Metallic Flowers, Inc. v. City of New York

• Decision Date: 25 June 1957
• Citation: 4 A.D.2d 292,164 N.Y.S.2d 227
• Parties: METALLIC FLOWERS Inc., Plaintiff-Respondent, v. The CITY OF NEW YORK and its Department of Health, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 227

164 N.Y.S.2d 227

4 A.D.2d 292

METALLIC FLOWERS Inc., Plaintiff-Respondent, v. The CITY OF NEW YORK and its Department of Health Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 25, 1957.

Anthony Curreri, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Peter Campbell Brown, Corp. Counsel, New York City, attorney), for defendants-appellants.

Borris M. Komar, New York City, for plaintiff-respondent.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and FRANK, JJ.

FRANK, Justice.

This is an appeal by the defendants from a judgment granted the plaintiff, after trial. The judgment restrains the defendants from interfering with the advertising, manufacture, distribution and sale of certain metal bracelets seized by the defendants, and directs the return of the bracelets and advertising matter used in connection therewith.

The issues involve the recurrent conflict between property rights and State police power in respect to public health.

In March, 1955, the defendant city, through its Department of Health, seized the above-mentioned property pursuant to Section 135 of the Sanitary Code of the City of New York empowering the Department of Health to take such action 'where * * * there is probable cause to believe that the article is * * * misbranded'. The defendants contend that the plaintiff's bracelets were misbranded because their labeling was 'false and misleading (in any particular)' (Section 116(2)(a), Sanitary Code) in that they did not transmit the electro-therapeutic qualities claimed and had no medical or therapeutic effect whatsoever.

The plaintiff marketed the metal device claiming it utilized a thermopile principle which generates a very low electric current, because of the various metallic elements used in the bracelet and the temperature differential between the human body and the air. The plaintiff asserts that the bracelet is a new method of ambulatory treatment for the relief of symptoms arising from a variety of unrelated diseases. On the box in which it is enclosed appear the words 'Electro-Therapeutic Bracelet. NEW! Relieves aches and pains by simple external application only.' The package includes a detailed pamphlet purporting to explain the manner in which the bracelet is to be used, states that quick relief is possible, often overnight, that there are permanent benefits, and that no toxicity, burns or overdose are possible from its use. The printed blurb asserts that the device has high therapeutic efficiency and may be used in conjunction with short-wave diathermy, infra-red radiation and heating pads, which are called supplementary forms of treatment. In bold type, the bracelet is recommended for use in fractures and dislocations, joint sprains, myositis, bursitis, neuritis, sciatica, arthritis, acute and chronic sinusitis, and for respiratory diseases like bronchitis and pleuritis. These ailments, it is claimed, are cured or alleviated by the simple method of wearing the bracelet on the wrist. In further explanation, the brochure states, 'the E. T. B. should be worn on the left wrist if the left knee aches.' The defendants maintain that the assertions made in the pamphlet are false and misleading, and for that reason the bracelet is mislabeled.

Although the plaintiff asserts that the device was approved by a number of physicians, on the trial it relied principally upon lay witnesses, who claimed beneficial results, to establish the truth of its assertions that the bracelets actually had therapeutic value and that therefore there was no mislabeling.

The defendants called medical and other expert witnesses who, in substance, testified that the current generated by the bracelet was so infinitesimal that it was incapable of producing any of the benefits claimed for it in the printed matter on the box and the pamphlet enclosing the device. Tests made by a physicist, employed by the Federal Food and Drug Administration and previously by the Bureau of Standards, are very revealing. For example, the current from an ordinary standard flashlight battery held in the hands was five hundred thousand to a million times greater than that of the bracelet. Standard measuring devices failed to register any greater current emanating from the bracelet, than the human body itself produces. Dr. Rogoff, a specialist in physical medicine and rehabilitation and a clinical professor at one of the medical schools, concluded from the tests which he made that the current generated by the bracelet could have no effect whatever upon the human body under any circumstances.

The absurdity of the claims made by the plaintiff for its device is probably best demonstrated when one is made aware that the current used in accepted medical galvanic treatment would be 250 million times greater than that induced by the bracelet.

The testimony of lay witnesses as to therapeutic value has been held to have very little weight in litigation involving mislabeling. See United States v. Hoxsey Cancer Clinic, D.C., 94 F.Supp. 464, reversed on other grounds, 5 Cir., 198 F.2d 273, certiorari denied 346 U.S. 897, 74 S.Ct. 220, 98 L.Ed. 398; U. S. v. 50 3/4 Dozen Bottles, etc., D.C., 54 F.Supp. 759, 762.

The Sanitary Code provision (Sec. 116) and the Education Law (Sec. 6808) applicable to misbranding, reiterate almost in haec verba the phrasing of Section 502 of the Federal Food, Drug, and Cosmetic Act of 1938 (21 U.S.C.A. § 321 et seq.). That act completely replaced the Pure Food and Drug Act of 1906 as amended in 1912.

The federal courts in construing the earlier enactments, held that they were intended to reach only false and misleading statements concerning the ingredients of the products covered thereunder, and that statements regarding therapeutic results, even though false and misleading, were beyond the purview of the legislation (United States v. Johnson, 1911, 221 U.S. 488, 31 S.Ct. 627, 55 L.Ed. 823; United States v. American Druggists' Syndicate, 2 Cir., 1911, 186 F. 387).

In the 1938 Act, devices, i. e., 'instruments, apparatus, and contrivances, including their components, parts, and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to effect the structure or any function of the body of man or other animals' (Id., Sec. 201[h]; 21 U.S.C.A. § 321[h]), were for the first time included within the scope of federal regulation. Section 502 (21 U.S.C.A. § 352) of the new act thus provided, in part:

'A drug or device shall be deemed to be misbranded---- '(a) If its labeling is false or misleading in any particular.'

Thus, the act condemned all 'false or misleading' claims, including those of therapeutic value, and no longer required, with respect to the latter, that they be shown to be 'false and fraudulent.'

In considering the questions of fact involved here, the learned Special Referee reached his determination upon the Federal law and cases concerning misbranding based upon false and fraudulent therapeutic claims under the 1906 Act as amended in 1912. He concluded that the proof failed to establish willful misrepresentations as required under the legislation referred to. The 1938 Act, however, does not require proof of fraud or willful misrepresentation. It is sufficient if the claims as to therapeutic value are false or misleading (21 U.S.C.A. § 352(a); United States v. Ghadiali, 3 Cir., 165 F.2d 957, certiorari denied 334 U.S. 821, 68 S.Ct. 1085, 92 L.Ed. 1750). Intent to deceive is no longer material in a charge of misbranding (United States v. Buffalo Pharmacal Co., 2 Cir., 131 F.2d 500, reversed on other grounds sub nom. United States v. Dodderweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. 11 1/4 dozen packages, etc., D.C., 40 F.Supp. 208).

Thus the factual determination was not predicated upon the applicable law as it presently exists. We are constrained, therefore to reverse Special Term's findings of fact.

Upon the evidence, we must find that plaintiff's bracelets were misbranded and are within the prohibition of the Sanitary Code (Sec. 116). It remains to consider whether the summary seizure can be justified (Sanitary Code, Sec. 135).

Historically, a distinction has existed as to law and procedure in matters of health and education, between the City of New York and the rest of the State. The statutory scheme provided for the City of New York clearly indicates the difference. The Sanitary Code was designed to have the force and effect of state law within the city of New York, while elsewhere in the state the Public Health Law and the applicable provisions of the Education Law which derive directly from it control. Cartwright v. Board of Health of City of Cohoes, 39 App.Div. 69, 56 N.Y.S. 731, affirmed 165 N.Y. 631, 59 N.E. 1120; Matter of Bakers Mut. Ins. Co. (Dept. of Health), 301 N.Y. 21, 92 N.E.2d 49; People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7; Matter of Investigation of Criminal Abortions in County of Kings (Application of Grand Jury of County of Kings), 286 App.Div. 270, 143 N.Y.S.2d 501, leave to appeal denied 309 N.Y. 1031, 129 N.E.2d 792. While the New York City Charter (Sec. 558) provides that this power of the Health Department must be exercised in a manner not inconsistent with the state statutes, it does not bar local code provisions that are additional to the state enactments. Kress & Co. v. Dept. of Health of City of New York, 283 N.Y. 55, 59, 27 N.E.2d 431, 432. The state has not completely preempted the filed and the code provisions are therefore a valid exercise of power (People v. Lewis, 295 N.Y. 42, 64 N.E.2d 702; People v. Sampsell, 248 N.Y. 157, 161 N.E. 454; People v. Klufas, 2 A.D.2d 958, 157 N.Y.S.2d 903.)

This is of course not a criminal proceeding. Essentially summary seizure is a proceeding in rem and the same procedural due process as may be required by an in personam action is not...