829. Misbranding: of Alberty Food, Instant Alberty Food, Alberty's Vegetable
Compound) Alberty's Ca-Mo Pellets, Alberty's Phosphate Pellets, Alberty's
Lebara Pellets, Alberty's Laxative Blend, Cheno Herb Tea, Cneno Combi-
nation Tablets, and Cheno Preparation of Phytolacca Berry Juice. U. S. v.
. 12 Packages of Alberty's Food (assorted sizes and various packages of
similar products). Tried to the court without a jury. Judgment for the
Government. Decree of condemnation and destruction. (F. D. C. No.
3707.    Sample Nos. 99902-E to 99908-E incl., 99910-E to 99912-E incl.)
On January 27, 1941, the United States attorney for the District of jgolumbia
filed a libel against 12 packages of Alberty's Food, 18 packages of InstantAlDerty
Food, 3 packages of Alberty's Vegetable Compound Capsules, 5 packages of
Alberty's Ca-Mo Pellets, 10 packages of Alberty's Phosphate Pellets, 8 packages
of Alberty's Lebara Pellets, 5 packages of Alberty's Laxative Blend, 30 packages
of Cheno Herb Tea, 40 packages of Cheno Combination Tablets, and 5 packages
of Cheno Preparation of Phytolacca Berry Juice, at Washington, D. G, alleging
that the articles were being offered for sale in the District of Columbia at Vita
Health Food Company, Washington, D. C.; and charging that they were mis-
branded.
'        .-
Analysis of the Alberty Food showed that it consisted essentially of wheat
flour with added calcium phosphate, the total calcium phosphate equaling 6.75
percent.
?    '        
Analysis of the Instant Alberty Food showed that it consisted mainly of dried,
partially skimmed milk, with a little ground cereal and approximately 6 percent
added calcium phosphate.
Both products were alleged to be misbranded in that representations in the
labeling that they were adequate and appropriate treatments for indigestion,
scurvy, rickets, eczema, diseases of malnutrition, nervousness, diarrhea, nausea,
stomach irritation and other complications, mental deficiency, stunted physical
development, decayed teeth, acidity, common aches, dysfunction of the liver,
spleen and pancreas, mucous colitis, "run-down" ? conditions, depleted nervous
system, acidosis, toxic conditions arising from inactive liver, excess bronchial
secretions, jaundice, gallstones, gastric hyperacidity, ulcerative conditions,
stomach distress, malnutrition, malassimilation, irritated inflamed stomach and
anemia; that they would be beneficial to the nerves, the tissues and the vital
organs, i. e., liver, heart, and spleen; would relieve severe pain of the stomach
and other symptoms of upset digestive tract, aid in the healing of broken legs,
increase the red blood cells; would provide strength and health; would cause
children to be larger and heavier than children of the same age and not as sus-
ceptible to the usual children's diseases; would prevent undernourishment, tooth
decay, bodily exhaustion, sagging shoulders, paleness, listless expression in
children; were adequate and appropriate treatments of neurotic, backward
children by improving mentality, disposition and health; would be effective
treatments for infant diarrhea, sore buttocks, irritated stomach and intestines,
digestive disturbances, pyloric stenosis and marasmus; would prevent calcium
deficiency in pregnant- women and their unborn offspring, and prevent after-
childbirth run-down condition; would promote the formation of hemoglobin, bone
tissue; that they possessed healing, health, youth and energy-giving properties;
would cause increase in weight, vitality and strength, clear the skin, and facili-
effect which'would result in strength and stamina, sparkling eyes, pep, clear
skin and vigorous health, improving the personal appearance, changing the phy-
sique and personality from a negative to a positive type; would make the indi-
vidual feel strong, feel better physically and produce solid flesh; would revive
normal functioning of the body, eliminate the "fixed" toxic poisons, and awaken
vital organs and assimilative cells; would increase the peristaltic activities of
the sluggish stomach and intestines and normalize digestive juices; would in-
crease assimilation of the calcium element by furnishing materials for increased
hemoglobin; would aid in growing strong and good teeth; that they were body-
builders, especially in youth; that they would strengthen, rebuild, and.facilitate
the production of new cells, would prevent physical deterioration, premature old
age, ill health and premature death, were false and misleading since the articles
would not be efficacious for such purposes.
Analysis of the Alberty's Vegetable Compound Capsules showed that they
contained approximately 9? grains of a mixture of dried vegetables, including
tomatoes, beet leaf, spinach, cauliflower and lettuce. Total mineral constituents
1.2 grains per capsule, total calcium (calculated as calcium oxide) 0.12 grain,
total phosphorus (calculated as phosphorus pentoxide) 0.01 grain per capsule.
The article was alleged to be misbranded in that certain statements in the
labeling, which represented that it would supply mineral elements and nourish-
ment, which would enhance the powers of digestion so that the natural resistance
of the body would not be lowered and the starch and sugar intake would be
kept at a minimum, and that it would increase strength and energy, were false
and misleading since it would not be efficacious for such purposes.
Analysis of the Ca-Mo Pellets showed that they consisted of approximately
?Wooo grain of calcium phosphate and 1 grain of milk sugar moulded into pellet
form.
It was alleged to be misbranded in that representations in the labeling, that
it would build up the calcium reserve, offset acidity, sweeten the over-acid
stomach, and that it was an adequate and appropriate treatment for eczema,
were false and misleading since it would not be efficacious for such purposes.
Analysis of the Alberty's Phosphate Pellets showed that they consisted of
minute amounts of iron, potassium, sodium, calcium, and magnesium phosphates
moulded into pellet form with milk sugar.
The article was alleged to be misbranded in that representations in the label-
ing that it was an adequate and appropriate treatment for nervous conditions,
nervousness, neurasthenia, nervous debility, weakness, sleeplessness, nervous
breakdown and dysfunction of the endocrine glands; that it was a preventive
of constipation, loss of stamina, mental and physical exhaustion, loss of mem-
ory, sleeplessness, high blood pressure symptoms, loss of energy, despondency,
and trembling or aching limbs; that it would promote digestion, absorption and
assimilation of food, provide nerve force, induce restful sleep and renew strength
and vitality, would promote better digestion and assimilation, and produce a
soothing, beneficial effect on the nerve tissues of nervous, high strung, mentally
and physically exhausted persons, would improve the force, tone, and vigor of
the nervous tissues, and act as a tonic to the blood and the entire body, were
false and misleading since the article would not be efficacious for such purposes.
Analysis of the Lebara Pellets showed that they consisted of approximately
Hooo grain of anhydrous sodium sulfate and 1 grain of milk sugar moulded
into tablet form.
The article was alleged to be misbranded in that representations in the label-
ing that it would increase the flow of bile, keep the skin and complexion clear,
that it was a diuretic, and that it was an adequate and appropriate treatment
for biliousness, headache, bad taste in the mouth, coated tongue, spots before
the eyes, bearing down pains in the small of the back and constipation of
hepatic' origin, were false and misleading since the article would not be effi-
cacious for such purposes.
Analysis of the Alberty's Laxative Blend showed that it consisted of a mix-
ture of plant drugs including buchu leaves, uva ursi leaves, sassafras bark,
couch grass, elderberry flowers, horsetail, yarrow flowers, fennel seed, marsh-
mallow root, senna leaves, aniseed and buckthorn bark.
It was alleged to be misbranded in that representations in the labeling that
it was an aid to digestion, a tonic laxative, and would relieve the usual feeling
of depletion following evacuation, were false and misleading since it would not
be efficacious for such purposes.
Analysis of Cheno Herb Tea showed that it consisted of a mixture of plant
drugs, including senna leaves, sassafras bark, licorice root, seaweed, caraway
seed, mint leaves, fennel seed, and aniseed.
Analysis of the Cheno Combination Tablets showed that they contained dried
okra, Irish moss, dulse, green leafy material, such as parsley, spinach and
celery, and 1.7 grains per tablet of calcium phosphate. The total iron content
was 0.0004 grain; total iodine 0.0001 grain per tablet.
Analysis of the Cheno Preparation of Phytolacca Berry Juice showed that
it consisted of a plant extract such as poke berry juice in a mixture of water,
sugar, and alcohol.
The Cheno preparations were alleged to be misbranded in that representa-
tions in the labeling that the articles constituted adequate and appropriate
treatment for disturbances of nutrition, overweight, underweight, leanness, obes-
ity, stomach disorders, bronchial colds, hypothyroidism with dry skin, lack
of perspiration, heart disturbances, constipation, mental sluggishness, slow
movement, lack of activity, asthma, hay fever, and sensitiveness to various
kinds of food, headache, dizziness, fatigue, drowsiness, sleepiness; that it
would be an efficacious treatment for pancreatic, hypo-gonodal, thyroid and
pituitary obesity, would improve health, reduce nervousness, provide buoyancy
of spirit and freedom from logy oppressiveness, promote firm flesh and soft
skin with fine texture, overcome lassitude, prevent and reduce the storage of
excess fat, prevent toxemia, regulate the elasticity of the muscles, balance
and regulate body functions, speed up metabolism, eliminate accumulated water
in cells and tissues, increase energy and vitality and remineralize the body,
were false and misleading since the articles would not be efficacious for such
purposes.
On April 7, 1941, Ada J. Alberty, Los Angeles, Calif., claimant, having filed
a motion that the action be transferred to a district in close proximity to the
Southern District of California, an order was entered in the District Court for
the District of Columbia transferring the action to the Northern District of.
California, Southern Division; and ordering that the clerk forward all files
and records of the case to that district for trial. The case came on for trial
before the court on January 22, 1942, and was continued to January 23. A
recess was ordered until February 7, 1942, on which date the trial was resumed
and was concluded on February 8, 1942. The court took the case under advise-
ment and on June 29, 1942, handed.down a decision for the Government and
on October 26, 1942, made the following findings of fact and conclusions of
law:
NOBCBOSS, District Judge. "The above-entitled cause having been regularly
tried without a jury and having been submitted by the parties hereto; Frank J.
Hennessy, Esquire, United States attorney for the Northern District of California,
and A. J. Zirpoli, Esquire, assistant United States attorney for said district,
appearing as counsel for libelant, and El don V. Soper, Esquire, and Francis W.
Murphy, Esquire, appearing as counsel for the claimant; and evidence both oral
and documentary having been introduced, and the court being fully advised in
the premises, now makes its findings of fact and conclusions of law as follows:
FINDINGS OF FACT
I.
"That the allegations of the libel are true.
"That the allegations of paragraph third of the answer of claimant and para-
graphs II and IV of the amended answer of claimant are not true.
III.
"That the 'Modified Order to Cease and Desist' entered by the Federal Trade
Commission on June 26,1939, in the matter of 'Adah Alberty, etc., docket number
2875,' pertains to and relates to a matter and matters and things separate and
distinct from the proceedings in the instant case and does not involve the articles
of drug held and offered for sale in the District of Columbia in the manner recited
,jn the libel herein.
"That the following articles described in said libel
'12 packages, more or less, of Alberty Food (Assorted sizes),
18 packages, more or less, of Instant Alberty Food (assorted sizes),
33 packages, more or less, of Alberty's Vegetable Compound Capsules,
5 packages, more or less, of Alberty's Ca-Mo Pellets,
10 packages, more or less, of Alberty's Phosphate Pellets,
8 packages, more or less, of Alberty's Lebara Pellets,
5 packages, more or less, of Alberty's Laxative Blend,
30 packages, more or less, of Cheno Herb Tea,
40 packages, more or less, of Cheno Combination Tablets, and
5 packages, more or less, of Cheno Preparation of Phytolacca Berry Juice.'
were being offered for sale in the District of Columbia at the time of the filing
of the libej herein.
"That the said articles described in the paragraph immediately above were
held in and intended for sale in the District of Columbia at the time and place
aforesaid.
VI.
"That the said articles described in paragraph IV of these findings of fact were
misbranded at the time of the filing of the libel herein, in the manner following:
"352 (a) in that the statements and designs appearing in the labeling (booklet
'Calcium The Staff of Life'), as set forth in Exhibit 'A', attached to the libel, are
false and misleading in that they represent that the articles are efficacious for the
purposes Recommended, whereas the articles are not efficacious for the purposes
recommended; (Alberty Food and Instant Alberty Food)
"352 (a) in,that the following statements appearing in the labeling (booklet
"Calcium The Staff of Life') are false and misleading in that they represent that
the article is efficacious for the purposes recommended, whereas the article is not
efficacious for  the  purposes   recommended:   (Alberty's  Vegetable  Compound
'WHEN THE DIET MUST BE STARCH AND SUGAR FREE
'There are times when persons suffering from malfunctions of certain organs
are unable to tolerate starch and sugar in the same proportion as the normal
individual. Physicians then recommend a diet as free from starch and sugar
as it is possible to get and still give the person enough nourishment to maintain
the life and health.
'During such dietary regimes it is absolutely necessary to keep the digestive
functions working at their best because nature MUST get all the nourishment
possible from what food is eaten without in any way increasing the load of
sugar or starch.
'ALBERTY VEGETABLE COMPOUND CAPSULES' give an easily digestible
form of organic minerals. ***ALBERTY FOOD, VEGETABLE COMPOUND
CAPSULES AND OXORIN TABLETS, furnish mineral elements, nourishment
and enhance the powers of digestion so that the natural resistance of the body
is not lowered and the starch and sugar intake is still kept at a minimum.
'Reports of many users of ALBERTY VEGETABLE COMPOUND CAP-
SULES, OXORIN tablets and ALBERTY FOOD show that they have acquired
greater sugar and starch tolerance and an increase in strength and energy.'
"352 (a) in that the following statements appearing in the labeling (booklet
'Calcium The Staff of Life', pp. 42 and 47) are false and misleading in that they
represent that the article is efficacious for the purposes recommended, whereas
the article is not efficacious for the purposes recommended: (Alberty's Ca-Mo
Pellets)
'* * * The following formulas comprise ingredients of homeopathic dosage
and under those principles are credited with the action described.
'CA-MO helps to build up a calcium reserve. Its calcium content offsets
acidity, sweetening the over-acid stomach.
'ECZEMA
'Improper diet is frequently the cause.    *    *   *
?Here is the treatment I have seen used quiet frequently by physicians:
Cleanse the affected parts * * *. Pat dry and then anoint with * * *
salve * * *. A prescription, identical with which I now call CA-MO PEL-
LETS, was given every two hours during the day.   *   *   *'
"352 (a) in that the statements appearing in the labeling (booklet 'Calcium
The Staff of Life'), as set forth in Exhibit 'B,' are false and misleading in that
they represent that the article is efficacious for the purposes recommended,
whereas the article is not efficacious for the purposes recommended; (Alberty's
Phosphate Pellets.)
"352 (a) in that the following statements appearing in the labeling (booklet
'Calcium The Staff of Life,' pp. 42 and 49) are false and misleading in that they
represent that the article is efficacious for the purposes recommended, whereas the
article is not efficacious for the purposes recommended: (Alberty's Lebara
Pellets.)
'The following formulas comprise ingredients of homeopathic dosage and
under those principles are credited with the action described.   *   *   *
'ALBERTY LEBRARA PELLETS * * * contain salts which act to in-
crease the flow of bile from the liver * * * An active liver keeps the skin
and complexion clear, there is none of the yellow, bilious look characteristic of
the toxic condition resulting from a dormant liver.
'HOW TO HELP THE LIVER
'LEBRARA PELLETS contain a valuable salt which has a definite reaction
on the liver and as a diuretic, by increasing the flow of bile. LEBRARA PEL-
LETS act as a bile stimulant in hepatic disturbances characterized as bilious-
ness, headache, bad taste in the mouth, coated tongue, spots before the eyes,
bearing down pains in the small of the back and constipation of hepatic origin.'
"352 (a) in that the following statements (booklet 'Calcium The Staff of Life,'
p. 52) are false and misleading in that they represent that the article is
efficacious for the purposes recommended, whereas the article is not efficacious
for "the purposes recommended: (Alberty's Laxative Blend.)
'ALBERTY'S LAXATIVE BLEND includes seventeen herbs which, according
to botanical books, were one of the best combinations obtainable for a tonic
laxative: Herbs are included which have a tonic after-effect, that relieves the
usual feeling of depletion following evacuation of the bowels from ordinary
artificial laxatives.
'For the temporarily constipated person it acts * * * to * * * aid-
digestion.*
"352 (a) In that the statement upon a placard accompanying the articles
Reduce the Cheno Way. The Five Factor Plan. Safe Scientific is false and
misleading in that it represents that the articles are efficacious for the purposes
recommended, whereas the articles are not efficacious for the purposes recom-
mended; (Cheno Herb Tea, Cheno Combination Tablets, Cheno Preparation of
Phytolacca Berry Juice.)
"352 (a) in that the statements and designs appearing in the labeling (book-
let Cheno Plan The 5 Factor Reducing System), as set forth in Exhibit C,
attached to the libel, are. false and misleading in that they represent that the
articles are efficacious for the purposes recommended, whereas the articles
are not efficacious for the purposes recommended; (Cheno Herb Tea, Cheno
Combination Tablets, Cheno Preparation of Phytolacca Berry Juice.)
VII.
"That the booklets Calcium The Staff of Life and Cheno Plan the 5 Factor
Reducing System and the placard Reduce the Cheno Way-The Five Factor
Plan, Safe, Scientific accompanied the articles described in paragraph IV hereof
at the time and place described in paragraph IV hereof and then and there
constituted part of the labeling of the aforesaid articles.
CONCLUSIONS OF LAW
"That the articles described in the libel herein and paragraph IV of the
above findings of fact were drugs illegally offered for sale and held and intended
for sale within the District of Columbia at the time of the filing of the libel
herein, in violation of Section 534 of Title 21 USCA, for the reason that said
articles were at said time and place misbranded within the provisions of Section
352 (a) of Title 21 USOA.
Reducing System and the placard Reduce the Cheno Way. The Five Factor
Plan. Safe. Scientific accompanied the articles described in paragraph IV of
the above findings of fact at the time and place described in paragarph IV
of the above findings of fact and then and there constituted part of the labeling
of the aforesaid articles.
III.
"That the Modified Order to Cease and Desist entered by the Federal Trade
Commission on June 26, 1939, in the matter of Adah Alberty, etc., Docket No.
2875, is not res judicata to the matters and things alleged in the libel herein
and does not estop the libelant herein to allege, assert or maintain that the
matters and things in the libel herein constitute labeling within the provisions
of 21 USC 352 (a) and does not estop libelant to allege, assert or maintain
that the matters and things in the libel herein, alleged to consist of booklets
and placards, accompanied the articles in said libel specifically described.
IV.
"That the above-mentioned articles of drugs described in paragraph IV of
the findings of fact above, be, and they are hereby, condemned and forfeited to
the United States, to be by the United States of America destroyed forthwith.
On October 26, 1942, judgment of condemnation was entered and it was
ordered that the product be destroyed and that the clerk of court return the
file and record and copy of the decree of condemnation and destruction to the
clerk of the United States Court for the District of Columbia, with directions
that a certified copy of the decree be furnished the marshal.
On November 7, 1942, the claimant filed a motion for a new trial, which
motion was denied by the court February 13, 1943,. without opinion.