4846. Misbranding; of Dr. J. X.. Kellett's Oil of Eden. No. 1 and Br. -J. I,.?
Kellett's Sweet Spirits of EJden. TJ. S. v. Jolin X>. Kellett (Califor??
nia's Coopei'ative BSedieiae Co.). Tried to t~h.& conrt and a. jury.?
Verdict of guilty. Fine, $600. (P. & D. No. 6225. I. S. No. 9722-h,?
9723-h.)
At the November, 1915, term of the District Court of the United States for?
the District of Utah, the United States attorney for said district, acting upon?
a report by the Secretary of Agriculture, filed in said court an information?
against John L. Kellett, trading as California's Cooperative Medicine Co., Salt?
Lake City, Utah, alleging shipment by said defendant, in violation of the Food?
and Drugs Act, as amended, on or about April 13, 1914, from the State of?
Utah into the State of California, of quantities of Dr. J. L. Kellett's Oil of?
Eden No. 1 and Dr. J. L. Kellett's Sweet Spirits of Eden which were mis-?
branded. The first-named article was labeled: (On bottle) "Dr. J. L. Kellett's?
Oil of Eden No. 1. Each fluid ounce contains alcohol, 50 per. cent; opium, 54J?
grains; morphine sulphate, 2| grains. Direction: Rheumatic and neuralgic?
pains in shoulders, breast, sides, back, hips, and limbs, apply every 12 hours;?
frontal neuralgia, apply on temples; earache, apply under ears; sore throat,?
apply on throat; enlarged glands, ulcerated tumors, apply until drawn to a?
head; sore eyes, apply on the temples, under the ears, and on eyelids. Don't?
get it in your eyes or on tender parts. It causes pain, and parts may swell,?
but will not do any permanent injury. Shake well and apply with finger.?
Poison. Use externally only." (On carton, front:) "Dr. John L. Kellett's No.?
1 Oil of Eden. Each fluid ounce contains alcohol, 50? ; opium, 54J grains;?
morphine sulphate, 2| gr. Manufactured and guaranteed by C. C. Medical Co.?
under the Food and Drugs Act, June 30, 1908. Serial No. 10698. Utah Branch,?
Salt Lake City. Dr. John L. Kellett, president and manager." (Back:) "Dr.?
John L. Kellett's No. 1 Oil of Eden relaxes and opens the pores. Penetrates to?
the bone, dissolves and removes to the surface all impurities of the external?
system from which pain and disease are created. In conjunction with -Sweet?
Spirits of Eden, all ordinary complaints of rheumatic nature are easily cured.?
Oil of Eden dissolves and removes Ulcerated Tumors, Enlarged Glands, and all?
other Eruptions. For man or beast it is all the same. It is a powerful medi??
cine and is applied with the Fingers. Used Externally Only. Poison Price?
$2.00.    (One side) Oil of Eden (other side) Oil of Eden "
The circulars or pamphlets accompanying this article contained, among other?
things, the following: " For the cure of Rheumatism, Neuralgia, Lumbago,?
Gout, and all kindred pains, shake the bottle well every time; you wet your?
finger and apply with finger on surface over the pain. Do not think because a?
little is good that more is better, for it is not the case with Oil of Eden. Apply?
every twelve hours, unless it gets too sore, then apply as often as you can until?
you are well." "* * * If the eyelids are inflamed or granulated, the Oil?
of Eden will cut loose all contraction and granulation, which cause severe pain,?
yet it will not do any permanent injury." " * * * Deafness that is caused?
by disease has been cured by Oil of Eden by applying it under the ear." " When?
Oil of Eden and Sweet Spirits of Eden are used in conjunction with each other,?
a cure is certain of rheumatism as well as all kindred curable ailments, but it?
will take time in chronic cases, as impure parts have to be "worked out and?
replaced with healthy ones, which takes time." " I will pay a reward of $500.00?
for proof that I have ever failed or will fail in removing and curing without a?
knife, a goitre, enlarged gland, ulcerated tumor or any false, corrupt, impure?
deposit of the external system, with Oil of Eden, used in connection with Sweet?
Spirits of Eden, which cures chronic constipation, disordered digestion, sick?
bilious headache and nervous prostration."
N. J. 4801-4850.]  SERVICE AND EEGULATOEY ANNOUNCEMENTS.	459
Analysis of a sample of the article by the Bureau of Chemistry of this depart??
ment showed the Oil of Eden to consist of two layers, the upper layer oily, car??
rying a vesicating agent and a bland saponifiable fixed oil; the lower layer?
hydroalcoholic, carrying opium alkaloids and extractives.
Misbranding of the article was alleged in the information for the reason that?
the following statements regarding the therapeutic or curative effects thereof,?
appearing on the carton label aforesaid, to wit, " In conjunction with Sweet?
Spirits of Eden, all ordinary complaints of a rheumatic nature are easily cured.?
Oil of Eden dissolves and removes ulcerated tumors, enlarged glands, and all?
other eruptions," and included in the circulars or pamphlets aforesaid, to wit,?
" For the cure of rheumatism * * * Gout * * * Do not think because?
a little is good more is better, for it is not the case with Oil of Eden." " * * *?
If the eyelids are inflamed or granulated, the Oil of Eden will cut loose all?
contraction and granulation. #**??*** Deafness that is caused by?
disease has been cured by Oil of Eden by applying it under the ear." " When?
Oil of Eden and Sweet Spirits of Eden are used in conjunction with each other,?
a cure is certain of rheumatism. * * * " "I will pay a reward of $500 for?
proof that I have ever failed or will fail in removing and curing without a?
knife, a goitre, * * * with Oil of Eden used in connection with Sweet?
Spirits of Eden, * * * " were false and fraudulent in that the same were?
applied to the article knowingly and in reckless and wanton disregard of their?
truth or falsity, so as to represent falsely and fraudulently to the purchasers?
thereof, and create in the minds of purchasers thereof the impression and belief,?
that it was, in whole or in part, composed of, or contained, ingredients or?
medicinal agents effective, among other things, for curing all ordinary com??
plaints of a rheumatic nature when used in conjunction with Sweet Spirits of?
Eden, for dissolving and removing ulcerated tumors, enlarged glands, and all?
other eruptions, for tho cure of rheumatism and gout, in the tieatment of?
granulated eyelids, for curing deafness, as a cure for rheumatism and goitre,?
when used in conjunction with Sweet Spirits of Eden, when, in truth arid in?
fact, it was not, in whole or in part, composed of, and did not contain, in??
gredients or medicinal agents effective, among other things, for curing all ordi??
nary complaints of a rheumatic nature when used in conjunction with Sweet?
Spirits of Eden, or when used in any other manner, or for dissolving or remov??
ing ulcerated tumors, enlarged glands, or all other eruptions, for the cure of?
rheumatism or gout, in the treatment of granulated eyelids, for curing deafness,?
or, when used in conjunction with Sweet Spirits of Eden or when used in any?
other manner, as a cure for rheumatism or goitre.
The second-named article was labeled: (On bottle) "Dr. J. L. Kellett's?
Sweet Spirits of Eden Alcohol 25 per cent Directions In breaking up the?
seed of disease in chronic cases there will be an undesired and sickening feel??
ing, which is a good indication, as it is harmless. An average dose in constipa??
tion and disordered digestion is 10 drops, 2, 3, and 4 times a day before meals?
and at bed time in plenty of water. For sick or bilious headaches and weak?
kidneys take less, as it strains the nerves in place of strengthening them when?
over doses are taken. Children half quantity. Carefully follow directions."?
(On carton, front) "Dr. John L. Kellett's Sweet Spirits of Eden Contains?
Alcohol Spirits about 25? Manufactured and Guaranteed by C. C. Medical?
Co. Under the Food and Drugs Act, June 30, 1906. Serial No. 10698. Utah?
Branch Salt Lake City. Dr. John L. Kellett, President and Manager. (Back)?
Dr. Jno. L. Kellett's Sweet Spirits of Eden Strengthens the mental power of?
the nerves that govern the whole system, regulating the Liver, Kidneys, Stom??
ach and Bowels, and purifies the blood, curing Chronic Constipation, Sick and?
Bilious Headaches, Weak and Deranged Nerves and Nervous Prostration, and
4&Q	
BUREAU  OP  CHEMISTRY.	
[Supplement 27.
will restore Lost Vitality caused by sickness and overtaxation. One bottle will?
assist nature in curing most any one case, as it is used ,by drops in ;the place of?
spoonfuls. Price $3.00 (One side) Sweet Spirits of Eden (Other side) Sweet?
Spirits of Eden" The circular or pamphlet accompanying this article con??
tained, among other things, the following: "When Oil of Eden and Sweet?
Spirits of .Eden are used in conjunction with each other, a cure is certain of?
rheumatism as well as all kindred curable ailments, but it will take time in?
chronic cases, as impure parts have to be worked out and replaced with healthy?
ones, which takes time." '' I will pay a reward of $500.00 for proof that I have?
ever failed or will fail in removing and curing without a knife a goitre, enlarged?
gland, ulcerated tumor or any false, corrupt, impure deposit of the external?
system, with Oil of Eden, used in connection with Sweet Spirits of Eden, which?
cures chronic constipation, disordered digestion, siek bilious headaches and?
nervous prostration."
Analysis of a sample of this article by the said Bureau of Chemistry showed?
the Sweet Spirits of Eden to consist of 50.48 per cent by volume of alcohol,?
30.42 grams per 100 cc of solids, largely glycerin, 0.3 grams per 100 cc of ash,?
and containing quinine, reducing sugars, and a trace of resins.
Misbranding of the article was alleged in the information for the reason?
that the following statement appearing on the labels aforesaid, to wit, "Alcohol?
25*per cent," was false and misleading in that it indicated to the purchasers?
thereof that the article of drugs contained 25 per cent of alcohol by volume,?
when, in truth and in fact, it contained a greater amount of alcohol, to wit,?
50.48 per cent. Misbranding was alleged for the further reason that the fol??
lowing statements regarding the therapeutic or curative effects of the article?
appearing on the carton aforesaid, to wit: " Dr. John L. Kellett's Sweet?
Spirits of Eden * * * Strengthens the mental power of the nerves that?
govern the whole system, * * * curing * * * Nervous Prostration?
* * *," and included in the circular or pamphlet aforesaid, to wit, " When?
Oil ?f Eden and Sweet Spirits of Eden are used in conjunction with each?
other a cure is certain of rheumatism * * *." " I will pay a reward of?
$500.00 for proof thai I have ever failed or will fail in removing and curing?
without a knife a goitre * * * with Oil of Eden, used in conjunction with?
Sweet Spirits of Eden * * *," were false and fraudulent in that the same?
were applied to the article knowingly and in reckless and wanton disregard?
of their truth or falsity, so as to represent falsely and fraudulently to the?
purchasers thereof and create in the minds of purchasers thereof the impres??
sion and belief that it was in whole or in part composed of or contained ingre??
dients or medicinal agents effective, among other things, for curing nervous?
prostration, and as a cure for rheumatism and goiter when used in conjunction?
with Oil of Eden, when in truth and in fact it was not in whole or in part?
composed of and did not contain ingredients or medicinal agents effective for?
curing nervous prostration or as a cure for rheumatism or .goiter when used?
in conjunction with Oil of Eden or when used in any other manner.
On January 20, 1918, the case having come on for trial before the court?
and a jury, after the submission of evidence and arguments by counsel, the?
following charge was delivered to the jury by the court (Johnson, D. /.) :
Gentlemen of the jury, the defendant, John TJ. Kellett, is charged by the?
United States Government in this case on three counts with the violation of?
what is commonly known as the Pood and Drugs Act.
Each count of the information charges that the defendant, John L. Kellett,?
trading as California's Cooperative Medicine Company, of Salt Lake City,?
Utan, did within the Judicial District of Utah, and within the jurisdiction of?
this court, on or about the 13th day of April, 1914, then and there, in violation?
of the act of Congress of June 30, 1906, known as the Pood and Drugs Act, as
N.J. 4801-4850 J   SEE VICE ANB REGULATORY ANNOUNCEMENTS.	461
amended by the act of August 23, 1913, unlawfully ship and deliver for ship??
ment from Salt Lake City, State of Utah, to the City of San Francisco, State?
of California, consigned to H. C. Moore, certain packages, to wit, six bottles,?
inclosed in cartons, and containing an article designed and intended to be used?
in the cure, prevention, and mitigation of diseases of man.
The Food and Drugs Act, gentlemen, makes it unlawful for any person to?
ship or deliver for shipment from any State into any other State, any drugs?
misbranded within the meaning of the act, such shipment being made with the?
intent upon the part of the shipper that such misbranded drug shall be used?
by the consignee, or any other person.
In this connection, gentlemen, I instruct you that the preparations, Oil of?
Eden and Sweet Spirits of Eden, introduced in evidence as exhibits, are drugs?
within the meaning of this act.
Before you can convict the defendant on any of the counts of the information,?
you must be convinced by the evidence in the case beyond a reasonable doubt?
that the defendant, on or about the date alleged in the information, shipped or?
caused to be shipped from the State of Utah?from any point within the central?
division of the judicial district of Utah?into the State of California, the prepa??
rations, Oil of Eden and Sweet Spirits of Eden, exhibits of which are in?
evidence in this case, and that the defendant in making or causing to be made?
said shipment intended that said preparations, or either of them, should be used?
by the witness Moore, or by some other person, as a remedy for some one or?
more of the ailments mentioned on the labels, cartons, or in the literature ac??
companying the shipment.
In this connection I charge you that in order that the defendant be liable?
under the act as the shipper of these preparations, it is not necessary that he?
should-have been the owner of them, or either of them, or that he shipped them?
for his own profit; he would be equally liable as shipper under this act if he,?
as an officer, agent, or manager of any company or corporation, made the?
shipment or caused the same to be made for the purpose aforesaid.
Under the head of " misbranded " the act provides that for the purposes of?
this act an article shall be deemed to be misbranded, in case of drugs, if its?
package or label shall bear or contain any statement regarding the curative or?
therapeutic effect of such article or any of the ingredients or substances con??
tained therein, which is false and fraudulent.
(The court here reviewed the various charges in the information.)
The labels, cartons and circulars are in evidence as exhibits, and you are at?
liberty to take them with you to the jury room for your information in deter??
mining your verdict.
In addition to the instructions already given you with respect to the shipment?
by the defendant, if you so find, I charge you with respect to the first and?
third counts of the information, that, as appears from the information as read?
to you, the charges are that there were statements on the labels, cartons, and?
in the circulars in the packages containing these preparations which were?
false and fraudulent with regard to their curative or therapeutic effects. So that?
it is not sufficient for the Government to prove merely that the statements were?
false, but the Government must also prove beyond a reasonable doubt that they?
were fraudulent. If you, gentlemen of the jury, are satisfied beyond a reason??
able doubt that the statements referred to and charged as jfalse and fraudulent?
in the third count, are not only false, but that the defendant knew them to?
be false, or, not knowing whether they were true or false, yet in reckless and?
wanton disregard of their truth or falsity, and without any reasonable ground?
to believe that they were true, he stated them falsely and knowingly, or without?
knowledge of their truth or falsity, as I have explained to you, with the?
intent to deceive the witness Moore, or any other person who might use the?
preparations, then you will be justified in finding that the statements were?
false and fraudulent, and it would be your duty to return a verdict of guilty?
upon both of said counts, or either of them, as your finding may be with respect?
to the matters charged as false and fraudulent, in these counts, respectively.?
But if, on the other hand, you are not satisfied beyond a reasonable doubt?
that the statements were not only false but that they were also fraudulent, then?
it would be your duty to acquit the defendant upon both of said counts, or?
either of them, as your finding may be with respect to the matters charged as?
false and fraudulent in said counts, respectively.
The mere falsity of a statement would not be sufficient to justify you in?
convicting the defendant, unless you are satisfied beyond a reasonable doubt?
that in stating the falsity the defendant did it knowingly, or, without knowing,
462	
BUEEATJ  OF   OHEMISTBY,	
[Supplement 27.
?did it in reckless and wanton disregard of the truth or falsity of the state??
ment and without any reasonable ground to believe it to be true and with?
intent to deceive and defraud.
In order to convict the defendant it is not necessary that you find beyond?
a reasonable doubt that all of the statements charged by the Government?
to be false and fraudulent were in fact so. If you believe from the evidence?
beyond a reasonable doubt that any one statement charged as false and fraudu??
lent, as I have before explained to you, is in fact so, then it would be your?
duty to find the defendant guilty upon the count in which such false and?
fraudulent statement is charged.
In respect to the second count of the information I charge you, gentlemen?
of the jury, that if you believe from the evidence beyond a reasonable doubt,?
and so find, that the label or carton or literature on or accompanying the?
Sweet Spirits of Eden contained a statement showing " alcohol 25 per cent,"?
and you further find that the content of alcohol in the Sweet Spirits of Eden?
was different in quantity or volume in any substantial proportion and was?
false and misleading in that it indicated to the purchasers thereof that the?
said article of drug contained 25 per cent, and it in fact contained some?
other substantially different quantity or volume, then it would be your duty?
under the evidence, if you so find, to return a verdict of guilty upon this count.
In respect to the several counts, gentlemen of the jurj*-, you have heard the?
evidence on the part of the Government; the packages, or at least some of?
them, with the labels thereon, the cartons, with the printed matter thereon,?
and the circulars which are charged to be false and fraudulent, have been?
offered in evidence and are before you. The Government has produced a?
witness who has analyzed the contents of the Sweet Spirits of Eden, and who?
has stated to you the result of his analysis and the percentage of alcohol.?
The Government has called physicians who have testified, as you have heard,?
that in their opinion the preparations, and the ingredients found in them, are?
not effective as a remedy for the disorders which it is stated they are effective?
for, and in respect to which it is charged by the Government that such?
statements are false and fraudulent, and who stated that in their opinion?
there are no substances or drugs that would be effective as remedies according?
to the statements made on the labels and in the pamphlets and on the cartons.?
On the other hand, the defendant has called witnesses to show, in the instances?
in which they have been treated, that the drug has been effective as a remedy?
for the disorders with which they stated they were afflicted. You will take?
all of this evidence into consideration and determine, first, whether or not?
the statements which are referred to by the Government with regard to the?
therapeutic or curative properties of these preparations are false; and you?
will also take into consideration the evidence in behalf of the Government?
of the expert physicians, as opposed to the evidence introduced in behalf of?
the defendant, and determine whether the statements were false. If they?
were false, then it will be necessary for you to go further and be satisfied?
beyond a reasonable doubt -in your minds not only of their falsity but that the?
defendant when he made them knew them to be false or, not knowing, had?
no reasonable ground to believe them to be true, and that he put forth the?
statements in reckless and wanton disregard of their truth or falsity and?
intended by such false statements to deceive and defraud. If you are satisfied?
beyond a reasonable doubt that the statements as to the therapeutic or curative?
properties of the preparations were false and fraudulent with respect to all?
or any one of the diseases charged in the information, then it would be your?
duty to return a verdict of guilty. Upon the other hand, if you are not satisfied?
beyond a reasonable doubt that they were not [only] false, but fraudulent, and?
made with the intent to deceive and defraud the public, then it would be your?
duty to return a verdict of not guilty.
In the first instance, the presumption of innocence is in favor of the de??
fendant, and it attends him throughout the trial, and the burden is upon the?
Government to overcome that presumption of innocence by proof which satisfies?
your minds beyond a reasonable doubt.
By reasonable doubt, gentlemen, is not meant all doubt. A reasonable doubt?
is one that arises upon a consideration of all of the evidence, and which?
addresses itself to your reason, such a doubt as would affect your action in?
matters of the highest importance to you.
Tou are required to decide this case, as every other criminal case, upon the?
strong probabilities of the case, and in order to warrant a conviction those
F. J. 4801-4850.1  SERVICE  AND REGULATORY ANNOUNCEMENTS.	463
probabilities must be so strong as not to exclude all possible doubt or possi??
bility of error, but to exclude all reasonable doubt.
You are the judges of the facts in this case and of the credibility of the?
witnesses, as well as the weight to be attached to their testimony. If you?
believe that any witness has willfully sworn falsely to a material fact in this?
case, you are at liberty, though not required, to disregard all the testimony?
of that witness, except where it is corroborated by other credible testimony.?
In considering the weight to be attached to the evidence of any witness, you?
should consider the interest, bias, or prejudices which any such witness may?
have in the result of the case, as affecting the credit to be given to his testi??
mony. You should judge of that bias, prejudice, and interest of the witness?
from his manner in giving his testimony, his deportment on the stand, and in?
fact anything which strikes you from his manner of testifying that tends to?
show that he is swearing to an untruth or falsehood.
There will be submitted to you, gentlemen, a form of verdict in which a?
blank space will be left before the word " guilty," one applying to the first?
count, another to the second count, and another to the third count. If you?
shall find the defendant guilty upon any one or all of the counts, 3^ou shall?
sign the verdict as written; but if you find the defendant not guilty upon any?
one or all of the counts, write the word " not " before the word " guilty."
Mr. COOK. With respect to the second count, may it please the court, we wish?
the jury to be instructed with respect to the branding of the quantity of alcohol,?
that the intent of the defendant with respect to the marking of the percentage?
is immaterial; that the lav/ is directed merely at the correctness of the state??
ment, and that the defendant should be found guilty, without regard to the?
defendant's intent, if the statement is incorrect.
The COURT. That instruction or request is granted, gentlemen of the jury.?
The matter of intent on the second count is immaterial?that is, the intent of?
the defendant.
Mr. COOK. With respect to the marking.
The COURT. In respect to the matter concerning which that charge was?
given.
Mr. COOK. It is sufficient that the label, at the time of shipping, is incorrect.
The COURT. That is the intention in the granting of your request.
The jury thereupon retired and after due deliberation returned into court?
with its verdict of guilty, and thereafter, on February 12, 1916, after the de??
fendant's motion for a new trial had been denied, the court imposed a fine of?
$200 on each count of the information, making a total fine of $600.
CARL VROOMAN,?
Acting Secretary of Agriculture.
464	
BUREAU   OF   CHEMISTRY.	
I Supplement 27,