4202. Misbranding of pulvules containing a mixture of Seconal Sodium and Amy-
tal Sodium. U. S. v. Arnold's Pharmacy, Inc., Richard Leipert, and Max
Rosenthal. Motion denied to dismiss information and to suppress evi-
dence. Plea of guilty. Fine of $3 against corporation and $300 against
each individual. (F. D. C. No. 35098. Sample Nos. 37495-L, 37497-L,
37500-L.)
INFORMATION FILED : May 28, 1953, District of New Jersey, against Arnold's
Pharmacy, Inc., Newark, N. J., Richard Leipert, treasurer of the corporation,
and Max Rosenthal, pharmacist.
NATURE OF CHARGE : On or about October 21 and 28 and November 6,1952, while
a number of pulvules containing a mixture of Seconal Sodium and Amytal
Sodium were being held for sale at Arnold's Pharmacy, Inc., after shipment
in interstate commerce, the defendants caused various quantities of the drug
to be dispensed upon requests for refills of a written prescription therefor
without obtaining authorization by the prescriber. Such acts of dispensing
were contrary to Section 503 (b) (1), and resulted in the dispensed drug
being misbranded while held for sale.
DISPOSITION : A motion to dismiss the information and to suppress evidence was
filed on behalf of the defendants, and, on November 5,1953, the court handed
down the following opinion in denial of such motion:,
HABTSHOBNE, District Judge: "The defendants, Arnold's Pharmacy, Inc.,:a
corporation, Richard Leipert, its Treasurer and Manager, and Max Rosenthal,
its pharamacist, were all indicted for violating the Pure Food, Drug and
Cosmetic Act, commonly known as the Pure Food and Drug Act, as amended
June 25,1938, chapter 675, 52 Stat. 1040, Title 21 U. S. C. A. Supp. Section 301,
et seq. Specifically, Count 1 of the Information charged defendants with a
certain sale of Seconal Sodium and Amytal Sodium, after shipment in inter-
state commerce, such drugs being dispensable only on physician's prescrip-
tion, but being sold by the defendants without such prescription or physician's
authorization. Counts 2 and 3 are identic with Count 1, save that they allege
similar sales on other dates. All defendants moved to dismiss the Informa-
tion, as confusing, ambiguous, indefinite, and as founded upon evidence illegally
obtained. Defendants also moved to suppress and return the evidence as
being seized in violation of the corporation's constitutional rights, i. e., as an
unreasonable search and seizure under the Fourth Amendment, and as a
violation of the immunity clause in the statute itself, ibid.    Section 373.
THE MOTION TO DISMISS
"The statute clearly is intricate. Indeed, the Supreme Court has recently
found a certain portion of the statute Section 301 (f), Title 21 U. S. C. A. Food
and Drug, Section 331 (f) invalid, as vague and not giving 'fair warning,' in
view of its apparent contrariety with Section 704 (Title 21 U. S. C. A. Section
374). U. S. v. Cardiff, 344 U. S. 174 (1952). But such sections are not here
involved. Moreover, the basis of the Cardiff decision as to the statutory
provisions there in question is lacking as to the statutory provisions here
involved. In Cardiff the Court found that the necessity for the Government
to obtain from the owner of the premises his voluntary permission to enter
was inexplicable, in view of the penalization, in another portion of the statute,
of the owner's refusal to grant such permission. But in the case at bar, as
will later appear, no such voluntary permission to enter is connected with the
statutory provision in question.
"The differing charge in this case is the sale of a 'habit-forming drug to which
Section 352 [502] (d) of this Title applies,' contrary to Section 353 [503] (b)
(1) (A), in that it was to be dispensed only upon a written prescription of a
physician, but in fact was dispensed without any such authorization; that
accordingly same was a statutory 'misbranding,' misbrandings being a vio-
lation of the Act under Section 331 (k), the penalties for such misbrandings
being set forth in Section 333 (a). When read with care, such statutory
provisions appear neither vague nor contradictory, the allusion to Section
352 [502] (d) being merely descriptive of the character of the drug, and not
constituting a separate offense from that set forth above.
"The motion to dismiss is denied.
THE MOTION TO SUPPRESS EVIDENCE
"A series of affidavits as to the facts underlying the Government's obtain-
ing of this evidence were filed by both sides. While contradictory in part,
the truth obviously lies in the oral testimony of the Newark Police Officer,
Duffy, who was not only present at the time of the sale and the first search,
but who, because he had been a former clerk of defendant corporation, refused
argument on the motion. Indeed, the confidence of the defendants in this
officer, their former clerk, even after this sale and seizure, is evidenced by the
fact that these defendants themselves got the officer to return later to help
them complete, themselves, the search of their records, initiated after the
sale. Officer Duffy testifies that, though he happened to be in the pharmacy,
in uniform, at the time of the sale, and at the very time the samples and
prescription records were first made available to the Government's agents,
there was no remonstrance whatever on defendants' part to turning over these
samples and shipping records. Nor did he hear the Government's agents, as
claimed, tell the defendants to 'read the law,' in reply to a claimed remonstrance
on defendants' part. It is obvious that this old friend, in a police uniform,
embodied the law to the defendants at the time, and that, had they any thought
of objecting to turning over the evidence, they would most certainly have
appealed to him for aid. Since they did not do so, it is therefore clear that
they willingly turned over the samples, the shipping and other records, ,as the
Government's affidavits say, as well as willingly signing certain statements,
and permitting certain photographs to be taken.
"Such being the case, it is perfectly clear that there was no violation of
the constitutional rights of the defendant corporation, the owner, as claimed,
since such search occurred with the full voluntary permission of defendant
Leipert, the Manager of the corporate defendant. Zap v. U. S., 328 U. S. 624
(1946). We turn, then, to the question of whether this evidence was 'ob-
tained under this section' of the law, Title 21 U. S. C. A. Food and Drugs
Section 373. For, if it was, that section of the statute expressly provides
that same 'shall not be used in a criminal prosecution of the person from whom
obtained,' this person meaning both the corporate owner and the individual
from whom same was obtained.
"Defendant claims that this evidence, at least the shipping records, and the
prescription records, were obtained by virtue of these statutory provisions.
The Government claims, on the contrary, that they were obtained, not by
virtue of the statute, but by virtue of the permission granted by the corporate
owner and its authorized agent. The meaning of this section of the statute
is thus in question.
"The meaning of an ambiguous statutory provision1 is best considered first
from the standpoint of those who enacted it. Thus we turn to the purpose
of the statute. The report of the committee upon the basis of which the 1938
amended act was adopted, 75th Congress, 3d Session, Report 2139, Food, Drug
and Cosmetic Act, April 14, 1938, states, in pertinent part '* * * While the
old law has been of incalculable benefit to American consumers, it contains
serious loopholes and is not sufficiently broad in its scope to meet the require-
ments of consumer protection under modern conditions. * * * The measure
contains substantially all the features of the old law that have proved valuable
in promoting honesty and fair dealing. But it amplifies and strengthens the
provisions designed to safeguard the public health and prevent deception * * *.
Carriers are required to make, available for copying, records showing inter-
state shipments of suspected articles so that Federal jurisdiction can be estab-
lished * * *. Section 703 (373) requires interstate carriers and receivers to
permit access to and the copying of all necessary records to show interstate
shipment and thus establish Federal jurisdiction.   This provision is necessary
1 ? 373. Records of interstate shipment.
For the purpose of enforcing the provisions of this chapter, carriers engaged in inter-
state commerce, and persons receiving food, drugs, devices, or cosmetics. in interstate
commerce or holding such articles so received, shall, upon the request of an officer or
employee duly designated by the Administrator, permit such officer or employee, at
reasonable times, to have access to and to copy all records showing the movement in
interstate commerce of any food, drug, device, or cosmetic, or the holding thereof during
or after such movement, and the quantity, shipper, and consignee thereof; and it shall
be unlawful for any such carrier or person to fail to permit such access to and copying
of any such record so requested when such request is accompanied by a statement in
writing specifying the nature or kind of food, drug, device, or cosmetic to which such
request relates: Provided, That evidence obtained under this section shall not be used
in a criminal prosecution of the person from whom obtained : Provided further, That car-
riers shall not be subject to the other provisions of this chapter by reason of their re-
ceipt, carriage, holding, or delivery of food, drugs, devices, or cosmetics in the usual
course of business as carriers. June 25, 1938. c. 675, ? 703, 52 Stat. 1057 ; Eeorg. Plan
No. IV, ? 12, eff. June 30, 1940, 5 Fed. Keg. 2422, 54 Stat. 1237.
since some warehousemen and trucking concerns and even some railroads have
refused to permit the copying of records which were essential to the institution
of proceedings to control abuses of consumer health and welfare. The absence
of such provision in the present law has been a definite handicap to its
enforcement. * * *.'
"In short, the purpose of the provision here in question was to close an
earlier loophole in the enforcement provisions of the act, which handicapped
its enforcement, this handicap being caused by the refusal of certain carriers,
if not others, to permit the copying of essential records. In other words,
where, as was generally the case, these records were willingly made available
to the Government, so that the Act could readily be enforced, the previous
law was effective. But, in cases where this access and copying was refused, the
section in question would apply to overcome such refusal, and eliminate such
'handicap to its (the Act's) enforcement'
"The purpose of the statutory provision was thus to cover cases where the
Government was refused access and copying of records. Not only is this clear
from a consideration of the Congressional purpose, but the language of the
section itself expresses such purpose. That is why the section states that car-
riers and persons receiving drugs 'shall' permit a governmental officer 'to have
access to and to copy all records showing the movement in interstate commerce'
and the 'holding thereof * * * after such movement.' That is why the section
in question further provides that, if the Government officer not only requests
such permission, but accompanies it with a written specification of the drug
requested, 'it shall be unlawful for any such carrier or person to fail to permit
such access to and copying * * *.' In short, if the person holding the drug
and the records refuses access and copying, the statute makes it mandatory
upon him to accede, and if he fails to accede after being served such a state-
ment in writing, he is subject to a specific penalty. Title 21 U. S. C. A. Food
and Drugs Section 331 (e).
"Considered, therefore, in the light of both the purpose of this statutory
amendment and of its terms, it is clear that it is not intended to hamper the
powers of the Government in protecting the public, but to add to its powers to
that end. Thus since, under well settled principles, those who voluntarily
turn over their records to the Government cannot object to their use in criminal
proceedings, it can hardly be claimed that this statutory amendment was in-
tended to prevent such use under such circumstances. On the other hand, it
is clear both from the purpose of the amendment and its terms, that the section
was intended to apply where access to the records was refused the Govern-
ment. In that event, by proceeding under the statutory provision in question,
the Government could obtain access to such records despite such refusal. But, if
the Government did so proceed, then the 'evidence obtained under this section
shall not be used in a criminal prosecution of the person from whom obtained.'
"Not only does the above seem clear on reason, but it has the support of
authority. In.U.. S. v. Crescent-Kelvan Co., (3 Cir. 1948) 164 F. 2d 582, 586,
the Court specifically held that interstate shipping records were lawfully
taken by the Government agents. Although the opinion in the main discussed
a taking of samples under Section 374, that it was also concerned with section
373, in question here, is apparent from its allusion thereto in footnote 4. This
upholding of the taking in Crescent-Kelvan was based upon the fact that 'per-
mission to make such an inspection was implicitly granted to them by the indi-
vidual defendants then present, who had the right to bind the "trust," ' the other
defendant. Again, the section in question has been held to afford the Govern-
ment a 'cumulative procedure * * * without restricting other avenues of infor-
mation.' U. S. v. 75 Cases, etc. (4 Cir. 1944) 146 F. 2d 124, 127. In short,
both these cases clearly recognize the fact that a lawful taking in such situa-
tions as the present may occur not only in cases of refusal, when the specific
statutory requirements are met, but also in cases of permission, when general
constitutional requirements are met. Indeed, the Pure Food and Drug Act
itself apparently refers to this common law method of obtaining evidence as
being in addition to that set forth in Section 373, since another section, Title 21
U. S. C. A. Food and Drug, Section 372 (a), authorizes the Government 'to
conduct examinations and investigations for the purposes of this chapter'
generally.
"Since the evidence here was voluntarily turned over to the Government by
its owners, the conditions for the applicability of the statutory provision in
question did not exist, and the statute does not apply. And since the evidence
was not obtained unconstitutionally, defendants' motion for the suppression,
impounding and return of the evidence, is denied."
On January 15,1954, the defendants entered pleas of guilty, and on March 5,
1954, the court fined the corporation $3 and each individual $300.