CALIFORNIA

CHAPTER IV

THE SAFEGUARDS AGAINST ADULTERATION AND MIS-BRANDING OF FOODS AND DRUGS

ONE of the notable public services performed by Mr. Hughes as a Justice of the Supreme Court was in connection with the Food and Drugs Act of 1906 and similar statutes, State and Federal, enacted to aid the public in protecting itself from "notorious abuses" in connection with the impurity of foods and drugs and the falsity of representations made as to their quality, constituents, and curative properties. To the interpretation and application of these enactments and the analysis of the intricate trade conditions on which their application often hinges, he brought a wealth of administrative experience, a mind accustomed to the exact facts of physical science and commercial life, and a broad understanding of the conditions with which the community was trying to grapple, in this field so largely new to administrative law.

The first dissenting opinion 1 which he wrote as a member of the Supreme Court dealt with 1U. S. vs. Johnson (221 U. S. Reports, page 488).

the Food and Drugs Act of 1906. Congress had prescribed penalties for what it termed the "mis-branding" of drugs, and a man named Johnson was charged with delivering for shipment in interstate commerce packages and bottles of drugs alleged to have been "misbranded" within the meaning of the Act. Certain of the bottles were labelled "Cancerine tablets" and "Cancerine"; the combination was known as "Dr. Johnson's Mild Combination Treatment for Cancer"; and the labels contained other statements explaining at length the curative properties of the contents, if taken in treatment of cancer or other malignant maladies. The majority of the Court were of the opinion that inasmuch as fraudulent "misbranding" necessarily consisted of mis-statements of fact, rather than of opinion, the statute must be construed to prohibit false statements only as to the identity of the article-for example, as to its purity, quality, strength, ingredients, and the like-and could not be held to condemn false statements by the manufacturer as to what the article would cure.

Justice Hughes entered emphatic dissent from this view, and Justices Harlan and Day concurred with him. To label a worthless liquid a cancer curative and to sell tablets of inert matter with assurance of its proved efficacy in relief from deadly diseases, seemed a false representation of the principal fact as to the article sold, and he urged with great earnestness that

Congress had aimed at false statements of fact as to curative properties of a drug, at least no less than at anything else falsely asserted as to it. The majority construction seemed therefore to defeat the legislative purpose and leave the Act largely ineffective. He said, in part:

According to the construction placed upon the statute by the court below in quashing the indictment, if one puts upon the market, in interstate commerce, tablets of inert matter or a liquid wholly worthless for any curative purposes as he well knows, with the label "Cancer Cure" or "Remedy for Epilepsy," he is not guilty of an offence, for in the sense attributed by that construction to the words of the statute he has not made a statement regarding the article which is false or misleading in any particular.

I fail to find a sufficient warrant for this limitation, and on the contrary, it seems to me to be opposed to the intent of Congress and to deprive the act of a very salutary effect. . . .

It is, of course, true, that when Congress used the words "false or misleading statement" it referred to a well-defined category in the law and must be taken to have intended statements of fact and not mere expressions of opinion. The argument is that the curative properties of articles purveyed as medicinal preparations are matters of opinion, and the contrariety of views among medical practitioners, and the conflict between the schools of medicine, are impressively described. But, granting the wide do

main of opinion, and allowing the broadest range to the conflict of medical views, there still remains a field in which statements as to curative properties are downright falsehoods and in no sense expressions of judgment. This field I believe this statute covers.

The question then is whether, if an article is shipped in interstate commerce, bearing on its label a representation that it is a cure for a given disease, when on a showing of the facts there would be a unanimous agreement that it was absolutely worthless and an out and out cheat, the act of Congress can be said to apply to it. To my mind the answer appears

clear. . .

Nor does it seem to me that any serious question arises in this case as to the power of Congress. I take it to be conceded that mis-branding may cover statements as to strength, quality and purity. But so long as the statement is not as to matter of opinion, but consists of a false representation of fact-in labelling the article as a cure when it is nothing of the sort from any point of view, but wholly worthlessthere would appear to be no basis for a constitutional distinction. It is none the less descriptive and falsely descriptive-of the article. Why should not worthless stuff, purveyed under false labels as cures, be made contraband of interstate commerce, as well as lottery tickets?

This was in May of 1911. The following year Congress amended the Food and Drugs Act, by

the so-called "Sherley Amendment," which provided that for the purposes of that Act a drug should be deemed to be "mis-branded":

If its package or label shall bear or contain any statement, design or device regarding the curative or therapeutic effect of such article .. which is false and fraudulent.

This was of course the orderly procedure in a responsible democracy: If the Court, as the agency of the most expert interpretation of the written statutes, finds that the language thus far used is not sufficient to accomplish what was probably the legislative purpose, prompt action by the legislative branch of government clears the difficulty and makes unmistakable the intent to reach by legislation the particular abuse as to which there was question of the efficacy of the original enactment. Congress having thus given legislative sanction to the interpretation which Justice Hughes had unsuccessfully from the first endeavoured to have the Court place upon the term "misbranding," the Supreme Court, on January 10, 1916, through an opinion written by Justice Hughes, unanimously upheld the constitutionality of the Sherley Amendment and sustained the condemnation and seizure of cases of drugs known as "Eckman's Alterative," which were

1

1Seven Cases of Eckman's Alterative vs. U. S. (239 U. S. Reports, page 510).