United States v. American Druggists' Syndicate

• Decision Date: 11 April 1911
• Parties: UNITED STATES v. AMERICAN DRUGGISTS' SYNDICATE.
• Court: U.S. District Court — Eastern District of New York

186 F. 387

UNITED STATES v. AMERICAN DRUGGISTS' SYNDICATE.

United States Circuit Court, E.D. New York.

April 11, 1911

William J. Youngs, U.S. Atty. (W. P. Allen, Asst. U.S. Atty., of counsel).

Philbin Beekman, Menken & Griscom (S. Stanwood Menken and

Benj. E. Messler, of counsel), for defendant.

VEEDER District Judge.

The defendant has demurred to both counts of a criminal information charging it with misbranding a drug in violation of Act June 30, 1906, c. 3915, Sec. 2, 34 Stat. 768 (U.s Comp. St. Supp. 1909, p. 1188), known as the 'Food and Drugs Act.' Section 2 of the act prohibits 'the introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia of any article of food or drugs which is adulterated or misbranded within the meaning of this act,' and provides that any person who shall ship or deliver for shipment, as therein described, any such article so adulterated or misbranded, shall be guilty of a misdemeanor. The offense of misbranding is defined in section 8 as follows:

'That the term 'misbranded,' as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the packages or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the state, territory, or country in which it is manufactured or produced.

'That for the purposes of this act an article shall also be deemed to be misbranded:

'In the case of drugs:

'First, if it be an imitation of or offered for sale under the name of another article.

'Second, if the contents of the package as originally put up shall have been removed, in whole or in part, and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein.'

The remainder of the section deals in similar detail with the case of foods.

The first count of the information alleges that the defendant shipped from the state of New York to the District of Columbia a certain article and drug, which was a mixture of substances for external use, upon which there was a label reading:

'A. D. S. Peroxide Cream. Cleansing, Soothing and Healing to the Skin, Antiseptic, Cooling and Refreshing.'

Elsewhere upon the carton, and upon the package or jar inclosed therein, were immaterial variations of this statement of the properties and purposes of the preparation. It is charged that this was a misbranding within the meaning of the act, 'in that the label then and there bore statements, designs, and devices regarding the said article and the ingredients and the substances contained therein which were false and misleading, in that the words 'Peroxide Cream' represent that peroxide is an important ingredient, and tend to lead the purchaser to believe that peroxide is an important ingredient of the article, whereas, in truth and in fact, the article then and there contained only an indication of a very small quantity of same peroxide which said quantity is insignificant.'

The scope of the general terms of the definition of misbranding in section 8, 'any statement, design or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular,' must be ascertained by construing them in connection with the subject-matter and other provisions of the act. It includes in the first place, not only statements concerning the ingredients or substances contained in the article, but certain other statements 'regarding such articles.'

What such statements are appears in the case of drugs in the paragraph immediately following the definition of misbranding; for instance, drugs in imitation of or offered for sale under the name of another article. The only possible ground for doubting this construction arises from the manner in which the general definition of the term misbranding is followed, in the case of drugs, by specifications which purport to be additions. The remainder of section 8, dealing with the case of food, is perfectly clear. The first three paragraphs specify the particulars other than statements regarding the ingredients or substances contained therein which shall be deemed misbranding, and then follows the general provision covering any statement 'regarding the ingredients or the substances contained therein which shall be false or misleading in any particular. ' Having regard to the fact, however, that the general definition of the term 'misbranded' is expressly applicable to both food and drugs, it does not appear that the difference in...