United States v. Millpax, Inc.
| Decision Date | 21 February 1963 |
| Docket Number | No. 13752.,13752. |
| Citation | 313 F.2d 152 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. MILLPAX, INC., a Corporation, and Roy F. Paxton, an Individual, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward R. Phelps, U. S. Atty., Springfield, Ill., Marks Alexander, Leon G. Scroggins, Asst. U. S. Attys., Springfield, Ill., Rodney R. Munsey, Attorney, Department of Health, Education and Welfare, Washington, D. C., of counsel, for appellee.
Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.
Defendants, Millpax, Inc., and Roy F. Paxton, were found guilty after trial by jury on three counts of a five-count indictment charging them with the misbranding of a drug known as "Millrue," in that its labeling failed to bear adequate directions for use, as required by Section 502(f) (1) of the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. § 352(f) (1), and with causing the introduction or delivery for introduction into interstate commerce of such preparation, so labeled, in violation of Section 301 (a) of the Act, 21 U.S.C. § 331 (a), which prohibits the introduction or delivery for introduction into interstate commerce of any drug that is misbranded.
Defendant Millpax, Inc., until March 23, 1961, was a corporation organized and existing under the laws of the State of Illinois, with office and principal place of business at Carlock, Illinois. Defendant Roy F. Paxton was secretary-treasurer and principal stockholder of the corporation.
The product in question was packaged in bottles, bearing labels displaying the following printed and graphic matter:
The errors relied on for reversal arise out of the claimed inadequacy of the evidence to support the verdict, the charge to the jury (which was not objected to), and the failure of the trial court to acquit the defendants on the ground that, as a matter of law, they were entrapped.
On May 2, 1960, Charles Armstrong, a Federal Food and Drug Inspector, wrote defendant Paxton from Memphis, Tennessee, ordering two bottles of Millrue. He enclosed a ten dollar money order. He stated in his letter that he had just been informed that he had cancer, and that he had read in the "Herald of Health" magazine about "your cancer cure — Millrue." In response to his letter, he received a form letter,1 prepared and signed by defendants' attorney, directing him to reread the article and to note that no claim is made by the writer or the manufacturer that Millrue cures anything. Concerning the claims made in the magazine article, the form letter to Inspector Armstrong said "Any person may state what he believes the product has done or has not done for him, and any person is free to draw his own conclusions therefrom." It is evident that the form letter was framed with the intention of drawing a cloak of legality around defendants' transactions. While there is a disclaimer in the letter as to any claims made directly by defendants, the jury is not required to blind itself to reality and fail to recognize the obvious intent of such a letter to adopt the testimonials made by others. No other purpose could be implied in view of the fact that the order from Armstrong specifically mentioned that he was suffering from cancer and that he wanted the Millrue to forestall his having to submit to surgery. We think it reasonable to recognize the plight of those suffering from cancer, their desperate frame of mind of which "cancer remedy" salesmen are undoubtedly aware, and the influence these complementary attitudes have on a transaction such as the one in question. It is obvious that defendants intended to be understood as adopting as their own the magazine testimonials. The statement in the disclaimer letter that "Any person may state what he believes the product has done or has not done for him, and any person is free to draw his own conclusion therefrom," within the factual context present here, does not shield defendants from the consequences of their wilful acts.
Armstrong, upon receipt of the form letter, wrote another letter requesting the Millrue. In response thereto he received a package in the United States Mails from Millpax, Inc., containing two bottles of Millrue.
Both defendants were charged in Count III with responsibility for this interstate shipment of a misbranded drug.
Defendants contend that the preparation known as Millrue is not a drug, but is a food for special dietary use excepted by the Federal Food, Drug, and Cosmetic Act, as amended, from inclusion in the term "drug." As discussed above, however, the intention of the defendants was to have prospective purchasers regard it as a drug and so use it; hence, their own actions classified Millrue as a drug. Thus, the use of the term "drug" as used in the indictment and during the trial could not have been prejudicial to defendants.
On April 16, 1960, Inspector Gebhart from the St. Louis office of the Food and Drug Administration and Mrs. Rachel Harrington, a clerical employee of that office, visited defendants' place of business at Carlock, Illinois. They posed as a married couple from Memphis, Tennessee and indicated they came to Carlock to see if defendant Paxton could find out what was wrong with Mrs. Harrington. They did not suggest to Paxton that she was suffering from any specific disease or ailment.
Paxton asked her to sit on a couch. As soon as she was seated, he began examining her left foot. When he examined the third toe, he told Mrs. Harrington that she had gas on the upper colon which is usually where cancer starts. In response to being asked if she had cancer, he stated that she did. Paxton recommended his Millrue tonic for this condition. He recommended also that she follow a diet and he gave her a printed copy of the directions for such diet. He told her that he had never lost a case of cancer or leukemia, and that she would be all right in three months. He also related that he had acquired the formula for Millrue about forty years ago from an old Indian doctor who wanted him to marry his daughter. The diet list and the label on the bottle were the only written directions given the agents for use of Millrue. Agent Gebhart and Mrs. Harrington purchased six bottles of Millrue and departed. Count IV of the indictment charged defendants with having caused to be delivered to Gebhart and Mrs. Harrington for introduction into interstate commerce the misbranded drug.
A showing that drugs were introduced into interstate commerce is sufficient to show that they were, as well, delivered for introduction into interstate commerce. United States v. Vrilium Products Co., 185 F.2d 3 (7th Cir.1950).
The government contends that where a misbranded drug is sold and the seller has knowledge that the purchaser intends to transport the drug to another state, this knowledge, in and of itself, is sufficient to bring the transaction within the ambit of 21 U.S.C. § 331(a), i. e., that the sale is an introduction or delivery for introduction into interstate commerce of the misbranded drug. It relies for support of this contention on Drown v. United States, 198 F.2d 999 (9th Cir.1952), cert. denied 344 U.S. 920, 73 S.Ct. 385, 97 L. Ed. 709; and United States v. Sanders, 196 F.2d 895 (10th Cir.1952). For our purposes we need not decide if these cases support the broad interpretation given to 21 U.S.C. § 331(a) by the government.
While it is true that defendant Paxton not only sold the misbranded product to the government agents and did so intending that it would be taken by them to Tennessee, this intention was and could only have been formulated as a result of a representation made by the government agents which the evidence shows had no basis in reality. If we are to assume that the seller participates in some degree in the...
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