On the issue of misbranding of mineral water as to curative or therapeutic effects of commercial concentrated mineral water, expert testimony is admissible. The opinion of one learned in the science of chemistry or regularly admitted to the practice of medicine, having knowledge of the drug elements and their efficacy or lack thereof as curative agents, separately or in combination, is competent, regardless of whether witness has had actual experience or observation of the effect of the use of such drugs in the exact form in question. Goodwin et al. v. United States__
In a proceeding to forfeit drugs as being misbranded under the act,
section 8, as amended by act August 23, 1912, testimony by a
medical expert that in the opinion of doctors generally such drugs
would not have any curative effect, is admissible, over objection
that it was opinion evidence. Eleven Gross Packages, More or
Less, of Dr. Williams' Pink Pills v. United States_____
In a prosecution for misbranding a medicinal preparation under the
act, section 8, as amended by act August 23, 1912, testimony of
physicians that there was a general agreement as to the thera-
peutic effect of such a preparation, and what that general medical
opinion was, was properly admitted to show the falsity of the
statements on the labels, etc., representing the article to be effec-
tive for the treatment of disease. The testimony of the physi-
cians as to their individual opinions of the efficacy of the prepa-
ration would have been properly rejected, if there had been dis-
closed a difference of medical opinion on the subject, as a convic-
tion could not properly rest upon an allegation of fraudulent state-
ments when based upon mere matters of opinion on such debatable
subjects; but a mere concurrence of such witnesses' opinions with
the uniform course of medical opinion was not open to that objec-
tion. Dr. J. H. McLean Medicine Co. v. United States__.
On a libel to condemn drug products alleging that the label, etc.,
stating the curative or therapeutic effect of the article with respect
to certain ailments were false and fraudulent, falsity of the state-
ment being one of the elements required to be proved, expert evi-
dence was admissible on that issue. On such issue the opinions
of persons whose occupations, training, and experience are such as
to make them acquainted with the qualities of the ingredients of
the article in question is admissible; and it is permissible to prove
that those comprising such a class generally regard the ingredi-
ents of the article in question as ineffective, singly or in combina-
tion, in the treatment of ailments for which the article is claimed
to be effective, and would in practice refrain from using it in such
treatment because of the futility of doing so. Hall v. United
States ----
In an action for forfeiture of a quantity of a certain medicinal prep-
aration as misbranded in that the label, etc., contained false and
fraudulent statements regarding the curative or therapeutic effect
of the article with respect to various diseases, where physicians,
qualified as experts, on being asked to give their individual opin-
ions as to the efficacy of the preparation and its effect as a cura-
tive upon certain of the diseases, testified that in their opinion
it would not be efficacious, held that the personal opinion of the
witnesses would not, standing alone, be sufficient evidence upon
which the jury could reach a conclusion that the statements in the
labels, etc., were false, since it is recognized that there is often-
times a difference of opinion even among medical men, and if the
individual opinion of one weighed against the individual opinion
of another equally skilled, it could not be said that there was such
a balance of probabilities as to permit the jury to determine the
issue one way or the other, but when the individual opinion of the
witnesses is in accord with the generally recognized opinion of
medical men skilled in the profession, such opinions may, as ali-
quot parts of the crystallized opinion of medical men, be consid-
ered in connection with other evidence. United States v. Eleven
Packages of B. & M. External Remedy_
In a libel proceeding for condemnation of pills for misbranding
under the act, section 8, as amended by act August 23, 1912, a phy-
sician may testify as to the consensus of medical opinion relative
to the therapeutic properties of the ingredients of the pills. United
States v. Chichester Chemical Co---
The opinion of doctors testifying as experts is evidence of a fact,
just as the testimony of an ordinary witness to a fact within his
observation is evidence of a fact, and is binding on the jury only
insofar as it produces a conviction of the truth or falsity of a cer-
tain fact. United States v. American Laboratories_.
In a prosecution for adulteration and misbranding of a coloring
powder for use in food preparations, testimony of a qualified
chemist, who had made a quantitative analysis, that the propor-
tions of the ingredients found by him in the powder would have
the effect of lowering and lessening the quality and strength of
the powder as a coloring substance, held competent. W. B. Wood
Manufacturing Co. v. United States__.
A statement on the label of an article of food that it is an excellent substitute for eggs, and is to be used for baking and cooking purposes, 1 teaspoonful in place of each egg called for in a recipe, is not a statement of opinion, but one of fact, and is a representation to ordinary purchasers that 1 teaspoonful of the article is substantially equivalent to 1 egg for all the purposes, including nutrition, involved in the use of egg in baking and cooking, and in a prosecution for misbranding evidence of their comparative value is competent. Newton Tea & Spice Co. v. United States_____ 1089 While expert opinion evidence should be received with caution, it is within the province of the jury to determine its weight; and a conviction, sustained by opinion evidence not inherently impossible nor improbable, together with other evidence, will not be disturbed. Glaser, Kohn & Co. v. United States---The testimony of expert witnesses as to conclusions with relation to what they believe to be fact is not conclusive upon the jury. While their testimony should be considered by the jury, their conclusions must be based upon facts disclosed by the evidence which would justify the conclusions, and the jury should take into consideration all the facts and determine whether the conclusions are justified by the facts upon which they are predicated. United States v. C. M. C. Stewart Sulphur Co---
The statements of physicians testifying as experts are merely statements of their opinion, and those opinions are to be considered by the jury as evidence from which they may draw inferences of fact as the testimony warrants. United States v. 11 Gross Packages of Dr. Williams' Pink Pills.
In a prosecution of an information or libel charging drugs misbranded by false and fraudulent statements regarding their curative or therapeutic effects, the jury is not bound to accept as conclusive the opinion of an expert witness as to any fact of the case. United States v. Matusow--.
United States v. 539 Boxes and 322 Cartons of Wm. Radam's
Microbe Killer____
United States v. C. M. C. Stewart Sulphur Co--
United States v. 11 Gross Packages of Dr. Williams' Pink Pills_-
United States v. Athlophoros Co‒‒‒‒‒
United States v. Dr. J. H. McLean Medicine Co_.
United States v. 141 Bottles of Drug Products.
United States v. Gandara___.
United States v. 36 Bottles of Crab Orchard Mineral Water____
United States v. 22 Bottles of Crab Orchard Concentrated Min-
eral Water-
United States v. Eleven Parkages of B. & M. External Remedy__
United States v. 17 Bottles, Etc., of An Article of Drugs Labeled
in Part "B. & M.".
The jury is not necessarily bound by the testimony of expert witnesses, but such testimony should be considered in connection with all other evidence in the case. United States v. Athlophoros Co__ Opinion evidence is not binding upon the jury, but is to be given consideration in connection with other evidence in the case. United States v. 36 Bottles of Crab Orchard Mineral Water_____ United States v. 22 Bottles of Crab Orchard Concentrated Mineral Water
In a prosecution for misbranding drugs, under the act, section 8, as amended by act of August 23, 1912, testimony of medical experts, admissible to aid the court in determining the curative or therapeutic effect of the article, is not conclusive though uncontradicted. United States v. Dr. J. H. McLean Medicine Co--In a prosecution charging adulteration and misbranding of coloring materials for use in food preparations, held that the testimony of persons learned in the science of chemistry as to their expert opinions relative to matters within the scope and range of that science, was competent, but such opinions were not to be considered by the jury as binding, but as advisory only. United States v. W. B. Wood Manufacturing Co‒‒‒‒ In a proceeding by libel for condemnation of an article of food as adulterated and misbranded, held that the testimony of experts having knowledge of the science of chemistry as to their opinions is competent for consideration by the jury, though such testimony is not binding upon them, but merely to assist them in reaching their conclusions. United States v. 42 cases of Crème de Menthe 1191 See Burden of Proof; Criminal Cases; Curative and Therapeutic Effects of Drugs; Depositions and Interrogatories; Entrapment: False and Fraudulent; Filthy; Decomposed, and Putrid; Judicial Notice; Knowledge and Intent; ; Reasonable Doubt; Samples; Search Warrant; Standards.
The examination provided for by section 4 of the act held to be a
necessary condition precedent to proceedings under the act,
instituted at the instance of the Department of Agriculture,
whether such proceedings are in personam or for a forfeiture of
goods under section 10. United States v. 74 Cases of Grape Juice_
Affirmed, United States v. 74 (or 20) Cases of Grape Juice_‒‒‒
United States v. Certain Cans of Syrup.
United States v. Mohn Wine Co-
A preliminary examination by the Department of Agriculture, as
provided for by section 4 or the act, held not to be a necessary
condition precedent to the filing of a libel in rem for condemnation
under section 10. United States v. 50 Barrels of Whiskey-----
United States v. 65 Casks of Liquid Extracts_--
Section 4 of the act, providing for preliminary examination by the
Department of Agriculture for alleged adulteration or misbranding
of food or drug products, does not apply to a libel for forfeiture
under section 10 which provides for a hearing in court in accord-
ance with proceedings in admiralty; so that a preliminary
examination before the Department of Agriculture is not a neces-
sary condition precedent to the maintenance of a libel for condem-
nation of such product. United States v. Nine Barrels of Olives__
The findings and conclusions of officers of the Department of Agri-
culture with respect to adulteration or misbranding of foods or
drugs, under section 4 of the act, are merely tentative and have no
binding or obligatory force in themselves. They are merely the
the assertion of an opinion that the law has been violated and that
proceedings in the name of the United States as directed by the
statute should be instituted for the violation. National Remedy
Co. v. Hyde, Secretary of Agriculture, et al
See Analysis; Investigation; Notice and Opportunity to be Heard;
Samples; Tests.
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EXECUTIVE OFFICERS:
Congress may delegate to executive officers matters of detail looking
to the promulgation of regulations for carrying its statutes into
effect, such as providing for the proceedings thereunder, the fixing
of standards, brands, and labels, or the ascertainment of necessary
facts upon which the law may operate. United States v. Anti-
kamnia Chemical Co----
The authority vested in the Secretaries of Treasury and Agriculture
by the act, section 11, to determine whether drugs offered to be im-
ported into the United States are adulterated or misbranded, calls
for a finding of facts and exercise of judgment on facts found, and
the exercise of such authority will not be reviewed by the courts
unless capricious or arbitrary. Ambruster v. Mellon, Secretary of
Treasury, et al__
See Injunction; Mandamus; Regulations; Standards.
EXPERT OPINION.
See Evidence.
EXPORT ARTICLES:
An article intended for export if "prepared or packed according to the specifications or directions of a foreign purchaser, etc.," is not subject to seizure even though adulterated when judged by the standard for such article in the United States. Philadelphia Pickling Co. v. United States__
A shipment of dried figs prepared for a foreign purchaser, who processed like fruit to make coffee flavoring, held not subject to seizure under the act, although the shipment contained deleterious matter and the law of the purchaser's country prohibited use of impure materials in coffee admixtures, since a certificate introduced showing such law, could not have the effect to put the shipper out of the class excepted in section 2 of the act, for the purchaser, on receiving the figs, might free them from all deleterious matter before converting them into coffee flavoring, or he might divert them to other proper uses, and, in absence of evidence to the contrary, it would be assumed that he would comply with the law of his country. United States v. Catz American Co. Inc____ 1282 See Prepared and Packed.
See Hudson's Extract; Lemon Extract or Flavor; Vanilla Extract or
Flavor.
The phrase "false and fraudulent" in the act, section 8, which, as
amended by act August 23, 1912, provides that drugs shall be
deemed to be misbranded if the package or label shall bear
or contain any statement, design, or device regarding the cura-
tive or therapeutic effect of such article, which is false and fraudu-
lent, must be taken with its accepted legal meaning, and thus it
must be found that the statement contained in the package
was put there to accompany the goods with actual intent to
deceive, an intent which may be derived from the facts and cir-
cumstances, but which must be established. Seven Cases of Eck-
man's Alterative v. United States__.
United States v. Athlophoros Co--
United States v. Dr. J. H. McLean Medicine Co....
Dr. J. H. McLean Medicine Co. v. United States_.
United States v. Gingerole Co---
Drugs Labeled in part "Lee's Save The Baby".
Chichester Chemical Co. et al. v. United States__
United States v. 9 packages of Crisp's Tung-Tone et al.......
United States v. 17 Bottles, Etc., of An Article of Drugs Labeled
in Part "B. & M.”.
United States v. Eleven Packages of B. & M. External Remedy
United States v. 23 Dozen Bottles, Etc., of an Article of
FALSE AND FRAUDULENT-Continued.
That false and fraudulent representations may be made with respect to the curative effect of substances is obvious. It is said that the owner has the right to give his views regarding the effect of his drugs. But state of mind is itself a fact and may be a material fact, and false and fraudulent representations may be made about it; and persons who make or deal in substances, or compositions, alleged to be curative, are in a position to have superior knowledge and may be held to good faith in their statements. Seven Cases of Eckman's Alterative v. United
United States v. Athlophoros Co‒‒‒
United States v. Dr. J. H. McLean Medicine Co----
United States v. A. Skarzynski & Co-‒‒‒
United States v. 141 Bottles of Drug Products_
United States v. 17 Bottles, Etc., of An Article of Drugs Labeled
in Part "B. & M.”-
The expression "false and fraudulent", in the act, section 8, as
amended by act August 23, 1912, has a well-defined meaning in
the criminal law. The word "false" means untruthful in its ordi-
nary sense. The word "fraudulent", as used in the statute and
in an allegation in an information charging defendant with
misbranding a medicinal preparation by statements regarding its
curative or therapeutic effects which were false and fraudulent,
is given its legal meaning, and that is that the defendant delib-
erately planned, and it was its purpose and intent, to deceive the
public; in other words, that it made such false statements regard-
ing the curative or therapeutic effect of its preparation, well
knowing that the preparation contained nothing in its ingredients
which could operate beneficially as a remedy for the various
ailments it pretended to benefit, and this for the sole purpose
of deceiving the public. United States v. Athlophoros Co‒‒‒‒‒
In order to come within 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, the statement must be found to be both false and
fraudulent. United States v. Matusow__.
United States v. C. M. C. Stewart Sulphur Co---
United States v. Eleven Gross Packages of Dr. Williams' Pink
Pills--
Eleven Gross Packages of Dr. Williams' Pink Pills v. United
States
United States v. 60 Dozen Bottles of "A Texas Wonder”.
United States v. Kar-Ru Chemical Co.-
United States v. One Gross Package of "A Texas Wonder".
United States v. 36 Bottles of Crab Orchard Mineral Water_-_.
United States v. 22 Bottles of Crab Orchard Concentrated Min-
eral Water____
United States v. Eleven Packages of B. & M. External Remedy
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