United States v. Dr. David Roberts Veterinary Co.
| Citation | 104 F.2d 785 |
| Decision Date | 15 June 1939 |
| Docket Number | No. 6878-6881.,6878-6881. |
| Parties | UNITED STATES v. DR. DAVID ROBERTS VETERINARY CO., Inc., et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Charles B. Quarles, of Milwaukee, Wis., for appellants.
B. J. Husting, U. S. Atty., and Carl R. Becker, both of Milwaukee, Wis., for appellee.
Before MAJOR and KERNER, Circuit Judges, and BARNES, District Judge.
Appellants, hereafter called defendants, were convicted of violations of the Food and Drugs Act of 1906 (21 U.S.C.A. §§ 2, 10) under four informations involving nine articles, charging interstate shipments of drugs that were alleged to be misbranded, in that the labels, containers and enclosures of each of the products were false and fraudulent regarding the curative or therapeutic effect of the drugs. The cases were tried by the court, a jury being waived, and resulted in the findings of guilty on all nine counts and the court imposed sentences in the form of fines. Defendants have appealed from these judgments.
The principal assignment of error and the only one relied upon is that there is an insufficiency of competent evidence to establish guilt beyond a reasonable doubt.
The informations allege violation of Section 2 of the Food and Drugs Act (21 U.S.C.A. § 2) which makes any person guilty of a misdemeanor who shall ship or deliver for shipment from any state to any other state "any article of food or drugs which is adulterated or misbranded, within the meaning of sections 1 to 15 * * *." The term "drug" is defined in the Act as including "all medicines and preparations recognized in the United States Pharmacopœia or National Formulary for internal or external use." In Section 10, an article is defined as misbranded "If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent."
The argument is made that before there can be a finding of guilty under this Act the government must prove, not only that the statements made concerning the article were false, but that they were also fraudulent. This is a correct statement of the law. We are therefore called upon to decide whether the statements were false and fraudulent.
There was evidence that the defendant corporation was engaged in the manufacture and sale of medicines used in the treatment of ailments of dogs, livestock and poultry, supplying its customers in the States of Minnesota and Missouri with the nine articles mentioned in the informations.
Since we are of the opinion that the government introduced evidence at the trial which justified the court in finding, as alleged in the nine counts of the informations, that certain of the statements appearing on the containers and labels regarding the curative or therapeutic effect of the articles were false and fraudulent, it will not be necessary to specifically discuss the evidence relative to each of the nine articles, as that would unduly lengthen this opinion. A discussion of several ought to suffice.
The brandings complained of are as follows:
"Dr. David Roberts Worm Powder."
Regarding this product, there appears on the label and enclosed leaflet the following: "For Round Worms In Livestock," "For Bots In Horses."
In support of this count of the information, the government called five witnesses, four of whom were Doctors of Veterinary Medicine and one with a Master's degree from Georgetown University, majoring in zoology with special emphasis on parasitology, who testified in substance that this powder is worthless and has no value against any species of round worms in livestock and bots in horses, and is not effective as a treatment or cure for worms in livestock or for bots in horses.
"Dr. David Roberts Poultry Worm Capsules" "For Tapeworms and Large Round Worms in Poultry" "Worm Poultry Twice a Year."
Relative to this count, the testimony was in substance that this product was not effective as a treatment for or control of any kind of worm that infests poultry. Three of the doctors testified that they had made extensive critical and controlled tests of these capsules on chickens over a period of six weeks, and that at the conclusion of the tests the chickens were autopsied and it was found that the capsules were ineffective in the removal of round worms or tapeworms.
"Dr. David Roberts Dog Medicine."
Four of the counts involved the following dog medicines: blood tablets, liver tablets, kidney tablets and chorea tablets, contained in a metal package, holding small tin boxes, one for each dog medicine, sold as a unit. The outside package or box was labeled and carried a large circular, reading thus:
"Dr. Roberts Dog Medicines," "A Prescription For Every Dog Ailment," "Dr. David Roberts' Dog Medicines are Dependable — Try them," Thereafter are set forth the following products, in the following language: "Blud Tablets, in case of skin diseases, Chorea Tablets for twitching muscles, Kidney Tablets for Kidney disorders, Liver Tablets for inactive or sleepy condition."
The informations charged that these statements, together with the language on the outer container and large circular, were applied to said articles knowingly and in a reckless and wanton disregard of their truth, so as to create in the minds of the purchaser the impression and belief that the articles were effective as a treatment, remedy,...
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