2356. Misbranding of Sev-A-Jay capsules, sodium amytal capsules, and Seconal
sodium capsules. U. S. v. Harry Cavassa (Peninsula Drug Co.). Motion
for dismissal of information denied. Plea of not guilty; verdict of guilty.
Fine. $1,200.    Judgment affirmed on appeal to circuit court of appeals.
(F.   D.   C.   No.   17867.     Sample  Nos.   73528-F,  29075-H,   29564^H,  29570-H,
29576-H, 29683-H.)
INFORMATION FILED : June 19, 1946, Northern District of California, against
Harry Cavassa, trading as the Peninsula Drug Co., San Francisco, Calif.   4
INTERSTATE SHIPMENT : Between the approximate dates of October 27,1943, and
May 16,1945, from Detroit, Mich., and Indianapolis, Ind., of 1 lot of Sev-A-Jay
capsules, 1 lot of sodium amytal capsules, and 4 lots of Seconal sodium capsules.
PRODUCT : The Sev-A-Jay capsules, sodium amytal capsules, and two lots of the
Seconal sodium capsules had been made for use exclusively by or on the prescrip-
tion of a physician, and the labels bore the statement "Caution-To be used
only by or on the prescription of a physician." As a result, the drugs were not
required to comply with Section 502 (f) (1), which requires that adequate direc-
tions for use appear in the labeling.
LABEL, WHEN SHIPPED: "Sev-A-Jay * * * each capsule contains: Aloin -
gr. Apiol 5 Min. Ergot 4 grs." ; "Pulvules Sodium Amytal 1 Gr. (0.065 Gm.)" ;
and "Pulvules Seconal Sodium 1? Grains (0.1 Gm.)."
NATURE OF CHARGE: Sev-A-Jay capsules, sodium amytal capsules, and two lots
of Seconal sodium capsules. On or about August 29, 1944, and March 16 and
29 and May 16,1945, while the drugs were being held for sale after shipment in
interstate commerce, the defendant caused them to be sold, delivering them to
the purchasers in the bottles labeled as indicated above, without a physician's
prescription. The sale of these drugs by the defendant caused the exemption
to expire and resulted in the misbranding of the drugs in violation of Section
502 (f) (1), since the bottles bore no labeling containing directions for use.
Seconal sodium capsules (2 lots). On or about March 27 and April 13, 1945,
the defendant caused to be repacked a number of the capsules into an envelope
labeled "Seconal" and into an unlabeled vial and sold them without a prescrip-
tion. The acts of the defendant resulted in the drug being misbranded in vio-
lation of Section 502 (f) (1), since the envelope and the vial bore no labeling
containing directions for use; and, Section 502 (f) (2), since the envelope and
vial bore no labeling containing warnings against use in those pathological
conditions and by children where its use may be dangerous to health and against
unsafe dosage and methods and duration of administration.
DISPOSITION: The defendant filed a motion to dismiss the ?information on the
grounds (1) that the information did not state facts sufficient as a matter of
law to constitute any offense against the laws of the United .States; (2) that the
court did not have jurisdiction of the subject matter involved; (3) that the acts
of the defendant complained of were in local and intrastate commerce and
not in interstate commerce; (4) that the defendant's acts were beyond the
power of Congress to regulate and punish; (5) that the applicable provisions of
the Food, Drug, and Cosmetic Act involved in each count were unconstitutional
as beyond the scope and power of congressional legislation under the commerce
' clause of the Constitution.
On October 4,1946, after argument of counsel, the court denied the motion to
dismiss. On October 14,1946, the defendant entered a plea of not guilty. The
case came on for trial before the court without a jury, and after consideration
of the evidence the court, on November 7, 1946, found the defendant guilty and
imposed a fine of $200 on each of the 6 counts of the information. Notice of
appeal was thereafter filed on behalf of the defendant with the United States
Circuit Court of Appeals for the Ninth Circuit. On February 4,1948, a decision
was handed down by that court, affirming the judgment of conviction on the
authority of U. S. v. Sullivan, 68 S. Ct. 331.