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CURATIVE AND THERAPEUTIC EFFECTS OF DRUGS-Continued. duced upon the human system by any given drug. If a drug is represented to have a curative effect, while it might not always cure, it must be a drug that either does cure, or such as is generally recognized and employed in the effort to cure a certain disease or certain diseases; and if it is represented as a cure for certain diseases, when it is not, and is not recognized as a specific or as a remedy for such diseases, then such representation is false. United States v. Eleven Packages of B. & M. External Remedy_-_- 1059 The words "therapeutic" and "curative", as used in the act, section 8, as amended by act August 23, 1912, providing that drugs shall be deemed misbranded if the package or label bear or contain any statement, etc., regarding the curative or therapeutic effect of such article which is false and fraudulent, were intended to be given their ordinarily accepted meaning, and while they have a certain meaning to the medical expert, the physician, nevertheless they are a part of the vocabulary of any intelligent person. "Therapeutic" to the medical world means to heal; to make well; to restore to health. The ordinary definitions found in the dictionaries are as follows: "Having healing qualities; curative; alleviative; a medicine efficacious in curing or alleviating disease." The word "curative" is not found in medical dictionaries. The regular dictionaries define the word as "possessing power or tending to cure; relating to the cure of disease; relating to or employed in the cure of disease; tending to cure." In none of the definitions is there a suggestion that the words "therapeutic" or "curative" convey the meaning of absolute cure. United States v. 23 Dozen Bottles, Etc., of An Article of Drugs Labeled In Part "Lee's Save the Baby"

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United States v. 9 Packages of Crisp's Tung-Tone et al‒‒‒‒‒‒‒‒ "Curative" is defined as an agency possessing power or the tendency to cure. "Therapeutic" is defined as an agency having healing qualities, as an alleviator of a diseased condition. United States v. 60 Bottles of Dr. Hermance's Asthma and Hay Fever Medicine__ 1324 The word "therapeutic", as used in the act, section 8, as amended by act August 23, 1912, means healing or curative properties of any substance to which it may be applied. United States v. Simpson__ The word "remedy" is defined in Webster's International Dictionary as "that which relieves or cures a disease"; and as "that which is used in any way for the cure or relief of bodily disease; a medicine; also remedial treatment." It cannot, therefore, in a criminal action under the act, charging defendant with falsely and fraudulently misbranding its medicine as a "remedy" for specified diseases, be concluded that defendant used the word "remedy" as synonymous with "cure," nor that the word would be understood by the public to mean cure. United States v. Natura Co‒‒‒‒‒‒‒‒ The words "remedy" and "cure" should be taken in their ordinary sense, as understood by people in the ordinary walks of life, and not as they are understood by doctors, druggists, and chemists. The word "remedy" in its ordinary and usual meaning, signifies something that cures or alleviates a disease and benefits health. Another recognized definition of "remedy" is something that is curative in tendency only, and not absolutely. The ordinary and usual meaning of the word "curative" is that which cures, a remedy. United States v. A. Skarzynski & Co‒‒‒‒‒‒ The word "remedy", as used on the labels, etc., of a proprietary medicine, describing it as a remedy for diseases specified, is to be taken in its common and ordinary meaning-that is to say, in the meaning that would naturally be attributed to it by the public and particularly those persons who would be inclined to purchase and use the medicine if they were suffering, or thought they were suffering, from any of the diseases named. The primary signification of the word "remedy", as defined in Webster's New International Dictionary, is "that which relieves or cures disease; any medicine or application which puts an end to disease and restores health." The word "remedy" does not import a guarantee of a cure, but it 167546-36-88

860

CURATIVE AND THERAPEUTIC EFFECTS OF DRUGS-Continued.

does necessarily imply, as used on the medicine, a substantial cura-
tive tendency with respect to the diseases mentioned. United
States v. 17 Bottles, Etc., of An Article Labeled in Part “B. and
M.".

The term "remedy" used in connection with drugs claimed to be mis-
branded by reason of false and fraudulent statements regarding
their curative or therapeutic effects, held to imply a curative tend-
ency, though not guaranteeing a cure. Simpson v. United States-
Averments in a libel under the act, section 8, as amended by Act
August 23, 1912, that statements regarding curative or therapeutic
effect of a drug, accompanying the article in interstate commerce,
were false and fraudulent as stating that the article "has cured"
and "will cure" diseases, whereas "in truth and in fact" it would
"not cure", and that there were no "medicinal substances nor
mixtures known at present" which could be relied upon to effect a
cure, are sufficient to sustain the libel. Seven cases of Eckman's
Alterative v. United States----

In a prosecution for misbranding a medicinal preparation in that statements regarding its curative or therapeutic effect, appearing on the labels, etc., were false and fraudulent, where the evidence of medical experts was that, exept in few cases, drugs or medicines do not work a cure, but are administered for the relief of the patient, held, that if the jury find that if the statements made on defendant's preparation in no case assert a curative property for the same, there could be no conviction. United States v. Matusow--

The statement on the label of a drug compound, "For kidney and
bladder troubles, diabetes, weak and lame backs, rheumatism”,
held, not a statement that the compound is a specific for the cure
of the diseases named, but a statement that the compound is recom-
mended to have a therapeutic or curative effect in the treatment
of said diseases. The further statement on the label of the com-
pound that it "dissolves gravel" and "regulates bladder trouble in
children" is a statement of fact that it will have the effect of dis-
solving gravel in the human body and it will have the effect of
regulating bladder trouble in children. United States v. One Gross
Packages of "A Texas Wonder".

A label on mineral water stating that it was "recommended in the
treatment of" certain diseases, and containing directions for its
use, was susceptible of the construction that it meant that the use
of the water in the treatment of such diseases would effect a cure
or alleviation. Bradley v. United States___
A libel in a proceeding to condemn bottled water, based on the
amendment of 1912 to the act, section 8, which, after quoting from
the label a long list of ailments for which the water was said to
be beneficial, with "healing powers" and a "reliable remedy", de-
clared that the water was capable of producing the therapeutic
effects so claimed, stated a case under the statute. Goodwin et
al. v. United States--‒‒

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Statement on the labels of drugs alleged to be misbranded under the act, section 8, as amended by act August 23, 1912, that "we have received many letters from physicians reporting", followed by what was represented to be the substance of such "reports", constituted direct statement or representation that the drugs were of curative or therapeutic value, and would be misbranding under the act, if the drugs were worthless. United States v. John J. Fulton Co.---- 1229 A drug mixture alleged to be misbranded in that the labels and packages contained false and fraudulent representations that it contained ingredients effective against certain diseases, held not misbranded, where the evidence showed that the ingredients of the mixture had curative or therapeutic value in the treatment of such diseases. United States v. 2312 Dozen Bottles, Etc., of An Article of Drugs Labeled "Lee's Save The Baby”_.

See Circulars, Pamphlets, Booklets, Etc.; Constitutionality of the Food and Drugs Act: Evidence; False and Fraudulent; Knowledge and Intent; Label; Misbranding.

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DAMAGE OR INFERIORITY:

In the provision of the act, section 7, that an article of food shall
be deemed adulterated if it be mixed, colored, etc., whereby its
damage or inferiority is concealed, the use of the word "damage"
in connection with the word "inferiority" is significant. The word
"damage" in this connection means that an ingredient has suffered
loss of strength or quality. The word "inferiority" means that an
ingredient is of low grade or quality. United States v. 10 Cases,
More or Less, Bred Spred, Etc., et al‒‒‒‒‒‒
See Colored; Mixed.

DAMIANA:

An article labeled "Damiana Nerve Invigorator", held misbranded because it contained little or no damiana. Steinhardt Bros. & Co. v. United States____

DANGEROUS TO HEALTH:

It is not necessary that an article of food, in order to be unlawfully adulterated or misbranded within the act, be dangerous to the public. United States v. Krumm--

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See Added Poisonous and Added Deleterious Ingredients; Adulteration; Confectionery; Injurious to Health; Misbranding.

DEBATES IN CONGRESS:

Debates in Congress considered by the court in arriving at the intent
of Congress in the act. United States v. Johnson_.
United States v. Buffalo Cold Storage Co..
United States v. Dr. J. L. Stephens Co__.

United States v. 150 Cases of Fruit Puddine___
United States v. Lexington Mill & Elevator Co--.

See Congress, Journals of; Congressional Committee Reports; Con-
struction and Interpretation; Legislative History of the Act.

DECOMPOSED:

See Filthy, Decomposed, and Putrid.

DEFENSES:

In a libel proceeding for forfeiture of distilled spirits alleged to be misbranded, it is no defense that the brand was placed upon the packages containing such liquor by the United States gauger upon information received from the distiller in accordance with the usual practice, or that the same kind of liquor had for a number of years been so branded and sold under such brand to the knowledge of the agents and officers of the United States. United States v. 50 Barrels of Whiskey---

It is no defense to a charge of shipping sirup misbranded as to
measure of contents of the can, that the cans were filled while the
sirup was hot and the shortage in measure was caused by shrinkage
on cooling. If the can were short in measure at the time they were
shipped, then the sirup was misbranded. United States v. Scudder
Syrup Co--

It is no defense to a prosecution for shipping an adulterated
article of food that the article was not shipped for sale, where
the shipment was for any purpose which constitutes interstate
commerce. Philadelphia Pickling Co. v. United States----
Where decomposed canned eggs, which were not denatured and there-
fore could have been used either for food or tanning purposes, were
shipped in interstate commerce from one warehouse of the owner
to another, they constituted an adulterated article of food within
the definition and meaning of the act, and it was no defense to a
proceeding to condemn them that the owner intended that they
should be sold only for tanning purposes.--United States v. 13
Crates of Frozen Eggs‒‒‒‒

Affirmed, United States v. 13 Crates of Frozen Eggs__.
That a defendant ceased the use of labels on packages containing
food which were misleading as to quantity of contents went only
to the question of mitigation. United States v. Rigney & Co----
See Estoppel; Guaranty; Knowledge and Intent; Res Judicata; Sale.

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DELEGATION OF LEGISLATIVE POWER.

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See Constitutionality of the Food and Drugs Act; Executive Officers; Pharmacopoeia; Regulations.

DELETERIOUS:

The term "deleterious", as used in the act, means hurtful, harmful, tending to destroy. United States v. One Pound Can CoalTar Color_

See Added Poisonous and Added Deleterious Ingredients; Dangerous to Health; Injurious to Health.

DELETERIOUS INGREDIENTS.

See Added Poisonous and Added Deleterious Ingredients.

DELETERIOUS TO HEALTH.

See Added Poisonous and Added Deleterious Ingredients; Confectionery; Dangerous to Health; Injurious to Health.

DELIVERY FOR SHIPMENT.

See Shipment.

DEPOSITIONS AND INTERROGATORIES:

In a proceeding to condemn drugs under the act, held that the testimony of Government witnesses, taken either by depositions, or by interrogatories, notice thereof having been duly given by the Government, was, under the statutory provision for the taking of testimony of persons residing over 100 miles from the place of trial by means of depositions and interrogatories, admissible in evidence. United States v. Nine Packages of Crisp's TungTone et al____

DERIVATIVES:

In addition to the trade names of the derivatives of the drugs men-
tioned in section 8 of the act, in the case of drugs, paragraph
2, the names of the parent substances of such derivatives must
also be stated on the labels of medicines in which they are con-
tained. United States v. Antikamnia Chemical Co----
Reversing United States v. Antikamnia Chemical Co‒‒‒‒‒
See Acetanilid; Regulations.

DESIGNS AND DEVICES:

The act was intended to reach all forms of misrepresentations by misbranding by the use of words, or by the use of designs or devices, pictures, etc., calculated to mislead and deceive, cheat, or defraud the purchasers. Designs and devices on bottles of imitation champagne which give them the appearance of bottles of genuine imported champagne, held misleading and deceptive and to constitute misbranding. United States v. 5 Cases of Champagne-

An indictment for misbranding of a domestic product as a known Rhine wine by means of a device representing a German village, held to be sufficient. More particular description of the picture held unnecessary. United States v. Sweet Valley Wine Co‒‒‒‒‒ See Label; False and Misleading; False and Fraudulent. DIGESTER TANKAGE:

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An article labeled "Digester Tankage" held misbranded because the label represented that it contained 60 to 70 percent of protein, when in fact it contained only 43 to 45 percent of protein. United States v. Swift & Co----

717

DISTINCTIVE NAME:

A distinctive name is either one so arbitrary or fanciful as to clearly distinguish the article to which it is applied from all other things, or one which by common use has come to mean a substance clearly distinguishable by the public from everything else. United States v. 300 Cases of Mapleine---

39

DISTINCTIVE NAME--Continued.

A "distinctive name" may of course be purely arbitrary or fanciful, and thus being the trade description of the particular thing, may satisfy the statute, provided the name has not already been appropriated for something else so that its use would tend to deceive. United States v. Coca Cola Co-‒‒‒‒

United States v. 24% Gallons of Smack.
While a distinctive name may be purely arbitrary it must be one
that distinguishes the article; and where more than one name,
each descriptive of an article, are united, it amounts to misbrand-
ing if the article does not contain any of the articles generally
known individually by any of such names. United States v. Coca
Cola Co---‒‒‒

A distinctive name is one ordinarily used to distinguish clearly it
or the article to which it is applied from all others, or one which
has become generally recognized by the public as meaning some-
thing different from any other article. The term "Maple Flavo"
held not to be a distinctive name of an article made in imitation
of a maple product. United States v. S. Gumpert et al-----
Even though an article of food is sold under its own distinctive
name, it is misbranded within the meaning of the act if the label
contains a false statement regarding the ingredients of the article.
United States v. American Chicle Co-

United States v. Weeks‒‒‒‒

United States v. 150 Cases of Fruit Puddine__

United States v. 40 Barrels and 20 Kegs of Coca-Cola_ The proviso of the fourth subsection of section 8 of the act, providing that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed adulterated or misbranded in case of mixtures or compounds known as articles of food under their own distinctive names, and not an imitation of or offered for sale under the name of another article, etc., goes only to the branding or the name of the article, and does not furnish a refuge for one who has on the label otherwise fasely stated the nature of the contents of the package. United States v. Newton Tea & Spice Co---

The proviso of the act, section 8, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the case of mixtures or compounds known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, etc., does not apply to a case where the charge is misbranding, and is not directed against the name, but against false statements on the label. Newton Tea & Spice Co. v. United States___

The clause "if it be an imitation of or offered for sale under the distinctive name of another article", in the act, section 8, declaring food in such case misbranded, deals, first, with imitations, that is, things patterned after, or a copy of, or made in simulation of, another article, and, as such, offered or put out as genuine; second, articles, whatever they may be, whether imitations or not, which are put out under the distinctive name of another article. The statute condemns the use of means to arouse the belief that one thing is really another. United States v. 24% Gallons of Smack

It is not sufficient to remove an imitation and misbranded article from the condemnation of the act that it has a distinctive name applied to it, as the very language of the proviso of section 8 requires that if known under its own distinctive name it, the article, must not be either an imitation of another article or offered for sale under the distinctive name of another article. Ordinary, cheap, low-grade, carbonated white wine contained in bottles in shape, dress, corking, and label closely imitating the ordinary genuine champagne bottle, but without the word "champagne", and shipped to fulfill an order for champagne, held to be an article sold

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