4367. Misbranding of " Tn-Ber-Ku." U. S. v. 12 Cases of " Tu-Ber-Kn."?
Tried to the ..court and a Jnry. Verdict for the Government.?
Decree   of   condemnation,   forfeiture,   and   destruction.     (F.   &   D.
No. 5976.    I.  S. No.  101-k.    S. No.  EJ-123.)
On October 12, 1914, the United States attorney for the Northern District of?
Georgia, acting upon a report by the Secretary of Agriculture, filed- in the?
District Court of the United States for said district a libel for the seizure?
and condemnation of 12 cases, each containing 12 bottles, of a preparation known?
as Tu-Ber-Ku, remaining unsold in the original unbroken packages at Columbus,?
Ga., alleging that the article had been shipped on September 8, 1914, by the?
Dr. A. W. Acker Chemical Co., Selma, Ala., and transported from the State?
of Alabama into the State of Georgia, and charging misbranding in violation?
of the Food and Drugs Act, as amended. The article was labeled: (On bottles)?
" Dr. Acker's Trade Mark Tu-Ber-Ku Cough Mixture Not over 20? Grain?
Alcohol For Consumption, Coughs, Colds, Croup, Colic, Catarrh and Asthma.?
Directions: For adults, one tablespoonful just before each meal and at bed??
time. Children one year old, one teaspoonful, older in proportion. Diet?Use?
rich, nourishing food, such as mutton, rare steak, chicken, soft boiled eggs,?
sweet milk, fresh butter and pecans. Eat half teacup of shelled raw peanuts?
each day. Don't eat very salty food, it retards improvement. Sleep as far?
from the ground and as near out of doors as possible. No Poisons Prepared?
by Dr. Acker Chemical Co., Selma, Alabama. Price $1.00. Guaranteed by?
Dr. Acker Chemical Co., under the Food and Drugs Act, of June 30, 1906.?
Serial No. 22357." (Blown in bottle) "For Throat & Lungs Acker's Tu-?
Ber-Ku Cough Mixture, Selma, Alabama. Catarrh of the Head." (On carton)?
" For the Treatment of Consumption, Coughs, Colds, Croup, Colic, Catarrh?
and Asthma. Tu-Ber-Ku is a Superior Tonic for the treatment of all Throat?
and Lung Troubles. This Remedy has accomplished many wonderful cures?
even in'cases given up by physicians. A thorough and persistent trial is essen??
tial and especially in all chronic cases." (In circular) "Tuberculosis Can Be?
Cured Tu-Ber-Ku Triumphs." " The Dr. Acker Chemical Co., submits to pub??
lic investigation and consideration some of the many testimonials from living,?
at one time hopeless, tubercular patients now absolutely restored to health?
through Dr. Ackers' 'Tu-Ber-Ku.' " "If you have tuberculosis or consumptive?
tendencies, if you are not getting well under the treatment which you are?
now trying take a few bottles of Dr. Acker's Tu-Ber-Ku at home before?
seeking a change of climate among strangers before throwing up your hands.?
The affidavits found below conclusively prove that Tu-Ber-Ku is a life saver."?
" The Dr. Acker Chemical Company, sustained by the splendid results already?
obtained by their Tu-Ber-Ku affirm successful treatment of the following?
diseases: Catarrh, Asthma, Lagrippe, Coughs, Colds, Croup and Consumption."?
"It is a Blood Cleanser A Lung Builder A Flesh Maker A Health Restorer?
and an effective agency for fighting and curing Tuberculosis." ""We have?
personally investigated each one, and found every case cured just like these?
sworn statements tell. There is no question that Dr. Acker's Tu-Ber-Ku will?
cure consumption. The following affidavits confirm what thousands of others?
who have used the Remedy will attest that Tuberculosis has yielded as surely?
and as readily to the beneficent action of Dr. Acker's Tu-ber-Ku as the winter's?
snow before the fierce rays of the summer's sun. If you have consumption,?
don't delay a day, but go at once to your drug store and buy a supply of?
Dr. Acker's Tu-Ber-Ku and put yourself right away upon the royal road to?
quick recovery. It will do the work?this has been proved. Dr. Acker's Tu-?
Ber-Ku has cured Consumption, Catarrh, Lagrippe, Asthma and severe colds.?
Our patients proclaim the  wonderful results.    Read what they  say  and  be
Nt J. 4351-4400.]     SERVICE AND ..REGULATORY-, ANNOUNCEMENTS.	53-7--
convinced  that -this  great  remedy   has   absolutely  and  positively  cured  its?
patients."    (Testimonials) "About two years ago I had a violent hemorrhage?
from my lungs.    I continued to have hemorrhages every few days until about?
six  months  ago.    I was so  low  and  weak  the best  physicians  said  I  had?
tuberculosis.    I began .using Dr. Acker's Tu-Ber-Ku and regained my health?
very rapidly    *    *    *."    "About eighteen years ago I contracted a very severe?
attack of la grippe which settled on my lungs and developed into pulmonary,?
consumption.    I had  one of the best physicians in. Selma,   who treated  me-?
faithfully several months and finally decided that my case was hopeless and?
gave me up to die.    I took the main body of all cough mixtures, and with the?
addition of my germicide made the remedy which cured me in about three?
months, and at the suggestion of a friend in Washington, D. 0., I called this::?
remedy Tu-Ber-Ku, which is identically the same remedy now manufactured:?
by the Dr. Acker Chemical Company."    " She had two hemorrhages  of the?
lungs, caused from consumption.    Her attending physician, Dr. C. I. Pegues,?
suggested Dr.  Acker Tu-Ber-Ku.    She bought five bottles and  is  completely?
cured."    "I was at Dr. Pitts Sanitarium at Selma, Ala., and was in a very:?
critical condition.    Three of my physicians said I had a well developed case?
of consumption, and I was advised to see you, which I did.    You told me that?
you would cure me in less than three months, but to my surprise I was cured?
in less than that time by taking your wonderful remedy; Tu-Ber-Ku."
Misbranding of the article was alleged in the libel for the reason that it?
contained no ingredients, or combinations of ingredients, capable of producing?
the therapeutic effects claimed by the statements hereinbefore set out, appear??
ing upon the cartons^ bottles, and circulars,. and for the further reason that?
said statements were false, misleading, and fraudulent.
On December 5, 1915, the said Dr. Acker Chemical Co., claimant, filed its?
answer to the libel. On December 8, 1915, the case having come on for trial?
before the court and a jury, after the submission of evidence and arguments'?
by counsel, the following charge was delivered to the jury by the court {New*?
man, J.) :?
Gentlemen of the Jury, this is a case based on what we call a " libel," which?
is filed by the United States 'through its District Attorney here against these,?
four dozen bottles of Tu-Ber-Ku, alleging it was shipped in interstate com-,?
merce from Selma, in the State of Alabama, to Columbus, in the State of?
Georgia. It is admitted that the goods were shipped from Selma, Alabama^?
in interstate commerce and were here in packages in a warehouse in .Colum??
bus, when they were seized by the United States.?
The libel sets up that these goods were?that there were false and fraudu??
lent statements on the packages and the literature connected with the pack??
ages. You will see it?you will have it out with you. It sets up that it was?
said to cure consumption, when, as a matter of fact, that statement is false?
and fraudulent, and that it would not cure consumption at all, and that is the?
issue for you to try, and that is all that is left in the case for you to try?were?
the statements on the packages and in the literature connected with them,?
that it was a cure for consumption?was that false and fraudulent. If it?
was, this property ought to be condemned, and you ought to find a verdict in?
favor of the United States. If it was not, then you ought to find in favor of?
the claimant?'the party who claims it here.
It is called in the suit, the United States against twelve cases of Tu-Ber-Ku,?
but these gentlemen have filed a claim to it, and that makes the issue about?
it?that is, really, whether they should keep the property or whether it should?
be condemned, forfeited, and destroyed by the United States.
In this case, of course, the burden is on the United States Government to?
prove its case. It is charged that these packages were shipped in interstate?
commerce, which, as I say, is conceded, and further that the branding, in con??
nection with the label and literature in connection with the pictures they?
had on them, that these contain false and fraudulent statements.
48687??16?3
538	
JBUBEAU OF CHEMISTBtf.	
ISupplemeatlS:
The Act under which this ail proceeds is called the " Pure Food and Drug?
Act " of 1906. It provides for the condemnation of all misbranded property,?
as well as having a great many other things in it besides. It is in connection?
with pure food and pure drugs that this act seeks to bring about and prevent?
anything else except pure food and drugs being carried in interstate com??
merce so far as this can be done in the United States in that way.
Now, in 1912 that act was amended in this way?that is by an act defining?
what shall be misbranding in the case of drugs, and proceeds in this wajr:?
" Be, and the same is hereby, amended by adding thereto a third paragraph?
to read as follows: * If its package or label shall bear or contain any state??
ment, design, or device regarding the curative or therapeutic effect of such?
article or. any of the ingredients or substances contained therein, which is?
false and fraudulent.' " That is, that will be misbranding if it contains false?
and fraudulent statements as to the curative or therapeutic effect of the?
article. That that shall be misbranding within the meaning of the original?
act, and if it is misbranded, under the original act it is subject to condemna??
tion.
I will say to you again that the whole question left here, after the admis??
sions made by counsel for this Company, is Avhether or not these statements in?
regard to the effect of this medicine as a cure for consumption were false and?
fraudulent. If they were you ought to find in favor of the Government?just?
say " We the jury find in favor of the Government," and, if not, say " We the?
jury find in favor of the claimant." Take the case, gentlemen and find a?
verdict.
The jury thereupon retired-and after due deliberation returned into court
with a verdict in favor of the Government, and on December 10, 1915, a formal?
decree of condemnation was entered by the courts in accordance with the verdict?
of the jury, forfeiting the product and ordering its destruction by the United?
States marshal.
C. F. MASVIN, Acting Secretary of Agriculture.
N.J. 4351-4400.]     SERVICE AND REGULATORY ANNOUNCEMENTS.	539