3848. Alleged misbranding of Seconal Sodium capsules and pentobarbital sodium
capsules. U. S. v. Forest C. Pomroy (Pomroy's Drug Store). Plea of
guilty. Motion for dismissal of the information granted and defendants
discharged as not guilty. (F. D. C. No. 31271. Sample Nos. 93084-K,
93089-K, 93093-K, 98099-K, 93203-K, 93210-K, 93212-K, 93221-K,
93222-K, 93238-K.)
INFORMATION FILED: January 8, 1952, Southern District of Florida, against
Webb's City, Inc., St. Petersburg, Fla., and Charles L. Fox, manager of the
prescription department of the corporation.
ALLEGED VIOLATION: Between the approximate dates of October 24 and De-
cember 19, 1950, while quantities of Seconal Sodium capsules and pentobar*
oital sodium capsules were being held for sale at Webb's City, Inc., after
shipment in interstate commerce, the defendants caused various quantities
of the drugs to be repacked and dispensed without a physician's prescription,
which acts resulted in the repackaged drugs being misbranded.
NATURE OF CHARGE: Misbranding, Section 502 (b) (2), the repackaged drugs
failed to bear labels containing an accurate statement of the quantity of the
contents.
Further misbranding, Section 502 (d), the repackaged drugs contained
chemical derivatives of barbituric acid, which derivatives have been found
to be, and by regulations designated as, habit forming; and the labels of
the repackaged drugs failed to bear the name, and quantity or proportion
of each derivative and in juxtaposition therewith the statement "Warn-
ing-May be habit forming."
Further misbranding, Section 502 (f) (1), the labeling of the repackaged
drugs failed to bear adequate directions for use.
DISPOSITION: Pleas of not guilty were entered on behalf of the defendants
on or about February 12, 1952, and a motion for dismissal of the informa-
tion was filed on behalf of the defendants on or about February 18, 1952.
On August 1, 1952, the court entered the following order granting the
motion:
BARKER, District Judge: "This cause came on to be heard upon the Motion
to Dismiss filed herein by the defendants, and the Court having heard the
argument of counsel, and counsel for the defendants and for the United States
of America having stipulated before the Court that the facts in support of
the offense sought to be charged in each count consist of refilling prescrip-
tions for certain drugs by the defendants when there was a physician's pre-
scription on file with the defendants;
"And the Court being advised that refilling of such prescriptions was a
practice of long standing with druggists, and that for many years the admin-
istrator of the Federal Food, Drugs and Cosmetics Act did not seek to re-
strict refills of prescriptions and after it sought to do so, the Congress adopted
a clarifying and definitive amendment, and the Court being of the opinion
that facts supporting the offense sought to be charged, viz refilling prescrip-
tions, do not constitute a criminal offense adequately and definitely spelled
out in the statute and regulations as is required for a criminal prosecution;
"It is thereupon ordered that the said motion is hereby granted and the
information is hereby dismissed, and the defendants are hereby released
from process and discharged as not guilty.
"Done and ordered this 1st day of August A. D., 1952."