186 F. 387 | U.S. Circuit Court for the District of Eastern New York | 1911
The defendant has demurred to both counts of a criminal information charging it with misbranding a drug in violation of Act June 30, 1906, c. 3915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1188), known as tire “Food and Drugs Act.” Section 2 of the act prohibits “the introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia of any article of food or drugs which is adulterated or misbranded within the meaning of this act,” and provides that any person, who shall ship or deliver for shipment, as therein described, any such article so adulterated or misbranded, shall be guilty of a misdemeanor. The offense of misbranding is defined in section 8 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 packages 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.
“That for the purposes of this act an article shall also be deemed to be misbranded:
“In the case of drugs:
“First, if it be an imitation of or offered for sale under the name of another article.
“Second, if the contents of the package as originally put up shall have been removed, in whole or in part, and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein.”
The -remainder of the section deals in similar detail with the case of foods.
The first count of the information alleges that the defendant shipped from the state of New York to the District of Columbia a certain article and drug, which was a mixture of substances for external use, upon which there was a label reading:
“A. D. S. Peroxide Cream. Cleansing, Soothing and Healing to the Skin, Antiseptic, Cooling and Refreshing.”
Elsewhere upon the carton, and upon the package or jar inclosed therein, were immaterial variations of this statement of the properties and purposes of the preparation. It is charged that this was a mis-branding within the meaning of the act, “in that the label then and there bore statements, designs, and devices regarding the said article and the ingredients and the substances contained therein which were false and misleading, in that the words ‘Peroxide Cream’ represent that peroxide is an important ingredient, and tend to lead the purchaser to believe that peroxide is an important ingredient of the article, whereas, in truth and in fact, the article then and there contained only an .indication of a very small quantity of same peroxide which said quantity is insignificant.”
The terms “brand” and “label” as used in this connection are perfectly clear and definite. They indicate a statement, design, or device affixed to an article. Confusion can only arise from the failure to employ uniform phraseology throughout fhe different paragraphs of section 8 to express the same idea. In the second numbered paragraph relating to food the phraseology is “if the package fail to bear a statément on the label.” In the fourth numbered paragraph relating to food the phraseology is, “if the package containing it or its label shall bear any statement.” Doubtless these variations in expression were employed in view of the fact that such articles are commonly sold either in bottles, jars, or cans, in which case the statement, design, or
“If in package form, and the contents are stated in terms of weight or measure they are not plainly and correctly stated on the outside of the package.”
The plain sense of the language in question is that it embraces any statement, design, or device regarding the article, which appears on the outside of the package in which ilie drug is offered for sale, whether such statement be printed upon or otherwise affixed to the package itself or impressed upon a separate label which is then affixed to the package. An advertising circular inclosed with an article inside the carton in which it is offered for sale neither induces the sale nor deceives the prospective purchaser, and is not within the purview of the act.'
The demurrer is sustained.