ALPHA AND BETA EUCAINE: Preparations Mixtures, ointments, powders, and solutions. CHLOROFORM: Preparations containing chloroform Chloranodyne, elixirs, emulsions, liniments, mixtures, spirits, and syrups. CANNABIS INDICA: Preparations of cannabis indica— Corn remedies, extracts, mixtures, pills, powders, tablets, and tinctures. CHLORAL HYDRATE (Chloral, U. S. Pharmacopoeia, 1890): Derivatives Chloral acetophenonoxim, chloral alcoholate, chloralamide, chloral orthoform, chloralose, dormiol, hypnal, and uraline. Preparations containing chloral hydrate or its derivatives— Chloral camphorate, elixirs, liniments, mixtures, ointments, suppositories, syrups, and tablets. ACETANILIDE (Antifebrine, Phenylacetamide) : Derivatives Acetphenetidine, citrophen, diacetanilide, lactophenin, methoxy-acetanilide, methylacetanilide, para-iodoacetanilide, and phenacetine. Preparations containing acetanilide or derivatives— Analgesics, antineuralgics, antirheumatics, cachets, capsules, cold remedies, elixirs, granular effervescing salts, headache powders, mixtures, pain remedies, pills, and tablets.” 1 § 257. Misbranding Defined-Statute. The Food and Drugs Act of 1906 provides: "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. "That for the purposes of this Act an article shall also be deemed to be misbranded: 1 Regulation 28. "In 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.' § 258. Unintentional Misbranding. The statute makes no distinction between an intentional and an unintentional misbranding. The object of the statute is to protect the public against imposition, and unintentional 1 Section 8. "To fully inform you as to what is meant by the law by 'misbranded,' I will state what the law requires, because the law uses the word 'misbranding' and then defines it, and the court and jury are bound by the definition of misbranding as laid down in the law. The term applies 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.' You will notice how broad the law is in its definition. If it is found from the evidence that in any particular this drug known as 'Harper's Cuforhedake' misstates or states falsely, then the law has been violated. It is not necessary that each one and all of them have been broken, but the law says 'in any particular.' So that if you find from the evidence that in any one point there has been a misbranding under the definition which I have read to you then you shall find a verdict of guilty." United States v. Harper. Notice of Judgment. 25. It is no defense on a charge of misbranding whisky, that the brand was placed upon the packages containing the 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. Fifty Barrels of Whisky, 165 Fed. 966. imposition is just as disastrous to it as an intentional one. Any one who unwittingly misbrands an article of food or drug is as liable to the penalty of the statute as if he did it designedly, though no doubt the court would bear in mind the fact that the accused had no intention to violate the statute when fixing the amount of the fine.1 § 259. Trade Marks. If a device or design be calculated to deceive or mislead the purchaser, then the manufacturer can not shield himself under the fact that such device or design is a registered trade mark. Trade marks that are deceptive as to the quality of goods will not be protected by the courts from infringement by others, nor can their use be insisted upon if they deceive the purchaser when placed upon an article of food. Section 8 of the Pure Food and Drugs Act is broad enough to prevent the use of a counterfeit of a "design" or "device" used by an honest manufacturer by another. When the counterfeit is so used by another on an article of food it is "misbranded," for it is a representation that the article is made by the person lawfully entitled to use such design or device.1 § 260. Package of Food Need Not Be Labeled. It is to be observed that the statute does not require an 1 See United States v. Fifty Barrels of Whisky, 165 Fed. 966. It is no defense for a druggist who is prosecuted for selling an adulterated drug in violation of Act of Congress, February 17, 1898 (30 Stat. 246), relating to the adulteration of foods and drugs in the District of Columbia, to show simply that he was at the time of sale, or of possession for sale, ignorant of the fact that the drug was adulterated, as he must know what he sells, or proposes to sell, article of food or a drug to be labeled or branded unless it contains certain specified substances or is otherwise of a character that renders it liable to be prohibited as adulterated without some statement of character or quality. But there is a limit to this statement. Thus in case of a drug or food, "if it be an imitation of or offered for sale under the distinctive name of another article," it is misbranded, and Regulation 22 provides as follows: "It is prohibited to sell or offer for sale a food or drug product bearing no label upon the package or no descriptive matter whatever connected with it, either by design, device or otherwise, if said product be an imitation of or offered for sale under the name of another article." But if a name or device be used when not necessary, it must be such as will not mislead the public; it must be a true name. In an instance of a drug which is recognized by the United States Pharmacopoeia or National Formulary, it must, if it bear any name, bear the name recognized in one or the other of these two authoritative publications. But the common English name of the drug may be used, rather than its technical name. In fact, a technical labeling may be such as to convey no information to the purchasing public concerning what it is. Thus it is permissible to use the term "Epsom Salts," the English name, instead of "Magnesium Sulphate," its technical equivalent. § 261. Failure to Brand Drug is to Misbrand it-Label Defined. It has been contended that a total failure to label or brand an article of food or a drug does not come within the statute providing a penalty for misbranding an article, but unsuccessfully. "In construing the terms of the statute," said Judge Dayton of the Northern District of West Virginia, "it is further insisted that a criminal offense can not be created by implication, but only by direct and positive terms. Granting at once these several propositions to be sound, the crucial question is, Does the Food and Drugs Act in express terms require drug products to be labeled? The argument of counsel, that Congress intended by this Act, not to correct the evil of failing to label, but of falsely and fraudulently labeling, and therefore drug products, even when put up in packages suitable for retailing, but which bear no labels, are not within the misbranding provisions of the Act, is ingenious but untenable, and wholly refuted by the express terms of the Act. The first section of it makes it 'unlawful for any person to manufacture within any Territory or the District of Columbia any article of food or drug which is adulterated or misbranded,' within the meaning of the Act. This is an unqualified prohibition against the manufacturing itself, so far as the Congress had the power to prohibit it; that is, in these parts of the country over which it had full control and jurisdiction. Section two provides that: "The introduction into any State or Territory or the District of Columbia, from any other State or Territory or the District of Columbia, or from any other foreign country, or shipment to any foreign country, of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited. "Here was the exercise to the fullest limit, by Congress, of its power, under the interstate commerce clause of the Constitution, to prevent adulterated and misbranded food and drug products from being placed upon the markets and sold as pure and genuine ones in the several States by expressly banishing them from lawful interstate commerce. In view of these express provisions, I can not hold with counsel that the evil intended by Congress to be met was simply the false and deceptive branding of drug products and not the sale thereof. The question, therefore, recurs to whether this Act in such direct terms requires the labeling of drug products offered for sale in the original package as to subject one failing to do so to a criminal prosecution or to confiscation of the property. The two sections from which I have quoted expressly provide for criminal prosecution and penalties for their violation. Sections 6, 7 and 8 of this Act define the terms 'drug' and 'food' as used; what articles of each shall |