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United States v. Hohensee

decided: January 29, 1957.


Author: Mclaughlin

Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellants were indicted on nine counts for causing the introduction and delivery for introduction into interestate commerce of misbranded drugs, contrary to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 321 et seq.*fn1 Counts VIII and IX were withdrawn by the government in the course of the trial and nolle prossed. All three appellants were convicted on the remaining seven counts.

The government's theory and proof involved two parallel sets of incidents. The individual appellant is president of one of the corporate appellants, Scientific Living, Inc. and the moving spirit in both. Counts I, II and III of the indictment concern Hohensee going to a food store in Phoenix, Arizona, advising the proprietor that he intended lecturing on health subjects in Phoenix shortly and seeking his cooperation. Appellant gave the storekeeper leaflets and advertising copy to be distributed and used for arousing interest in the lectures.*fn2 He provided for stocking El Rancho Adolphus brand products in the health food store. Demand for these products was to be created by the forthcoming lecture series.

Shipments of El Rancho Adolphus products began arriving at the Phoenix store in the latter part of January 1952 and were invoiced from one or the other of the corporate appellants at Scranton, Pennsylvania. The lectures were given by appellant at Phoenix from February 11 to March 6, 1952. At these lectures printed materials were distributed dealing with most chronic diseases and physical complaints, suggesting diets which included large quantities of El Rancho Adolphus products as remedies. According to the testimony, the oral representations of appellant at the lectures, regarding the subject matter of Count I, were astounding; peppermint tea, for example, was recommended for gall stones, colic, flatulence, headache, rheumatism, high blood pressure, athritis, prostate trouble, lumbago, fits, convulsions, colitis, tuberculosis, asthma, pin worms and tape worms. The label on the El Rancho Adolphus brand peppermint tea leaves had only the following directions: "Used as a delicious refreshing table beverage.Take one level teaspoon of Adolphus peppermint for each cup of water, steep for four minutes. Do not boil. Sweeten to taste."

Counts II and III arise out of other products of the Phoenix promotion, namely, wheat germ oil and herb laxative. There were similar fantastic representations of their curative qualities.

Counts IV, V, VI and VII cover the campaign in Denver where Hohensee lectured during the months of July through September 1952. The preliminary arrangements for that city were made by one Miguarder, a government witness at the trial. The local retail outlet for the El Rancho Adolphus products was Leeds Health House, operated by Mrs. Ethel Barnes, who also testified for the government. El Rancho Adolphus brands of concentrated broth, whole wheat, peppermint tea leaves, and wheat germ called by the trade name, "Wheat Hearts", are the products alleged in those counts to have been misrepresented.

Appellants attack the constitutionality of 21 U.S.C.A. § 352(f)(1) on the ground that the statutory language "bears adequate directions for use" with reference to misbranding is too vague, indefinite and uncertain if construed to proscribe their activities. In Kordel v. United States, 1948, 335 U.S. 345, 69 S. Ct. 106, 93 L. Ed. 52, the Supreme Court upheld a conviction where the circumstances were very close to the case at bar. That decision definitely disposes of any question of constitutionality here.

In Kordel promotional materials were shipped separately for the products intended for use as drugs.*fn3 The Supreme Court reaffirmed its position as outlined in United States v. Dotterweich, 1943, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48, and United States v. Sullivan, 1948, 332 U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297, that this legislation be given a liberal interpretation to effectuate its high purpose of protecting unwary consumers in vital matters of health. The intended uses of the products in the present issue as in Kordel were to cure, ameliorate or prevent diseases. The evidence to prove their uses included both graphic materials distributed and testimony of oral representations to users and prospective users. The latter are no less relevant on the question than the former. Both show that the products shipped were to be used as drugs. Alberty Foods Products v. United States, 9 Cir., 1952, 194 F.2d 463. The crime is that the labels on the containers were insufficient for the purposes for which the products were to be used. The statute prohibits the shipment of any products that are to be used as drugs, and are inadequately labeled for that purpose.

Appellants challenge the sufficiency of the evidence to support the verdict. Their main thrust is against the time sequence of the various events in both Phoenix and Denver where the evidence of misbranding is primarily the oral representations and printed material distributed at the lectures. It is argued that since the lectures occurred some weeks after the products were introduced into interstate commerce, there was no proof of a medicinal or curative purpose or use of the products at the time of the shipments from Scranton to Phoenix and Denver. That problem was decided in Kordel, supra. There, the food products, including vitamins, minerals and herbs, were labeled innocuously as health foods. The advertising materials which proved the products were drugs for the amelioration of various ills were shipped separately both before and after the products.*fn4 The Supreme Court specifically held that:

"The false and misleading literature in the present case was designed for use in the distribution and sale of the drug, and it was so used. The fact that it went in a different mail was wholly irrelevant whether we judge the transaction by purpose or result. And to say that the prior or subsequent shipment of the literature disproves that it 'is' misbranded when introduced into commerce within the meaning of § 301(a), is to overlook the integrated nature of the transactions established in this case.

"Moreover, the fact that some of the booklets carried a selling price is immaterial on the facts shown here. As stated by the Court of Appeals, the booklets and drugs were nonetheless interdependent; they were parts of an integrated distribution program.The Act cannot be circumvented by the easy device of a 'sale' of the advertising matter where the advertising performs the function of labeling." [335 U.S. 345, 69 S. Ct. 110.]

Appellants further contend that false advertising is exclusively within the jurisdiction of the Federal Trade Commission. That argument was rejected in Kordel.

Hohensee insists the principle that intent is not an element of the offenses charged*fn5 should not have been applied to him since as a second offender, if convicted, he would be subject to felony penalties. His guilt falls into the felony category not because of evil intent but because of the maximum sentence of three years for second offenders provided by Section 333(a) of 21 U.S.C.A. The Act imposes criminal sanctions as a means of regulating activities so dangerous to the public welfare as not to permit of exception for good faith or ignorance. A person acts at his peril in this field. United States v. Dotterweich, supra. The instant facts are well within the rule established by United States v. Balint, 1922, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604, which sustained a maximum sentence of ...

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