United States v. SIX DOZEN BOTTLES, ETC., No. 9047.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtMAJOR, KERNER, and MINTON, Circuit
Citation158 F.2d 667
PartiesUNITED STATES v. SIX DOZEN BOTTLES, MORE OR LESS, OF "DR. PETER'S KURIKO" etc. DR. PETER FAHRNEY & SONS CO. v. UNITED STATES.
Decision Date02 January 1947
Docket NumberNo. 9047.

158 F.2d 667 (1947)

UNITED STATES
v.
SIX DOZEN BOTTLES, MORE OR LESS, OF "DR. PETER'S KURIKO" etc.
DR. PETER FAHRNEY & SONS CO.
v.
UNITED STATES.

No. 9047.

Circuit Court of Appeals, Seventh Circuit.

January 2, 1947.


158 F.2d 668

Joseph V. Quarles and Arthur Wickham, both of Milwaukee, Wis., John Lyle Vette and Henry Junge, both of Chicago, Ill., for appellant.

Timothy T. Cronin, U. S. Atty., of Milwaukee, Wis., Theron L. Caudle, Asst. Atty. Gen. (John T. Grigsby, Atty., Department of Justice, of Washington, D. C., and Bernard D. Levinson, Atty., Federal Security Agency, of Boston, Mass., of counsel), for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from a decree entered January 22, 1946, in a proceeding commenced by the filing of a Libel Information under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., which prayed the condemnation of an article called Dr. Peter's Kuriko, on the ground that it was misbranded when in interstate commerce. The res involved is a medicine manufactured by Dr. Peter Fahrney & Sons Company, referred to as the claimant which intervened and defended the action. The cause was tried to a jury and a special verdict was returned which constitutes the basis for the decree in controversy.

The libel as filed charged misbranding in a number of ways, all of which charges have been eliminated in one way or another except that contained in paragraph IIIa, which alleged that the article was misbranded within the meaning of 21 U.S.C.A. § 352(a) in that certain representations in the labeling were false and misleading since the product, when taken as directed, will not fulfill the promises of benefit stated and implied therein.

The special verdict of the jury, on questions framed by the court, was as follows:

"1. Is the labeling of Kuriko false or misleading in that the product, when taken as directed, will not fulfill the promises of benefit, stated or implied?

"Answer: Yes.

"2. Does the labeling of Kuriko, including the directions thereon, provide for the continuous use of Kuriko?

"Answer: No.

"3. If you answer Question 2 `Yes,' then answer this question. Is the continuous use of Kuriko capable of causing a dependency upon laxatives to move the bowels?

"Answer:

"4. Is Kuriko misbranded in that the labeling fails to bear adequate directions for use in any respect?

"Answer: Yes."

The primary issue raised before this court arises from the contention that there was no substantial evidence which would justify the submission of the case to the jury and that there should have been a directed verdict in favor of the claimant. It is also contended that the submission to the jury of question 4 was prejudicial error because there was no charge in the libel to which it was responsive. In connection with this...

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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
    ...States, 169 F.2d 375, 383 (9th Cir.), cert. denied, 335 U.S. 853 (1948); 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......
  • United States v. Diapulse Manufacturing Corporation, No. 4818.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 24, 1967
    ...system, were amply supported. Only one false or misleading claim is needed to sustain the verdict. United States v. 6 Dozen Bottles, 158 F.2d 667 (7th Cir. 1947); United States v. Dr. David Roberts Veterinary Co., supra, 104 F.2d 785, The motions for judgment notwithstanding the verdict and......
  • Alberty v. Federal Trade Commission, No. 9843.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 20, 1950
    ...much less frequently to simple iron deficiency anemia than to other causes." 9 Cf. United States v. Six Dozen Bottles, etc., 7 Cir., 1947, 158 F.2d 667, 669. 10 See Judge Minton's dissent in D.D.D. Corp. v. Federal Trade Commission, 7 Cir., 1942, 125 F.2d 679, 682-683. 11 Aronberg v. Federa......
  • United States v. An Article of Food, No. 72-1626.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 9, 1973
    ...For Use As A Colonic Irrigator, 160 F.2d 194, 200 (10 Cir. 1947); United States v. Six Dozen Bottles . . . Of "Dr. Peter's Kuriko", 158 F.2d 667, 668-669 (7 Cir. 1947); United States v. Device Labeled "Cameron Spitler Amblyo-Syntonizer", 261 F. Supp. 243, 245-246 (D.Neb.1966); cf. United St......
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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
    ...system, were amply supported. Only one false or misleading claim is needed to sustain the verdict. United States v. 6 Dozen Bottles, 158 F.2d 667 (7th Cir. 1947); United States v. Dr. David Roberts Veterinary Co., supra, 104 F.2d 785, The motions for judgment notwithstanding the verdict and......
  • Alberty v. Federal Trade Commission, No. 9843.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 20, 1950
    ...much less frequently to simple iron deficiency anemia than to other causes." 9 Cf. United States v. Six Dozen Bottles, etc., 7 Cir., 1947, 158 F.2d 667, 669. 10 See Judge Minton's dissent in D.D.D. Corp. v. Federal Trade Commission, 7 Cir., 1942, 125 F.2d 679, 682-683. 11 Aronberg v. Federa......
  • United States v. An Article of Food, No. 72-1626.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 9, 1973
    ...For Use As A Colonic Irrigator, 160 F.2d 194, 200 (10 Cir. 1947); United States v. Six Dozen Bottles . . . Of "Dr. Peter's Kuriko", 158 F.2d 667, 668-669 (7 Cir. 1947); United States v. Device Labeled "Cameron Spitler Amblyo-Syntonizer", 261 F. Supp. 243, 245-246 (D.Neb.1966); cf. United St......
  • United States v. 47 BOTTLES, MORE OR LESS, ETC., Civ. A. No. 1042-58.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 14, 1961
    ...273, cert. den. 1952, 344 U.S. 928, 73 S.Ct. 496, 97 L.Ed. 714; United States v. Six Dozen Bottles * * Dr. Peter's Kuriko, 7 Cir., 1947, 158 F.2d 667; Goodwin v. United States, 6 Cir. 1924, 2 F.2d 200. The ample evidence to be found in the testimony of the witnesses for libelant that the dr......
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