United States v. 23 7/12 DOZEN BOTTLES, 35-CENT SIZE, ETC.
Decision Date | 17 October 1930 |
Docket Number | No. 3331.,3331. |
Citation | 44 F.2d 831 |
Court | U.S. District Court — District of Connecticut |
Parties | UNITED STATES v. 23 7/12 DOZEN BOTTLES, 35-CENT SIZE, AND 12 2/3 DOZEN BOTTLES, 70-CENT SIZE, OF AN ARTICLE OF DRUGS LABELED IN PART "LEE'S SAVE THE BABY." |
John Buckley, U. S. Atty., and George H. Cohen, Asst. U. S. Atty., both of Hartford, Conn., and Elton L. Marshall, Sol. of United States Department of Agriculture, and John F. Morse, Asst. to the Solicitor, both of Washington, D. C., for libelant.
Ransom H. Gillett, of Albany, N. Y. (Raymond E. Hackett, of Stamford, Conn., of counsel), for claimant.
This is a proceeding in rem against a certain drug preparation known as "Lee's Save the Baby," which name is and has been registered in the United States Patent Office for many years. The United States filed its libel for condemnation against certain bottles and their contents, shipped in interstate commerce, and prayed that the same be condemned upon the ground that they were misbranded within the meaning of the Food and Drug Act of June 30, 1906, § 8 (34 Stat. 768), as amended by the Act of August 23, 1912 (37 Stat. 416), 21 USCA §§ 9, 10.
The libel charges that:
The jurisdictional allegations as well as the shipment in interstate commerce are admitted, but the essential and last-quoted allegations of the libel as to the product are denied. Certain stipulations were filed eliminating the necessity of proving certain facts as to which it is unnecessary to make reference except as to the ingredients of the product. One of the stipulations sets forth that an analysis was made by an analyst of the United States Department of Agriculture of a sample of the shipment seized in these proceedings which shows that the composition and ingredients of the preparation are:
"Lard approximately 70% "Alcohol approximately 6% "Canada Balsam approximately 10% "Volatile Oils, including "Camphor, Rosemary Oil and "Origanum Oil, approximately 15%"
To establish the fact that this preparation is misbranded within the meaning of the Food and Drug Act, the government must prove by a preponderance of the evidence: First, that the label, carton, or circular carries some statement, design, or device regarding the contents of the package or the ingredients in the mixture which is false and misleading in some particular; and, second, that the statement made or the design or device carried on the label or carton or in the circular regarding the curative or therapeutic effects of the same are false and fraudulent. Such being the case, the fraud alleged must be established by competent proof and by credible and convincing evidence.
The sections of the act (21 USCA §§ 9, 10) here applicable provide as follows:
It appears that the government contends that this product contains no ingredients or combination of ingredients capable of producing the effects claimed for it, and that the claims that are made for it are false and fraudulent and were applied by the manufacturers knowingly and in disregard of their truth or falsity, so as to falsely and fraudulently represent to the purchasers and create in their minds the impression and belief that the article was in whole or in part composed of or contained ingredients effective in the diseases mentioned in the carton and circular.
The claimant denies misbranding within the purview of the Food and Drug Act, and particularly denies that the statements regarding the curative and therapeutic effects of this product are false and fraudulent or were made in wanton disregard of their truth. It then affirmatively alleges that this product is capable of producing and has actually produced the curative or therapeutic effects claimed for it, and has offered credible evidence in support of his contentions.
From the quoted allegations of the libel it appears that certain words and directions contained in the circular were omitted from the libel. Under familiar rules of pleading and evidence, the government is precluded from complaining of the omitted words; but it is only fair, in order to reach a proper conclusion respecting the issues presented, that we consider the entire label and all that is contained in the so-called literature and directions which accompany the bottle as bearing upon the good faith of the manufacturer of the product, because if it appears from all the evidence and I conclude that the claims made for this remedy are true, then it necessarily follows that they cannot be false or fraudulent.
In the use of the words "therapeutic" and "curative," as set forth in the statute, it seems clear that these words were intended by the Congress to be given their ordinarily accepted meaning, and while they have a certain meaning to the expert doctor, nevertheless they are a part of the vocabulary of any intelligent person. Therapeutic to the medical world means to heal; to make well; to restore to health. It is that branch of medicine dealing with the proper use of the right medicines in the treatment of diseases. The medical student studies "Therapeutics" for the purpose of learning about different medicines to prescribe for the many ills to which the flesh is heir, in order to assist nature to make a sick patient well. The ordinary definitions found in the dictionaries are as follows: "Having healing qualities; curative; alleviative; a medicine efficacious in curing or alleviating disease." Webster defines therapeutics as "that part of medical science which treats of the discovery and application of remedies for diseases." The word "curative" is not found in the medical dictionaries. The regular dictionaries define...
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