725. Action to enjoin and restrain distribution in interstate commerce of Diaplex
under false and misleading labeling:. U. S. v. Henry Wayne Pierce
(Horace Wayne Pierce) and Alice Pierce.   Permanent Injunction granted.
(Inj. No. 18.)
On October 14, 1941, the United States attorney for the District of Colorado
filed a complaint against Henry "Wayne Pierce, also known as Horace Wayne
Pierce, and Alice Pierce, Larimer, Colo., alleging that the defendants were engaged
in the business of selling, distributing, and shipping in interstate commerce, and
on numerous occasions had shipped or caused to be shipped to various persons
throughout the United States a food, drug, or weed commonly known as Diaplex,
which bore certain false and misleading statements in the labeling as quoted
hereinafter.
The complaint alleged further that the defendant on divers occasions had been
informed that the statements on the labels hereinafter quoted were false and
misleading and that said product was misbranded; that the defendants had been
warned that further shipments in interstate commerce of Diaplex with false and
misleading statements on the labels must cease; that the defendants had con-
tinued to ship and cause to be shipped in interstate commerce large quantities of
Diaplex with directions and false and misleading statements printed on the
labels; that they had announced their present and future intentions to continue
making shipments of Diaplex in interstate commerce with the said false and
misleading statements in the labeling until restrained and enjoined by law from
doing so; and prayed that a temporary injunction issue restraining the defend-
ants and those acting on their behalf from shipping such product or causing it to
be shipped in interstate commerce and that the temporary injunction be made
permanent on final hearing of the case.
On October 29,1941, the court orally instructed the defendants that neither they
nor their agents were to conduct any further business in the manufacture and
interstate shipment of the article, pending the hearing of medical testimony on
November 22, 1941.
On October 31, 1941, the defendants filed an answer denying the making of
any dogmatic claims of cure for the product and also denying that the labeling
was false and misleading. On December 1, 1941, the case having come on for
trial and the plaintiffs having appeared by counsel and the defendants appearing
for themselves and without counsel, the court made the following findings of
fact and conclusions of law:
SYMES, D. J. "That at all times hereinafter mentioned, and for a long time
prior thereto, the defendants, Henry Wayne Pierce, also known as Horace Wayne
Pierce, and Alice Pierce, were engaged in the business of selling, distributing,
and shipping in interstate commerce, a product more commonly known as
'Diaplex* for the treatment and benefit of persons suffering from diabetes.
"That on or about July 3, 1941, the defendants did ship and cause to be
shipped in interstate commerce, namely, from the town of Wellington, Colo., a
shipment of a product more commonly known as 'Diaplex' and billed as 'dried
2 See also Nos. 701-706, 708, 710, 711, 744-717, 720.
herbs ground,' to Henry Legler at Boise, Idaho; that said shipment consisted
of 5 boxes, each box containing 50 cartons of the product known as Diaplex;
that each carton had then and there affixed the following label: 'Diaplex--
Directions as a Beverage: Place two heaping tablespoons of Diaplex in a
porcelain or earthen percolator (never use aluminum) and pour one quart of
hot water over it, percolate same for ten minutes and serve hot. Directions
to Doctors: For those whose blood-sugar count tests 125 Mgs. per 100 C.C.
or over, use four heaping tablespoons of Diaplex to the quart of water and
percolate ten to fifteen minutes. Always serve Diaplex hot, never ice cold or
lukewarm. (Never use aluminum.) An adult should use two quarts of Diaplex
tea daily and a child, one, for a period of nine to eighteen months. Diaplex
is a food, not a drug. It should never lower the blood-sugar below normal.
Therefore, a great amount is effective. Small doses are worthless for the
diabetic. Diaplex contains no opiates and is non-injurious. Notice! . . .
Warning! Persons using Diaplex with insulin should make the urine test
daily, and as the pancreas increases its normal function, reduce the amount of
insulin sufficiently to
* avoid insulin reaction. Only use enough insulin to take
care of the surplus sugar reducing the amount of insulin from time to time
sufficiently to avoid insulin reaction; but continue the use of Diaplex until you
are well and strong. If you are using Protamine Zinc insulin write for further
instructions; Diaplex, Wellington, Colorado Diaplex-Trademark reg. U. S.
Pat Office-by H. W. Pierce.   Net Weight 12 ounces avoirdupois when packed.'
Ill
"That the defendants were on this and previous occasions informed by proper
notice, through the proper officials and representatives of the plaintiff, that the
statements printed on said label in conjunction with the name 'Diaplex' were
false and misleading when the product was presented either as a food or as
a drug.
"That the defendants did on September 22, 1941, notify the plaintiff, through
its proper official's and representatives that they produced Diaplex and would
continue to sell it in interstate commerce.
"That said product more commonly known as 'Diaplex' has never been rec-
ognized as a food for human consumption, nor is it a plant containing in-
gredients of medicinal value, but on the contrary, is a common weed, saltbush,
which is scientifically known as Atriplex canescens.
Conclusions of Law
"That the product commonly known as 'Diaplex,' as heretofore described in
the complaint and as so labeled, is misbranded in violation of the Federal Food,
Drug, and Cosmetic Act, a statute 'to prohibit the movement in interstate
commerce of adulterated and misbranded food, drugs, devices and cosmetics,
and for other purposes,' by reason of the false and misleading statements
directly and impliedly indicating that the product was and is of therapeutic
value in the treatment of diabetes.
"That the plaintiff is entitled to a permanent injunction enjoining said
defendants, their agents, servants, employees, attorneys, representatives, and
assigns, and all persons acting or claiming to act in their behalf in the same
regard and the same effect from shipping or causing to be shipped in interstate
commerce, or from receiving in interstate commerce, shipments of the weed,
saltbush (Atriplex canescens) for subsequent sale under the name 'Diaplex,'
or other language directly and impliedly offering or claiming the product of
therapeutic value in the treatment of diabetes."
On December 5, 1941, a decree was entered granting a permanent injunction
in accordance with the prayer of the complaint.