312 



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cartons of 'Fairfax Cigarettes." The cartons were accompanied with 51 

 leaflets entitled, "How Cigarettes May Help You." A libel action was 

 brought by the United States alleging that the cigarettes were drugs and, 

 as such, were misbranded. The issue addressed by the court was whether or 

 not "the seized article is a drug within the meaning of the Food, Drug, 

 and Cosmetic Act." The Court noted that "In a field where generally 

 speaking competition Is met by advertising and labeling rather than by 

 price or even perhaps by substantial differences in quality, such 

 conflicts [between the FDA and tobac-j companies] are almost Inevitable as 

 manufacturers trefd near the statutory boundary." 113 F. Supp at 337. 



In ruling that the cigarette products were drugs, the court concluded 

 that, contrary to the claimants assertions that the leaflets were Intended 

 only to promote and Increase one's smoking pleasure, "If there be an 

 Indication of Intent to use the article for the cure or mitigation or 

 treatment or prevention of disease In man then clearly the subject matter 

 of the libel is to be considered a drug within the meaning of the act." 

 Id.at 337. 



The representations made by the manufacturer In the circular accompany ing 

 the cigarettes suggested that Fairfax cigarettes were effective in 

 preventing respiratory and other diseases. Finding that these leaflets 

 constituted labeling, the court held that the representations made In this 

 labeling were specious, that Fairfax cigarettes had "none of the curative 

 or preventive powers implied In the leaflet," and that the cigarette 

 manufacturer misled the public "by a subtle appeal to a natural and 



