1249. Misbranding   of   Es-A-Deen.    U.   S.   v.   Hugo   Heinrich   Julius   Schaefex
(American Research Laboratories and Schaefer Biological Laboratories).
Plea of nolo contendere. Fine, $200. (F. D. C. No. 10610. Sample Nos.
5878-F, 6090-F.)
On December 10, 1943, the United States attorney for the Eastern District of
Missouri filed an information against Hugo Heinrich Julius Schaefer, an individual
trading as the American Research Laboratories and as the Schaefer Biological
Laboratories, St. Louis, Mo., alleging shipment, from on or about December 13,
1942, to January 24, 1943, from the State of Missouri into the States of Tennessee
and Illinois of quantities of Es-A-Deen.
Analysis disclosed that the article consisted essentially of water, small propor-
tions of sod um sulfocarbolate, zinc sulfocarbolate, calcium sulfocarbolate, and
acriflavine hydrochloride, and that it contained no bismuth carbolate or arecaline
hydrobromide.
The article was alleged to be misbranded because of false and misleading state-
ments appearing in its labeling which represented and suggested that it would be
efficacious in the cure, mitigation, treatment, or prevention of colic, coccidiosis,
black head, white diarrhea, and roundworms in poultry; that it would be an effi-
cacious treatment for droopy chicks; and that, when inserted twice daily with a
syringe into the crops of poultry that could not eat or drink, it would be efficacious
in the cure, mitigation, and treatment of droopy chicks and the other above-
mentioned conditions. It was alleged to be further misbranded in that the state-
ments "Areocoline Hydrobromide 0.7?, Bismuth Carbolate 2.0?," appearing
on its labels, were false and misleading since the article contained no arecaline
hydrobromide or bismuth carbolate.
On April 3, 1944, a motion to strike was submitted to the court by the defend-
ant and, after argument by counsel, the court, on April 4, 1944, overruled the
motion, handing down the following opinion:
HTJLEN, District Judge .^"Defendant files'his'motion to strike'ithe^aflBdavit at-
tached to the information filed in this case. The Information, charging mis-
demeanor, was filed by the District Attorney by leave of Court. The Information
is signed by the District Attorney. Attached to the Information is an affidavit
of one Henry E. Moskey, a veterinarian connected with the Food & Drug Admin-
istration of the United States Government. The Information in two counts
charges misbranding of a medicine represented as a preventive of certain poultry
diseases. The affidavit purports to state facts showing probable cause. Defend-
ant's Motion ta Strike the Affidavit from the Information and from the files in
this cause alleges grounds therefor:
"(1) That the affidavit constitutes hearsay evidence and is not legally part of
the information:
"(2) That the affidavit could be read to the jury and thereby deprive defendant
of his right to cross-examine affiant:
"(3) That the affidavit is hearsay:
"(4) That the affidavit is self-serving:
"(5) That the affidavit is unwarranted in law and is prejudicial.
"It would appear from defendant's motion that he has misconstrued the
purpose served by the affidavit attached to the Information. See Dinger v.
United States, 28 F. (2d) 548 (8th Circuit).
"We make the observation that in our judgment the affidavit is no part of
the Information; is not evidence hearsay or otherwise; should not be read to the
jury in a trial of the cause, and therefore, without holding that the affidavit is
improperly filed, we do find that the affidavit cannot prejudice the defendant
in any of the particulars set forth in Motion to Strike.
"Defendant's Motion to Strike is overruled."
On June 5, 1944, the defendant entered a plea of nolo contendere and the
court imposed a fine of $100 on each count, a total fine of $200.