152. Alleged misbranding of Eau de Quinine Compound Hair Lotion.    XT. S. v.
Pinaud, Inc.    Plea of not guilty.    Tried to t3ie jury.    Verdict of not guilty.
(F. D. C. No. 20124.   Sample No. 5745-H.)
INFORMATION- FILED : On or about September 30, 1946, Southern District of New 
York, against Pinaud, Inc., New York, N. Y.
ALLEGED VIOLATION : The defendant was charged with giving a false guaranty 
to the Gladiator Co., Inc., New York, N, Y., on or about April 19, 1945. The 
guaranty was set forth on an invoice covering a delivery of the product, made 
by the defendant to the Gladiator Co., Inc., on or about April 19, 1945, which 
guaranty provided that the product was guaranteed by the defendant under 
the Federal Food, Drug, and Cosmetic Act; and on or about April 20, 1945, the 
Gladiator Co., Inc., shipped the product from the State of New York into the 
State of Pennsylvania.
NATURE OF CHARGE: Misbranding, Section 602 (a), the label statement "Eau de 
Quinine Compound Hair Lotion" was alleged to be false and misleading.
DISPOSITION : A plea of not guilty having been entered, the case came on for 
trial before a jury on January 22,1947. At the conclusion of the trial on Janu- 
ary 23,1947, the following charge was given to the jury:
WATKINS, District Judge: "At the conclusion of the evidence by counsel in 
this case it becomes the duty of the Judge to instruct you as to the law of the 
case, and when you go to your jury room it becomes your duty under your oath
to apply the law as I give it to you to the facts as you found them and reach a 
just and fair verdict. The Congress of the United States has seen fit to pass 
what is known as the Federal Food and Drugs Act. That Act is plain and 
.direct. It provides, among other thingSj that any person or corporation who 
introduces or delivers for introduction into interstate commerce any food, drug, 
or cosmetic that is adulterated or misbranded has committed a criminal offense.
"Another provision of the Act provides that a cosmetic is deemed to be mis- 
branded if its labeling, or if the label on it is false or misleading in any 
particular. Deception may result from the use of statements not technically 
false or which may be literally true. The purpose of the statute is to prevent 
that misbranding resulting from ambiguity as well as mere statements which 
are false. Those which are ambiguous and tend to mislead our public are in 
violation of the Act. The purpose of the Food and Drugs Act is for the protec- 
tion of the consuming public. Those who ship in interstate commerce products 
coming within the scope of its protection must do so at their own risk if the 
standards of the Act are not observed. In any criminal prosecution such as 
this there are certain general principles of law which apply. First, a defendant 
is presumed to be innocent until he is proven guilty. While the accused at the 
beginning of the trial is presumed to be innocent beyond a doubt, when more 
proof shows beyond a reasonable doubt that the defendant is guilty, then the 
presumption of innocence disappears completely from the case. Another propo- 
sition which applies in all criminal cases is that this defendant now incor- 
porated cannot be found guilty by the jury until you are satisfied beyond a 
reasonable doubt that the defendant did that with which it is charged in this 
Information. By reasonable doubt is meant not a capricious doubt, not a doubt 
which may flit through the minds in considering this case but a substantial 
doubt which you are called upon to give." By reasonable doubt, I do not mean 
to say beyond any possible doubt or any imaginary doubt, the words mean 
exactly what they say. Beyond a reasonable doubt and until you find that the 
defendant is guilty beyond a reasonable doubt, you cannot return a verdict 
of 'guilty' against the Corporation.
"The indictment in this case is founded upon this Food, Drug, and Cosmetic 
Act. It charges that this defendant in late 1945 sold a quantity of Eau de 
Quinine to the Gladiator Company located here in the City of New York. It 
charges that on the invoice of that shipment there was a guarantee to the effect 
that the product complied with all of the requirements of the Food, Drug, and 
Cosmetic Act, including that portion of the Act which forbids a misbranding. 
Later the Gladiator Company shipped that product into the State of Pennsyl- 
vania. The indictment charges that the defendant has violated this Act because 
the indictment charges that the product, Eau de Quinine was misbranded, the 
label on it was misleading; the indictment charges that it was misleading be- 
cause the labeling would cause one to believe that there was a substantial 
or a consequential amount of quinine in it; whereas the indictment charges 
that as a matter of fact the amount of quinine in the product, Eau de Quinine 
was in fact very trivial or inconsequential and the Government contends 
because of the inconsequential amount of quinine in the product that people 
buying it are apt to be misled in believing that they are getting a product 
which contains a substantial or consequential amount of quinine when in fact 
they are not getting it.   That is what the indictment charges.
"The defendant has entered a plea of not guilty to these charges and has 
denied that it has misrepresented or misled the public or that the label on its 
product in any way tends to mislead the public. The defendant contends that 
this product was manufactured first more than ninety (90) years ago by 
Edward Pinaud and that through the spending of much money in advertising 
and through a continued business to a large degree in this product over a 
period of almost a century that the words: 'Eau de Quinine' have come to 
designate to the public the name of a product, and that they do not represent to 
the buying public, because of this long usage, the name of a product containing 
any particular amount or any amount of quinine. Now in nearly all criminal 
cases there are certain facts which are not indisputable, and that is true in 
this case. There is no dispute over the fact that this product contains only 
about two parts of quinine to ten thousand of the product, of the finished prod- 
uct, and there is no dispute over the fact that that amount of quinine, such 
amount of quinine is a very small or very inconsequential amount of quinine.
There is no .dispute over the fact that this merchandise was shipped in inter- 
state commerce, but the case therefore can be narrowed down to very nar- 
rowest limits and the question for this jury to decide is a single question: Is 
this product misleading? Now the labeling of a cosmetic which contains two 
or more ingredients may or may not be misleading by reason of the designation 
of such cosmetic and such labeling by a name which includes or suggests the 
name of one or more but not all of such ingredients. The fact that Quinine was 
mentioned on the name of this product is just one of the many features which 
this jury must take into consideration along with all of the other evidence to 
determine whether or not the label on it is misleading.
"In a prosecution under the Food and Drugs Act intent is not a necessary 
element of the product. It makes no difference whether a person intends to 
violate the Act or whether he has got bad intentions. It is a crime under the 
law for any person to ship a product in interstate commerce which violates the 
Act.
"This matter which the jury has to decide is not entirely a new question. 
The Courts of our country have held that through long usage of a name that 
that name some times acquires a secondary meaning, for example, the word 
'Coca Cola' the Courts have upheld is not deceptive or misleading even though 
the product contains no coca and very little cola. The name Coca Cola has 
acquired a secondary meaning, the product, a drink or beverage itself rather 
than the ingredients suggested by its name.
"So, therefore, you can say that a product might be in violation of the Food 
and Drugs Act because of a misleading name in the early period of its sales, 
whereas that same product after many, many years of use may no longer be in 
violation of the Act, if because of that long usage the public has come to under- 
stand what the name signifies, and if the public believes it and interprets it to 
mean a product, a drink such as Coca Cola rather than designating by the in- 
gredients, so much coca and so much cola. The defendant here contends that 
because of this long usage of this name: 'Eau de Quinine' that when the de- 
fendant contends that now because of this long usage, when the public buys 
Eau de Quinine, it is buying a well known hair preparation or tonic by that 
name and that the public is not buying a preparation which the public believes 
to contain a substantial or consequential amount of a drug known as 'quinine' 
or any amount of 'quinine'. A further example of this principle might be well 
illustrated by the name: 'milk' so far as 'Milk of Magnesia' is concerned, or 
soda in soda water, and as one Court has said that it is not very reasonable to 
believe that the use of the word: 'Eskimo Pie' leads the people to believe that 
it is a pie made by Eskimos, or is a formula obtained from the Eskimos. That 
by long usage of the name it signifies a product, rather than a product having 
certain ingredients in it.
"Now, ladies and gentlemen, I have tried to outline to you the respective 
contentions of the parties. The Government says that it is a label which is 
misleading,-it says that it is misleading because the label represents to the 
public that it has a consequential amount of quinine in the product, -where the 
Government says that it doesn't have a substantial amount of quinine and that 
because of that people are likely, the public are likely to purchase it believing 
that they are getting something that has some medicinal value to their hair 
or to their scalp, and I might say that there is another matter that is not in 
dispute. The evidence shows that the drug 'quinine' is a drug used primarily 
for the cure of malaria and that the drug 'quinine' has no value whatsoever 
to the scalp or to the hair in a hair tonic.
"For some reason that name was put in there some years ago and it has 
continued all down through the years and it is still in that name. The de- 
fendant's position I have told you.-The defendant contends that because of 
the long usage of this name that it is sold to tlie public, and the public is not 
misled in believing that it contains so much quinine. The defendant takes the 
position that the public doesn't care how much quinine is in there and doesn't 
buy it with any view as to how much quinine is in this product.
"Yesterday a statement was made by the LGovernment's] counsel, to the 
effect that if anywhere in these United States, regardless of a person's intelli- 
gence or literacy, if anywhere there may be a man or woman who might be 
misled by this name, 'Eau de Quinine,' that that would probably be a violation 
of this Act.   I want to correct that because I don't think that the statement
correctly states the law. The test is whether or not the public is misled or likely 
to be misled by this name. The goods are misbranded if they bear any state- 
ment which would deceive or mislead any purchasers who are of normal capac- 
ity and use that capacity in a common sense way.-That is the test and whether 
there may be any or few so deceived is not material." 
On January 23,1947, the jury returned a verdict of not guilty.