The opinion of the court was delivered by: KAUFMAN
The Federal Trade Commission has sought to enjoin the dissemination of allegedly false advertising by the Liggett and Myers Tobacco Company pending the issuance of a complaint under Sections 5 and 12 of the Federal Trade Commission Act, 15 U.S.C.A. §§ 45, 52. The advertising in question is the defendant's representation
'directly or by implication, that Chesterfield cigarettes can be smoked by an smoker without inducing any adverse affect upon the nose, throat and accessory organs of the smoker.'
(paragraph Six of Complaint). The Commission maintains that Section 12 and 13(a) of the Federal Trade Commission Act
confer jurisdiction upon this court. Liggett and Myers here moves to dismiss the complaint for lack of jurisdiction of subject matter on the ground that the product advertised is not a 'drug' within the meaning of Sections 12, 13(a). The contention that cigarettes are within the purview of these sections is a novel one and consideration of the merits of the petition for injunction has, therefore, been reserved until this jurisdictional question is resolved.
Section 15(c) states that for the purposes of Sections 12, 13 and 14 the term 'drug' means:
'(1) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and
'(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 or other animals; and
'(4) articles intended for use as a component of any article specified in clauses (1), (2), or (3); but does not include devices or their components, parts, or accessories.'
Paragraph Five of the Complaint alleges that tobacco is a drug as 'drug' is defined in the Federal Trade Commission Act because:
(a) It is recognized in the official Homeopathic Pharmacopoeia of the United States;
(b) Defendant in advertisements has represented and is representing directly and by implication that Chesterfield cigarettes are manufactured in such a manner as to prevent irritation of the nose, throat and accessory organs of smokers thereof.
By amendment to Paragraph Five of the complaint the Commission seeks to add a third ground:
'(c) Tobacco is an article intended to effect the functions of ...