United States v. SIX DOZEN BOTTLES, ETC., 9047.

• Decision Date: 02 January 1947
• Docket Number: No. 9047.,9047.
• Citation: 158 F.2d 667
• Parties: UNITED STATES v. SIX DOZEN BOTTLES, MORE OR LESS, OF "DR. PETER'S KURIKO" etc. DR. PETER FAHRNEY & SONS CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

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.

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 contention, it is also asserted that the court improperly admitted the opinion testimony of a witness who was not qualified.

Kuriko is a medicine which has long been manufactured and sold to the public. Admittedly, it is a laxative and relieves functional constipation. That is the limit, however, of its remedial qualities. In fact, we do not understand that anything further is claimed for it. Notwithstanding this, claimant in a pamphlet wrapped around each bottle of its product devoted four pages extolling benefits to be derived from its use. We think no good purpose could be served in setting forth the contents of this pamphlet. It is sufficient to state that we have studied it and we are of the view that the representations contained therein were such as to present a proper question for the jury as to whether they were misleading. It may be, as claimant insists, that there were no statements contained in the pamphlet which were literally false, but even so it does not follow that it was not misleading when considered in its entirety.

We shall mention only a few of the statements contained in this pamphlet, from which we think a jury might have reasonably inferred that the product was represented either as a remedy or a cure for something other...