5318. Hoxsey treatment for internal cancer.   Suit for injunction.
COMPLAINT FILED: On 7-9-57, Harry M. Hoxsey, Dallas, Tex., filed, in the
District of Columbia, a complaint for preliminary injunction and permanent
injunction against Marion B. Folsom, Secretary, Department of Health, Educa-
tion, and Welfare, and George P. Larrick, Commissioner, Food and Drug
Administration, to require the defendants to recall or modify the poster set
forth below.
NATURE OF POSTEB :   The poster complained of is as follows:
PUBLIC
BEWARE!
WARNING AGAINST THE HOXSEY CANCER TREATMENT
Sufferers from cancer, their fam-
ilies, physicians, and all concerned
with the care of cancer patients
are hereby advised and warned
that the Hoxsey treatment for in-
ternal cancer has been found
worthless by two Federal courts.
The Hoxsey treatment costs $400,
plus $60 in additional fees-ex-
penditures which will yield noth-
ing of value in the care of cancer.
It consists essentially of simple
drugs which are worthless for treat-
ing cancer.
The Food and Drug Administration
conducted a thorough investigation
of the Hoxsey treatment and the
cases which were claimed to be
cured. Not a single verified cure of
internal cancer by this treatment
has been found.
Those afflicted with cancer are warned not to be misled by the
false promise that the Hoxsey cancer treatment will cure or alle-
viate their condition. Cancer can be cured only through surgery
or radiation. Death from cancer is inevitable when cancer patients
fail to obtain proper medical treatment because of the lure of a
painless cure "without the use of surgery, x-ray, or radium" as
claimed by Hoxsey.
Anyone planning to try this treatment should get the facts about it.
For further information write to:
U. S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
Food and Drug Administration
Washington 25, D. C.
NATURE OF COMPLAINT : The complaint alleged that Defendant Larrick, during
the fiscal year ending 6-30-57, arbitrarily, capriciously, without regard to
plaintiff's rights, and without authority of law, caused the above poster to be
issued and sent for display in thousands of public buildings throughout the
United States; and that the Food and Drug Administration was without power
to prepare, print, and distribute such a poster without an opportunity for
plaintiff to be heard.
The complaint alleged also that the printing and distribution of the above
poster violated plaintiffs constitutional right in that this was accomplished
without according him a hearing, at which he could have established the falsity
of the claims in the above poster; that the defendants exceeded their authority
in planning, printing, and distributing the above poster without an investiga-
tion of the plaintiff and his treatment; that the defendants' action was in
violation of the due process clause of the Constitution; that the defendants'
acts were ultra vires, and beyond the scope of their authority authorized by
law, as the law and the Constitution contemplate no condemnation of an
accused without a trial, and no impairment of the rights of a citizen without
a hearing; and the plaintiff had suffered irreparable injury.
DISPOSITION: Following the filing of the complaint, the plaintiff, on 8-1-57,
filed a motion for a preliminary injunction and a motion for the appointment
of a three-judge court to hear arguments on the constitutionality of Sections
705(a) and(b).
On 8-8-57, a motion to dismiss and for summary judgment was filed on
behalf of the defendants. The motion was based on the grounds that (1) the
court was without jurisdiction, as the action was against the United States
which had not consented to be sued or waived its immunity; (2) the complaint
failed to state a claim in that it sought to enjoin the defendants from publish-
ing statements in their official capacity as officers of the United States Govern-
ment; (3) the warning was authorized by Section 705 (b) ; (4) the notice
originally was published in the Federal Register on 4-7-56 and the poster was
merely a condensation; (5) even if the poster were a libel, equity traditionally
will not enjoin the publication of a libel, public officials are not liable to civil
suit for presenting the facts about law enforcement litigation to the public in
the course of their official duties, and a mandatory injunction should not issue
to control discretionary actions of administrative officers pursuant to author-
ity ; and (6) the statements in the poster are true and accurate in all respects.
On 10-11-57, the motions came on for argument, after which the court
handed down the following opinion:
HOLTZOFP, District Judge: "The Food and Drug Administration has issued a
circular, copies of which are being posted in post offices throughout the country,
warning the public that the so-called Hoxsey cancer treatment has been found
worthless insofar as internal cancer is concerned. It also warns those afflicted
with cancer not to be misled by the false promise that the Hoxsey cancer
treatment will cure or alleviate their condition. This action is brought by
Harry M. Hoxsey who claims to have treated patients afflicted, with cancer,
to enjoin the Secretary of the Department of Health, Education and Welfare,
and the Commissioner of the Food and Drug Administration, against the dis-
seminationof this circular.
"The defendants claim that they are acting pursuant to the authority of the
United States Code Title 21, Section 375 (b) which reads as follows:
The Secretary may also cause to be disseminated information regarding
food, drugs, devices, or cosmetics in situations involving, in the opinion
of the Secretary, imminent danger to health or gross deception of the
consumer. Nothing in this section shall be construed to prohibit the
Secretary from collecting, reporting, and illustrating the results of the
investigations of the Agency.
"The plaintiff claims that this statute is unconstitutional and moves that a
three-judge court be convened. He has also moved for a preliminary injunc-
tion. On the other hand the defendants move for summary judgment dis-
missing the complaint on the merits.   The motions have been heard jointly.
"It is -claimed in behalf of the plaintiff that the statute to which reference
has just been made is unconstitutional as a denial of due process of law in that
it does not provide for any notice or hearing, administrative or otherwise,
before the Secretary disseminates information of the type' described in the
statute. It is elementary law, of course, that an order of an administrative
agency adjudicating rights or directing someone to do or refrain from doing
something must be based on a hearing after due notice. Here, however, the
situation is entirely different. The defendants have made no order; they are
adjudicating no rights; they are issuing no directions. What they are doing
is disseminating information and warning the public against the use of certain
medicines and of a certain treatment for internal cancer. There is no basis
for requiring a hearing before information can be disseminated.
"But beyond that, even in the absence of this statute there would be nothing
to prevent the defendants from disseminating information to the public. For
example, only recently certain public officials have been urging the public to
use a certain innoculation for poliomyelitis. The defendants are performing
a public duty when they are urging the use of certain treatments. The only
purpose of this statute is to place within the express scope of the duties of the
Secretary something that was one of his implied functions.
"If, however, the contents of the circular were erroneous, then the question
might arise whether they were libelous. It is a well-settled rule of equity that
equity does not enjoin a libel or slander, and that the only remedy for libel or
slander is an action for damages if the libelous character of a statement to
which objection is made can be established. One of the leading cases on this
point is the well-considered opinion of the Circuit Court of Appeals for the
Second Circuit in American Malting Company vs. Keitel, 209 Fed. 351.
Naturally in a libel suit the question would arise whether there is absolute or
conditional privilege, and those questions are not before the court at this time.
"A three-judge court may not be convened merely because a constitutional
question is raised in an action for an injunction and a preliminary injunction
is applied for.   The constitutional question must be a substantial one.
"The Court is of the opinion, for the reasons just stated, that there is no
substantial constitutional question presented in this case, first, because the
statute involved is obviously constitutional; and, second, because the question
of constitutionality of that statute hardly arises since the defendants could
disseminate information even without statutory authority.
"The Court will therefore deny the motion for the convening of a three-judge
court and will grant the motion of defendants for summary judgment."
Appropriate orders were entered by the court