8720.  Alleg-ert misbranding of Glnnei'ole.     V. s,     *     *      *     v.  Gingerole Co.,?
a.  Corporation.     Tried  to  tiie  court     Fiailins:  of  net  guilty.      (1\   &
D. No   10058.     I. S   No.  l.">258-r )
On July 30, 1919, the United States attorney for the Western District of?
Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in the?
District Court of the United Slates for said district an information against the?
Gingerole Co., a corporation, doing business at Washington, Pa., alleging ship??
ment by said company, on or about October 31, 1918. in violation of the Food and?
Drugs Act, from the State of Pennsylvania into the State of Maryland, of a?
quantity of an article, labeled in part " Gingerole," which was alleged to have?
been misbranded.
Analysis of a t ample of the article by the Bureau of Chemistry of this depart??
ment showed that it was an ointment the base of which was petrolatum, which?
formed more than Co per cent of the mixture. Small amounts of volatile oils?
were present, among them turpentine, menthol, and possibly camphor. The non??
volatile portion of the mixture contained besides petrolatum small amounts of?
oleoresins of capsicum and ginger.
It was alleged, in substance, in the information that the article was mis-?
branded for the reason that certain statements regarding the therapeutic and?
curative effects thereof, appearing on the labels of the jars and cartons contain??
ing said article, falsely and fraudulently represented it to be effective as a?
treatment, remedy, and cure for pneumonia, rheumatism, neuralgia, pleurisy,?
croup, and asthma, when, in truth and in fact, it was not.
On June 10, 1920, the case having come on to be tried before the court, a jury?
having been waived by stipulation, the defendant company was found not guilty,?
as will more fully appear from the following opinion by the court (Orr, D. J.) :
Inasmuch as th? court will enter at the time of filing this opinion a general?
finding that the defendant is not guilty, it is proper that the court give some?
reason therefor lest the inference be drawn that by such finding there is an?
indorsement of the defendant's product. The real reason for entering such?
judgment is because the court has not been convinced that the defendant is?
guilty under the statute. This is a proceeding under the Food and Drugs Act?
(34 Statutes at Large, 70S), as amended by act of August 23, 1912 (37 Statutes?
at Large, 416), which, among other things, provides a drug shall be deemed to
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BUREAU   OF   CHEMISTRY.	
[Supplement 105,
be misbranded " if its package or label shall bear or contain any statement,?
design, or device regarding the curative or therapeutic effect of such article or?
any of the ingredients or substances contained thereon which is false and?
fraudulent." The drug in this case is a drug called " Gingerole," which word?
appears therefrom to be a trade-mark. The carton contains the statement?
" Will not blister," a statement also of the place of manufacture and by whom?
it is manufactured. It contains directions " Do not apply to open sores;" "Ap??
ply to parts affected;" " For pneumonia or cold in chest apply to chest and?
cover with flannel cloth;" "For rheumatism, neuralgia, sore or stiff joints,?
apply by rubbing ointment in well;" and it contains in addition the words?
" For pneumonia, cold in chest, croup, rheumatism, sore or stiff joints, neural??
gia, pleurisy, asthma." The label on the jar contains directions "Apply to parts?
affected. When applied to children use sparingly," and also " Do not bind."?
From all that appears upon the carton and jar, the drug is intended for exter??
nal use only, and in order to produce a secondary irritation. I am satisfied?
from the evidence that it is a counterirritant, notwithstanding the testimony?
of certain physicians who had applied some to their hands while preparing to?
testify in the case. It is a matter of common knowledge that the old-fashioned?
mustard plaster was prepared by hand and that it took considerable time be??
fore it had produced any effect upon the more tender skin of other parts of?
the body. I am satisfied that the drug in question would not be of airy sub??
stantial value in the cure of some of the diseases above mentioned, but I am?
not satisfied that the officers of the defendant company do not believe that their?
drug would be of benefit to a patient who was suffering from any one of the?
diseases mentioned. The label may be false in its suggestiveness, but in the?
absence of a positive statement, which would never be made without some?
positive belief in its truth, I can not find that there is anything on the carton?
or the label which is fraudulent within the meaning of the act of Congress?
The statement, design, or device regarding the curative therapeutic effect of the?
drug must be both false and fraudulent.
" This phrase must be taken with its accepted legal meaning, and thus it?
must bo found that the statement contained in the package was put there to?
accompany the'goods with actual intent to deceive?an intent which may be?
derived from the facts and circumstances, but which must be established." (7?
Cases v. United States, 239 U. H. 510-517.)
I am unable to find under the evidence in this case that any such statement?
upon carton or jar is both false and fraudulent. It is not necessary to de??
termine which, if airy, of the various statements may be false, because that?
would not be sufficient to establish the guilt of the defendant.
And noAV, to wit, July 23, 1920, the trial judge finds the defendant not guilty,?
and directs judgment be entered in accordance with such finding.
E. D. BALL, Acting Secretary of Agriculture.