The third count is predicated of packages under the name of "Blood Purifier ", and is in effect the same as the preceding shipment, only to a different party.

The fourth count is predicated of packages and bottles under the name of "Special No. 4" with the label "Dr. Johnson's Mild Combination Treatment for Cancer. Special No. 4", with directions as to how it was to be applied and used, and its effect. This label is charged to be false and misleading in that it would not accomplish the results stated.

The fifth count is predicated of shipments of boxes, etc., containing "Cancerine No. 17", with directions as to how the same should be applied and used. The indictment charges that these were false and misleading in that said drug was offered as part of the treatment for cancer, holding out and representing that said drug will cure, and is effective in bringing about the cure of, cancer, when, in fact and in truth, it was not effective for such purpose.

The sixth count is predicated of a shipment of box or carton called "Cancerine No. 1", which is alleged to be misbranded within the meaning of the act, in that the label contained the following: "Dr. Johnson's Mild Combination Treatment for Cancer, Tumor and Other Chronic Diseases. Cancerine No. 1"-with directions as to how the same should be applied and used. Said label or brand is alleged to be false and misleading, in that it bears thereon the name "Cancerine No. 1 ", statements regarding such articles and substances contained therein which are false and misleading, in that said drug was represented as part of the treatment for cancer, and that it would cure, and is effective in bringing about the cure of, cancer, etc., when in truth and fact, it is wholly worthless and ineffective for the purposes recommended.

From which it is apparent that no charge is preferred by the indictment that the drug or medicine was adulterated, or that it contained anything that was poisonous or deleterious, or that it contained less than what was represented, or that in any respect there was any misbranding as to the contents and composition thereof. The substantive charge is that the articles manufactured and shipped by the defendant are and were inefficacious in producing the cures and remedies indicated by the label. The question, therefore, to be decided is whether this presents an indictable offense within the provisions of the Pure Food and Drug Act.

The very title of the act indicates its scope and purport. Its underlying purpose was to protect the public health against imposition upon the users of food, drugs, and medicines which were adulterated, misbranded, poisonous, or deleterious. To this end, the first section of the act makes it unlawful and an indictable offense "for any person to manufacture any article of food or drug which

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is adulterated or misbranded, within the meaning of the act.'

The second section forbids the introduction into any State, etc., or from any foreign country, or shipment to any foreign country, of any article of food or drug which is adulterated or misbranded within the meaning of the act, etc.

The third section directs that the Secretary of the Treasury, of Agriculture, and of Commerce and Labor, shall make uniform rules and regulations for carrying out the provisions of the act.

The fourth section declares that the examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such bureau, "for the purpose of determining from such examinations whether such articles are adulterated or misbranded within the meaning of this act."

Section 5 declares the duty of district attorneys, to whom the Secretary of Agriculture shall report any violation of this act.

Section 6 declares that the term "drug ", as used in the act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or animal.

Section 7 then specifies when an article shall be deemed to be adulterated. In case of drugs, if it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopoeia or National Formulary: "Provided, that no drug defined in the United States Pharmacopoeia or National Formulary shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or National Formulary", or if its strength or purity fall below the standard under which it is sold, or any substance has been substituted wholly or in part for the article, or any valuable constituent of the article has been wholly or in part abstracted, or if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed, or if it contain any added poisonous or other added deleterious ingredient which may render such articles injurious to health (with a certain provision), or if it consist in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, etc.

Section 8 is as follows:

That the term "misbranded", as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced.

It is conceded that the indictment is predicated of the words contained in the foregoing section 8:

The package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular.

In other words, the contention is that the label on the bottle or container, as to the curative or remedial effect of the contents, is a misbranding within the meaning of the statute, if, in fact, the prescription be ineffectual for the purpose indicated. This, it seems to me, is an entire misconception of the term "misbranding" as used in the act. The language," the package or label of which shall bear

any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular ", must be read and interpreted so as to have regard to its context, and is to be restrained by the subjectmatter of the act.

Having regard to the intendment of the whole act, which is to protect the public health against adulterated, poisonous, and deleterious foods, drugs, etc., the labeling or branding of the bottle or container, as to the quantity or composition of "the ingredients or substances contained therein which shall be false or misleading ", by no possible construction can be extended to an inquiry as to whether or not the prescription be efficacious or worthless to effect the remedy claimed for it. Pretermitting any expression of opinion as to how far Congress may go in the direction claimed under this indictment, it is sufficient to say that this legislation, predicated of the commerce clause of the Federal Constitution, it must be conceded, presses the power of the general government close to the confines of limitation.

In the debates in Congress, when this measure was under consideration, it was never sought to be justified except on the ground of protecting the public health, as it might be affected by interstate shipments of food, drugs, etc. At no time was it asserted or pretended that it was proposed to reach the matter of holding the manufacturers and vendors of prescriptive or patented medicines, multitudinous and multiform as they are, to criminal liability for misstatements as to the curative or remedial effects of the prescription, which would necessarily depend upon the opinions of contending experts and the users of the nostrums.

As this is a criminal statute creating a new offense, it must be strictly construed and applied. It must be restrained to its expressed, reasonable intendment; otherwise, the courts, by mere construction, may extend its operation far beyond the legislative intent. If it had been the mind of Congress to make it an indictable offense for such manufacturers and vendors by their labels or brandings on bottles and packages to mislead the buyers as to the curative or healing properties of the drugs, as to the mere matter of commendation, apt words, both in the title and body of the act, could and should have been easily employed to indicate such purpose, and not leave it to the courts by strained construction to read it into the statute. The motion to quash is sustained.

UNITED STATES v. BOECKMANN

(Circuit Court, E.D. New York, Jan. 15, 1910)

176 Fed. 382; N.J., No. 269

Indictment charging violation of section 2 of the Food and Drugs Act. Demurrer to indictment sustained.

CHATFIELD, District Judge. A demurrer has been interposed to an indictment charging the defendant with having shipped from the State of New York to the State of New Jersey, a certain article of food for man, labeled "Compound: Pure Comb and Strained Honey

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and Corn Syrup "; that the label was false and misleading, and the contents of the jar misbranded, in that "the said label represented the principal ingredient of the said contents of said glass jar to be pure comb honey" when in fact the contents were almost wholly glucose and starch sugar, and the said contents of the said glass jar in truth and in fact consisted of a very small percentage of pure comb honey."

It has been called to the attention of the court that under the authority of the statute of June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768), certain regulations for the guidance of the public, and for carrying out the provisions of the law, have been made by the Secretary of Agriculture, and certain rulings or decisions by the Secretary of Agriculture have construed the language of the statute. For instance, Food Inspection Decision No. 75 provides that:

When both maple and cane sugars are used in the production of syrup, the label should be varied according to the relative proportion of the ingredients, the name of the sugar present in excess of fifty percent of the total sugar content, should be given the greater prominence on the label, that is, it should be given first.

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Also, Food Inspection Decision No. 87 provides that "Viscous syrup obtained by the incomplete hydrolysis of the starch of sugar should be labeled "corn syrup with cane flavor ", if a small percentage of the product of the cane is added thereto.

There is no charge of any violation of regulations, or refusal to comply with the rulings of the Commissioner of Agriculture, but the case presents an entirely distinct question, depending upon the provisions of the statute itself.

In the present indictment we have an allegation that the defendant has put upon the market, for interstate commerce, an article which is misbranded, in that the label is misleading, solely because the principal ingredient is alleged to be held out to the public as pure comb honey", when in reality "glucose and starch sugar" made up almost wholly the actual "principal ingredient."

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Under the decision In re Wilson (C.C.), 168 Fed. 566, such a label as is recited would not be contrary to fact, and this court agrees in the opinion that it is impossible to say what portion of the label as printed would signify greater percentage of the product. The demurrer will be sustained.

UNITED STATES v. KNOWLTON DANDERINE COMPANY

(Circuit Court of Appeals, Fourth Circuit, Feb. 1, 1910)

175 Fed. 1022; N.J. No. 284

Appeal from the District Court for the Northern District of West Virginia. Affirmed.20

Before GoFF and PRITCHARD, Circuit Judges, and CONNOR, District Judge.

GOFF, Circuit Judge. The opinion of the court below, which contains a full statement of the facts, is found in 170 Fed. 449. Ap

20 Affirming judgment of District Court in United States v. 65 Casks of Liquid Extracts, p. 47, ante.

pellant assigns as error, in substance, that the court below erred in holding that the 65 casks of liquid extracts were not prepared, used, or shipped in any manner contrary to the laws of the United States, and that the United States had no right through its officers to seize the said casks or any of them.

Under the facts disclosed by the record, we conclude that the court below properly found that, even if there was probable cause for making the seizure and filing the libel, the evidence made it plainly appear that the appellee shipped the said casks as its own product, made by its own agent, from the laboratory of said agent at Detroit, Mich., to the warehouse of the appellee at Wheeling, W.Va.; that said casks of extracts were not intended for sale as shipped, but were to be, at the warehouse mentioned, bottled, and labeled as the law requires before being offered for sale. No attempt to evade the law, either directly, indirectly, or by subterfuge, has been shown; it appearing that the manufacturer had simply transferred from one point to another the product he was manufacturing, for the purpose of completing the preparation of the same for the market. Under the circumstances disclosed in this case, having in mind the object of the Congress in enacting the law involved, we do not think the liquid extracts proceeded against should be forfeited. Reaching this conclusion, we do not find it necessary to consider other questions discussed by counsel, and referred to in the opinion of the court below. We find no error.

UNITED STATES v. MAYFIELD ET AL.

(District Court, N.D. Alabama, Mar. 11, 1910)

177 Fed. 765; N.J. No. 326

Information charging violation of section 2 of the Food and Drugs Act. As no service of process was had on J. C. Mayfield, the case against him was not prosecuted. To the information the defendants J. P. Bradley, J. W. Altman, and J. F. Hawkins pleaded not guilty. Jury trial. Verdict of guilty as to J. F. Hawkins and J. W. Altman, and a verdict of not guilty as to J. P. Bradley.

GRUBB, District Judge (charging jury). The defendants in this case are charged with having violated certain provisions of what is known as the "Food and Drugs Act", an act passed by Congress in 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768), the purpose of which was to protect consumers against impure and adulterated foods and drugs and also against the use of foods or drugs which do not show what they contain by the brands on the package. Congress did not have any power to make this law concerning matters relating to commerce entirely within one State, but only as to commerce between one State and another State. The States themselves have the exclusive power to regulate their own internal commerce. So the prohibition of this act is directed only against the introduction into interstate commerce of any article of food or drink, or of any drug, either adulterated or misbranded. These two acts-adulteration and misbranding-are made offenses when they occur in an article which