United States v. John J. Fulton Co., No. 5709.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtRUDKIN, DIETRICH, and WILBUR, Circuit
Citation33 F.2d 506
Docket NumberNo. 5709.
Decision Date01 July 1929
PartiesUNITED STATES v. JOHN J. FULTON CO.

33 F.2d 506 (1929)

UNITED STATES
v.
JOHN J. FULTON CO.

No. 5709.

Circuit Court of Appeals, Ninth Circuit.

July 1, 1929.


Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash., and John F. Moore, Atty. U. S. Dept. of Agriculture, Washington, D. C.

A. P. Black, of San Francisco, Cal. (Howe & Graham, of Seattle, Wash., of counsel), for appellee.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

Appellant filed a libel of information against 48 bottles of an article of drugs labeled in part "Fulton's Compound RX 1," and 24 bottles of another article of drugs labeled in part "Fulton's Compound RX 2," which it alleges were shipped in interstate commerce from San Francisco to Seattle, and which it charges were misbranded, in violation of paragraph 3 of section 8 of the Food and Drugs Act, as amended (21 USCA § 10). By that provision it is declared that an article of drugs shall be deemed to be 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." In the libel are exhibited the labels, wrappers, and attending circulars, followed with the averment that the bottles were so

misbranded, in that the labels, wrappers, and circulars "are false and fraudulent, since the articles contain no ingredient or combination of ingredients capable of producing the effect claimed." Sustaining an exception to the libel upon the ground that it failed to state sufficient facts to constitute a cause of action, the court below entered a judgment dismissing it, and libelant appeals

The point of the exception is that nowhere in the label, wrapper, or attending circular does the proprietor or shipper make any direct statement or representation that the drugs are of curative or therapeutic value. In each case there is the statement, "We have received many letters from physicians reporting," followed by what is represented to be the substance of such "reports," which admittedly would tend to engender a belief in persons suffering from diabetes or Bright's disease that the use of the drugs would likely afford them relief. Unless we discredit their mental competency, such, we must presume, was the intent and expectation of the proprietors. Their contention is that they have such letters or reports, and that that...

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7 practice notes
  • Food for human consumption: Food labeling— Dietary supplements; effect on structure or function of body; types of statements, definition,
    • United States
    • Federal Register January 06, 2000
    • January 6, 2000
    ...United States v. Six Dozen Bottles * * * ``Dr. Peter's Kuriko'', 158 F.2d 667, 669 (7th Cir. 1947); United States v. John J. Fulton Co., 33 F.2d 506, 507 (9th Cir. 1929); Bradley v. United States, 264 F. 79, 81-82 (5th Cir. 1920); United States v. Kasz Enterprises, Inc., 855 F. Supp. 534, 5......
  • United States v. Diapulse Manufacturing Corporation, No. 4818.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 24, 1967
    ...34, 40, n. 6 (1st Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1383, 1 L.Ed.2d 1437 (1957). Accord, United States v. John J. Fulton Co., 33 F.2d 506 (9th Cir. 1929); Moretrench Corp. v. FTC, 127 F.2d 792, 795 (2d Cir. II. Failure to Reveal Differences of Opinion Claimant states that the cour......
  • United States v. 7 Jugs, etc., of Dr. Salsbury's Rakos, Civil Actions No. 125-127.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • January 31, 1944
    ...States, 5 Cir., 1920, 264 F. 79; Hall v. United States, 5 Cir., 1920, 267 F. 795; United States v. John J. Fulton Co., 9 Cir., 1929, 33 F.2d 506. Claimant assigns as error the action of the court in permitting the experts for the Government to testify as to the ultimate issues in the case, ......
  • Research Laboratories v. United States, No. 11624.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 2, 1948
    ...64 S.Ct. 134; United States v. Antikamnia Co., 231 U.S. 654, 667, 34 S.Ct. 222, 58 L.Ed. 419; United States v. John J. Fulton Co., 9 Cir., 33 F.2d 506, 507; United States v. 62 Packages, More or Less, of Marmola Prescription Tablets, D.C.Wis., 48 F. Supp. 878, 887, affirmed, 7 Cir., 142 F.2......
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6 cases
  • United States v. Diapulse Manufacturing Corporation, No. 4818.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 24, 1967
    ...34, 40, n. 6 (1st Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1383, 1 L.Ed.2d 1437 (1957). Accord, United States v. John J. Fulton Co., 33 F.2d 506 (9th Cir. 1929); Moretrench Corp. v. FTC, 127 F.2d 792, 795 (2d Cir. II. Failure to Reveal Differences of Opinion Claimant states that the cour......
  • United States v. 7 Jugs, etc., of Dr. Salsbury's Rakos, Civil Actions No. 125-127.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • January 31, 1944
    ...States, 5 Cir., 1920, 264 F. 79; Hall v. United States, 5 Cir., 1920, 267 F. 795; United States v. John J. Fulton Co., 9 Cir., 1929, 33 F.2d 506. Claimant assigns as error the action of the court in permitting the experts for the Government to testify as to the ultimate issues in the case, ......
  • Research Laboratories v. United States, No. 11624.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 2, 1948
    ...64 S.Ct. 134; United States v. Antikamnia Co., 231 U.S. 654, 667, 34 S.Ct. 222, 58 L.Ed. 419; United States v. John J. Fulton Co., 9 Cir., 33 F.2d 506, 507; United States v. 62 Packages, More or Less, of Marmola Prescription Tablets, D.C.Wis., 48 F. Supp. 878, 887, affirmed, 7 Cir., 142 F.2......
  • United States v. 10 CARTONS, ETC., Civ. No. 13251.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 28, 1957
    ...and for that reason, it has been said, they are not less but more obnoxious to the law. United States v. John J. Fulton Co., 9 Cir., 1929, 33 F.2d 506; cf. United States v. Dr. David Roberts Veterinary Co., Inc., 7 Cir., 1939, 104 F.2d 785, 789; cf. Moretrench Corporation v. Federal Trade C......
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