4077. Alleged misbranding of Ridd medicated powder. U. S. v. 52 Cases * * *.
Motions for removal denied. Tried to the court; verdict for the Govern-
ment. Decree of condemnation. Judgment reversed upon appeal.
Action subsequently dismissed. (F. D. C. No. 33105. Sample No.
22304-L)
LIBEL FILED :    May 6, 1952, Northern District of Texas.
ALLEGED SHIPMENT : On or about February 18,1952, by Ridd Laboratories, Inc.r
from Edmonds, Wash.
PRODUCT: 52 cases, each containing 144 1-ounce bottles, of Ridd medicates
powder at Dallas, Tex. Analysis showed that the product was boric acid
with a small amount of iodine.
NATURE OF CHARGE: Misbranding, Section 502 (a), certain statements on the
bottle label and display carton of the article were false and misleading.
The statements represented and suggested that the article was an adequate
and effective treatment for skin troubles, pimples, acne, barber's itch and
skin itch, skin rash, ringworm, fungus, industrial skin irritations, boils, and
varicose ulcers, whereas the article was not an adequate and effective treat-
ment for such conditions.
DISPOSITION : Ridd Laboratories, Inc., claimant, filed an answer denying that
the product was misbranded, and on May 27,1952, it filed a motion for removal,
of the libel proceedings to the Western District of Washington. The court
denied the motion on June 3, 1952, after which the claimant moved for re-
moval to a district of reasonable proximity to the claimant's principal place-
of business.
This motion was denied on June 9, 1952, and the case came on for trial
before the court without a jury on June 13, 1952. At the conclusion of the
testimony, the court returned a verdict for the Government, and on June 16r
1952, entered a decree of condemnation and destruction. The claimant took.
an appeal to the United States Court of Appeals for the Fifth Circuit, and ons.
April 2, 1953, the following opinion was handed down by that court:
HUTCHESON, Chief Judge: "This is an appeal from a judgment of condemna-
tion and forfeiture entered pursuant to a libel charging misbranding under
Sec. 301 et seq of the Federal Food, Drug, and Cosmetic Act.1 Bringing them
up for our review, claimant below, appellant here, makes serious complaint
of three adverse rulings of the district judge, including his finding that the
powder was misbranded.
"The primary one of the rulings and the one of which appellant makes
vigorous complaint is the denial by the district judge of appellant's motion
filed under Sec. 334 (a),* 21 U. S. C. A., to remove and transfer the cause.
"If the district judge had a discretion to refuse to remove the cause, and
we do not think he had because the statute provides that the court 'shall
by order unless good cause to the contrary is shown, specify a district of
reasonable proximity to the claimant's principal place of business, to which
the case shall be removed for trial,' we think he abused that discretion here.
For no good cause to the contrary was shown.
"While it is quite plain that the district judge thought that he was acting
in accordance with the statute, it is equally plain that he was laboring under
a mistaken opinion as to its provisions and effect.
"In view of the fact that, because of the error in denying removal of the
cause, the judgment must be reversed, it is unnecessary, indeed inappropriate,
for us to canvass and discuss the other errors assigned.
"For the error, therefore, of denying removal of the cause, the judgment is
reversed and the cause is remanded to the district court with directions to
'specify a district of reasonable proximity to the claimant's principal place
of business to which the case shall be removed for trial.'
"REVERSED and REMANDED with directions."
In accordance with the above opinion, the case was ordered transferred from
the Northern District of Texas to the Eastern District of Washington. On
October 5, 1953, the United States District Court for the Eastern District of
Washington ordered that the libel action be dismissed since it appeared that
the product under seizure had been inadvertently destroyed.