17852. Misbranding of blackstrap molasses.   U. S. v. 8 Cartons, etc   Amended
libel filed following decision of court that original libel be dismissed. 
Decree of condemnation.    (F. D. C. No. 30780.    Sample No. 6754-L.)
LIBEL FILED: March 2, 1951, Western District of New York; amended libel 
filed May 10,1951.    "
ALLEGED SHIPMENT : On or about November 30 and December 7,14, and 21, 1950, 
and January 11, 1951, by Nature Food Centres, from Boston, Mass.
PRODUCT: 8 cartons, each, containing 24 1-pint jars, and 8 cartons, each con- 
taining 12 1-quart jars, of blackstrap molasses at Rochester, N. Y., in posses- 
sion of Nature Food Centres, together with a number of copies of a book en- 
titled "Look Younger, Live Longer," by Gayelord Hauser, which related to 
the product.
LABEL IN PART: (Jar) "Plantation 'The Original' Recommended and Endorsed 
by Gayelord Hauser Blackstrap Molasses (Crude Black Molasses) * * * 
Packed by Allied Molasses Co., Inc., Perth Amboy, N. J."
NATURE OF CHARGE: Misbranding, Section 403 (a), the labeling of the article, 
namely, the book entitled "Look Younger, Live Longer" by Gayelord Hauser, 
which accompanied the article, contained statements which were false and mis- 
leading. The statements represented and suggested that the article would 
add five youthful years to an individual's life and was an excellent source of 
many B vitamins; that it was effective in the treatment of deficiencies of B 
vitamins, in the prevention and treatment of menopausal difficulties and 
menstrual abnormalities, and in inducing sleep; that it was effective to pre- 
vent and correct nervousness, to grow hair and correct baldness, and to restore 
gray hair and to restore it to its natural color; that it was effective to promote 
better digestion, healthy nerves, and healthy heart; that it was effective to 
prevent and correct constipation, poor digestion, tiredness, heart trouble, neuri- 
tis, and gas; that it was effective to prevent changes due to old age; and that 
it was effective to promote normal functioning of the glands.   The article was
not capable of fulfilling the promises of benefit made for it, and it was not 
effective for the purposes stated and implied.
The article was misbranded when introduced into, while in, and while held 
for sale after shipment in, interstate commerce.
The article was alleged also to be misbranded under the provisions of the 
law applicable to drugs, as reported in notices of judgment on drugs and 
devices, No. 3658.
DISPOSITION : Farrar, Straus & Young, Inc., New York, N. Y., appeared as claim- 
ant for the books and moved for an order dismissing the libel insofar as it 
related to the seized copies of the book. On April 14,1951, after consideration 
of the arguments and briefs of counsel, the court handed down the following 
opinion sustaining the claimant's motion:
BTJKKE, District Judge: "The government filed a libel of information asking 
seizure and condemnation under the Federal Food, Drug and Cosmetic Act, 
21 U. S. C. 301 et seq. of a certain quantity of 'Plantation' blackstrap molasses, 
packed by Allied Molasses Co., Inc., and certain copies of a book 'entitled 'Look 
Younger, Live Longer' by Gayelord Hauser. The libel alleges in substance 
that the 'Plantation' molasses and copies of the book 'Look Younger, Live 
Longer' were shipped via the same carrier on or about November 30, December 
7, 14 and 21, 1950, and January 11, 1951, from Nature Food Centres, Inc., 
Boston, Massachusetts;, to Rochester, New York, and that the molasses was 
misbranded when introduced into, while in, and while held for sale-after ship- 
ment in interstate commerce, within the meaning of Sections 343 (a J and 352 
(a) of Title 21 U. S. C. in that the book accompanied the molasses and thus 
constituted false and misleading labeling. A quantity of the molasses and a 
number of copies of the book were seized by the United States Marshal at a 
retail store owned and operated by Rochester Natural Food Store, Inc., on 
March 6,1951, under a warrant issued by this court pursuant to the libel.
"Farrar, Straus and Young, Inc., has filed a claim to the seized copies of 
the book alleging that it is the publisher and bona fide owner of the books. It 
moves here for an order, pursuant to Rule 12 (b) (6) of the Federal Rules 
of Civil Procedure, dismissing the libel insofar as it relates to the seized copies 
of the book, on the ground that the libel insofar as it relates to the books, fails 
to state a claim upon which relief can be granted under the Act in that the 
book did not and does not constitute 'labeling,' within the meaning of the Act.
"The seizure was based upon Section 334 (a) of Title 21 U. S. C. which 
provides:
Any article of food, drug, * * * that is * * * misbranded when 
introduced into or while in interstate commerce or while held for sale 
* * * after shipment in interstate commerce, * * * shall be liable 
to "be proceeded against while in interstate commerce, or at any time there- 
after, on libel of information and condemned in any district court of 
the United States within the jurisdiction of which the article is 
found:   *   *   *.
"The claim that the molasses was misbranded is based on the ground that 
the book constituted 'labeling.' This is based on the assertion that copies of 
the book and a quantity of the molasses were shipped simultaneously from a 
Boston wholesaler to Rochester via the same carrier, and thus that the state- 
ments of the author contained in the book regarding blackstrap molasses accom- 
panied the molasses so as to constitute the book 'labeling' of the product, and 
that such statements are false and misleading since the article is not capable 
of fulfilling the promises of benefit made for it and is not effective for the 
purposes stated or implied.
"Molasses is a. dark colored viscid syrup which drains from sugar in the 
process of manufacture. The seizure involved molasses packed for sale in 
pint and quart jars.    The pint jars had a selling price of 29^, the quart jars 49^.
" 'Look Younger, Live Longer' is a full-length book containing 383 pages. It 
was first published in February 1950. It has had 16 printings, totaling 340,000 
copies. It is currently on the best seller list and has been since February 1950. 
It has had a wide distribution and sale in book stores, department stores, health
food 'stores and numerous other retail outlets. The books discusses the merits 
and uses of many foods, drugs and cosmetics generally, including blackstrap 
molasses. It does not mention 'Plantation' blackstrap molasses or any other 
food, drug, device or cosmetic by trade-mart or "brand name. It advertises no 
products. The publisher is engaged solely in the business of publishing books. 
It has no connection with any manufacturer, processor, (sic) packer or seller 
of food, nor does the libel make any claim that it has, other than such as might 
be implied from the claim that the statements contained in the book regarding 
the blackstrap molasses constituted 'labeling' of the product.
"The motion involves the interpretation of the meaning of labeling' as used 
in the Act. Section 343 (a) provides that a food shall be deemed to be mis- 
branded if its 'labeling' is false or misleading in any particular. Section 321 
(m) defines 'labeling' to mean '* * * all labels and other written, printed, 
or graphic matter (1) upon any article or any of its containers or wrappers, 
or (2) accompanying such article.'
"The circumstance of simultaneous shipment of written, printed, or graphic 
matter with an article of food, or drug via the same carrier, without more, 
does not constitute the written, printed, or graphic matter 'labeling' of the 
product. It must have some relation to the food or drug. Otherwise an 
allegation 6f mere physical accompaniment in an interstate shipment would 
be enough to draw into the condemnation of the statute written, printed, or 
graphic matter wholly unrelated to the article claimed to be misbranded. 
Nor is the circumstance that written, printed, or graphic matter alleged to be 
'labeling,' did not physically accompany the article in shipment, sufficient to 
establish that it is not 'labeling,' within the meaning of the Act, so long as 
'they were parts of an integrated distribution program.' Kordel vs. United 
States, 335 U. S. 345, 350.
" 'Look Younger, Live Longer' is a publication entirely independent in 
authorship and unrelated to the enterprise of marketing 'plantation' blackstrap 
molasses. It had attained wide acceptance as a publication long before the 
alleged violation in question. It had befen generally sold in retail stores where 
books are usually sold. It was a legitimate publication for bona fide sale even 
in a food store. There is no claim in the libel that the selling price of $3 per 
copy was a fictitious selling price nor any claim that a purchaser of 'Plantation' 
blackstrap molasses could get it for less than. $3 per copy with a purchase of a 
pint jar for 290 or a quart jar for 490. It was not an 'easy device of a "sale" 
of the advertising' to circumvent the Act as in Kordel. ' (Page 350).
"But, the government says, the allegations of'the libel must be accepted 
as true for purposes of this motion and so, counsel argues, the allegation that 
the book served to misbrand the article while it was being held for sale after 
shipment in interstate commerce, must be accepted as true. That allegation 
is nothing more than a legal conclusion. The question presented here is 
whether the allegations of fact, not legal conclusions, are sufficient to support 
the seizure. The question whether the use to which the book was put in con- 
nection with marketing the molasses, while held for sale after shipment, con- 
stitutes 'labeling' is not here for determination, because the libel contains no 
allegations respecting such use. The seizure of the books rests on the naked 
claim that the molasses was misbranded because it was simultaneously shipped 
with the books in interstate commerce via the same carrier.
"There are no allegations of fact in the libel amounting to functional inter- 
dependence of the article and the books, so as to constitute the books 'labeling' 
under the Act.
"The libel insofar as it relates to the book 'Look Younger, Live Longer' 
should be dismissed and the seizure of the books vacated."
On April 23,1951, a notice of motion to amend the libel was filed on behalf of 
the Government; thereafter, a motion to amend was filed, together with the 
briefs of the parties; and on May 10,1951, the court ordered that the Govern- 
ment's motion for leave to file an amended libel of information be granted.
The amended libel alleged further that the book entitled "Look Younger, 
Live Longer" by Gayelord Hauser accompanied the article as labeling when it 
was introduced into, while in, and while held for sale after shipment in, 
interstate commerce by reason of the following:
The labels on the jars of the article contained no reference to* any disease 
or condition of the body, or to the vitamin or mineral content of the article, 
except that the statement "The mineral content is high" appeared on the 
label.
The labels on the jars of the article bore on the principal panel the legend 
"Recommended and Endorsed by Gayelord" Hauser."
The author of the book. "Look Younger, Live Longer" is the said Gayelord 
Hauser.
The book by Gayelord Hauser contained recommendations and endorsements 
for blackstrap molasses in the treatment of diseases and conditions of the 
body and as to the vitamin and mineral content of blackstrap molasses.
That "Plantation Blackstrap Molasses" was the only blackstrap molasses 
recommended and endorsed by Gayelord Hauser; and blackstrap molasses 
differs from the usual or customary article of food sold as "molasses" in that 
it is "The poorest, is the final, or exhausted molasses of raw sugar manu- 
facture" (The Encyclopedia of Food, Artemas Ward, 1941), and is defined in 
Cane Sugar Handbook, Spencer and Meade, 1945, as—
Refining Sirup, Barrel Sirup. Refining Blackstrap. The end product of 
the refinery is the sirup purged from the lowest-grade remelt strikes which 
have been cured in erystallizers. In those plants which do not char-filter 
their low-grade materials, this product is refinery blackstrap and does not 
differ materially from cane factory blackstrap, although it is usually less 
viscous. It is used for the same purposes, viz., alcohol manufacture, cattle 
feed yeast.
That by reason of such recommendation and endorsement, Gayelord Hauser 
benefited, was benefiting, and would continue to benefit by the sale of "Planta- 
tion Blackstrap Molasses," in that, by the terms of an agreement with the 
Allied Molasses Co.-, Inc., the packer of said "Plantation Blackstrap Molasses," 
a so-called royalty or remuneration was set aside for the benefit of the said 
Gayelord Hauser, based on the output of such product bearing his endorsement 
and recommendation.
In addition to the product and the book having a common origin at Boston, 
Mass., and a common destruction at Rochester, N. Y., and accompanying each 
other in interstate commerce, there was transmitted also in interstate com- 
merce, via the U. S. Mails, on or about January 13, 1951, from Nature Food 
Centres, Boston, Mass., to Nature Food Centres, Rochester, N. Y., a certain 
window display poster featuring (1) a reprint of an article by the said Gaye- 
lord Hauser which appeared in the January 1951 issue of Cosmopolitan Maga- 
zine, (2) a printed list which read, in part as follows:
Hauser Dieters, Now You Can order all products for the Hauser diet and 
Gayelord Hauser books by mail * * * Plantation Blackstrap Molasses 
33$ Nature Food Centres
and (3), in handwriting, "We have all foods and books for the Hauser diet! 
Come in for full information."
The book and poster were displayed prominently in the store window of 
Nature Food Centres at Rochester, N. Y., together with a number of jars of 
"Plantation Blackstrap Molasses."
In response to- the invitation to "Come in for full information" with respect 
to products for the Hauser diet and the Gayelord Hauser books, the customary 
practice was to hand a prospective purchaser of "Plantation Blackstrap 
Molasses" a copy of the book "Look Younger, Live Longer" and to refer the 
purchaser to the index of this book wherein references are made to those pages
which pertain to the uses and purposes of blackstrap molasses. The uses and 
purposes of blackstrap molasses in the book referred to diseases and conditions 
of the body and the vitamin and mineral content of blackstrap molasses.
That by reason of the foregoing uses to which the book "Look Younger, Live 
Longer" was put and as part of the same interstate transaction and distribu- 
tional scheme in connection with the marketing of "Plantation Blackstrap 
Molasses," the book constituted labeling for the article when the article was 
introduced into, while in, and while held for sale after shipment in, interstate 
commerce.
Following the filing of the amended libel, the claimant filed a motion to 
dismiss this libel insofar as it related to the seized copies of the book; and on 
August 2,1951, the following decision was handed down by the court in denial 
of such motion:
BURKE, District Judge: "This is a motion by the claimant, the publisher of 
the book 'Look Younger, Live Longer' by Gayelord Hauser, and the owner of 
25 copies of the book seized by the Government, to dismiss the amended libel 
in so far as it relates to the seized copies of the book, on the ground that the 
amended libel in so far as it relates to the books fails to state a claim upon 
which relief can be granted under the Federal Food, Drug, and Cosmetic Act, 
21 U. S. C. 301 et seq. The claim is that the book did not and does not consti- 
tute 'labeling' within the meaning of the Act. Heretofore, on April 14, 1951, 
on motion of the publisher, the original libel in so far as it related to the book 
'Look Younger, Live Longer' was dismissed and the seizure of the books vacated.
"The amended libel alleges in part that the book contains statements which 
represent and suggest that the article (blackstrap molasses)' will add five 
youthful years to an individual's life, is an excellent source of many B vitamins, 
is effective in the treatment of deficiencies of B vitamins, is effective in the 
prevention and treatment of menopausal Sifticulties and menstrual abnormali- 
ties, is effective in inducing sleep, is effective to prevent and correct nervous- 
ness, to grow hair and correct baldness, to restore gray hair and correct 
baldness, to restore gray hair to its natural color, is effective to promote better 
digestion, healthy nerves, healthy heart and to prevent and correct constipa- 
tion, poor digestion, tiredness, heart trouble, neuritis and gas, is effective to 
prevent change due to old age, and is effective to promote functioning of the 
glands, all of which statements are claimed to be false and misleading since 
the article is not capable of fulfilling the promises of benefit made for it and 
is not effective for the purposes stated and implied. It alleges that the book 
accompanied the molasses as 'labeling' when the article was introduced into, 
while in, and while held for sale after shipment in interstate commerce. It 
alleges that on or about January 13,1951, in a store conducted by Nature Food 
Centres at Rochester, New York, a window display featured a re-print of an 
article by the author of the book, Gayelord Hauser, which appeared in the Janu- 
ary, 1951, issue of Cosmopolitan Magazine, and a printed list which reads in 
part as follows:
Hauser Dieters. Now you can order all products for the Hauser diet and 
Gayelord Hauser books by mail * * * "Plantation" Blackstrap Mo- 
lasses 33^, Nature Food Centres
We have all foods and books for the Hauser diet. Come in for full 
information.
It alleges further that a copy of the book was prominently displayed in the 
store window of Nature Food Centres at 401 East Main Street, Rochester, New 
York together with a number of jars of 'Plantation' blackstrap molasses. It 
alleges further that in response to such invitation to 'come in for full informa- 
tion' that it was the customary practice to hand a prospective purchaser of 
'Plantation' blackstrap molasses a copy of the book 'Look Younger, Live 
Longer,' by Gayelord Hauser, and to refer such prospective purchaser to the 
index of the book wherein references are made to those pages which pertain 
to the uses and purposes of blackstrap molasses. It alleges that by reason of 
the foregoing uses to which the book was put and as part of the same inter- 
state transaction and distributional scheme in connection with the marketing
of 'Plantation' blackstrap molasses, such book constituted 'labeling' for the 
article as defined in the Act, when the article was introduced into, while in, 
and while held for sale after shipment in interstate commerce.
"The publisher, concededly not a party to the plan of distribution and having 
no connection with Nature Food Centres in the marketing of molasses, claims 
that the Act provides no authority for the seizure and condemnation of its 
books as 'printed matter accompanying' an article. I can see no warrant in 
reason for such a narrow construction of Section 334 of the Act nor do I find 
any authoritative decisions indicating that the seizure provisions of the Act 
should be so circumscribed.
"The publisher further claims that to construe the publisher's book as label- 
ing' of 'Plantation' blackstrap molasses would violate the publisher's right of 
freedom of the press under the Federal Constitution, and that this summary 
seizure of copies of the book as 'labeling' of a commercial product violates the 
constitutional guarantee of freedom of the press. The Administrator by resort- 
ing to the seizure provisions of the Act does not undertake to interfere with 
the publication or circulation of the publisher's book. The seizure has not 
interfered with the bona fide sale of the book. The publisher may continue 
to sell its books wherever it finds a market, even in food stores, and even in 
stores where 'Plantation' blackstrap molasses is sold. The seizure relates 
not to books offered for bona fide sale but to copies of the book claimed to be 
offending against the Act by being associated with the article 'Plantation* 
Blackstrap Molasses in a distribution plan in such a way as to misbrand the 
product.
"Motion denied.   It is hereby so ordered."
On September 10, 1951, the claimant having failed to pursue the matter 
further, judgment of condemnation was entered and the court ordered that 
the property, consisting of the molasses and the copies of the book under 
seizure, be distributed to various charitable organizations.
CEREALS AND CEREAL PRODUCTS
FLOUR