The opinion of the court was delivered by: KNIGHT
The libellant seeks condemnation of certain articles of alleged drug products described as "11 1/4 Dozen Packages of article labeled in part 'Mrs. Moffat's Shoo Fly Powders for Drunkenness.'" Libel is brought under the provisions of the Federal Food, Drug and Cosmetic Act of June 25, 1938, Title 21 U.S.C.A. and is based upon the claim that the aforesaid articles are misbranded under subdivision (a) and (j) of Section 352 of Title 21 U.S.C.A.
It is admitted that the articles in question were shipped in Interstate Commerce, that is from the State of Pennsylvania to the Ellicott Drug Co., at Buffalo, New York, on November 2, 1940, by the intervenor, M.F. Groves' Son & Co., who concededly is the owner and manufacturer of the articles in question, and that a representative of the libellant during said month purchased a quantity of the articles in question from the last-named company. The articles contained on the average 3.2 grains of potassium antimony tartrate (tartar emetic) and no other constituents.
Section 321 (g) Title 21 U.S.C.A. provides, among other things, that a drug means "(2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals"; and "(3) articles (other than food) intended to affect the structure or any function of the body of man * * *"; and (k), (same section) defines a label as "a display of written, printed, or graphic matter upon the immediate container of any article." The label on the articles in question clearly purports the content to be for use in the "diagnosis, cure, mitigation, treatment, or prevention" of drunkenness.
The label in question is as follows: "Trade Mark)
Mrs. Moffat's, Shoo Fly Powders, For Drunkenness
Antimony & Potassium Tartrate
Use according to directions
M.F. Groves' Son & Co., Since 1832, 803 South Front Street Philad'a, Pa., Sold to Druggists only, Price, 50 Cents a Box
Directions. -- One of the Powders may be given in Beer, Coffee, Tea or ...