in part, and then refilling, is prohibited. But the refilling must be for the purpose of trade; a refilling for one's own use is not prohibited. Yet no penalty is incurred in the case of a refilled bottle unless it is put in interstate commerce, for merely to refill a bottle, even though for local trade, is no offense against this statute. If such an act is to be prohibited, it must be by a State law. However, if the bottle be refilled in the District of Columbia or in a Territory, then the statute is violated, even though intended or used in local trade. A bottle refilled and shipped out of the State may be treated as an original package, even though it originally was one of several bottles placed in a case and then removed, refilled and shipped alone. If the labels be removed entirely, then it may be refilled.

§ 405. False Statements Concerning Curative or Remedial Effects of Proprietary Medicines.

It has been the practice of the Department of Agriculture to condemn all proprietary medicines bearing false statements concerning their curative powers, and many judg ments have been entered in District Courts condemning such medicines. As a rule these judgments have been entered upon pleas of guilty. But the Supreme Court of the United States has decided recently1 that the statute did not cover false representations concerning the curative or remedial effect of such a medicine which does not import any statement concerning identity. The court said that the fact that, under section four, the determination whether an article is misbranded is left to the Bureau of Chemistry of the Department of Agriculture did not authorize the Board to determine the medical effect of a medicine, but only to determine the question of its ingredients. This decision necessarily overturns all the decisions of the Department of Agriculture

1 May 29, 1911.

2 United States v. Johnson, 31 Supt. Ct. 627, § 405.

It is not necessary to give the reasoning by which the court ar

2

rived at this conclusion; it is sufficient to give the conclusion. The court affirmed United States V. Johnson, 177 Fed. 313, which had quashed the indictment.

and of lower courts, holding that false representations concerning their curative powers placed upon proprietary drugs or medicines were within the condemnation of the statute; but we have deemed it best to give the general result of these decisions in the next two sections, as well as the several instances in the next article on Drug and Medicine Decisions, calling attention in a note to each particular decision which, in the author's opinion, contravenes the Supreme Court decision. An earlier decision of the Circuit Court for the Eastern District of New York anticipated this Supreme Court decision about six weeks, the court saying on this point: "The purpose was to protect the public against deception in the purchase of drugs and food by punishing adulteration and misbranding as therein defined. If the label on a drug is not false or misleading in any of the particulars enjoined or prohibited by section eight, no offense is committed under that section. By no possible construction can the terms of the Act be extended to such a boundless field of inquiry as that involved in the reality of the remedial effects claimed for a drug. Such an inquiry could be pursued only through the opinions of contending experts and the experience of those who had used the article, and a conclusive determination could seldom, if ever, be reached. At all events, it is sufficient to say that the Act discloses no purpose to hold manufacturers and vendors of preparations like the one in issue to criminal responsibility for misstatement as to their curative or remedial effects.''

3 It was rendered April 11, 1911. 4 United States V. American Druggists' Syndicate, 186 Fed. 387, citing United States v. Johnson, 177 Fed. 313, which was afterwards affirmed by the Supreme Court.

"The scope of the general terms of the definition of misbranding in Section 8, 'any statement, design or device regarding such article or its ingredients or substances contained therein which shall be false or mis

leading in any particular,' must be ascertained by construing them in connection with the subject-matter and other provisions of the Act. It includes in the first place, not only statements concerning the ingredients or substances contained in the article, but certain other statements 'regarding such arti cles.' What such statements are appears in the case of drugs in the paragraph immediately following

§ 406. False Representations Concerning Curative Qualities -Departmental Decisions.

The Department of Agriculture has held that false representations made concerning the alleged curative properties of headache cures is a mislabeling of the article when put upon

the label. These decisions can not longer be regarded in the enforcement of the statute or in construing it, but it is deemed best to here give the rules followed by that Department and by some of the District Courts. On the contrary, Judge Phillips, of the District Court of the United States for the Western Division of the Western District of Missouri, has held that the vendor of a certain product called a "Blood Purifier," "Cancerine Tablets," and also the following was not liable to the Pure Food and Drugs statute: "Guaranteed Under the Pure Food and Drugs Act, June 30, 1906. Serial No. 18131. Contains Not More than 20 Percent Alcohol. Doctor Johnson's Mild Combination Treatment for Cancer. Blood Purifier. This is an effective Tonic and Alterative. It enters the circulation at once, utterly destroying and removing impurities from the blood and entire system. Acts on the Bowels, Kidneys and Skin, eliminating poition, predicated on the commerce clause of the Federal Constitution, it must be conceded, presses the power of the general government close to the confines of limitations. 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 prescriptions 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 as to its ex-
pression, reasonable intendment;
otherwise, the courts, by mere con-
struction, may extend its operations
far beyond the legislative intent. If
it had been the mind of Congress to
make it an indictable offense for
such manufacturers or vendors by
their labels or brandings on bottles
and packages to mislead the buyer
as to the curative or healing prop-
erties of the drugs, as to the mere
matter of commendation,
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." Unit-
ed States v. Johnson, 177 Fed. 313.

apt

1 N. J. 709; N. J. 708; N. J. 707; N. J. 643; N. J. 633; N. J. 631; N. J. 630; N. J. 624; N. J. 233 N. J. 182; N J. 266; N. J. 366; N. J. 636; N. J. 908; N. J. 919;, N. J. 931; N. J. 941; N. J. 986.

sons from the system, and when taken in connection with the Mild Combination Treatment gives splendid results in the treatment of Cancer and other malignant diseases. I always advise that the Blood Purifier be continued some little time after the cancer has been killed and removed and the sore healed. Recommended in all conditions associated with impure blood, poor digestion and non-assimilation of food; also poor circulation, weak heart, etc. Directions: Shake well. Take one teaspoonful in a little cold water before each meal, three times a day. Do not take in too large doses. The best results can be obtained only where it is taken as directed. Forty-five drops usually make a teaspoonful.

Please count

and see that your teaspoon is not too large. Prepared for and distributed by Doctor Johnson Remedy Company, 1233 Grand Avenue, Kansas City, Mo.," were not such representations as fall within the Pure Food law, although false. Judge Phillips, in rendering his opinion, in answer to the claim that the label on the bottle as to the curative or remedial effect of its contents is a misbranding within the meaning of the statute, if, in fact, the prescription be ineffectual for the purpose indicated, said: "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 subject matter 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 indict