United States v. 111/4 DOZEN PACKAGES, ETC.

• Decision Date: 17 June 1941
• Docket Number: No. 567.,567.
• Citation: 40 F. Supp. 208
• Parties: UNITED STATES v. 11¼ DOZEN PACKAGES OF ARTICLE LABELED IN PART MRS. MOFFAT'S SHOO FLY POWDERS FOR DRUNKENNESS.
• Court: U.S. District Court — Western District of New York

40 F. Supp. 208

UNITED STATES v. 11¼ DOZEN PACKAGES OF ARTICLE LABELED IN PART MRS. MOFFAT'S SHOO FLY POWDERS FOR DRUNKENNESS.

No. 567.

District Court, W. D. New York.

June 17, 1941.

George L. Grobe, U. S. Atty., and Joseph J. Doran, Asst. U. S. Atty., both of Buffalo, N. Y., for libellant.

Merwin, Paul, Lesswing & Hickman, of Buffalo, N. Y. (Wortley E. Paul and Louis Burman, both of Buffalo, N. Y., of counsel), for claimant.

KNIGHT, District Judge.

The libellant seeks condemnation of certain articles of alleged drug products described as "11¼ Dozen Packages of article labeled in part `Mrs. Moffat's Shoo Fly Powders for Drunkenness.'" Libel is brought under the provisions of the Federal Food, Drug and Cosmetic Act of June 25, 1938, Title 21 U.S.C.A. and is based upon the claim that the aforesaid articles are misbranded under subdivision (a) and (j) of Section 352 of Title 21 U.S.C.A.

It is admitted that the articles in question were shipped in Interstate Commerce, that is from the State of Pennsylvania to the Ellicott Drug Co., at Buffalo, New York, on November 2, 1940, by the intervenor, M. F. Groves' Son & Co., who concededly is the owner and manufacturer of the articles in question, and that a representative of the libellant during said month purchased a quantity of the articles in question from the last-named company. The articles contained on the average 3.2 grains of potassium antimony tartrate (tartar emetic) and no other constituents.

Section 321 (g) Title 21 U.S.C.A. provides, among other things, that a drug means "(2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals"; and "(3) articles (other than food) intended to affect the structure or any function of the body of man * * *"; and (k), (same section) defines a label as "a display of written, printed, or graphic matter upon the immediate container of any article." The label on the articles in question clearly purports the content to be for use in the "diagnosis, cure, mitigation, treatment, or prevention" of drunkenness.

The label in question is as follows:

"Trade Mark)

Mrs. Moffat's

Shoo Fly Powders

For Drunkenness

6 Powders — 18 GM. Each

Antimony & Potassium Tartrate

In Use 60 Years Use according to directions

M. F. Groves' Son & Co.

Since 1832

803 South Front Street Philad'a, Pa.

Sold to Druggists only

Price, 50 Cents a Box

19574 E Nov 14 1940

Directions. — One of the Powders may be given in Beer, Coffee, Tea or any other liquid.

Never give more than one Powder a day. These powders are intended to be used by adults only, and should be kept from children."

Section 352, Title 21, supra, provides: "A drug or device shall be deemed to be misbranded — (a) If its labeling is false or misleading in any particular" and "(j) If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." Such misbranded article is liable to condemnation "when introduced into or while in interstate commerce * * *, or at any time thereafter, * * *." Section 334, Title 21, supra.

The questions at issue are (1) whether the labeling of the article aforesaid is false and misleading, and (2) whether the drug is dangerous to health when used in the dosage prescribed on the label. The libel must be sustained on the determination of either question in the affirmative.

On behalf of the government five physicians testified with respect to the effect of the use of antimony and potassium tartrate (tartar emetic) "for drunkenness," and with respect to the danger to health in its use in the dosage prescribed. On behalf of the claimant an officer of the intervenor gave testimony as to the amount of the article in question sold over a period of years.

The proceeding is in rem. The burden rests upon the government to establish its case only by a fair preponderance of the evidence. United States v. 5 One-Pint Bottles, etc., D.C., 9 F.Supp. 990; United States v. 237/12 Doz. Bottles, etc., D.C., 44 F.2d 831.

A contention made by the intervenor is that it is necessary for the government to show intent to deceive and defraud. While this was held to be the law under the Act of June 30, 1906, § 8, as amended by the Act of August 23, 1912, 21 U.S.C.A. § 10, such is not the law under the Act of June 25, 1938, supra. The former statutes provided that an article should "be deemed to be misbranded; In case of drugs: * * * If its package or label shall bear * * * any statement * * * regarding the curative * * * effect * * *, which is false and fraudulent." Chichester Chemical Co. v. United States, 60 App.D.C. 134, 49 F.2d 516, held that the government must prove actual intent to deceive. Under the present statute a drug is deemed to be misbranded "if its labeling is false or misleading in any particular." Intent is not necessary to be proved. Further, the aforesaid Act of 1906, section 8, required that the misbranding must be "false or misleading." These are the words of the present statute. Under the Act of 1906 numerous cases held that it was not necessary to show intent. In this Circuit we find United States v. Scaduto,¹ S.D.N.Y. decided January 16, 1920; Von Bremen et al. v. United States, 2 Cir., 192 F. 904.

It is urged that merely stating that the article is "for drunkenness" is not sufficient to constitute offense of misbranding. The use of the words "for drunkenness" is the equivalent of saying that it is a "cure, mitigation, treatment, or prevention" of drunkenness. The necessary implication is that it is for relief from drunkenness to at least some extent. In United States v. Natura Co., D.C., 250 F. 925, cited by the intervenor, the indictment charged misbranding where the label stated that the drug was "a natural remedy for certain specified diseases, and that it had proved effective in the treatment of such diseases." There it was claimed that the word "remedy" was synonymous with "cure." This was a criminal case, and it was held that the plaintiff had not established beyond a reasonable doubt that the statements on the label were both "false and fraudulent." This has no controlling bearing here.

The physicians testifying on behalf of the government were, one a pharmacologist, one an internist, one a neuropsychiatrist, one a specialist in therapeutics and one a neuropsychiatrist. Each testified that antimony and potassium tartrate (tartar emetic) was not a curative for drunkenness, that it is a drug not properly useable in the treatment of drunkenness, and that its use in the dosage shown on the label herein is dangerous to health. Each of these physicians had had extensive practice in his specialty. Each testified that the medical profession had long recognized that tartar emetic was a drug dangerous to be administered through the mouth; that its use through the mouth has been abandoned in the teaching field; and that the standard textbooks treat it as a poison. The testimony of these physicians is to the effect that tartar emetic taken through the mouth irritates the lining of the stomach and intestines, produces various injurious effects on various other organs of the body; that it is cumulative in its effect; that when taken in increased doses it causes nausea, vomiting, diarrhea and retching; and after absorption affects the liver and kidneys and increases the heart rate; that through the loss of the control of the muscles of the stomach the vomitus may be swallowed causing pneumonia. They say the medical profession for many years has not prescribed it to be taken through the mouth, except as it is so used in so-called Brown's Mixture,...