United States v. Sullivan
| Citation | 67 F. Supp. 192 |
| Decision Date | 19 June 1946 |
| Docket Number | No. 3688.,3688. |
| Parties | UNITED STATES v. SULLIVAN. |
| Court | U.S. District Court — Middle District of Georgia |
Jno. P. Cowart, U. S. Atty., and Jack J. Gautier, Asst. U. S. Atty., both of Macon, Ga., for the United States.
Hatcher & Hatcher, of Columbus, Ga. (J. Madden Hatcher, of Columbus, Ga., of counsel), for defendant.
This is a criminal prosecution by information in two counts,1 charging violations of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq. It is alleged in each count, in substance, that a drug manufacturer in North Chicago, Illinois, shipped in interstate commerce to its distributor in Atlanta, Georgia, a bottle containing 1,000 Sulfathiazole tablets; that the distributor thereafter sold and delivered said bottle of tablets to the defendant, the owner of drug stores in Columbus, Georgia; that while the tablets in said bottle were being held for sale at one of the defendant's drug stores, after shipment in interstate commerce, the defendant caused 12 tablets to be removed from the bottle and placed into a box and disposed of by sale; that the box into which the tablets were placed and which was sold bore only the label "Sulfothiazal", as described in Count One and "Sulfathiazole", as described in Count Two; that the act of removing, repacking, and disposal resulted in the drug being misbranded in two different respects under the Federal Food, Drug, and Cosmetic Act.
It is charged that these acts constitute violations of Section 301(k) of the Act, 21 U.S.C.A. § 331(k). The pertinent provision of this section of the Act is as follows: Section 301, 21 U.S.C.A. § 331: "The following acts and the causing thereof are hereby prohibited: * * * (k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a, * * * drug * * *, if such act is done while such article is held for sale after shipment in interstate commerce and results in such article being misbranded."
The defendant filed a Motion to Dismiss setting forth four grounds: (1) the allegations of the information are insufficient as a matter of law to constitute any offense against the laws of the United States; (2) the alleged acts of the defendant were not in interstate commerce and were beyond the power of Congress to regulate, control, or punish; (3) the applicable provisions of the law only apply to misbranding in interstate commerce; (4) that if section 301(k) of the Act is construed as applying to the alleged acts of the defendant, said section is unconstitutional as being beyond the legislative power of Congress and an invasion of the reserved police powers of the states.
We will consider in this opinion (1) Whether Section 301(k) of the Act is a lawful exercise by Congress of its powers under the commerce clause of the Constitution; and (2) Whether the acts of the defendant alleged in the information are cognizable under this section of the Act.
(1) The Federal Food, Drug, and Cosmetic Act, passed in 1938, and its predecessor, the Food and Drug Act of 1906, 21 U.S.C.A. § 1 et seq., have been held to be lawful exercises by Congress of its power under the commerce clause of the Constitution. In Hipolite Egg Co. v. United States, 1911, 220 U.S. 45, at page 57, 31 S.Ct. 364, at page 367, 55 L.Ed. 364, in speaking of the 1906 Act, the court said: "The statute rests, of course, upon the power of Congress to regulate interstate commerce; and, defining that power, we have said that no trade can be carried on between the states to which it does not extend, and have further said that it is complete in itself, subject to no limitations except those found in the Constitution."
In United States v. Dotterweich, 1943, 320 U.S. 277, at page 280, 64 S.Ct. 134, at page 136, 88 L.Ed. 48, a case under the 1938 Act, the court said:
It is well settled that congressional authority under the commerce clause includes the power to regulate intrastate activities which "affect" interstate commerce or which are in the "flow" of interstate commerce. It was said in State of Oklahoma v. Guy F. Atkinson Co., 1941, 313 U.S. 508, 526, 61 S.Ct. 1050, 1060, 85 L.Ed. 1487:
In National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 36, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893, 108 A.L.R. 1352, the court declared:
The following recent cases have determined some phases of intrastate activities that are properly subject to federal control. Currin v. Wallace, 1939, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Mulford v. Smith, 1939, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; United States v. Rock Royal Co-operative, Inc., 1939, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726.
The authority of Congress over goods which have moved in interstate has operated to prevent numerous acts to those goods: e. g., the imposition of discriminatory taxes, Sonneborn v. Cureton, 1923, 262 U.S. 506, 43 S.Ct. 643, 67 L.Ed. 1095; the requirement of label removal, McDermott v. Wisconsin, 1913, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas. 1915A, 39; the receiving etc. of stolen motor vehicles, Brooks v. United States, 1925, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; the placing of restrictions on an importer in selling an article in convenient containers, Baldwin v. Seelig, Inc., 1935, 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032, 101 A.L.R. 55.
That Congress in enacting Section 301 (k) of the Act intended to exercise its broad powers under the commerce clause is clearly expressed in the legislative history of the Act. In H.R.Rep. No. 2139, 75th Cong. (3rd Sess., 1938), submitted by the Committee on Interstate and Foreign Commerce to accompany S. 5, the bill which was enacted as the present Act, it was stated in speaking of Section 301: "In order to extend the protection of consumers contemplated by the law to the full extent constitutionally possible, paragraph (k) has been inserted prohibiting the changing of labels so as to misbrand articles held for sale after interstate shipment."
One of the purposes of the Federal Food, Drug, and Cosmetic Act is to "prevent the misuse of the facilities of interstate commerce in conveying to and placing before the consumer misbranded and adulterated articles of medicine or food". McDermott v. Wisconsin, 1913, 228 U.S. 115, 133, 33 S.Ct. 431, 434, 57 L.Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39; United States v. Two Bags, etc., Poppy Seeds, 6 Cir., 1945, 147 F.2d 123, 127. This purpose could not have been accomplished if the provision now being considered had been omitted. Its absence would have made it relatively simple, in many instances, to render nugatory the misbranding provisions of the Act by simply shipping in interstate commerce properly labeled articles and misbranding them after the transportation had ended. Anticipating resort to such stratagem, whether as part of a scheme or not, Congress sought to prevent it by the enactment of subsection (k) which would preserve the integrity of labeling of an article that had been shipped in interstate commerce until it reached the consumer. "Any rule, * * * which is intended * * * to prevent the flow of commerce from working harm to the people of the nation, is within the competence of Congress." Mulford v. Smith, supra 307 U.S. 38, 59 S.Ct. 652.
That federal authority extends far enough to control the labels on goods being offered for sale to consumers after shipment in interstate commerce was decided in McDermott v. Wisconsin, supra. In that case a Wisconsin statute required that certain syrups bear labels prescribed in the statute and none other. McDermott, a retail merchant in Wisconsin, received from Chicago a box containing 12 cans of syrup, which he placed on the shelves of his establishment for retail sale. The label of the syrup, when received by McDermott, complied with the Federal Food and Drugs Act of 1906, but did not comply with the state law. In order to meet the state law requirements, the labels of the cans would have had to be removed and new ones substituted. In holding that the state could not require the removal of the label that met the requirements of the federal law, the court said at page 133 of 228 U.S., at page 435 of 33 S.Ct., 57 L.Ed. 754, 47 L.R.A., N.S., 984, Ann.Cas.1915A, 39 in speaking of the state law: "* * * to permit...
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