United States v. 62 PACKAGES, ETC.
| Decision Date | 23 February 1943 |
| Docket Number | No. 139.,139. |
| Citation | 48 F. Supp. 878 |
| Parties | UNITED STATES v. 62 PACKAGES, MORE OR LESS, OF MARMOLA PRESCRIPTION TABLETS. |
| Court | U.S. District Court — Western District of Wisconsin |
John J. Boyle, U. S. Atty., and Alvin M. Loverud, Asst. U. S. Atty., both of Madison, Wis., and Daniel P. Willis, Senior Atty., Federal Security Agency, of Washington, D. C., for libelant.
William H. Dougherty, Paul N. Grubb, and Stanley M. Ryan, all of Janesville, Wis., and Rockwell T. Gust and David A. Howell, both of Detroit, Mich., for Raladam Co., intervening claimant.
This is a libel for condemnation, under the provisions of the Federal Food, Drug and Cosmetic Act of June 25, 1938, c. 675, 52 Stat. 1040, Title 21 U.S.C.A. § 301 et seq., of 62 packages of Marmola Prescription Tablets which had been transported in interstate commerce from Detroit, Michigan, to La Crosse, Wisconsin, by the intervener, the Raladam Company. The libel charges that the Marmola Tablets under seizure were misbranded within the meaning of Section 502(j) of said Act, 21 U.S.C. A. § 352(j), in that the article is dangerous to health when used in the dosage or with the frequency prescribed, recommended or suggested in the labeling thereof, and within the meaning of Sections 502(a) and 201(n) of said Act, 21 U.S.C.A. § 352(a) and 321 (n), in that the labeling is false and misleading because it fails to reveal facts material with respect to consequences which may result from the use of the article under the conditions of use prescribed therein.
The Raladam Company intervened in this action as claimant of the seized article, and answered denying the allegations in the libel, and alleged that Sections 201(n) and 502(a) of said Act, 21 U.S.C.A. § 321(n) and 352(a), were not in force at the time of the alleged violation; that the Federal Food, Drug and Cosmetic Act and each section thereof relied upon by the Government in these proceedings, is unconstitutional for the reasons (a) it provides for unlawful search and seizure; (b) it is too indefinite and uncertain in its provisions; and (c) that said sections contemplate or constitute an unlawful delegation of legislative powers, all in violation of Articles I, II and III of the Constitution of the United States.
The parties stipulated that the tablets seized had been transferred in interstate commerce; that the Marmola Prescription Tablets contained the following ingredients:
1 grain Extract Bladderwrack
½ grain Extract Phytolacca
¼ grain Extract Cascara Sagrada
Rx. 87 Spec
½ grain Desiccated Thyroid
16/1000 min. Oleoresin Ginger
Po. Saccharum special
3 grains Calcium Carbonate Precipitated
1/24 min. Methyl Salicylate
1/24 min. Oil Anise
1/24 min. Oil Sassafras
Talc Brown
Ivory Black
Aqua for Extracts
Po. Burnt Umber
Red Oxide of Iron
Syrupus Simplex
Lubricating Solution
Aqua for Granulating
Liquid Petroleum colorless
They further stipulated as follows:
The following provisions of the Federal Food, Drug and Cosmetic Act are involved in these proceedings:
Section 201, 52 Stat. 1040, 21 U.S.C.A. § 321:
Section 304 of the Act, 21 U.S.C.A. § 334, which pertains to the method of seizure and disposition of misbranded food and drugs moving in interstate commerce; and Section 502, 21 U.S.C.A. § 352, which reads in part as follows:
* * * * *
"(j) If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof."
Section 902 of the Act, 21 U.S.C.A. § 392 note, provides for the effective date of the Act, and reads in part: "* * * That sections 502(j), 505, and 601(a), * * * and all other provisions of this Act to the extent that they may relate to the enforcement of such sections, shall take effect on the date of the enactment of this Act * * *" which was June 25, 1938.
Section 201(b), 21 U.S.C.A. § 321(b), defines interstate commerce as follows: "The term `interstate commerce' means (1) commerce between any State or Territory and any place outside thereof * * *."
The labeling involved consists of the printed matter found on the box containing the Marmola Prescription Tablets and in the booklet accompanying same. The portions that are material to the disposition of the issues herein are as follows:
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