A. § 352(a).

Before the information of libel was filed, agents of the government purchased some of the articles and subjected them to tests, and after such filing and the seizure of the articles the parties stipulated in writing that the owners "cannot perfect the evidence required to proceed with said case until furnished with a sample of said seized property," and that representatives of the parties "on inspecting said seized property can best determine what sample is necessary to constitute a representative sample thereof" and "that the court may make the attached order" to permit examination and taking of representative samples of the articles. The court acted in accordance with the stipulation and issued the order agreed upon by the parties. In consequence all of the seized articles were not subjected to testing, and the findings and conclusions of the court in respect to the charges of adulteration and misbranding were drawn from the testimony showing the nature, uses and purposes of the articles, the scale

159 F.2d 882
and processes of manufacture, the packing, labelling and shipment, and the results of...

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10 practice notes
  • Food for human consumption: Food labeling— Dietary supplements; effect on structure or function of body; types of statements, definition,
    • United States
    • Federal Register January 06, 2000
    • January 6, 2000
    ...1953); United States v. 43 1/2 Gross Rubber Prophylactics, 65 F. Supp. 534, 535 (D. Minn. 1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947); 59 FR 6084, 6088 (February 9, 1994) (terms ``antibacterial,'' ``antimicrobial,'' ``antiseptic,'' or ``kills germs'' constit......
  • United States v. Roux Laboratories, Inc., No. 75-30-Misc-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 7, 1978
    ...1136 (1957); United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534, 536 (D.Minn.1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947). 21 U.S.C. § 331(f) prohibits the refusal to permit such inspections, and § 333(a) imposes a penalty of one year or $1,000.0......
  • Cimino v. Raymark Industries, Inc., No. B-86-0456-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • November 12, 1990
    ...Seed Co. v. Jones, 149 F.2d 252 (6th Cir.1945);14 United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946), aff'd, 159 F.2d 881 (8th Cir.1947) (court determined that shipment was misbranded based upon evidence of a sample which indicated a potential of 1,500 defective p......
  • U.S. v. 302 Cases, No. 98-476-CIV-T-17C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 5, 1998
    ...284 F. 542 (9th Cir.1922); United States v. 43 ½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946); Gellman v. United States, 159 F.2d 881 (8th Cir.1947); United States v. 935 Cases, 65 F.Supp. 503, 504 (N.D.Ohio The FDCA defines "food" as "articles used for food or drink for man or ......
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9 cases
  • United States v. Roux Laboratories, Inc., No. 75-30-Misc-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 7, 1978
    ...1136 (1957); United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534, 536 (D.Minn.1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947). 21 U.S.C. § 331(f) prohibits the refusal to permit such inspections, and § 333(a) imposes a penalty of one year or $1,000.0......
  • Cimino v. Raymark Industries, Inc., No. B-86-0456-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • November 12, 1990
    ...Seed Co. v. Jones, 149 F.2d 252 (6th Cir.1945);14 United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946), aff'd, 159 F.2d 881 (8th Cir.1947) (court determined that shipment was misbranded based upon evidence of a sample which indicated a potential of 1,500 defective p......
  • U.S. v. 302 Cases, No. 98-476-CIV-T-17C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 5, 1998
    ...284 F. 542 (9th Cir.1922); United States v. 43 ½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946); Gellman v. United States, 159 F.2d 881 (8th Cir.1947); United States v. 935 Cases, 65 F.Supp. 503, 504 (N.D.Ohio The FDCA defines "food" as "articles used for food or drink for man or ......
  • United States v. Allan Drug Corporation, No. 7914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 29, 1966
    ...within compliance with the Drug Laws under the supervision of the Secretary or his delegate. See Gellman, et al. v. United States, 8 Cir., 159 F.2d 881; 338 Cartons * * * of Butter, et al. v. United States, 4 Cir., 165 F.2d 728; Research Laboratories v. United States, 9 Cir., 167 F.2d 410. ......
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