11784. Misbranding: of Crab Orchard concentrated mineral water. TJ. S. v. 
22 Bottles of Crab Orchard Concentrated Mineral Water. Tried 
to the conrt and a jnry. "Verdict for the Government. Judgment 
of condemnation and forfeiture. Product released under bond to 
be relabeled. Case pending1 on appeal in TJ. S. Cireuit Cotirt of 
Appeals.     (F. & D. No. 153S5.    I. S. No. 903-t.    S. No. C-3245.)
On September 22, 1921, the United States attorney for the Southern District 
of Ohio, acting upon a report by the Secretary of Agriculture, filed in the Dis- 
trict Court of the United States for said district a libel, and on October 7, 1921, 
an amended libel, praying the seizure and condemnation of 22 bottles of Crab 
Orchard concentrated mineral water at Cincinnati, Ohio, consigned by L,  H. 
Goodwin & Co., Crab Orchard, Ky., September 6, 1921, alleging that the article 
had been shipped from Crab Orchard, Ky., and transported from the State of 
Kentucky into the State of Ohio, and charging misbranding in violation of the 
Food and Drugs Act, as amended.   The article was labeled in part:  (Bottle) 
" Beneficial in the Treatment of    *    *    *    Rheumatism, Piles, Indigestion, Dys- 
pepsia, Dysentery    *    *    *    Headaches, and other Ailments arising from Dis- 
eases of the Stomach, Kidneys, Liver and Impure Blood.   It is a Remedy    *    *    * 
to cure or relieve   *    *    *   afflicted  [of]  humanity.    *    *    *   possesses the 
necessary elements for the speedy and permanent restoration to perfect health. 
It strengthens every fibre of the human system and imparts to the nerves a 
new force of determined energy.    Even the aged find in its  [their]  healing 
powers a most reliable remedy for the restoration of failing vitality.    *    *    * 
At the appearance of indisposition, it proves a most reliable remedy.    *    '"    * 
It is in every way a health preserver as well as a healer.   Where habitually 
used the physician is a stranger    *    *    *.    For the Liver, Kidneys. Rheuma- 
tism    *    *    *    Dysentery.-One teaspoonful    *    *    *    until relieved    *    *    * 
never should the remedy be entirely discontinued until complete health is re- 
stored.    *    *    *    It quickly destroys the germs of disease and removes the 
causes of ailments by purifying the blood and cleansing the entire system of 
uric acid poisoning and poisonous germs;"   (carton)  "Beneficial In Treating 
*    *    *   Rheumatism  Lumbago  Loss  Of  Appetite    *    *    *    Headache  Ver- 
tigo     Sleeplessness   *    *    *   Bilious   Colic     Indigestion     Dyspepsia     Piles 
Kidney  Disease    Bladder  Trouble    Liver  Complaint    Jaundice    Dysentery 
Catarrh Eczema And All Other Diseases Arising From A Disordered Stomach, 
Liver    *    *    *    And Impure Blood.    *    *    *    Tonic And    *    *    *    System 
Regulator."
Analysis of a sample of the article by the Bureau of Chemistry of this de- 
partment showed the following results:
Salts (by combining the radicals).
Grains
per 
quart.
feifeast*
Epsom salt (MgSO4.7H20) 
Glauber's salt (NajSOi.lOHsO) 
Common salt (NaCl) 
Dolomitie limestone (CaCOj and MgCOj) 
Total 
5,516.74
1,434.81
32.99
21. S3
7,006.07
It was alleged in substance in the libel that the article was misbranded in 
that the labeling bore the above-quoted statements, regarding the curative or 
therapeutic effect of the said article, which were false and fraudulent in that 
the article contained no ingredient or combination of ingredients capable of 
producing the effects claimed, and in that it was insufficient of itself for the 
successful treatment and cure of the ailments and diseases for which it was 
prescribed and recommended in the said statements.
On November 28, 1922, the case came on for trial before the court and a jury. 
After the submission of evidence and arguments by counsel the court delivered 
the following charge to the jury (Peck, D. J.) :
" Gentlemen of the jury, it is now my duty in this, as it is in other cases, 
to charge you with regard to the law which will govern your deliberations; that 
is to say, charge you with regard to the law in the case. You are the sole 
judges of the facts; it is entirely within your province to say what the facts 
are. It is the duty of the court to declare the law to you, and it is your duty 
to accept the law as the court declares it and to apply it to the facts as you 
find them to be, and so reach your verdict'and say whether you find that this 
product is misbranded or is not misbranded; for that is the issue in this case. 
I say, the issue is whether or not the product is misbranded. The branding 
consists of all the statements made upon the label and upon the outside of 
the carton or box in which the bottles are enclosed.
" The Government states its case in a paper called a libel, and the libel of 
the Government charges that this product is misbranded in the following state- 
ments: [The court here quoted the foregoing labeling].
" Those are the statements which the Government claims constitute the mis- 
branding of this product.
" The defendant, or rather, we call the opposite party here the claimant, 
answers and denies that this product is misbranded. The burden of proof is 
upon the Government of the United States to prove by a preponderance of 
evidence which is clear and convincing that this product is misbranded before 
you can find it misbranded.
" In order to prove it misbranded it must be shown that the statements 
charged as misbranding in the libel, which I have just read to you, are in 
whole or in some substantial part false and fraudulent. By ' false' is meant 
not true. The term, I think, needs no definition. That which does not square 
with the truth is false. ' Fraudulent' means with deception deliberately 
practiced with a view of gaining an unfair advantage. If one knowingly makes 
a false statement for the purpose of gaining an unfair advantage, as an unfair 
advantage over purchasers-those of the public who may purchase-such false 
statement is also fraudulent. If one makes a false statement recklessly, that 
is to say, in reckless disregard of the truth, without taking steps to ascertain 
whether that which is claimed is true or false, and if the natural effect and 
consequence will be, if the statement turns out to be false, to take advantage 
or gain an advantage of the purchaser, then that statement would be a fraud- 
ulent statement. If one innocently believing in the truth of what is stated 
makes a statement concerning that which is contained in the package-not 
intending to deceive anybody, in good faith and believing in the truth of that 
which is stated-it can not be a fraudulent statement even though it turns out 
to be false in fact. In other words, gentlemen, it comes to this: Was there a 
false statement made in bad faith or was there not? If false, but made in 
good faith, the product could not be considered misbranded; if true, the product 
could not be considered misbranded; but if false and made in bad faith, fraud- 
ulently, then the product would be misbranded.
" Now 1 have said this applies to the statements made on the label and 
on the exterior of the carton, so far as they are set forth in the Government's 
pleading called the libel, in whole or in part. In other words, if any sub- 
stantial part of these statements are false and fraudulent or, I should say, if 
any substantial part of these statements is false and fraudulent, the fact that 
the remainder may be innocent would not save the package from being mis- 
branded. It is the purpose of the Pure Pood and Drugs Act to promote honest 
dealing between those who sell and those who buy, through the medium of 
interstate commerce, articles of this kind. It is admitted that these articles 
were articles that passed through interstate commerce. It is just as though 
the seller stood face to face with the buyer and said, ' I sell you this package. 
This package contains thus and so. Its qualities are thus and so.' These state- 
ments are to be treated as though they were made by word of mouth between
two people, the purchaser relying and having the right to rely upon what th- 
seller said to him. It is the purpose of the Pure Food and Drugs Act to insist: 
that people deal without fraud in making such statements.
"Now the words upon this label and on this carton-I have stated during: 
the course of the trial to you and now briefly repeat-are to be taken in their 
ordinary sense, as an ordinary purchaser of reasonable intelligence would take 
them. In judging whether these statements were fraudulent, you may take 
into consideration all of the surrounding circumstances-everything that had 
come to the attention and notice of the person who made these statements 
and put them upon this carton. You may take into consideration the fact, 
if it be a fact, that under some circumstances and at some times this water- 
had been ordered by a physician to be sold to certain persons; but of course 
you can only give that such effect as it is reasonably entitled to receive. 
Having considered all of the surrounding circumstances, you will say to your- 
selves: Was the maker of this label and this carton justified, that is to say, 
was the one who put out this product justified in fact in putting these state- 
ments on it and putting this product before the public with these statements 
on it?   Was that or was it not an honest act 
" You are the sole judges of the credibility of the witnesses, that is to say, 
the extent to which you will believe the witnesses who have testified before 
you, and it is your duty to reconcile the conflicting testimony of various wit- 
nesses and conflicting statements so far as it may reasonably be done.
" Witnesses, those who are supposed to know more than the ordinary person 
about such subjects, such as chemists and physicians, have been permitted to 
give their opinions as to various matters. Opinion evidence is not binding 
upon you, but should be considered in connection with all the other evidence 
in the case. Should you believe it, you may accept and follow it. By an 
opinion I mean a statement or a conclusion arrived at by the witness from ex- 
perience or from knowledge, as distinguished from testimony concerning; a 
direct fact. If I were to say, ' That is a stone house across the street that I 
see,' that would be a statement of fact; but were I to say that ' My belief is 
that that house is worth two hundred thousand dollars,' that would be merely 
an opinion as to its value.
" Now you are the sole judges of the value of opinion evidence. Of course, 
an opinion is worthless unless it is the honest opinion of the man who states 
it. If it is his honest opinion, then its value depends upon how much he 
knows about the subject concerning which he is testifying. If he is thoroughly 
experienced, thoroughly grounded in his subject, if his opinion is the result 
of mature reflection, if he is a man of strong logical intellect, his opinion would 
be entitled to great value. If, on the other hand, he was incapable of logical 
thinking, or if he was not well grounded in his subject, not familiar with the 
facts upon which his conclusion is assumed to be based, then of course his 
opinion would be of little or no value; and it is for you to decide what value 
you will give to the opinion evidence that you have heard.
" Now a great deal of the evidence of the witnesses who have testified con- 
cerning their own ailments is in the nature of opinion evidence. Those wit- 
nesses who testified that they had well-known, easily discernible diseases, or 
easily told diseases-I will say, such as headache or constipation, or some- 
thing of that sort-of course there would be very little reason to doubt that 
they knew what they had. But if one testified that he thought that he had 
some more obscure disease, more difficult to diagnose, and his diagnosis of 
what he had depended entirely upon his own opinion and he was unable to 
make such a diagnosis, his opinion would be of very little value. Those are 
matters for you to take into consideration in weighing the testimony of the 
witnesses.
"You may also consider the interest of the witnesses, if they have any, in 
the outcome of the case-their affiliation with either of the parties, their manner 
of testifying, their appearance upon the witness stand, whether their testi- 
mony was logical or otherwise-these and any or all other subjects touching 
the credibility of the various witnesses you may take into consideration; and 
having considered all matters, you will give to the testimony of each and 
every witness such weight as you find it entitled to receive. That is your 
province.
"And now, gentlemen, if upon a consideration of all the evidence you 
find that the statements charged in the libel are false and fraudulent in any 
substantial part, you will find the product to be misbranded. If, on the 
other hand, you do not find that the statements charged in the libel are false 
and fraudulent in some substantial particular, then you will find the product 
to be not misbranded."
The jury then retired and after due deliberation returned a verdict for the 
Government. On December 1, 1922, the claimant filed a motion for a new 
trial which motion was overruled, to which ruling the claimant excepted. On 
December 30, 1922, judgment of condemnation and forfeiture was entered, 
and it was ordered by the court that the product be relabeled and sold by the 
United States marshal, with the proviso in said judgment that the product 
might be released to the claimant, Idie C. Goodwin, for and on behalf of L. H. 
Goodwin & Co., upon payment of the costs of the proceedings and the 
execution of a bond in the sum of $100, in conformity with section 10 of the 
act, conditioned in part that the product be relabeled in a manner satisfactory 
to this department. On January 13, 1923, the claimant having theretofore 
filed a motion that the verdict of the jury be set aside and judgment entered 
for the claimant, and said motion having been overruled and exception to said 
ruling having been duly taken by the claimant, the above judgment was 
corrected to incorporate said motion, ruling, and exception. The claimant 
having perfected an appeal, the case is now pending on appeal in the United 
States Circuit Court of Appeals for the Sixth Circuit.
HOWABD M. GOBE, Acting Secretary of Agriculture.