Oliver Wendell Holmes, Jr.

“ But if the false statement referred to is a mistatement of identity as applied to a part of its objects, idiom and logic unite in giving it the same limit when applied to the other branch, the article, whether simple or one that the ingredients compose. Again, it is to be noticed that the cases of misbranding, specifically mentioned, and following the general words that we have construed, are all cases analogous to the statement of identity, and not at all to inflated or false commendation of wares. ”

“ According to the construction placed upon the statute by the court below in quashing the indictment, if one puts upon the market, in interstate commerce, tablets of inert matter or a liquid wholly worthless for any curative purpose, as he well knows, with the label 'Cancer Cure' or 'Remedy for Epilepsy,' he is not guilty of an offense, for, in the sense attributed by that construction to the words of the statute, he has not made a statement regarding the article which is false or misleading in any particular. ”

“ By § 8 the term 'misbranded' 'shall apply to all drugs or articles of food, . . . the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein, which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the state, territory, or country in which it is manufactured or produced. . . . An article shall also be deemed to be misbranded: In case of drugs: First. If it be an imitation of, or offered for sale under the name of, another article. ”

“ The last is breach of an affirmative requirement to disclose the proportion of alcohol and certain other noxious ingredients in the package,-again a matter of plain past history concerning the nature and amount of the poisons employed, not an estimate or prophecy concerning their effect. In further confirmation, it should be noticed that although the indictment alleges a wilful fraud, the shipment is punished by the statute if the article is misbranded, and that the article may be misbranded without any conscious fraud at all. ”

“ It is a matter of common knowledge that the 'substances' or 'mixtures of substances' which are embraced in the act, although not recognized by the United States Pharmacopoeia or National Formulary, are sold under trade names without any disclosure of constituents save to the extent necessary to meet the specific requirements of the statute. ”

“ On motion of the defendant, the district judge quashed the indictment (177 Fed. 313) , and the United States brought this writ of error under the act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246. [1]
The question is whether the articles were misbranded within the meaning of § 2 of the food and drugs act of June 30, 1906, chap. 3915, 34 Stat. at L. 768, U.S.C.omp. Stat. Supp. 1909, p. 1187, making the delivery of misbranded drugs for shipment to any other state or territory or the District of Columbia a punishable offense. ”

“ It has a strong stimulative and absorptive power; will remove swelling, arrest development, restore circulation, and remove pain. Is indicated in all cases of malignancy where there is a tendency of the disease to spread, and where there is considerable hardness sur. ”