United States v. Alberty Food Products
Decision Date | 08 June 1951 |
Docket Number | No. 10322.,10322. |
Citation | 98 F. Supp. 23 |
Court | U.S. District Court — Southern District of California |
Parties | UNITED STATES v. ALBERTY FOOD PRODUCTS et al. |
Ernest A. Tolin, U. S. Atty., Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.
O'Connor & O'Connor, Los Angeles, Cal., for defendants.
The Government invokes the jurisdiction of this Court under § 302(a) of the Federal Food, Drug and Cosmetic Act, 52 Stat. 1043, 21 U.S.C.A. § 332(a), to enjoin alleged violations by defendants of § 301 which prohibits "introduction * * * into interstate commerce of any * * * drug * * * that is * * * misbranded." 21 U.S.C.A. § 331(a).
The amended complaint for injunction alleges inter alia:
That defendants are "the manufacturers, packers and distributors of certain articles of drug * * *";
That ;
That "At all times, the aforesaid articles of drug, when introduced into interstate commerce, have been and are now misbranded within the meaning of section 502(f) (1) of the Act, 21 U.S.C.A. § 352(f) (1), in that their labelings fail to bear adequate directions for use for the purposes and conditions for which they are intended."
At pretrial hearing the parties stipulated:
(1) That "defendants' products referred to in the Amended Complaint for Injunction are drugs and are shipped interstate by the defendants."
(2) That
(3) That "Defendants are currently distributing the above mentioned literature interstate in the following ways * * *:
Section 201 of the Act provides in part that:
The parties have stipulated to the identity and content of the label used "upon the immediate container" of each article, and further that such "label", 21 U.S.C.A. § 321(k, l), constitutes the entire "labeling", 21 U.S.C.A. § 321(m), as to each article, unless the above mentioned "literature" is to be considered as "accompanying such article" in interstate commerce within the meaning of § 201(m) (2) of the Act, 21 U.S.C.A. § 321(m) (2).
Based upon the facts established by the pleadings and the pretrial stipulations, the Government has moved for summary judgment upon the ground: "That there are no facts in dispute with respect to that portion of the Amended Complaint which seeks an injunction under 21 U.S.C.A. § 332(a) to restrain defendants from violating 21 U.S.C.A. § 331(a) through the continued interstate shipment of drugs that are misbranded in violation of 21 U.S.C.A. § 352(f) (1)", which provides that: "A drug * * * shall be deemed to be misbranded * * * (f) unless its labeling bears (1) adequate directions for use * * *."
In order to determine whether the labeling as to any "drug", 21 U.S.C.A. § 321(g), bears "adequate directions for use" within the meaning of the Act it is necessary of course first to ascertain what comprises "its labeling." Section 201(m) declares that: "The term `labeling' means all labels (see 21 U.S.C.A. § 321 (k, l) and other written, printed or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article." 21 U.S.C.A. § 321(m).
In Kordel v. United States, 1948, 335 U.S. 345, 347, 348, 69 S.Ct. 106, 108, 93 L.Ed. 52, where "the literature involved * * * was shipped separately from the drugs and at different times" but "had a common origin and a common destination", the literature was held to accompany the drugs in interstate commerce within the meaning of the Act, 21 U.S.C.A. § 321 (m), and so to comprise a part of the "labeling." See also United States v. Urbuteit, 1948, 335 U.S. 355, 69 S.Ct. 112, 93 L.Ed. 61; United States v. Research Laboratories, Inc., 9 Cir., 1942, 126 F.2d 42, 45.
As in the cases just cited, the literature involved at bar explains the claimed beneficial uses of each drug and was obviously "designed for use in the distribution and sale"; while the "label" itself is either totally or practically silent as to the purpose for which the drug is to be used; and usually, but not invariably, both the drug and the literature describing it have a common point of origin in interstate commerce. The point of difference in the case at bar is that generally speaking the article and the literature do not have a common destination, since defendants usually ship the drugs to a retail outlet, while the literature is shipped directly to prospective consumers.
Thus the precise question on this phase of the case is whether the literature may properly be held to accompany the drug in interstate commerce within the meaning of 21 U.S.C.A. § 321(m) (2), where the destination of the literature when shipped is not the distributor or consumer of the drug.
The policy of the Act seems clearly to require that "labeling", 21 U.S.C.A. § 321(m), which bears "adequate directions for use", 21 U.S.C.A. § 352(f) (1), of the drug be placed "upon the immediate container", 21 U.S.C.A. § 321(k, l), or accompany the container so closely that the ordinary consumer will be apprised of all directions, cautions and other information appearing thereon.
Section 201(k) provides that "a requirement * * * that any word, statement, or other information appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article, or is easily legible through the outside container or wrapper." 21 U.S.C.A. § 321(k).
Section 201(n) provides that: "If an article is alleged to be misbranded because the labeling is misleading, then in determining whether the labeling is misleading there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling relates under the conditions of use prescribed in the labeling thereof or under such conditions of use as are customary or usual." 21 U.S.C.A. § 321(n).
"(j) If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or...
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Alberty Food Products v. United States, 13062.
...Judges. ORR, Circuit Judge. The facts of this case have been stipulated. They appear in detail in the opinion of the District Court. D.C.S.D.Cal. 1951, 98 F.Supp. 23, 25. For our purposes it is sufficient to state that appellants manufacture, pack and distribute certain drugs in interstate ......