Home/W.D. Missouri/United States v. 50¾ Dozen Bottles, More or Less, of Sulfaseb

United States v. 50¾ Dozen Bottles, More or Less, of Sulfaseb

54 F. Supp. 759, 1944 U.S. Dist. LEXIS 2493
CourtDistrict Court, W.D. Missouri
DecidedApril 3, 1944
Docket1648
StatusPublished
Cited by3 cases

This text of 54 F. Supp. 759 (United States v. 50¾ Dozen Bottles, More or Less, of Sulfaseb) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 50¾ Dozen Bottles, More or Less, of Sulfaseb, 54 F. Supp. 759, 1944 U.S. Dist. LEXIS 2493 (W.D. Mo. 1944).

Opinion

OTIS, District Judge.

The amended information in libel in this proceeding was filed February 14, 1944. It makes reference to two preparations, one known as “Sulfa-Seb,” the other as “SulfaPed.” The charge is that these preparations are misbranded within the meaning of 21 U.S.C.A. § 352. That section provides inter alia that a drug “shall be deemed' to be misbranded — (a) If its labeling is false or misleading in any particular” and. that it “shall be deemed to be misbranded— (f) Unless its labeling bears * * *' such adequate warnings * * * against unsafe dosage or methods * * * of administration or application, in such manner and form, as are necessary for the protection of users * * *.”

The information charges that the labeling of the preparation known as “SulfaSeb,” which reads, in part, “For hair and’ scalp * * * Designed as a fungicide-to relieve itching, and treat and control the condition resulting from infection round the follicles of the hair,” is false- and misleading in the following respects r that the article (1) is not an adequate treatment for disease conditions of the hair and scalp; (2) that it is not fungicidal; and (3) that it will not control conditions-resulting from infection around the follicles of the hair.”

The information charges that the labeling of the preparation known as “SulfaPed,” which reads, in part, “A new treatment for Athletes Foot * * * Designed, as a fungicide to relieve discomfort and treat and control the conditions identified with fungus and bacterial conditions of the feet * * is false and misleading in. that the preparation is (1) not a treatment for athlete’s foot; (2) is not a fungicide; and (3) will not relieve discomfort and treat and control conditions identified with fungus and bacterial conditions of the feet.

The information alleges that both preparations are misbranded for that the labels contain no such adequate warnings “as are necessary for the protection of users since the articles contain sulfanilamide” and no warnings that “their use [i. e. of the preparations] should be discontinued. *761 if a new skin rash appears or if the skm condition under treatment becomes worse.”

We begin this memorandum by first discussing the first charge in the information, that the preparation known as “Sulfa-Seb” is false and misleading in the respects indicated in the information.

1. There has been no real controversy in the case between counsel for plaintiff and counsel for claimant touching the applicable law. The language of the statute is clear enough. If the labeling “is false and misleading in any particular” the preparation bearing the label has been misbranded. Obviously it is necessary first of all to determine what representation is made by the label and to determine whether that representation is false and misleading in any particular. It would seem to be obvious, moreover, that in determining whether the representation on a label is false and misleading in any particular all the language of the label must be considered. None would contend that single words or phrases should be lifted out and that if those words or phrases separately considered can be found to be untrue, then the preparation should be condemned as misbranded. Single words or phrases might be so explained by other language as that there is no misrepresentation whatever. Fairness requires that the whole legend upon the label of “Sulfa-Seb” should be set out so that the label may be considered as a whole. Accordingly, we do set out the label by inserting at this point one of the labels:

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Bluebook (online)
54 F. Supp. 759, 1944 U.S. Dist. LEXIS 2493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-5034-dozen-bottles-more-or-less-of-sulfaseb-mowd-1944.