United States v. Vitamin Industries Inc.
| Decision Date | 31 March 1955 |
| Docket Number | Crim. A. No. 78-53. |
| Citation | 130 F. Supp. 755 |
| Parties | UNITED STATES of America, Plaintiff, v. VITAMIN INDUSTRIES INC., a corporation, and Joseph L. Zwelback, an individual, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Donald R. Ross, U. S. Atty., and Harry W. Shackelford, Asst. U. S. Atty., Omaha, Neb., for plaintiff.
Ben E. Kaslow, Abrahams & Kaslow, Omaha, Neb., for defendants.
By information in three counts, the plaintiff charges the defendants with the violation of Title 21 U.S.C.A. Sections 331 and 333. The nature of the charge under Count I may be gathered from a copy of that count which is set out in a footnote.1 Count II differs from Count I only in these respects: (a) It charges shipment between September 20, 1951 and October 4, 1951; (b) It alleges that the labeling displayed upon the bottles also "accompanied" the bottles; (c) It alleges that the statement quoted in the fifth paragraph of footnote 1, supra, was both false and misleading; and (d) It alleges newspaper advertising in the September 24, 1951 issue of Topeka State Journal and the September 25, 1951 issue of Topeka Daily Capital. Count III, though similar to Count I, differs in this, that it alleges: a) a single shipment on or about January 11, 1952 to Peoria, Illinois, consigned to Peoria Health Food Center, of a number of bottles, containing a drug, b) upon which bottles was labeling consisting, among other things, of the following language:
"Guardian 100 Capsules
Super Lipitrons
Vitamin B12 High Potency
B Complex with Iron &
Vitamin C Each Capsule
Contains
Vitamin B1 15 mgm
Vitamin B2 6 mgm
Vitamin C 50 mgm
Niacinamide 30 mgm.
Calcium Pantothenate 3 mgm.
Liver Concentrate 30 mgm.
Vitamin B6 0.5 mgm.
Choline Dihydrogen Citrate 20 mgm.
Inositol 20 mgm.
dl-Methionine 20 mgm.
Iron as Ferrous Gluconate 30 mgm.
Folic Acid USP 0.1 mgm.
Vitamin B12/ (Crystal-line) 3 mcg."
and, c) newspaper advertising in the January 22, 1952 issue of Peoria Journal, and d) falsity and misbranding of the drug specified in respects and particulars as set out in a footnote.2
Each defendant pleaded not guilty as to each count of the information. Trial by jury was waived and the case was tried before the court without a jury. Much of the evidence was received under a stipulation. That is especially true in respect of the business relationship of the defendants, the making of the alleged shipments, the contents of the labels upon the bottles and the shipment of some advertising material in the way of posters, and the publication of newspaper advertising. Both the government and the defendants supplemented the stipulation with oral testimony and also with exhibits beyond those introduced in association with the stipulation.
The facts are now found by the court. They may be considered to have been stipulated except to the extent that they are declared to be the court's findings upon unstipulated evidence.
Of the defendants, Vitamin Industries Inc. at all material times was, and still is, a corporation duly organized and existing under the laws of Nebraska, with its principal place of business in Omaha, Nebraska, and Joseph L. Zweiback at all such times was and is its principal stockholder and accountable manager.
Shortly prior to August 10, 1951, the defendants within the Omaha Division of this District introduced and caused to be introduced for shipment in interstate commerce from Omaha, Nebraska to Topeka, Kansas consigned to Jayhawk Drug Company at Topeka, Kansas, a number of bottles, each containing a drug bearing the label of, and in part identifying the contents as, "Guardian Lipitrons". Affixed to and displayed upon each of said bottles was a label containing the following printed and graphic material:
"Guardian 100 Caplets Lipitrons
High Potency Lipotropic
Formula
Each Caplet Contains:
Vitamin B1 15 mgm.
Vitamin B2 6 mgm.
Vitamin C 50 mgm.
Niacinamide 30 mgm.
Calcium Pantothenate 3 mgm.
Vitamin B6 0.5 mgm.
Dessicated Whole Liver 175 mgm.
Dried Debittered Yeast 175 mgm.
Choline Dihydrogen Citrate 20 mgm.
Inositol 20 mgm.
dl-Methionine 20 mgm.
Iron as Ferrous Gluconate 30 mgm.
Folic Acid 0.1 mgm.
Vitamin B12 (Oral conc.) 3 mcg."
The same label also contained the following language:
Those posters were by the defendants designed to be used for the purpose of interesting prospective customers in the purchase, and stimulating the sale, of the drug thus transported. On August 10, 1951 some of such posters, the exact number being uncertain, were publicly displayed in the Jayhawk Drug Store, 1001 Kansas Avenue, Topeka, Kansas, in such manner that each such poster could be and was used in the disposition and sale of the drug.
Much other material in that advertising advanced the contention that the drug, "Lipitrons" was effective to remedy the so-called feeling of "growing old" and to intercept the experience of feeling tired, weak and rundown, and to help its takers to recapture lost vitality and strength and to combat nervousness, and lack of vigor and of energy and to enjoy life again. And again, in attractive large letters each advertisement closed with the following advice:
Shortly prior to October 16, 1951 and in any event within three years prior to the date of the filing of the information herein, the defendants within the Omaha Division of this District introduced and caused to be introduced for shipment in interstate commerce from Omaha, Nebraska to Topeka, Kansas, consigned to Jayhawk Drug Company at Topeka, Kansas a number of bottles, each containing a drug bearing the label of, and in part identifying the contents as, "Guardian Lipitrons". Affixed to and displayed upon each of said bottles was a label containing the same description of contents and directions already quoted in connection with the previous similar shipment. At approximately the same time, and in connection with the shipment last above mentioned, the defendants also shipped in interstate commerce from Omaha, Nebraska to Topeka, Kansas consigned to Jayhawk Drug Company, 1001 Kansas Avenue, Topeka, Kansas, a number of display posters entitled and bearing the introductory language quoted, supra, from similar posters already identified. These latter posters were by the defendants designed to be used for the purpose of interesting prospective customers in the purchase, and stimulating the sale, of the drug thus transported. On October 16, 1951 some of such posters, the exact number being uncertain, were publicly displayed, along with some of the bottles containing the drug, in the Jayhawk Drug Store, 1001 Kansas Avenue, Topeka, Kansas, in such manner that each such poster could be and was used in the disposition and sale of the drug.
On September 24 and 25, 1951, newspaper advertisements, each an entire page in length and approximately two-thirds page in width, devoted largely, but not entirely, to the advertisement of the drug, "Lipitrons" appeared in Topeka State Journal and Topeka Daily Capital, respectively. Both of those advertisements were sponsored by and paid for, in whole or in part, by the defendants. Those advertisements contained all of the material quoted above from the advertisements of August 6 and 7, as well as much other material advancing the contention that the drug, "Lipitrons" was effective to remedy the so-called "feeling of growing old and to intercept the experience of feeling tired, weak and rundown, and to help its takers to recapture lost vitality and strength and to combat nervousness and lack of vigor and of energy, and to enjoy life again". The advertisements of September 24 and 25, 1951 closed with the designation of "Jayhawk Drug, 1001 Kansas Avenue" which it described as featuring "every vitamin for every purpose"...
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