OFFICE OF THE SOLICITOR. 409 



and drugs act Congress was endeavoring to protect the public by 

 keeping out of interstate commerce certain illicit articles debased 

 by adulteration, and it would be an unjustifiable construction of the 

 act to make liability turn upon a difference in identity of consignor 

 and consignee, or the secret intent with which a shipper made the 

 shipment. 



In United States v. McLean Medicine Go.^ Notice of Judgment 

 6149, involving the shipment in interstate commerce of a drug alleged 

 to have been misbranded in violation of the Sherley amendment to 

 the food and drugs act, the trial court instructed the jury that Con- 

 gress enacted the food and drugs act for the purpose of protecting 

 the health of the people. With regard to the labeling of the product, 

 the court instructed the jury that for the purpose of determining 

 whether the labels and other literature, which contained statements 

 that the use of the medicine would arrest or retard the diseases men- 

 tioned therein, were misbranded, that they should take into consid- 

 eration all the language used therein, and from it determine whether 

 it was the intention of the defendant to lead such persons who would 

 read them to believe that the preparation, if taken in the manner pre- 

 scribed, would arrest or retard the progress of the numerous diseases 

 mentioned although the language did not in direct terms say so ; that 

 persons who make substances or compositions alleged to be curative 

 or beneficial are in a position to have superior knowledge and may be 

 held to good faith in their statements; that a person who makes a 

 statement which he doesn't know to be true makes a false statement 

 just as much as a man who makes a statement which he knows to 

 be false; that if a person makes false statements for the purpose of 

 inducing another to purchase such preparations from him in the 

 belief that they will cure or arrest, retard or relieve him to some 

 extent from the ailments which he suffers, which he didn't know to 

 be true and therefore were found to be false, then the jury were 

 justified in finding that it was for the fraudulent purpose of induc- 

 ing the people to buy the medicine from him; that if they found it 

 to be a fact that the statements were not false, or, being false, that 

 there was no intent, whether actual or implied, upon the part of the 

 defendant to defraud, then their verdict should be for the defendant ; 

 that in determining the intent of the defendant, they should take 

 into consideration all the facts and circumstances of the case and 

 determine w^hether or not it was the intention that this language, 

 interpreting it as ordinary intelligent men would, should convey the 

 impression that the medicine was to cure or act as a remedy for the 

 diseases or ailments mentioned, even where the language does not 

 directly say so. 



The case of Oscar J. Weeks v. The United States (F. & D. No. 

 4672, Cir. No. 89, Office of the Solicitor) decided by the Supreme 

 Court of the United States February 4, 1918, involved a prosecution 

 for the shipment in interstate commerce of an article of food labeled 

 " Special lemon. Lemon terpene and citral." Upon the trial of the 

 case a conviction resulted in the lower court, and in the circuit court 

 of appeals the conviction was affirmed upon so much of the charge in 

 the information as alleged that the article was offered for sale as 

 lemon oil, when in truth it was an imitation thereof containing alco- 

 hol and citral derived from lemon grass. The record showed that 



97335°— AGR 1918 27 



