ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; McReynolds took no part in the consideration or decision of these cases.
MR. JUSTICE HUGHES delivered the opinion of the court.
Libels were filed by the United States, in December, 1912, to condemn certain articles of drugs (known as 'Eckman's Alterative') as misbranded in violation of § 8 of the Food & Drugs Act. The articles had been shipped in interstate commerce, from Chicago to Omaha, and remained at the latter place unsold and in the unbroken original packages. The two cases present the same questions, the libels being identical save with respect to quantities and the persons in possession. In each case demurrers were filed by the shipper, the Eckman Manufacturing Company, which challenged both the sufficiency of the libels under the applicable provision of the statute and the constitutionality of that provision.
The demurrers were overruled and, the Eckman Company having elected to stand on the demurrers, judgments of condemnation were entered.
Section 8 of the Food & Drugs Act, as amended by the act of August 23, 1912, c. 352, 37 Stat. 416, provides, with respect to the misbranding of drugs, as follows:
"Sec. 8. That the term 'misbranded,' as used herein, shall apply to all drugs or articles of food or articles which enter into the composition of food, 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, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced.
"That for the purposes of this Act an article shall also be deemed to be misbranded. In case of drugs:
"Third. If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent."
The amendment of 1912 consisted in the addition of paragraph "Third," which is the provision here involved.
It is alleged in each libel that every one of the cases of drugs sought to be condemned contained twelve bottles, each of which was labeled as follows:
"Eckman's Alterative, -- contains twelve per cent. of alcohol by weight, or fourteen per cent. by volume -- used as a solvent. For all throat and lung diseases including Bronchitis, Bronchial Catarrh, Asthma, Hay Fever, Coughs and Colds, and Catarrh of the Stomach and Bowels, and Tuberculosis (Consumption) . . . TWO dollars ...