United States v. 5 ONE-PINT BOTTLES, ETC.

• Decision Date: 08 November 1934
• Citation: 9 F. Supp. 990
• Parties: UNITED STATES v. 5 ONE-PINT BOTTLES AND 23 ONE-GALLON BOTTLES, MORE OR LESS, OF ELIXIR TERPIN HYDRATE AND CODEINE. SAME v. 14 ONE-GALLON BOTTLES AND 4 ONE-PINT BOTTLES, MORE OR LESS, OF ELIXIR TERPIN HYDRATE AND CODEINE.
• Court: U.S. District Court — Southern District of New York

9 F. Supp. 990

UNITED STATES v. 5 ONE-PINT BOTTLES AND 23 ONE-GALLON BOTTLES, MORE OR LESS, OF ELIXIR TERPIN HYDRATE AND CODEINE.

SAME v. 14 ONE-GALLON BOTTLES AND 4 ONE-PINT BOTTLES, MORE OR LESS, OF ELIXIR TERPIN HYDRATE AND CODEINE.

District Court, S. D. New York.

November 8, 1934.

Martin Conboy, U. S. Atty., of New York City (Clarence W. Roberts, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Breed, Abbott & Morgan, of New York City (William L. Hanaway, of New York City, of counsel), for claimant.

PATTERSON, District Judge.

The Food and Drugs Act provides that any food or drug adulterated or misbranded as defined in the act and shipped in interstate commerce shall be liable to seizure and forfeiture by proceedings analogous to proceedings in admiralty. By the act, a drug is to be deemed adulterated if it is sold under a name recognized in the United States Pharmacopoeia or National Formulary and if it differs from the standard of strength, quality, or purity therein laid down; so, also, if its strength or purity falls below the standard under which it is sold. Section 7 (21 USCA § 8). A drug is to be deemed misbranded if the label on it is false and misleading; and in the case of a drug containing morphine, opium, or other specified substances or any derivative of them, it shall be deemed misbranded if the package fails to state the quantity or proportion of such substance or derivative. Section 8 (21 US CA §§ 9 and 10). There are other sorts of misbranding defined in the act, of no immediate importance.

The United States seized on two occasions a number of bottles of a liquid drug owned by one Massengill and labeled "Elixir Terpin Hydrate and Codeine (Special). Alcohol 30%. Each fluid ounce represents: Codeine Sulphate 1 gr., Terpin Hydrate 8 Grs., Glycerin q. s." Two libels for forfeiture were filed, one for each seizure. The charge against the articles was that they were adulterated and also misbranded. Massengill appeared as claimant in each suit. The suits were tried together, and a jury waived.

1. In the National Formulary there is a product listed as "Elixir of Terpin Hydrate and Codeine." The ingredients and quantities specified for it differ materially from the ingredients and quantities set forth on the labels of the bottles seized and also from the actual contents of the bottles. The first question presented is whether the drug was adulterated because sold under a name recognized in the National Formulary but not in fact conforming to the standard required by it. The claimant's contention is that the word "special," in the name on the label, "Elixir Terpin Hydrate and Codeine (Special)," is an indication that the product is not the elixir of terpin hydrate and codeine defined in the Formulary, and certain expert testimony in support of this contention was offered. But the question is not what the chemist or the druggist may understand by the addition of the word "special" to the title. The Food and Drugs Act was passed as a protection to the uninformed, that they might be assured that an article purchased was what it purported to be. United States v. Lexington Mill & Elevator Co., 232 U. S. 399, 409, 34 S. Ct. 337, 58 L. Ed. 658, L. R. A. 1915B, 774; United States v. Forty Barrels and Twenty Kegs of Coca Cola, 241 U. S. 265, 276, 36 S. Ct. 573, 60 L. Ed. 995. Certainly the average consumer would not be put on guard that a compound called "Elixir Terpin Hydrate and Codeine (Special)" was not the elixir of terpin hydrate and codeine listed in the Formulary. The word "special" might well signify to him merely that the ingredients were especially pure or that the product was manufactured with special care. If a manufacturer wishes to...