People v. Atkins

• Decision Date: 11 January 1974
• Citation: 351 N.Y.S.2d 859,76 Misc.2d 661
• Parties: The PEOPLE of the State of New York v. Dr. Robert ATKINS, Defendant.
• Court: New York City Court

Page 859

351 N.Y.S.2d 859

76 Misc.2d 661

The PEOPLE of the State of New York v. Dr. Robert ATKINS, Defendant.

Criminal Court of the City of New York, Kings County, Part 2A2.

Jan. 11, 1974.

Norman Redlich, Corp. Counsel of the City of New York, by James F. Mullaney, Asst. Corp. Counsel, New York City, for the People.

Ash & Miller, by Theodore M. Wolkoff, New York City, for defendant.

M. MARVIN BERGER, Judge:

'Oh . . . that mine adversary had written a book' cries Job in the depths of his suffering. (JOB, Ch. XXXI, v. 35)

Job's exclamation (in reality, a plea for a bill of particulars) goes unanswered. But, in this instant case, if the Corporation Counsel wishes to regard the exclamation as a hope that his adversary had made admissions against interest--his petition has been answered.

For the defendant, Dr. Robert Atkins, has in fact written a book--'The Diet Revolution,' a phenomental best seller, describing its author's theories on weight reduction.

And the book supplies more than sufficient evidence of a willful violation by defendant of the New York City Health Code, to warrant his being held for trial.

Dr. Atkins, a physician who specializes in the management of obesity, stands accused of violating five sections of the Code (Secs. 73.03(12), 75.05(1), 75.05(6), 71.05 and 75.13) in that he did 'pack, possess, offer for sale or sell a banned drug and a removed food additive: Cyclamates.'

The charge, quoted from the summons, is amplified by an information and affidavits, sworn to, among others, by Health Department Sanitarians, Harry S. Smolowitz, and Joseph Rizzo.

Rizzo, who suffers from obesity, was a patient of Dr. Atkins for a four-month period from October, 1972 to February, 1973. He swears that Dr. Atkins advised him that cyclamate sweeteners were good for his health, gave him printed recipes for cheese cake and custard containing cyclamates, gave him a printed price list for a cyclamate-containing substance described as 'Dr. Atkins' Sugar Substitute,' and directed him to the premises of Cumberland Packing Corp., in Brooklyn, sold in 5-lb. bags bearing a label, reading in part:

'Robert C. Atkins, M.D. . . . Artificial Sweetener . . . Non-Caloric Sugar Substitute . . . Cumberland Packing Corp., 2 Cumberland Street' (People's Exhibit 2)

The ingredients listed on the label included 33.3% Calcium cyclamate.

Mr. Smolowitz swore that Dr. Atkins was associated with Cumberland Packing Corp., and with its executive vice-president, Marvin Eisenstadt, and that subsequent to August 27, 1970, when the Food and Drug Administration of the U.S. Department of Health, Education and Welfare banned the use of cyclamates (People's Exhibit 10), the defendant committed the following violations of the Health Code, in that he did:

(1) Pack, possess, offer for sale or sell a food--an artificial sweetener which was adulterated (Sec. 73.03(12) Code) because it contained cyclamate, an unsafe food additive, in violation of Sec. 71.05 of the Code.

(2) Pack, possess, offer for sale or sell a drug as defined by Sec. 73.07 of the Code, misbranded in violation of Sec. 75.05(1) of the Code because its label said that the sweetener, containing cyclamate, should be used by diabetics and the obese, when, in fact, the marketing of cyclamate sweeteners had been prohibited by the Federal Food and Drug Administration.

(3) Pack, possess, offer for sale or sell a drug misbranded in violation of Sec. 75.05(6) Code, because it failed to inform users of unsafe dosage and because of absence of adequate evidence of safety or effectiveness, all of which violated Sec. 71.05 of the Code.

(4) Hold, offer for sale or sell the sweetener, a new drug, for which no application was effective under the Federal Food, Drug and Cosmetic Act or Article 137 of the New York Education Law and not labeled 'For Investigative Use only,' in violation of Sec. 75.13 of the Code.

On October 21, 1969, by an order of the U.S. Food and Drug Administration (34 F.R. 17063), cyclamates were ordered removed from the GRAS (generally recognized as safe) list of food substances. However, a later order dated December 31, 1969 (34 F.R. 20436), noted that the Medical Advisory Group on Cyclamates, established by the Assistant Secretary for Health and Scientific Affairs, had reviewed all available data on cyclamates and unanimously agreed that under appropriate medical management of diabetics and patients, whose health depended on weight reduction and control, 'Cyclamates provide medical benefits which outweigh their hazards.' The report recommended that cyclamates be made available for such patients on medical advice and on a non-prescription, drug-labeled basis.

On August 24, 1970, an order signed by the Commissioner of Food and Drugs and published in the Federal Register (35 F.R. 13644), revoked drug-labeling for cyclamates, based on a new report by the Medical Advisory Group, which concluded that 'in the absence of adequate evidence of safety and effectiveness, continued sale of cyclamate-containing products with drug labeling can not be permitted.' (People's Exhibit 10).

It is not within this court's competence to decide whether the Food and Drug Administration order resulted from intense lobbying by sugar interests as charged by the defendant (page 160 People's Exhibit 6, The Diet Revolution) or came about only after public pressure and because of the Food and Drug Administration's 'procrastinations and prevarications' (see Michael F. Jacobson, Eater's Digest--The Consumer's Fact Book of Food Additives (Doubleday, 1972), and James S. Turner, The Chemical Feast--the Ralph Nader Study Group Report on Food Protection (Grossman, 1970) and because of evidence that cyclamates caused bladder cancer, birth defects and mutations in test animals. Suffice it to say that the decision to ban cyclamates was taken in full accordance with the authority vested in the Food and Drug Administration.

At the hearing before this Court, Eisenstadt testified that on September 1, 1970, Dr. Atkins wrote him (S.M. 6, 7, People's Exhibit 1): 'Would you please be so kind as to make available for these individuals (many patients who because of their desperate medical problems of diabetes and low blood sugar cannot function without a palatable artificial sweetener) the old cyclamate sweetener that use (sic) to be called 'Par-Ev' providing these people would go to your facilities in person.'

Dr. Atkins went on to authorize use of his name on the labeling,'so that an interested observer can known that this is done for medical reasons. I consider this a service to my patients and I am in no way interested in any form of financial remuneration.'

Eisenstadt testified that from September 1st, 1970 to about January, 1973, he had conversations with Dr. Atkins, who requested that he supply patients with Par-Ev. Cumberland Packing Co. sold Par-Ev in 5-lb. packages at the rate of about 25 lbs. per week. Over the period in question, he marketed over a ton of the substance (S.M. 14). He said: 'It was just understood that when the doctor sent his patients down to my plant I would sell them the product for their own use' (S.M. 18).

Cumberland Packing Corp. pleaded guilty earlier this year, in this Court, to the same violations charged against Dr. Atkins, and was fined $5,000.00 (S.M. 17).

At the hearing, Rizzo testified that late in October 1972, when he became a patient of Dr. Atkins, the defendant diagnosed Rizzo as a diabetic and told him to use a sweetener containing cyclamate. Asked by Rizzo whether the sweetener was bad, Atkins allegedly replied: 'No--it's good for your digestion.' (S.M. 23).

Rizzo received a price list for Dr. Atkins Sugar Substitute, containing instructions to make a check payable to Cumberland Packing Corp., and promising delivery of mail orders within three weeks. At the end of the price list appear the words 'Dr. Robert Atkins, Cumberland Packing Corp., 2 Cumberland Street, Brooklyn, N.Y. 11205' (People's Exhibit 4).

Rizzo received the recipes previously mentioned and when he inquired about more recipes, Dr. Atkins suggested that Rizzo buy his book 'The Diet Revolution,' which was received in evidence as People's Exhibit 6.

A 5-lb. package of sweetener containing cyclamates, with a label similar to People's Exhibit 2, was received in evidence as People's Exhibit 7. Rizzo testified that a sign in the defendant's office stated: 'Dr. Atkins only recommends this sweetener described by the doctor--Atkins Sugar Substitute.' (S.M. 37).

Mr. Smolowitz testified that Eisenstadt led him to a room in the Cumberland plant where Dr. Atkins Artificial Sweetener was stored in 5-lb. bags. He embargoed a little less than 500 lbs. of the substance on February 21, 1973, and destroyed the embargoed sweetener on May 22nd.

There is no evidence that Dr. Atkins shared in the proceeds of the sales by Cumberland.

Defendant moved to dismiss on the grounds that the defendant did not 'pack, possess, sell or offer to sell' the forbidden sweetener.

His attorney stated at the end of the hearing (S.M. 53): 'What we do have here is a prescribing by a doctor. That is not a violation. The doctor has a right to prescribe. Perhaps there may be a question as to the ethics of a doctor to prescribe that which has been banned as dangerous food additive or drug by the F.D.A. But ethics does not play a part here. The question here is whether he violated the Health Code, and more particularly, those sections set forth in the summons, and that evidence does not exist.'

In his Memorandum of Law, defendant asserts that the prosecution addressed itself to the question of whether Dr. Atkins offered to sell the cyclamates. But, he asserts, Dr. Atkins made no offer to sell but merely suggested, recommended and prescribed (p. 13, Defendant's Memorandum). It was Cumberland which offered the cyclamate for sale. Cumberland was the seller and the patient was the buyer.

'The only act of which Dr. Atkins can be found...