367. Misbranding of Axlne Plates.   IT. S. v. Walter Gordon Pervis.   Tried to the
court and a jury. Verdict of guilty. Defendant sentenced to 6 months
In jail and $1,000 fine. Jail sentence suspended and defendant placed on
probation for 2 years.     (F. D. C. No. 958.    Sample No. 72023-D.)
The labeling of this device bore false and misleading representations and
designs regarding its efficacy in the conditions indicated below.
On June 1, 1940, the United States attorney for the Middle District of Georgia
filed an information against Walter Gordon Pervis, of Tennille, Ga., alleging
shipment on or about September 30,1939, from the State of Georgia into the State
of Missouri of a quantity of Axine Plates which were misbranded. Accompany-
ing the article was a circular headed "Health Without Medicine" which bore a
design showing two individuals, one an invalid on crutches opposite whom
was a figure purporting to be the same individual but healthy and vigorous.
Emanating from the heels of the healthy individual were radiations indicating
electrical energy. Underneath the design were the words "Vigor" and "Produced
by Electricity in the Human Body."
Examination showed that the article consisted of two plates, of which one
consisted essentially of copper and the other consisted essentially of zinc.
The article was alleged to be misbranded in that the above-described design
and certain statements in the circular represented that it would produce
health and vigor by means of electricity in the human body; would relieve the
stiffness of old age and make one feel young again; would rid the blood of
uric acid; would be efficacious in the mitigation, treatment, and prevention of
high blood pressure, low blood pressure, headache, asthma, paralysis, kidney
trouble, rheumatism and diabetes, eczema, cold hands and feet, poor circula-
tion; and would be efficacious "to draw the acid from the larynx glands and
thus stop excessive coughing of asthma," were false and misleading since the
article would not be efficacious for such purposes. The article was alleged to
be misbranded further in that certain statements in the circular were false
and misleading since they represented that uric acid forms in the stomach;
that it forms as the result of eating food that disagrees with the stomach;
that the acid then filters through the blood and travels through the blood as a
very fine crystal; that the device consisted of a composition of metals which
"would act upon the human electricity, and would make human electricity fast";
that it would heat the blood about 2 degrees, and thus dissolve uric acid in
the blood; that uric acid would pass through the blood into the device, i. e.,
metal plates worn in the heels of the shoes; whereas uric acid does not form
in the stomach, it does not form as the result of eating food that disagrees
with the stomach; it does not filter through the blood and travel through the
blood as a very fine crystal; the device would not act upon human electricity,
and would not make human electricity fast; it would not heat the blood about
2 degrees, and would not dissolve uric acid in the blood; and uric acid would
not pass through the blood into the device. The article was alleged to be mis-
branded further in that certain statements in the circular represented that the
cause of high blood pressure is the uric acid crystals stopping in the arteries,
hardening the arteries and enlarging the heart; that the device would stimulate
one's own electric current; that the electric current would pass through
the brain and dissolve and draw away clot on the brain caused by high blood
pressure; whereas the cause of high blood pressure is not uric acid crystals
stopping in the arteries, hardening the arteries and enlarging the heart; the
device would not stimulate one's own electric current; and the electric current
would not pass through the brain and dissolve and draw away the clot on
the brain caused by high blood pressure. It was alleged to be misbranded
further in that certain statements in the labeling represented that uric acid
stiffens the prostate gland; that because of uric acid the prostate gland stands
open and will not "pan down"; that failure of the prostate glands to "pan
down" causes diabetes; that the device would produce heat by the metals
acting as a battery on the human electricity; that the heat produced by the
device would cause the prostate gland to "pan down" and relieve the patient,
which representations were entirely false and misleading, since uric acid does
not stiffen the prostate gland and cause it to stand open and fail to "pan
down"; the failure of the prostate gland to "pan down" does not cause dia-
betes ; the device would not produce heat by the metals acting as a battery on
the human electricity; and it would not cause the prostate gland to "pan
down" and relieve the patient entirely.
On November 11, 1940, a plea of not guilty having been entered, the case
came on for trial before the court and jury. The trial was concluded on
November 13, 1940, on which date the court delivered the following instructions
to the jury:
DEAVER, Judge: "Gentlemen of the Jury. Without attempting to state to
you all the provisions of the Food and Drug Act, it is only necessary for me
to state one provision of it, and that is very short and simple. Congress has
made it a crime to ship in interstate commerce, that is to say from one State
into another State, any device which is misbranded. Now, misbranded under
the terms of the statute is this: A device is misbranded when the label and
statements in connection with it are false or misleading. That is the whole
provision of the law applicable to this case.
"Now, the information in this case, which you will have out with you, is
somewhat long but it charges in substance that this defendant shipped in inter-
state commerce a certain device, which you already know about, certain heel
plates known as Axine Plates, from this State into another State, and that the
shipment was misbranded, that the device was misbranded; that is to say, that
the statements or representations on the label or these circulars, which you have
seen here in evidence and which you will have out with you, are false or mis-
leading. Now, that is the question that you are to determine, whether the label
or statements in connection with this device are false or misleading.
"Now, you will find in this indictment set out, I take it-I haven't read it
but I think that you will find that true, you may read it all if you care to-
the statements which were either on the label or in these circulars and the
allegations in the information that certain things in here are false or misleading,
and you will follow that right straight on through.
' It sets out one provision
after another and then alleges that those statements are false or misleading in
certain respects.
"Now, to that charge the defendant has entered on the back of this informa-
tion a plea of not guilty. That plea is in substance a denial of every essential
allegation in the information, and the information together with the plea of
not guilty makes up an issue of fact, a question of fact, for this jury to determine.
"Then, the trial begins and the burden is on the Government to produce evi-
dence sufficient to convince the jury beyond a reasonable doubt that the defendant
is guilty, as charged.
"In the beginning of the trial, the defendant is presumed to be innocent and
that presumption continues unless it is overcome by the testimony in the case,
testimony sufficient to overcome the presumption and to convince the jury beyond
a reasonable doubt that the defendant is guilty.
"The testimony has been somewhat long, necessarily long. There is no criti-
cism of anybody in that connection because it was necessary to bring you the
evidence bearing on this question and you are to take all of that evidence on
both sides and consider all of it, oral testimony and documentary testimony, and
say from it all what you honestly believe about it, what your honest conviction
is as to whether the statements made by the defendant in these circulars or
printed matter sent out with the shipment are false or misleading. If those
statements are false and misleading, then the shipment was misbranded and,
therefore, the shipping constituted a crime.
"That is all there is to the case. I say there is a lot of testimony but the
question to be decided is very simple and easy to state.
"Now, I might just repeat it this one time: You determine from all the evi-
dence in the case whether the statements made by this defendant in connection
with the shipment of these heel plates are false or misleading. Oh, of course,
there are a great many facts set out here in the information that are necessary
with reference to jurisdiction and shipment in interstate commerce and various
things of that sort, but, as you have heard here in the trial of this case, there
is really no dispute between the parties here as to any of those things, and that's
the reason why I say you haven't got but one question. It is admitted, I believe,
here that the shipments were made in interstate commerce, that they contained
these circulars and these representations and all those various things, and for
that reason I say you have, in substance, only the one question to decide: Were
these statements false or misleading? If they were, then he is guilty. If they
were not, or if the Government has failed to convince you beyond a reasonable
doubt that they are, then you ought to turn the defendant loose.
"You will write your verdict on the back of this information. There is a blank
verdict there that you can fill out and let your foreman sign it, date it, and,
if you think under all this testimony that the statements and representations
made are false or misleading, then you ought to find this verdict, 'We the jury
find the defendant guilty.' If you think the Government has failed to carry
the burden of showing that fact, then your verdict ought to be, 'We the jury
find the defendant not guilty.'"
Mr. DAVIS. "Your Honor, will you charge the jury that if they find that any
of the statements are false, they should find the defendant guilty? There are
quite a number of statements on there. They wouldn't have to find all of them
were false."
"Yes, any of the statements, gentlemen of the jury, which in this information
are alleged to be false or misleading. It wouldn't be necessary to prove that
every statement in the circular or every statement set out in the copy of the
circulars or representations in this information is false or misleading, but it is
necessary to find, in order for you to find the defendant guilty, that some state-
ment copied in this information and alleged to be false or misleading is false
or misleading."
The jury retired and after due deliberation returned a verdict of guilty, and
the court sentenced the defendant to 6 months in jail and imposed a fine of
$1,000. On December 12, 1940, the court suspended the 6-months' jail sentence
and placed the defendant on probation for 2 years.