United States v. 24 Bottles" Sterling Vinegar & Honey, etc."
| Decision Date | 18 November 1964 |
| Docket Number | Docket 28920.,No. 60,60 |
| Citation | 338 F.2d 157 |
| Parties | UNITED STATES of America, Libellant-Appellee, v. An undetermined number of cases, each case containing 24 BOTTLES of an article labeled in part: (bottle) "STERLING VINEGAR AND HONEY AGED IN WOOD CIDER BLENDED WITH FINEST HONEY CONTENTS 1 PINT PRODUCT OF STERLING CIDER CO., INC., STERLING, MASS." and an undetermined number of copies of the books entitled "Folk Medicine" and "Arthritis and Folk Medicine," both by D. C. Jarvis, Balanced Foods, Inc., Claimant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Patricia A. Garfinkel, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, and William W. Goodrich, Asst. Gen. Counsel, Food and Drug Div., Dept. of Health, Education and Welfare, Washington, D. C., on the brief), for libellant-appellee.
Milton A. Bass, New York City (Bass & Friend, New York City, on the brief), for claimant-appellant.
Before LUMBARD, Chief Judge, and HAYS and ANDERSON, Circuit Judges.
The sole question on this appeal is whether the display and sale of books in the same shop as an article which the books misleadingly recommend as a remedy for various ailments constitutes misbranding in violation of 21 U.S.C. § 331 (a) (1958) because it is misleading written matter accompanying such article.
Balanced Foods, Inc., appeals from an order of the District Court for the Southern District of New York condemning a number of bottles of Sterling Vinegar and Honey and a number of copies of two books, "Folk Medicine" and "Arthritis and Folk Medicine." Balanced Foods wholesales health foods and related products. The books and Vinegar and Honey were seized in its warehouse in New York City and condemned as misbranded drugs under § 304 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 334 (1958), on the ground that the books were "labeling" for the Vinegar and Honey and are misleading.1 We find that the former conclusion is not supported by the record, and we reverse the judgment of the district court.
Vinegar and Honey seems to have been one of the minor ephemera characteristic of the health and diet food trade. That it gained shelf space among boxes of sunflower seed, wheat germ and healing grasses can be attributed to the wide reading of Dr. D. C. Jarvis' first book, "Folk Medicine," subtitled "A Vermont Doctor's Guide to Good Health." Its publisher, Henry Holt & Company, sold nearly half a million copies of the book, and a considerable number of its readers at least sampled from Dr. Jarvis' pharmacopoeia.
Prominent among Dr. Jarvis' remedies is a mixture of cider vinegar and honey, which is prescribed for a wide variety of maladies. Inevitably some people found it burdensome to mix the vinegar with the honey, and, true to the traditions of free enterprise, several companies responded by producing a pre-mixed product. Among them was Sterling.
"Folk Medicine" and its sequel, "Arthritis and Folk Medicine," mention Sterling cider vinegar by name as suitable for medicinal use, and the two books certainly have promoted the sale of Sterling's Honey and Vinegar. In addition, Balanced Foods stocked both and sold both to a number of retailers. The question is whether the sum of these relationships constitutes labeling. We do not think that it does.
The Vingear and Honey bottles bear a label, which claims no more than that they contain one pint of "aged in wood cider vinegar blended with finest honey." The labeling subject to the Act is not limited to this common form of label, however; it includes not only the written matter "upon any article or any of its containers or wrappers," but also written matter "accompanying such article." 21 U.S.C. § 321(m). On the other hand, labeling does not include every writing which bears some relation to the product. There is a line to be drawn, and, if the statutory purpose is to be served, it must be drawn in terms of the function served by the writing.
This is the teaching of Kordel v. United States, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948), in which the defendant had mailed drugs and explanatory pamphlets to his retailers in separate packages. In affirming his conviction the Court held that physical attachment is not necessary where the writing "performs the same function as it would if it were on the article...
To continue reading
Request your trial
-
United States v. Facteau
...a formula was sold near a product that contained that formula and where the parties responsible for each were unrelated entities. 338 F.2d 157 (2d Cir. 1964). This is clearly distinguishable from this case, in which Acclarent made the representations regarding the intended use, failed to fi......
-
Founding Church of Scientology v. United States
...S. Fancy Pure Honey, E.D.Mich., 218 F.Supp. 208 (1963), affirmed, 6 Cir., 344 F.2d 288 (1965). 36 United States v. 24 Bottles "Sterling Vinegar & Honey, etc.", 2 Cir., 338 F.2d 157 (1964). 37 In another case the Second Circuit has found general literature (in this case articles in medical j......
-
Stewart v. Riviana Foods Inc.
...is false or misleading in a material respect ...." 21 U.S.C.A. § 343 (West); see, e.g., U.S. v. 24 Bottles Sterling Vinegar and Honey Aged in Wood Cider, 338 F.2d 157, 159 (2d Cir. 1964) ("The distinguishing characteristic of a label is that, in some manner or another, it is presented to th......
-
United States v. Guardian Chemical Corporation
...93 L.Ed. 52 (1948); United States v. Urbuteit, 335 U.S. 355, 69 S.Ct. 112, 93 L.Ed. 61 (1948); Cf. United States v. 24 Bottles "Sterling Vinegar & Honey, etc.," 338 F.2d 157 (2d Cir. 1964). How do all these rules apply to this case? As far as the question of what constituted the "labeling" ......