United States v. 431/2 Gross Rubber Prophylactics, Civil Action No. 1502.

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtMaurice Weinstein, of Milwaukee, Wis. (Ralph Stacker, of St. Paul, Minn., of counsel), for claimant
Citation65 F. Supp. 534
PartiesUNITED STATES v. 43½ GROSS RUBBER PROPHYLACTICS LABELED IN PART "XCELLO'S PROPHYLACTICS" et al.
Decision Date11 February 1946
Docket NumberCivil Action No. 1502.

65 F. Supp. 534

UNITED STATES
v.
43½ GROSS RUBBER PROPHYLACTICS LABELED IN PART "XCELLO'S PROPHYLACTICS" et al.

Civil Action No. 1502.

District Court, D. Minnesota, Fourth Division.

February 11, 1946.


65 F. Supp. 535

Victor E. Anderson, U. S. Atty., and Clifford F. Hansen, Asst. U. S. Atty., both of St. Paul, Minn., for the United States.

Maurice Weinstein, of Milwaukee, Wis. (Ralph Stacker, of St. Paul, Minn., of counsel), for claimant.

NORDBYE, District Judge.

A libel of information was filed against the goods described in the caption on the theory that they were adulterated within the meaning of 21 U.S.C.A. § 351(c) and that they were misbranded within the meaning of 21 U.S.C.A. § 352(a). The goods were labeled "Prophylactics" on the carton in which they were contained, and the Government contends that such labeling constitutes misbranding within the meaning of the Act. The articles consist of certain rubber devices sold ostensibly for the purpose of preventing transmission of venereal disease. The government witnesses testified that, of the Xcello brand, 180 were tested and 14 contained holes; that 228 of the Silver-Tex brand were tested and 16 contained holes. Medical witnesses testified that the defective devices would not serve as a means for the successful prevention of the transmission of venereal disease.

Section 351 provides:

"A drug or device shall be deemed to be adulterated — * * *

"(c) If * * * its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess."

Section 352 provides:

"A drug or device shall be deemed to be misbranded —

"(a) If its labeling is false or misleading in any particular."

The government inspection has established that the devices tested were defective in the number indicated, and there can be no serious doubt that the strength and quality of these particular defective articles fell below that which they purported or were represented to possess. Furthermore, it seems clear that, being labeled "Prophylactics", there was misbranding within the meaning of the statute. These defectives devices are not efficacious in furnishing protection from disease.

The problem presented, however, pertains to the right of the Government to condemn the entire shipment. It appears that on or about June 19, 1945, about 43½ gross of the Xcello brand and 112½ gross of the Silver-Tex brand were shipped from the manufacturer in Akron, Ohio, to a concern in Minneapolis. It is from this shipment that the samples were taken and the tests made, as stated above. The Government took two samples — a pre-seizure and a post-seizure. While the method by which the first sample was taken is not entirely clear in the record, it does appear that, in taking the post-seizure samples, the Government took one dozen articles from each of the 36 gross cartons of Xcellos, and from the three gross so selected 72 samples were taken at random. Six, or about 8 per cent of the 72, were found to be defective. In the pre-seizure test of the Xcello brand, 108 were selected and 8 were found to be defective, or about 8 per cent. The post-seizure samples of the Silver-Tex brand were obtained by substantially the same method of selection by which the Xcello post-seizure samples were selected. In the

65 F. Supp. 536
post-seizure test of this brand, 120 samples were taken; four, or 3.33 per cent, were defective. In the pre-seizure test of this brand, 108 were tested and 12 were defective, or approximately 11.11 per cent. The average defects, therefore, of all the tests is approximately 7.37 per cent. But of the entire shipment seized, a fraction of one per cent is definitely shown to be defective, and claimant contends that the Government has failed to...

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10 practice notes
  • Food for human consumption: Food labeling— Dietary supplements; effect on structure or function of body; types of statements, definition,
    • United States
    • Federal Register January 06, 2000
    • 6 janvier 2000
    ...v. 14 105 Pound Bags * * * Mineral Compound, 118 F. Supp. 837 (D.C. Idaho 1953); United States v. 43 1/2 Gross Rubber Prophylactics, 65 F. Supp. 534, 535 (D. Minn. 1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947); 59 FR 6084, 6088 (February 9, 1994) (terms ``anti......
  • United States v. Roux Laboratories, Inc., No. 75-30-Misc-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 7 septembre 1978
    ...367 (3d Cir. 1957), cert. denied 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136 (1957); United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534, 536 (D.Minn.1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947). 21 U.S.C. § 331(f) prohibits the refusal to permit ......
  • Cimino v. Raymark Industries, Inc., No. B-86-0456-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 12 novembre 1990
    ...opening of all cases); E.K. Hardison Seed Co. v. Jones, 149 F.2d 252 (6th Cir.1945);14 United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946), aff'd, 159 F.2d 881 (8th Cir.1947) (court determined that shipment was misbranded based upon evidence of a sample which indic......
  • U.S. v. 302 Cases, No. 98-476-CIV-T-17C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 5 novembre 1998
    ...1961)(quoting A.O. Andersen & Co. v. United States, 284 F. 542 (9th Cir.1922); United States v. 43 ½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946); Gellman v. United States, 159 F.2d 881 (8th Cir.1947); United States v. 935 Cases, 65 F.Supp. 503, 504 (N.D.Ohio The FDCA define......
  • Request a trial to view additional results
9 cases
  • United States v. Roux Laboratories, Inc., No. 75-30-Misc-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 7 septembre 1978
    ...367 (3d Cir. 1957), cert. denied 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136 (1957); United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534, 536 (D.Minn.1946), aff'd sub nom. Gellman v. United States, 159 F.2d 881 (8th Cir. 1947). 21 U.S.C. § 331(f) prohibits the refusal to permit ......
  • Cimino v. Raymark Industries, Inc., No. B-86-0456-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 12 novembre 1990
    ...opening of all cases); E.K. Hardison Seed Co. v. Jones, 149 F.2d 252 (6th Cir.1945);14 United States v. 43½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946), aff'd, 159 F.2d 881 (8th Cir.1947) (court determined that shipment was misbranded based upon evidence of a sample which indic......
  • U.S. v. 302 Cases, No. 98-476-CIV-T-17C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 5 novembre 1998
    ...1961)(quoting A.O. Andersen & Co. v. United States, 284 F. 542 (9th Cir.1922); United States v. 43 ½ Gross Rubber Prophylactics, 65 F.Supp. 534 (D.Minn.1946); Gellman v. United States, 159 F.2d 881 (8th Cir.1947); United States v. 935 Cases, 65 F.Supp. 503, 504 (N.D.Ohio The FDCA define......
  • United States v. 30 CASES, ETC., Civ. A. No. 1-74.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 4 novembre 1950
    ...142 F.2d 107; certiorari denied, 323 U.S. 731, 65 S.Ct. 68, 89 L.Ed. 587. See also U. S. v. 43½ Gross Rubber Prophylactics, etc., D.C., 65 F.Supp. 534, 537, affirmed, Gellman v. U. S., 8 Cir., 159 F.2d 881, where the court referred to the congressional purpose of — "protecting the unin......
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