United States v. VITASAFE CORPORATION

• Decision Date: 04 September 1964
• Docket Number: Civ. A. No. 781-64.
• Citation: 235 F. Supp. 84
• Parties: UNITED STATES of America v. VITASAFE CORPORATION, a corporation, Nutritional Quality Controls, Inc., a corporation, the Dollar Vitamin Plan, Inc., a corporation, Life Nutrition, Inc., a corporation, International Oil and Metals Corporation, a corporation, Dr. Parker Medicine Company, a corporation, Philip S. Volosov, an individual, and Henry D. Cohen, an individual, Defendants.
• Court: U.S. District Court — District of New Jersey

235 F. Supp. 84

UNITED STATES of America v. VITASAFE CORPORATION, a corporation, Nutritional Quality Controls, Inc., a corporation, the Dollar Vitamin Plan, Inc., a corporation, Life Nutrition, Inc., a corporation, International Oil and Metals Corporation, a corporation, Dr. Parker Medicine Company, a corporation, Philip S. Volosov, an individual, and Henry D. Cohen, an individual, Defendants.

Civ. A. No. 781-64.

United States District Court D. New Jersey.

September 4, 1964.

David M. Satz, Jr., U. S. Atty. for Dist. of New Jersey, by Vincent J. Commisa, Asst. U. S. Atty., for plaintiff.

Herbert S. Alterman, Passaic, N. J., for defendant (Milton A. Bass, Bass & Friend, New York City, appearing).

LANE, District Judge.

In an opinion filed January 24, 1964, United States v. "Vitasafe Formula M * * *", D.C., 226 F.Supp. 266, this court granted the government a decree of condemnation for certain vitamin products and advertising materials used in connection therewith, earlier held to constitute labeling therefor, 226 F.Supp. at 269, footnote 1. The grounds for the decree were that the assertions contained in the labeling gave impressions to the user which were misleading and contrary to fact in violation of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.; 226 F.Supp. at 278-279. The decree of condemnation was filed on April 10, 1964.

The Vitasafe Corporation, claimant in the condemnation suit, is one of a group of corporations, defendants in the present case, which distributes vitamins and similar products to the general public. Although the defendant companies are separate entities, they share officers and directors to a significant extent (see appended chart).

Their mail order businesses are centered in the same place and conducted in the same manner by the same personnel. None of the companies manufacture vitamins; they repackage drugs bought in bulk and resell them by mail. The style of their ads, customer service programs, vitamin containers, and other literature is strikingly similar. In short, while separately incorporated, all defendant companies are parts of the same operation and in substance are one.

Since the signing of the condemnation decree, the Vitasafe corporation has ceased its distribution of the series of circulars condemned. But Vitasafe has continued to service the clients which it had obtained prior to the decree. And the defendant corporations have continued the Vitasafe advertising campaign in their own names using circulars similar but not identical to those condemned in the Vitasafe action.

On August 17, 1964, the United States filed in this court a complaint for injunction against these six corporations and two individuals connected therewith. Pursuant to the complaint, the court issued a temporary restraining order on that date. The order restrained defendants, inter alia, from distributing or otherwise using literature which is objectionable under the condemnation opinion. It further specified a number of circulars which were not to be used.

The order also prohibited defendants from:

"Introducing and causing to be introduced and delivering and causing to be delivered for introduction into interstate commerce any of the aforesaid articles which are addressed (a) to any persons to whom defendants have previously sent any of the items of written, printed, and graphic matter and referred to in paragraph A(a) above, and (b) to any person who has sent to the defendants any of the order forms or order blanks which have been mailed by the defendants prior to the date of this decree or which have appeared in any newspaper, magazine, Sunday supplement or other advertisement prior to the date of this decree."

A hearing was held to allow a determination by this court of defendants' motion for relief from portions of the restraining order. The parties agreed that the court would consider together the motion for relief and the government's application for preliminary injunction.

Present Labeling

The government has established that both before and after the decree defendants used some material which would be subject to condemnation under the terms of the "Vitasafe Formula M * * *" opinion. An injunction will therefore issue prohibiting defendants from distributing any labeling which falls within the categories we have heretofore ruled misleading: specifically, labeling which when viewed as a whole:

1. Suggests or implies that a woman, because of sex alone, has different nutritional needs than a man, and that their product will satisfy those special needs.

2. Suggests or implies that the nutritional value of their product is enhanced by the presence in their product of certain listed ingredients.

3. States or represents that the "Minimum Adult Daily Requirements" are a recommendation of the Food and Nutrition Board of the National Academy of Science National Research Council.

4. Represents, suggests, or implies that large amounts of common foods would need to be consumed in order to obtain the quantities of nutrients present in one capsule of any of the articles.

5. Represents, suggests, or implies that the product is an adequate, effective treatment of or preventative for a listed series of symptoms.

6. Represents the product to be of value because it contains "lipotropic factors" while failing to bear adequate directions for use as a drug.

The government also seeks provisions enjoining defendants from using specific pieces of literature in connection with their products. The ads and circulars complained of are similar in style and content to those condemned, but are different from the earlier ones in significant details. We think that under the circumstances, such an enjoining provision would be an unwise specification of the six general sections of the injunction indicated. If the government's contentions are sound, and it wishes to halt the use of these materials, it should do so under these broader terms. It would be premature and overhasty for us to decide now both the content of the injunction and the instances which will be held to fall within its terms. A fuller, more careful consideration of the facts than is here possible in the urgency of these injunction proceedings would be required to determine precisely which of defendant's statements do and which do not make the prohibited suggestions or implications. For that reason, the preliminary injunction should not contain a prohibition of the distribution and use of specific literature.

Service to Past Customers

For several years, defendant Vitasafe sought customers for its...