ment, it is sufficient to say that this legislation, predicated of the commerce clause of the Federal Constitution, it must be conceded, presses the power of the general government close to the confines of limitation.

"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 prescriptive 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 to its expressed, reasonable intendment, otherwise the courts, by mere construction, may extend its operation far beyond the legislative intent. If it had been the mind of Congress to make it an indictable offense for such manufacturers and vendors, by their labels or brandings on bottles and packages, to mislead the buyers as to the curative or healing properties of the drugs, as to the mere matter of commendation, apt 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.

"The motion to quash is sustained.'"

A preparation was labeled "Gowan's Pneumonia Cure." It was charged that it was mislabeled in these particulars: "1. On a green circular inclosed in the carton and surrounding each of the bottles containing this drug, and thereby made a part of the labels descriptive of the said preparation, occurred this statement: 'It is entirely different from any other remedy, containing new principles never before

2 N. J. 266.

applied; consequently, it can not be substituted;' which said. statement was then and there false and misleading in this, that all the ingredients in said preparation were and are well and commonly known, and are constantly applied, singly or in combination, in the very manner directed by the instructions accompanying this preparation, and commonly used for the affections of the lungs, throat and other portions of the body similarly affected.

"2. On a green circular inclosed in the carton and surrounding each of the bottles containing this drug, and thereby made a part of the labels descriptive of said preparation, occurred this statement: 'Supplies an easily absorbed food for the lungs that quickly effects a permanent cure;' which statement was false and misleading in this, that there is no such thing as a food for the lungs separate and apart from a food that nourishes the whole body.

"3. On a white circular, also inclosed in the carton and surrounding each of the bottles containing the drug, and thereby made a part of the labels descriptive of said preparation, occurred this statement: 'It was endorsed and advertisement accepted by the American Medical Journal, as a valuable therapeutic agent;' which statement was false and misleading in this, that the said preparation was never adver tised in the American Medical Journal and was never endorsed by the said American Medical Journal.

"The information charged a further misbranding, in that the labels printed upon the cartons containing the bottles. filled with this preparation did not bear a statement of the quantity of opium contained in said preparation in a manner that could be easily read by the purchaser; but the statement of the amount of opium contained therein was printed in inconspicuous type in such an inconspicuous place that the proper notice of the poisonous contents of said preparation was not easily conveyed to the purchaser or person to whom it might be transferred."

The defendant pleaded guilty to the charge of mislabeling the product.3

3 N. J. 180.

§ 407. Puffing Remedies-"Cure-All"-Departmental

Decisions.

The Department of Agriculture and some of the lower courts have rendered the following decisions, but which are overturned by the decision of the Supreme Court. To represent a medicine as an "unexcelled" cure for a particular disease, when it is excelled by others, is a false statement and brings it within the bar of the statute. Thus, to say that certain tablets are "unexcelled in pneumonia," when they are excelled by other remedies in the treatment of pneumonia, is such a statement as the law does not permit.1 Where the following statement was false the tablets were condemned: "Break-Up-The-Grip Tablets, for la grippe, colds, headache, all forms of neuralgia, rheumatic and malarial pains. Price 25 cents. Manufactured by J. D. Langham, Holley, N. Y. The great laxative grippe cure; cures colds and grippe in one day. We claim these tablets to be the best in the world for la grippe, colds, headaches and all pains and fevers, where pleasant and speedy relief is desired. They leave no depressing results so common to most remedies now on the market which are recommended for these complaints. They will break up la grippe, colds, headache and neuralgia promptly and save you hours of pain. Dose: One or two tablets. Repeat in one, two or three hours, as may be required by the nature and severity of the affection for which they are taken. Children, 1⁄2 to one tablet, according to age. Will cure headache in ten minutes." On the end of the boxes containing this product there were stamped in small, indistinct type, by means of a rubber stamp, "Each tablet contains 2 grs. acetanilid." With said product there was packed a printed circular of directions, relating and referring to said product, which said circular bore, among other statements, the following, to wit: "Break-Up-The-Grip Tablets, a new, pleasant and safe remedy for the cure of la grippe and all pains. They will positively cure la grippe, neuralgia, headache (in all forms), rheumatic pains, malarial pains,

1 N. J. 708.

etc.; they contain no injurious ingredients, and we warrant them to give satisfaction or money will be refunded." So where the legend on a medicine sold was as follows: "The Mother's Friend. For the relief of the suffering incident to child birth. The Bradfield Regulator Company, Sole Proprietors, Atlanta, Ga. . This is one of the greatest

friends to those expecting to be confined. It is a remedy upon which confidence can be placed, one that will assist in a safe and quick delivery, and one that shortens the duration of labor." A circular packed with the product bore the following statements: "We offer you

an agent which will, if used as directed, invariably alleviate in a most magical way the pains, horrors and risks of labor, and often entirely do away with them. It not only shortens labor and lessens the pain attending it, but it greatly diminishes the danger to the lives of both mother and child. It leaves her much less liable to floodings and convulsions and other alarming symptoms which so frequently follow the birth," and statements that it was a "remedy upon which confidence could be placed, one that will assist in a safe and quick delivery, and one that shortens the duration of labor," and that it would "invariably alleviate in a most magical way the pains and risks of labor, and often entirely do away with them," were false, it was held that there had been a case of mislabeling.3 A like ruling has been had in case of an alleged headache cure, and of an alleged microbe killer. A product was labeled as follows:

"NYAL'S COMPOUND EXTRACT OF DAMIANA.

"Each fluid ounce represents, alcohol, fifty percent coca, fifteen gr., damiana seventy-six gr., nux vomica four gr., phosphorus thirty-five onethousandths gr.

"Useful as an aphrodisiac and for the restoration of virility in debility of the reproductive organs of both sexes.

"Damiana is a nonirritating sexual tonic.

2 N. J. 707; F. I. D. 54.

3 N. J. 636.

4 N. J. 633; N. J. 631; N. J.

630; N. J. 908; N. J. 919; N. J. 931; N. J. 941; N. J. 986.

5 N. J. 623.

"Coca exalts the intellectual faculties.

"Prepared for the New York and London Drug Co. (incorporated), New York, U. S. A.”

The statement concerning its usefulness was false, for, as a matter of fact, the article did not contain the aphrodisiac qualities ascribed to it, and it had no value in that respect. It was held that the article was misbranded."

§ 408. Article Named on Label Present in Only Very Small Quantity.

It is not a misbranding to state that an article which the statute does not require to be mentioned or named on the label as contained in the substance labeled is present when it is present in only a very small quantity, and that quantity is not stated. A statement that a particular substance is present in the drug labeled need not be made unless it is one of the substances the statute specifically requires to be stated, namely: "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.''1 In one instance the label contained a statement that the article labeled contained "Peroxide" and was "Peroxide Cream." In the information it was charged that this was a misbranding, "in that the label then and there bore statements, designs and devices regarding the said article, and the ingredients and substances contained therein, which were false and misleading, in that the words 'Peroxide Cream' represented 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 small quantity of some peroxide, which said quantity is insignificant." But this was held not to be a misbranding, the court saying: "It appears upon the face of the information that the prepara

N. J. 345; N. J. 245.

See Lopez Specific Special Com

pound. N. J. 816; California Water of Life 830.

1 Section 8.