United States v. 250 Jars, etc., of US Fancy Pure Honey

• Decision Date: 29 May 1963
• Docket Number: No. 21863.,21863.
• Citation: 218 F. Supp. 208
• Parties: UNITED STATES of America, Libelant, v. An Article of Drug Consisting of 250 JARS, ETC., OF U. S. FANCY PURE HONEY, etc., Claimant.
• Court: U.S. District Court — Western District of Michigan

218 F. Supp. 208

UNITED STATES of America, Libelant, v. An Article of Drug Consisting of 250 JARS, ETC., OF U. S. FANCY PURE HONEY, etc., Claimant.

No. 21863.

United States District Court E. D. Michigan, S. D.

May 29, 1963.

Lawrence Gubow, U. S. Atty., Milton J. Trumbauer, Jr., Asst. U. S. Atty., Detroit, Mich., William W. Goodrich, Asst. Gen. Counsel, Food and Drug Div., Dept. of Health, Education and Welfare, Washington, D. C., for libelant.

Solomon H. Friend, Bass & Friend, New York City, for claimant.

FREEMAN, District Judge.

This matter is before the Court on a libel proceeding brought by the United States for the condemnation under § 304 (a) of the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C.A. § 334 (a), of a quantity of allegedly misbranded honey, sold by the claimant, Detroit Vital Foods, Inc., at one of its stores located at 22,200 Grand River Avenue, Detroit, Michigan.

The parties have entered into a stipulation of facts which was presented to this Court on the day this case was orally argued. The essential facts are as follows. On October 12, 1961, Food and Drug Inspector, Gerald E. Vince, visited claimant's store and, posing as an ordinary or prospective customer, asked a clerk on duty whether they had any material about honey. In response to this request, the clerk pointed out a booklet entitled "About Honey" by P. E. Norris and gave Inspector Vince a copy of a newspaper mailing piece containing an article entitled "Eat Honey and Increase Your Vitality," which was sent to the customers on claimant's mailing list.

On November 8, 1961, the government seized some 198 jars and tins of honey, along with six copies of the booklet by Norris and 71 copies of the newspaper-type mailing leaflet, which were the same articles that were pointed out and given to Inspector Vince. The seized honey, which had been shipped from other states and countries in interstate commerce, was located in the store on shelves displaying honey, jams, jellies, etc., along the wall to the right and left and in the center of the store, in a storeroom at the back of the main store premises, and in the hallway near the basement stairs. The six booklets "About Honey", which sold at $1.00 per copy, were displayed with other books upon a fiber pegboard rack atop stock shelves containing honey along the wall on the right side of the store as one faces the back. The newspaper mailing pieces were located on a table in a small room in back of the cash register, which was located at the rear of the store and constituted a surplus of copies sent to claimant's customers.

The claimant makes no contention with respect to the medicinal and curative properties of honey for the prevention and treatment of diabetes, high blood pressure, arthritis, kidney and bladder ailments, nervous conditions, weakening of potency and virility, loss of appetite, heartburn, gastric catarrh, obesity, throat and bronchial ills, premature death, lack of vitality, gout, digestive upsets, sciatica, rheumatism, arteriosclerosis, weak heart, or for any medical purposes. The claimant did consent to the libelant's introducing into evidence affidavits of medical doctors attesting to the fact that honey is not adequate and effective for these purposes, waiving any right to cross-examination of the affiants.

Both the claimant and the libelant agree that in order for the latter to properly condemn the seized goods, it must establish that the honey was a drug and that the literature constituted labeling, as these terms are respectively defined by Title 21 U.S.C.A. § 321(g) and (m).

Before disposing of the above issues, this Court is faced with the initial problem of whether the libelant must establish its case by a mere preponderance of the evidence or by clear, convincing proof. The better view and weight of authority definitely holds that the government need only prove the allegations of its libel by a preponderance of the evidence. United States v. 4 Cases * * * Slim-Mint Chewing Gum (CA 7, 1962), 300 F.2d 144; United States v. Wood (CA 4, 1955), 226 F.2d 924; United States v. 449 Cases, Etc. (CA 2, 1954), 212 F.2d 567, 45 A.L.R.2d 846; United States v. 5 Cases, Etc. (CA 2, 1949), 179 F.2d 519; United States v. 46 Cases, More or Less, "Welch's Nut Caramels" (D.C.R.I., 1962), 204 F.Supp. 321; United States v. 11 ¼ Dozen Packages, Etc. (D.C.W.D.N.Y., 1941), 40 F.Supp. 208. The contra authority upon which the claimant relies is not persuasive. In the case of Van Camp Sea Food Company v. United States (CA 3, 1936), 82 F.2d 365, the court did hold that the government should establish its case by clear and convincing proof, but went on to hold that even under the mere preponderance standard, there was not sufficient evidence for the jury. The case of C. C. Co. v. United States (CA 5, 1944), 147 F.2d 820, involved an interesting situation. On the original hearing, the court tried the case de novo and reversed the decree of condemnation, but on a rehearing, the court applied the "clearly erroneous" rule and affirmed the condemnation decree. In its opinion on rehearing, the court points out that since forfeiture statutes are generally construed strictly in favor of the defendant, it follows as a natural corollary of this rule of construction that forfeiture proceedings demand a higher degree of proof than a mere preponderance, and cites the Van Camp decision. However, the Court then goes on to cite United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555, for the proposition that statutes enacted for the public good to suppress a public wrong, although they impose penalties or forfeitures, are not to be strictly construed in favor of the defendant. Consequently, though it does not specifically state, the court appears to be saying, and it must logically follow, that where a forfeiture arises out of a statute enacted to protect the public from a wrong, clear and convincing evidence is not required.

Therefore, this Court concludes that the libelant need only establish its case that the seized honey was a drug and that the seized literature constituted labeling by a mere preponderance of the evidence. Nevertheless, this Court holds that the libelant not only established its case by a preponderance of the evidence, but also by clear and convincing proof.

Title 21 U.S.C.A. § 321(g), defines a drug to include "* * * (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases in man or other animals."

In determining that a particular article was intended to be used as a drug, a court is not limited to the labels on such article or to the labeling which accompanies it, but may look at all relevant sources. V. E. Irons, Inc. v. United States, (CA 1, 1957), 244 F.2d 34; United States v. Hohensee (CA 3, 1957), 243 F.2d 367; Alberty Food Products v. United States (CA 9, 1952), 194 F. 2d 463; United States v. 3 Cartons, Etc. (D.C.S.D.Cal., 1952), 132 F.Supp. 569. Therefore, in the present case, this Court may utilize the newspaper leaflet and the booklet, regardless of whether they constitute labeling under the Act, in order to determine...