In a prosecution charging misbranding of a drug product in that
the labels falsely and fraudulently represented its curative or
therapeutic effects, held, that the jury should determine the mean-
ing of the representations complained of, taking the words in
their ordinary sense and as understood by the general public
or people in the ordinary walks of life, to whom the labels were
addressed, and not by doctors, druggists, or chemists. United
States v. A. Skarzynski & Co‒‒‒‒‒
In a proceeding by libel for condemnation of drugs for misbranding
under the act, section 8, as amended, held that the jury, in deter-
mining the meaning and import of the representations made on the
label, etc., of the article, should regard such representations as
made to the public, and read and interpret the language used in its
ordinary and common acceptation. United States v. 17 Bottles,
Etc., of An Article of Drugs Labeled in Part “B. & M.”.
In a libel proceeding to condemn packages of pills on the ground
that the label, etc., stating their curative or therapeutic effects
with respect to various specified diseases and ailments were false
and fraudulent, held that the jury, in determining whether the
statements made on the label, etc., and set out in the libel, were
false and fraudulent, should give to the language used in the
statements its ordinary and common meaning and consider it to
have the meaning and effect it would convey to an ordinarily in-
telligent person purchasing the pills; and should determine whether
or not it was the intention of the language, so interpreted, to
convey the impression that the pills would cure or act as a remedy
for the diseases and ailments named even though it did not di-
rectly say so. United States v. 11 Gross Packages of Dr. Williams'
Pink Pills__.
Affirmed, Eleven Gross Packages of Dr. Williams' Pink Pills v.
United States__
On trial of an information charging misbranding of a medicinal
preparation in that the packages and labels falsely and fraudu-
lently stated the curative or therapeutic effects of the article with
respect to various diseases held, that the jury should consider
all of the language used in the labels, etc., interpreting it as
would an ordinarily and reasonably intelligent person, and from
it determine whether it was the intention of the defendant to
lead such persons who read it to believe that the use of the prepa-
ration in the manner and doses prescribed would be efficacious
in the treatment of the diseases named, although such language
did not in direct terms so state. United States v. Dr. J. H. McLean
Medicine Co------
In a proceeding to condemn concentrated mineral water for mis-
branding in that the labels describing it as "The world's greatest
remedy for the following ailments in their most chronic forms",
followed by a list of ailments and diseases, were false and frau-
dulent, held, that the jury, in construing the language used, should
interpret it as would a person of ordinary intelligence purchasing
the article, and give to the words the meaning they would con-
vey to such person. United States v. 36 Bottles of Crab Orchard
Mineral Water__.
In a proceeding to condemn so-called concentrated mineral water
for misbranding in that statements regarding its curative or thera-
peutic effect, appearing on the label, were false and fraudulent,
held, that the jury, in determining the question of misbranding,
should take the words of the statements on the label in their
ordinary sense, as an ordinary purchaser of reasonable intelli-
gence purchasing the article would take them. United States v.
22 Bottles of Crab Orchard Concentrated Mineral Water_.
In a proceeding to condemn a drug for misbranding in that the
package and label contained false and fraudulent statements
regarding its curative or therapeutic effect with respect to various
diseases and ailments, held, that the jury, in determining whether
the article was misbranded, should give to the language of the
statements complained of the meaning ordinarily conveyed by it
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to those to whom it is addressed, i. e., to the general public and
prospective purchasers of the article; that the question for the
jury with reference to each such statement is, what would an
ordinarily intelligent person suffering from any of such diseases
or ailments named understand from such statement as to the cura-
tive or alleviating effects of the article on such disease; and that
the jury should understand such diseases in accordance with the
generally accepted meaning and as understood by the layman,
and not apply the technical, medical definitions of the terms given
to them by those learned in medicine. United States v. 11 Pack-
ages of B. and M. External Remedy---
On trial of an information charging misbranding of a drug in that
the label contained false and fraudulent statements regarding its
curative or therapeutic effects, held, that the jury in determining
whether the article is misbranded should give to the words on the
label and set out in the information such meaning and purpose as
they generally signify and the thoughts which they are generally
intended to convey. United States v. John Dobry Manufacturing
Co
The mere fact that a label has been used on an article of food for
a number of years and before the passage of the Food and Drugs
Act does not legalize the use of such label if it is misleading.
United States v. F. B. Washburn & Co----
The fact that a label of a food product has been adopted and copy-
righted and is entitled to full protection as such, is no defense in
a proceeding under the act to condemn the product for misbrand-
ing, if the label is within the meaning and in violation of the act.
United States v. 90 Boxes of Macaroni__
In case of a clear violation of the statute, there is no occasion for
granting a respondent an opportunity to correct his label, but in a
case where the violation is doubtful and where the respondent has
acted in good faith in being willing to change his label to comply
with the law, such an opportunity should be granted. United
States v. Schurman et al_---
See Circulars, Pamphlets, Booklets, Etc.; Designs and Devices; Mis-
branding; Packages.
A drug labeled "La Noblenza" held misbranded in that the label con-
tained false and fraudulent statements regarding its curative and
therapeutic effects. United States v. Gandara__.
A drug preparation labeled "Lee's Save The Baby", held not mis-
branded within the meaning of the act, section 8, as amended by
the act of August 23, 1912, declaring drugs misbranded if the
package or label shall bear or contain any statement regarding
curative or therapeutic effect which is false or fraudulent.
United States v. 23 Dozen Bottles, Etc., of An Article of Drugs
Labeled in Part “Lee's Save The Baby”.
LEGISLATIVE HISTORY OF THE ACT:
The legislative history of the act considered by the court in ascer-
taining the intent of Congress in the statute. United States v.
Johnson -
United States v. Lexington Mill & Elevator Co-
Seven Cases of Eckman's Alterative v. United States.
United States v. 17 Bottles, Etc., of An Article of Drugs Labeled
in Part "B. & M.".
See Congress, Journals of; Congressional Committee Reports; Con-
struction and Interpretation; Debates in Congress.
LEMON EXTRACT OR FLAVOR:
An article labeled "Extract of Lemon Peel" held misbranded because it was not a true extract of lemon peel, but a dilute extract containing no oil of lemon peel. United States v. S. Gumpert et al___ Articles labeled "Pure Lemon Flavor" and "Flavor of Lemon" held adulterated and misbranded because not of the standard of strength recognized for lemon extract. The terms "flavor” and "extract" held to be synonymous. United States v. Edward Westen Tea & Spice Co‒‒‒‒
Averment in an information that defendant intended that the label
"Flavor of Lemon and Citral-A Pure Flavor" should be under-
stood by the public and purchasers to mean a pure flavor or extract
of lemon is futile, because the accepted and usual signification of
the label is that the article is not pure flavor or extract of lemon
but that it is a flavor of lemon and citral. Nave-McCord Mercan-
tile Co. v. United States__.
An article labeled "Extract Terpeneless Lemon" held to be adulter-
ated and misbranded because it contained only 0.05 percent of
citral derived from the oil of lemon, whereas, as recognized by the
trade generally and by the standard of purity established by the
Secretary of Agriculture under authority of act March 3, 1903, such
extract should contain at least 0.2 percent by weight of such citral.
United States v. Frank et al-----.
An article labeled "Special Lemon. Lemon, Terpene and Citral”,
held misbranded in that the label was false and misleading, and in
that the article was labeled so as to deceive and mislead, and in
that the article was an imitation of lemon oil and was offered for
sale under the distinctive name of another article, because
the statement on the label, "Special Lemon", would indicate that
the article was a product derived from lemon, whereas, in fact, it
was a product containing alcohol and citral derived from lemon
grass, and was an imitation of lemon oil. United States v. Weeks-
Reversed, Weeks v. United States___
Judgment C. C. A. affirmed, Weeks v. United States
An article labeled "Special Lemon. Lemon, Terpene and Citral", but
not derived from lemon, but a mixture containing alcohol and
citral derived from lemon grass, and an imitation of lemon oil, was
not misbranded. Weeks v. United States----
Reversing United States v. Weeks----
Affirmed, Weeks v. United States__
An article composed of alcohol and citral derived from lemon grass,
and an imitation of lemon oil, and labeled "Special Lemon", and
represented by the seller's agent to the buyer as pure lemon oil,
was misbranded as offered for sale under the distinctive name of
another article, though no label describing it as such other article
is affixed to it. Weeks v. United States__
Affirmed, Weeks v. United States___
See Orange Extract or Flavoring; Vanilla Extract or Flavor.
Section 10 of the act, providing that proceedings in cases to forfeit
adulterated food shall conform as near as may be to proceedings
in admiralty, does not render such proceedings within the admiralty
or maritime jurisdiction of Federal courts, the jurisdiction in such
proceedings being conferred by the act itself. United States v. Two
Barrels of Desiccated Eggs__--
Under R. S., sec. 563, subdivision 8, giving United States district
courts jurisdiction of all causes of admiralty and maritime juris-
diction, and of all seizures on land and on water not within the
admiralty and maritime jurisdiction, the court, in seizures under
section 10 of the Food and Drugs Act, and on land, proceeds, not
as a court of admiralty, but as a court of common law jurisdic-
tion on a trial by jury. United States v. George Spraul & Co-----
The provision of the act, section 10, that proceedings thereunder
for seizure of goods for confiscation shall be by libel and shall con-
form, as near as may be, to proceedings in admiralty, relates only
to procedure and not to jurisdiction, and does not include appellate
proceedings; the action of the district court on the libel can be
reviewed only as at common law, that is, by writ of error and not by
appeal. 443 Cans of Frozen Egg Product v. United States--.
United States v. Hudson Manufacturing Co. et al.
Goode v. United States___
Goodwin et al. v. United States___
By the provision of the act, section 10, that proceedings in libel cases thereunder shall conform, as near as may be, to proceedings in admiralty, the libels in such proceedings under said section are subject to General Admiralty Rule No. 23 providing that "The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libelant relies in support of his suit, so that the defendant may be enabled to answer directly and separately the several matters contained in each article." United States v. 154 Cases of Tomatoes---.
Section 10 of the act, providing that seizure proceedings shall conform as near as may be to the proceedings in admiralty, does not adopt admiralty rule 22, that libels on seizures for breach of the revenue, navigation, or other laws of the United States shall state the place of seizure and the district within which the property is brought and where it then is, rather than rule 23, providing that the libel, if in rem, shall state that the property is within the district. Id.
A proceeding under section 10 of the act is a civil action as distinguished from a criminal action and is called a suit in rem; that is to say, it is a suit against property, and it does not become a suit against any person at any stage of the case. United States v. 300 Cases of Mapleine_.
United States v. 41⁄2 Cases of Creme de MentheLibels filed, under section 10 of the act, for seizure, condemnation, and forfeiture of adulterated or misbranded articles of food or drugs are not governed by the strict rules of the common law in regard to indictments and criminal informations. United States v. Two Barrels of Desiccated Eggs---
It is not essential to the condemnation and forfeiture of adulterated or misbranded drugs, under section 10 of the act, that the owner shall have been guilty of shipping or selling them in violation of section 2. United States v. Five Boxes of Asafoetida---United States v. Nine Boxes of Asafoetida__.
The purpose of the act is to conserve the public health by preventing interstate commerce in poisonous or deleterious food and drugs, and, in order that this may be effected, it is not only made a misdemeanor under the act, but the article of food or drug adulterated or misbranded is declared to be forfeited as an offending thing which threatens the health of the citizens, and therefore subject to seizure without regard to the acts or knowledge of the owners or claimants. Id.
Notice and opportunity to be heard, provided for by section 4 of
the act, held necessary conditions precedent to the institution of
proceedings in rem for forfeiture of goods, under section 10, where
such proceedings are instituted at the instance of the Secretary of
Agriculture. United States v. 74 Cases of Grape Juice_.
Affirmed, United States v. 74 Cases (or 20) of Grape Juice....
United States v. Certain Cans of Syrup__
A preliminary examination and notice or opportunity to be heard,
by the Department of Agriculture as to the adulteration or mis-
branding of a food or drug product, as provided for by section
4 of the act, are not necessary conditions precedent to the filing
of a libel in rem for the condemnation of such product under
section 10. United States v. 50 Barrels of Whisky_
United States v. 65 Casks of Liquid Extracts.
United States v. Nine Barrels of Olives _
It was no defense to a proceeding for condemnation of an alleged adulterated and misbranded article of food, under section 10 of the act, that the Secretary of Agriculture had failed to give claimant the notice and to afford it an opportunity to be heard before the Department prior to the commencement of such proceeding, as provided in section 4. The notice that is required to be given of the seizure of adulterated or misbranded food and of the proceedings for its condemnation, affords ample opportunity to the owner to appear and defend; and if upon a final hearing the food is condemned and declared forfeited, he is not deprived of any property without due process of law. United States v. 75 Barrels of Vinegar
The investigation provided for in section 4 of the act has reference to cases in which there is to be a prosecution under section 5 for the enforcement of penalties prescribed by section 2, and not to cases where forfeiture proceedings are contemplated for condemnation under section 10, so that it was no objection to a forfeiture proceeding that no prior proceedings had been instituted by the Secretary of Agriculture. United States v. 100 Barrels of Vinegar_ Seizure of drugs misbranded in violation of the act, is jurisdictional, and must precede filing of the libel for forfeiture under section 10, and be alleged in the libel, in view of sections 3, 4, and 5, and of the Judiciary Act. United States v. 8 Packages and Casks of Drugs---
Section 4 of the act authorizes the Secretary of Agriculture to make
investigations and to certify violations of the act to the United
States district attorney. Section 5 requires such officers on being
informed that the act has been violated to cause appropriate pro-
ceedings to be commenced in the proper court. Section 10 pro-
vides that proceedings to forfeit adulterated or misbranded food
shall conform as near as may be to the proceedings in admiralty.
Held, that neither the marshal nor any other person was author-
ized to seize food claimed to be subject to forfeiture prior to the
commencement of proceedings for a forfeiture in court, and that
proceedings for such forfeiture did not depend for jurisdiction
on prior seizure. United States v. Two Barrels of Desiccated Eggs_
The act, section 10, providing for proceedings against adulterated
and misbranded food transported in interstate commerce for sale
or in original unbroken packages, etc., does not declare the goods
ipso facto forfeited by an infraction of the act, nor expressly
authorize an executive seizure before proceedings for forfeiture are
instituted, but on the contrary requires the district attorney on re-
ceiving a certificate of the facts from the Secretary of Agriculture
to cause appropriate proceedings to be commenced and prosecuted
without delay, for the enforcement of the penalties of the act;
hence prior executive seizure was not required to sustain forfeiture
proceedings by the provision that the proceedings shall conform as
near as may be to the proceedings in admiralty. United States v.
George Spraut & Co____
Section 10 of the act, providing that an article if adulterated or mis-
branded shall be proceeded against in any district court of the
United States within the district where the same is found, and
seized for confiscation by a process of libel for condemnation,
indicates that the proceeding shall be commenced in the district
court before the property is seized. Id.
It is not ground for dismissal of a libel to forfeit adulterated food
under section 10 of the act that the property was not seized be-
fore the libel was filed. United States v. 100 Barrels of Vinegar__
It was no objection to a libel in a proceeding under section 10 of
the act that it appeared therein that at the time of the filing
thereof no seizure of the property therein described had been made
by libellant, and that therefore the court had no jurisdiction over
the property. United States v. Two Barrels of Desiccated Eggs__
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