821. Action to restrain interstate shipments of Catalyn and other drugs.    U. S.
v. Royal Lee   (Vitamin Products   Co.).    Permanent injunction granted.
(Inj. No. 12.)
On June 19, 1941, the United States attorney for the Eastern District of
Wisconsin filed a complaint against Royal Lee, trading as Vitamin Products Co.,
Mm~t3TOve7 Wis., alleging: (1) That the defendant was engaged in the manu-
facture, processing, and packing of vitamin and mineral products at Milwaukee,
Wis., for introduction and delivery for introduction, distribution, and sale in
interstate commerce under the firm name Vitamin Products Co. (2) That in con-
nection with such business the defendant had designated, appointed, directed,
and managed agents and distributors located in various cities in the United
States and Canada and was continuing to do so. (3) That the following prod-
ucts, Catalyn, also known as V:P No. 710 Vitamin Tablets; V-P Vitamin A Com-
plex, also known as V-P No. 711 Vitamin Tablets; V-P Vitamin B complex, also
known as V-P No. 712 Vitamin Tablets; V-P Vitamin C Complex, also known as
V-P No. 713 Vitamin Tablets; V-P Vitamin D Complex, also known as V-P
No. 714 Vitamin Tablets; V-P Vitamin F Complex, also known as V-P No. 716
Vitamin Tablets; V-P Vitamin G Complex, also known as V-P No. 717 Tablets;
V-P Phosphate, also known as V-P No. 718 Liquid; Cerol, also known as V-P No.
719 Vitamin Tablets; V-P Organic Mineral Tablets, also known as V-P No. 721
Mineral Tablets; and Cerodyn, had been manufactured, processed, and packed by
the defendant at Milwaukee, Wis.* and had been and were being introduced and
delivered for introduction into'interstate commerce by the defendant at Mil-
waukee, Wis., to his agents and distributors #for sale, were being sold to the
public, and remained in interstate commerce under the direction and control of
the defendant.
The complaint alleged further that the product "Catalyn," also known as V-P
No. 710 Vitamin Tablets, was fabricated from more than two active ingredients,
namely, wheat flour,, wheat bran, crystalline milk sugar, powdered rice braji,
powdered carrots, and glandular material; that the product V-P Vitamin A
Complex, also known as V-P No. 711 Vitamin Tablets, was fabricated from more
than two active ingredients, namely, wheat starch and tissues, rice bran, root
tissues resmbling those of dried carrot, milk sugar, and animal tissues suggestive
of glandular material; that the product V-P Vitamin B Complex, also known as
V-P No. 712 Vitamin Tablets, was fabricated from more than two active ingredi-
ents, namely, wheat tissues and starch, rice bran, animal tissues apparently from
* See also Nos
 801, 806-809. 811-320.
apparently a yeast by-product; that the product V-P Vitamin C Complex, also
known as V-P No. 713 Vitamin Tablets, was fabricated from more than two
active ingredients, namely, wheat starch and tissues, milk sugar, rice bran, animal
tissues closely resembling glandular material, and material of the nature of
small droplets of a light green color suggesting chlorophyl origin; that the product
V-P Vitamin D Complex, also known as V-P No. 714 Vitamin Tablets, was fabri-
cated from more than two active ingredients, namely, crystalline calcium laca,te,
crystalline milk sugar, and material closely resembling calcium glycerophosphate;
that the product V-P Vitamin F Complex, also known as V-P No. 716 Vitamin
Tablets, was fabricated from more than two active ingredients, namely, wheat
bran, starchy material, rice bran, animal tissues from glandular source, and
occasional alfalfa hairs; that the product V-P Vitamin G Complex, also known as
V-P No. 717 Vitamin Tablets, was fabricated from more than two active ingredi-
ents, namely, crystalline milk sugar, wheat starch and wheat tissues, and animal
tissues apparently from a glandular source; and charged that the said products
were misbranded in that their labels failed to bear the common or usual name of
their active ingredients.
The complant alleged further (1) that prior to February 8, 1939, the defendant
manufactured, processed, and packed, and introduced and delivered for introduc-
tion into interstate commerce, the product known as Catalyn; (2) that labels and
circulars packed with the product, prior to that date, bore false and mislaading
claims and representations as to its therapeutic valixe in the treatment of human
ailments and diseases; (3) that on February 8,1939, in the District Court for the
Western District of Wisconsin, the defendant was convicted of violation of the
Food and Drugs Act of 1906 in that he had introduced into interstate commerce a
quantity of Catalyn which was misbranded by reason of false and fraudulent
therapeutic claims for it; and (4) that since February 8, 1939, the defendant had
removed from the labels of his product Catalyn all claims and representations
therefor of therapeutic value in the treatment of human ailments and diseases,
and since that date none of the other above-mentioned products had contained,
either on the labels of the products or packages or in circulars enclosed therewith,
any direct statement or representation of therapeutic value for the products in
the treatment of human ailments and diseases.
The complaint alleged further (paragraph 15) that since February 8. 1939, the
defendant had written and caused to be written and printed at Milwaukee, Wis.,
various circulars, pamphlets, booklets, and other literature relative to the articles,
wherein and whereby the deferdant had and was representing that they were
efficacious in the cure, prevention, and treatment of a wide variety of human
diseases and ailments.
Paragraphs 16 to 22 of the complaint charged that the defendant by means of the
said circulars, pamphlets, booklets, and other literature had, and was repre-
senting (1) that the products when taken individually or collectively as pre-
scribed, recommended, or suggested in the labeling would cure, prevent, and
constitute an adequate treatment for 'human diseases such sis pneumonia,
tuberculosis, influenza, colds, whooping cough, measles, and mumps, which repre-
sentations were fa7se and misleading since such diseases are caused bv infection
with germs or viruses and not by a deficiency of vitamins or minerals, and
no vitamin or mineral, or any combination thereof, or any product or com-
bination of products manufactured by the defendant was capable of curing,
preventing, or constituting an adequate treatment for any of such diseases:
(2) that representations that such products would cure, prevent and constitute an
adequate treatment for puerperal sepsis, infection of ear, infections of genito-
urinary tract, infections of mucous tract, infections of gastro-intestinal trrct,
infection of res-pirnto^v tract, infections of sinuses, focal infections, and in-
fectious diseases, were false and misleading since no mineral or vitamin or com-
bination thereof nor any product or combination of products above-mentioned
manufactured by the defendant, was capable of curing, preventing, or con-
st'tuting an adequate treatment for any such diseases; (3) that representations
flat they would cure, prevent, or constitute an adequate treatment for high blood
pressure, how blood pressure, overweight, and imderweight, were false and mis-
leading since no substance or combination of substances would correct or con-
fi*i"ufe a cure, preventive, or adequate treatment for both high Wood pressure
and low blood nressure, overweight and underweight; (4) that representations
that they wouM cure, prevent, and constitute an adequate treatment for arterio-
sclerosis, high blood pressure, aortic aneurism, aortic insufficiency, valve leakage,
coronary occlusion, coronary thrombosis, or dementia, were false and mis-
leading since such diseases are almost always accompanied by irreparable
anatomical changes that are incurable and for which no substance or combina-
tion of substances, including minerals, and/or vitamins, or a product or any
combination of products manufactured by the defendant would constitute an
adequate treatment, preventive, or cure; (5) that representations that they
would cure, prevent, and constitute an adequate treatment for arthritis, hemor-
rhagic conditions of the urine, albuminuria, heart disorders, menstrual and
ovarian disorders, Bright's disease, leg ulcers, anemia, wasting of muscles,
paralysis, muscular -weakness, chronic diseases, amenorrhea, colitis, cystitis,
children's diseases, women's diseases, liver disorders, dysmenorrhea, eczema,
gall-bladder disease, gastritis, eye disorders, and cardiovascular disturbances,
were false and misleading since such diseases have a multiplicity of causes and
no mineral or vitamin or combination thereof, or any product of combina-
tion of the products of the defendant, would constitute an adequate or com-
petent treatment for such diseases and conditions; (6) that representations
that the drugs would cure, prevent, and constitute an adequate treatment for
acne, acute or chronic alcoholism, angina pectoris, Addison's disease, adrenal
hypertrophy, agranulocytosis, apoplectic sequellae, atrophy of glands or muscles,
achlorhydric anemias, backward children, burns, cataracts, chlorosis, chorea,
diabetes mellitus, epilepsy, toxic goiter, hyperthyroidism, hyperglycemia, hyper-
tension, hypotension, asthma, hay fever, hyperemesis of pregnancy, sexual im-
potency, insanity due to endocrine failure, menopause disorders, migraine,
menstrual- dysfunction, paralysis agitans, phlebitis, poliomyelitis, paralytic
sequellae, pancreatic dysfunction, pernicious anemia, nephritis, ideopathic ovarian
disorders, prostate enlargement, peptic ulcers, sclerosis, rheumatic fever and
varicose veins, were false and misleading since such diseases are not recognized
by experts qualified by scientific training and experience as being caused by a
deficiency of either minerals and/or vitamins, and no vitamin or mineral or any
combination thereof, or any product or combination of products of the defendant
would constitute an adequate or competent treatment, prevention, or cure for any
of said diseases; (7) that representations that they would cure, prevent, and
constitute an adequate treatment for atrophy of organs and glands (testes, liver,
spleen, thyroid, pituitary and salivary), infections and degenerations of eyes,
physical weakness, nervousness, insomnia, gland swelling in general, renal calculi,
bronchitis, endocrinopathies of childhood, nervous indigestion, neurasthenia,
disorders of pregnancy, sterility, hypogalactia, retarded growth, loss of hair, fatty
infiltration and degeneration of the liver, symptoms of nerve degeneration, Paget's
disease, paresthesias, defective teeth, thyroid dysfunction, diarrhea, vomiting,
dermatosis, gastro-enteritis, infantile gastro-intestinal disorders, glycosuria, mal-
nutrition, sprue, low resistance, kidney and bladder disorders, renal dysfunction,
formation of stones (calculi), excessive growth of lymphoid tissue, lymphatic
gland enlargement, loss of weight and vigor, low vitality, stunted growth, emacia-
tion, enlargement of liver, kidney and spleen, acidosis, and would prevent carci-
noma, were false and misleading since such symptoms and conditions are indicative
of a wide variety of fundamentally different diseases, which require divergent
forms of treatment such as surgery, psychotherapy, endocrine, drug vaccine and
physical therapy, and no mineral or vitamin or combination thereof, or any
product or combination of products manufactured by the defendant, would
constitute an adequate or competent treatment, prevention, or cure for such
diseases and conditions
The complaint alleged further (paragraphs 23 and 24) that supplies of the
circulars, pamphlets, booklets, and other literature containing false and mis-
leading representations as hereinbefore set forth, were maintained by the de-
fendant at Milwaukee, Wis., and that since February 8, 1939, he had, on his own
volition and in response to requests therefor, shipped in interstate commerce
to his agents and distributors quantities of said literature which were shipped
apart from his products; that he had on occasion shipped quantities of literature
in the same shipments as said products; that the agents and distributors had on
hand concurrently, quantities of such literature and products and by virtue
of the power and control exercised by the defendant over his agents and dis-
tributors, he had and was requiring and caiising such agents and distributors,
to place such literature with his products while being held for sale by the agents
and distributors after shipment in interstate commerce, and that thereby the
defendant had so acted so as to cause the misbranding of the products in viola-
tion of the law.
? The complaint alleged further that the defendant would continue to ship
the product in interstate commerce and would continue to cause the circulars,
pamphlets, booklets, and other literature containing the false and misleading
representations to accompany the product unless enjoined; that it was distinctly
in the public interests that an injunction should issue for the reason, among
others, that many of the diseases for which the products were recommended,
suggested, or prescribed in the labeling, such as diabetes, Addison's disease,
coronary thrombosis, pernicious anemia, agranulocytosis, pneumonia, and tuber-
culosis* are serious conditions requiring prompt, adequate treatment; that reliance
on the use of the products of the defendant, in the treatment of said diseases
would preclude prompt, appropriate, and adequate treatment of the person
suffering therefrom with resulting irreparable injury and even death; that be-
cause of inability to sample, examine, and seize each interstate shipment of these
products, many shipments of the misbranded products would enter into inter-
state commerce and the practice of the defendant in misbranding the products
while they were held by his agents and distributors after shipment in interstate
commerce could not be eliminated effectively except through the process of in-
junction, and that the purpose of the law would thus be frustrated and endangered
unless an injunction issue; and prayed that the court grant a preliminary injunc-
tion to be effective until the conclusion of the trial of the case, and that on
final hearing the preliminary injunction be made permanent.
On July 17, 1941, the defendant filed an answer alleging that all the persons ,
and firms listed in the complaint as agents and distributors, with the exception of
(1) Vitamin Products Co., Boston, Mass.; (2) Catalyn California Co., M. R.
Pexton and A. L. Jason, Los Angeles, Calif.; (3) Catalyn California Co., and
J. W. Egan, San Francisco, Calif.; (4) W. A. Pansky, Mandan, N. Dak., and; (5)
Mrs. W. F. Madden, Orlando, Fla., were jobbers buying the products from the
defendant and reselling them for their own account and profit; that these desig-
nated "1," "2," and "3," were factory branches of the defendant and that those
designated "4," and "5," were agents of said "jobbers." The defendant in his
answer admitted the shipment of the drugs and the literature substantially as
alleged in the complaint, except that he denied that the drugs and the literature
were ever shipped together. The answer also denied that the business and
affairs of the jobbers were directed by the defendant, that the jobbers were
agents of the defendant, that the literature described was labeling, and that
the defendant had so acted as to cause the misbranding of his products as
alleged.
On April 12,1941, as the result of a pre-trial conference, it was stipulated that
the question of whether the facts set forth in paragraphs 15 to 24, inclusive, of
the complaint stated a cause of action, be submitted to the-court.
On September 11,1941, the issues having been submitted to the court on written
briefs and arguments of counsel, the following opinion was handed down:
F. RYAN DUFFY, District Judge.
"This is a civil action wherein the plaintiff seeks an injunction against the
defendant under the provisions of the Federal Food, Drug, and Cosmetic Act
(Sec. 332, TJ. S. C, Title 21), for alleged violation of Sec. 331 (a), (b), and (k),
Title 21, U. S. C, for shipment of misbranded articles of drugs, as defined by
Sec. 352 (a) and (e), Title 21, U. S. C.
"At the pre-trial conference herein, the parties entered into a stipulation, for the
purpose of clarifying the issues, that prior to the trial of this action, the court.
should determine whether plaintiff's complaint, paragraphs 15 to 24 inclusive,
states a claim upon which relief can be granted against the defendant; that is to
say, whether the acts alleged in said paragraphs constitute such acts with refer-
ence to a food or drug, while held for sale after shipment in interstate commerce,
as are prohibited in Sec. 331 (k), Title 21, U. S. C.
"The paragraphs in question allege that the defendant has caused to be written
and printed various circulars, pamphlets, booklets, and other literature making
therapeutic claims for the products which are manufactured by the defendant.
In particular, the Government claims that said literature falsely represents that
the products will cure and constitute adequate treatment for a long list of human
ailments. It is alleged that such literature is sent*in interstate commerce to
agents and distributors of said products, separately from the products to which
they relate. It is further alleged that the defendant, by virtue of his power and
control over said agents and distributors, requires that they place the separately
shipped literature so as to be displayed with the products of the defendant while
held for sale. The question to be determined is whether the act of bringing
written, printed, or graphic matter containing false and misleading therapeutic
claims, in the presence of, proximity of, and in association with an article, after
shipment in interstate commerce, is a misbranding of that article within the mean-
ing of the term 'misbranding' as that term is defined in the act.
"Sec. 331, Title 21, U. S. C. A. provides:
The following acts and the* causing thereof are hereby prohibited: * *' * (k) The
alteration, mutilation, destruction, obliteration, or removal of the whole or any part of
the labeling of, or the doing of any other act with respect to a food, drug, device, or cos-
metic, if such act is done while such article is held for sale after shipment in interstate
commerce and results in such article being misbranded.
"Sec. 352 (a) provides that a drug is deemed misbranded if its labeling is false
or misleading in any particular.   Sec. 321 (m) defines labeling:
The term "labeling" means all labels and other written, printed, or graphic matter (1)
upon any article or any of its containers or wrappers, or (2) accompanying such article.
"The allegations of the complaint concerning the falsity and misleading char-
acter of defendant's literature are, for the purpose of deciding this question,
deemed to be true.
"Plaintiff admits that the alleged misbranding is not a physical tampering with
the labeling, or a tampering with the product itself. Plaintiff contends that the
misbranding occurs through the device of causing written, printed, and graphic
matter, containing false and misleading therapeutic claims, to be shipped through
interstate commerce separately from the product; and that at the destruction,
such written, printed, and graphic matter becomes associated with and used in
proximity and in the presence of the transported product on the shelves, display
counters, and in the window displays on the premises of defendant's agents
and distributors.
"In determining the intent of Congress, it may be helpful to recall some of
the legislative history of the act in question, which at that time was commonly
called the 'Copeland Bill.' The bill, as introduced, gave jurisdiction to enforce
same to the Department of Agriculture. It was generally known at that time
that the Federal Trade Commission desired to enforce any provisions as to
false advertising. While the Copleand Bill was pending, Public Act. No. 477
was passed (approved March 21, 1938), which measure specifically gave juris-
diction over false advertising of foods, drugs, and cosmetics to the Federal
Trade Commission. Thereafter the Copeland Bill was amended and, as passed
(approved June 25, 1938), gave jurisdiction to the Department of Agriculture to
enforce the provisions as to adulteration, packaging, and labeling; but the
enforcement as to false advertising remained in the Federal Trade Commission.
On June 30, 1940, the enforcement of the Federal Food, Drug, and Cosmetic
Act was transferred from the Department of Agriculture to the Federal Security
Agency.
"As this action is brought under the Federal Food, Drug, and Cosmetic Act,
we are not here concerned with any false advertising by the defendant. We
must determine whether there was a misbranding by false or misleading
labeling.
"The plaintiff necessarily contends for an extremely broad interpretation of
the language of the act defining labeling:
(m) The term 'labeling' means all labels and other written, printed, or graphic matter
*    *    *    (2) accompanying such article.
The Government contends that when Congress said 'accompanying such
article', it did not necessarily mean accompanying in the ordinary sense of the
word, as long as the literature eventually came together with the products
before or when offered for sale.
"Congress did intend that labeling should be something more than the printed
or written matter actually affixed to the article itself. It undoubtedly had
in mind the practice of manufacturers of placing circulars and printed matter
in cartons, which literature would not be affixed to the product to be sold.
"However, it would be a case of legislation by judicial construction to say
that literature 'placed on shelves, display counters, or in window displays' (to
use the language of the 'Government) comes within the definition of labeling.
It is advertising, pure and simple. The Congress could have provided that all
written or printed matter displayed near or in proximity of the article was
labeling but it did not do so. Suppose defendant provided a sign, extolling
the virtues of his product, to be hung on the wall? Under the construction
contended by the Government, it could be considered labeling.   What, about a
labeling would end and advertising begin
"In view of the fact that Congress decided that evils in the field of adver-
tising as to food, drugs, and cosmetics were to be handled by the Federal Trade
Commission, and the Copeland Bill was therefore amended accordingly, there
is no justification for any court to put a strained and unnatural construction
upon the term 'labeling.' Furthermore, the Food and Drug Act is a criminal
statute.   In U. 8. v. Weitzel, 246 U. S. 533, the Supreme Court stated (p. 543):
* * * Statutes creating and defining crimes are not to be extended by intendment
because the court thinks the legislature should have made them more comprehensive
*?*    *.
To the same effect, see Walter W. Oeflein, Inc., v. The State, 177 Wis. 394, 396.
"It is my opinion that paragraphs 15 to 24 inclusive of the complaint do not
state a claim against the defendant upon which relief can be granted."
- On November 24, 1941, on motion of the United States attorney the complaint
was amended in order to strike the charge that the labels did not bear the
Common or usual name of each active ingredient of the products. On December
5, 1941, on motion of the defendant, the court ordered the complaint dismissed.
On December 15, 1941, the Government filed a notice of appeal to the Circuit
Court of Appeals for the Seventh Circuit from the order dismissing the com-
plaint On November 25, 1942, the Circuit Court of Appeals overruled the
District Court's decision, handing down the following opinion:
Before EVANS and KEBNEB, Circuit Judges, and LXNDLEY, District Judge.
KERNER, Circuit Judge. "This is an appeal from a decree dismissing plain-
tiff's complaint for an injunction against violations of ?301 (a), (b), and (k)
for the shipment of misbranded articles of drug and ? 502 of the Federal Food,
Drug, and Cosmetic Act of 1938, c. 675, 52 Stat. 1040; 21 U. S. C. A., ?331 (a),
(b),and (k) and ? 352 (a).
"The complaint charged that defendant had caused to be printed circulars
making therapeutic claims for the products which he manufactures, falsely
claiming that the products will cure and constitute adequate treatment for
human ailments; that such circulars were sent in interstate commerce to agents
and distributors of said products, separately from the products to which they
relate; and that by virtue of defendant's power and control over his agents and
distributors, he required them to display the separately shipped circulars with
defendant's products.
"We must decide whether the act of bringing printed matter containing false
and misleading therapeutic claims in the presence of, and in association with, an
article after shipment in interstate commerce, results in the article being mis-
branded in violation of ? 301 (k) of the act.
"The Federal Food, Drug, and Cosmetic Act, so far as material, provides:
Sec. 201. For the purposes of this Act-*    *    *
(m) The term 'labeling' means all labels and other written, printed, or graphic
matter (1) upon any article or any of its containers or wrappers, or (2) accompanying
such article.
Sec. 301. The following Acts and tire causing thereof are    *    *    *    prohibited:
(a)?The introduction or delivery for introduction into interstate commerce of any
??*    ?    drug,    *    *    *    that is    *    *    *    misbranded.
(b)?The * * * misbranding of any * * * drug * ?? * in interstate com-
merce.
(k) The alteration, * * * of * * ? any part of the labeling of, or the doing
of any other act with respect to a * * * drug * * * if such act is done while
such article is held for sale after shipment in interstate commerce and results in such
article being misbranded.
Sec. 502. A drug or device shall be deemed to be misbranded-
(a)  If its labeling is false or misleading in any particular.
"In the District Court counsel for plaintiff contended that the phrase 'accom-
panying such article' means that misbranding occurs through any device which
causes printed matter containing false therapeutic claims to be shipped through
interstate commerce, including printed matter shipped separately from the prod-
uct, and constitutes a violation of ? 201 (m) if at the destruction it becomes
associated with and is used in proximity to the transported product on the
shelves and display counters of the defendant's agents and distributors.
"The District Court, howeverT was of the opinion that literature "placed on
the shelves, display counters, or in window displays' was advertising within
the meaning of the Federal Trade Commission Act, 15 TJ. S. C. A. ? 55, providing
that ' "false advertisement" means an advertisement, other than labeling,' and
consequently was not a misbranding of an article in interstate commerce.
556097?-43?3
"Section 8 of the Food and Drugs Act of 1906 provided that the term 'mis-
branded' should apply to all drugs or articles of food the package or label of
which bore any statement, design, or device regarding such article, which was
false or misleading in any particular, 21 U. S. C. A. ? 9. In interpreting this
section, it was held that a circular enclosed with an article inside the carton in
which it was offered for sale was not within the purview of this section, V. S. v.
American etc., 186 F. 387. Thereafter, in 1912, the act was amended, speciflcaly
extending the definition to include statements, designs, and devices contained in
the package, 'to hit precisely the case of circulars or printed matter placed inside
the package.' Seven Cases v. United States^ 239 U. S. 510, 515. The act was
again amended in 1938 so as to include within the term 'labeling,' all 'labels,'
and 'other written, printed, or graphic matter * * * accompanying such
article.'
"We have not had the benefit of a brief on behalf of the defendant, but in the
District Court the defendant contended that the word 'accompanying' did not in-
clude literature which did not go along with the product-in other words, that the
test was not nearness, concurrence of display, or availability for reading. With
this contention we cannot agree.
"The word 'accompany' is not defined in the act, but we observe that among
the meanings attributed to the word are 'to go along with,' 'to go with or attend
as a companion or associate,' and 'to occur in association with,' Webster's New
International Dictionary (2d edition). There can be no question that among
the usual characteristics of labeling is that of informing a purchaser of the
uses of an article to which the labeling relates, and that the basic character of the
Federal Food, Drug, and Cosmetic Act is not directly concerned with the sale
of the products therein described, or whether the literature is carried away by the
purchaser. It was enacted to protect the public health and to prevent fraud, and
it ought to be given a liberal construction. Consequently, we are impelled to the
conclusion that misbranding is cognizable under the act if it occurs while the
articles are being held for sale.
"This conclusion is sustained by the legislative history of the act, from which
it appears that it was not the purpose of Congress to limit the scope of the phrase
'accompanying such articles' to printed matter placed in the carton in which the
article is contained. See Senate Report 1944, 73d Cong., 1st and 2d Sessions,
and Senate Report No. 493 of the Committee on Commerce, 73d Cong., 2d Session.
"Our conclusion is also sustained by the decision in the case of V. S. v. Research
Laboratories, 126 F. (2) 42, decided after the District Court had dismissed the
complaint in the instant case. The defendant in the Research case contended
that the circulars constituted advertising and did not constitute labeling within
the meaning of the act.   In disposing of the contention, the court said, p. 45:
The contention assumes that printed matter (such as a circular) cannot constitute
both advertising and labeling. The assumption is unwarranted. Most, if not all, labeling
is advertising. The term 'labeling' is defined in the Act as including all printed matter
accompanying any article. Congress did not, and we cannot, exclude from the definition
printed matter which constitutes advertising.
"The court also said:
* * * nor is it material, whether the packages and the circulars did or did not travel
in the same crate, carton or other container or on the same train, truck or other vehicle
during their interstate Journey. The packages and the circulars had a common origin and
a common destruction and arrived at their destruction simultaneously. Clearly, therefore,
they accompanied each other, regardless of whether, physically, they were together or
apart during their journey.
"The decree of the District Court is reversed, and the cause is remanded for
further proceedings in conformity with this opinion."
On December 31, 1942, judgment was entered that the defendant, Royal Lee,
individually, and trading as the Vitamin Products Co., or otherwise, its suc-
cessors or assigns, agents, distributors, servants and all other persons acting on
his behalf be perpetually enjoined and restrained as follows: From introducing
or delivering for introduction into interstate commerce any food or drug that is
misbranded by reason of any false or misleading therapeutic or curative claims
for it in the treatment, mitigation, cure, or prevention of human ailments or
diseases, such claims appearing either upon the label or labeling, or in literature
accompanying the article; for misbranding any food or drug in interstate com-
merce that is held for sale after shipment in interstate commerce by or through
the use of written, printed, or graphic matter containing false or misleading
therapeutic or curative claims for the article, i. e., the display or presentation
of such written, printed, or graphic matter in the proximity of, or in company
purchaser a false or misleading impression or belief in regard to the therapeutic
or curative value of such article in the treatment of human ailments or diseases,
and from doing or performing any acts for the purpose, or which has the effect
of evading the foregoing prohibition.