Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a decree dismissing plaintiff's complaint for an injunction against violations of § 301(a), (b), and (k) for the shipment of misbranded articles of drug and § 502 of the Federal Food, Drug, and Cosmetic Act of 1938, c. 675, 52 Stat. 1040, 21 U.S.C.A. § 331(a), (b), and (k) and § 352(a).
The complaint charged that defendant had caused to be printed circulars making therapeutic claims for the products which he manufactures, falsely claiming that the products will cure and constitute adequate treatment for human ailments; that such circulars were sent in interstate commerce to agents and distributors of said products, separately from the products to which they relate; and that by virtue of defendant's power and control over his agents and distributors, he required them to display the separeately shipped circulars with defendant's products.
We must decide whether the act of bringing printed matter containing false and misleading thereapeutic claims in the presence of, and in association with, an article after shipment in interstate commerce, results in the article being misbranded in violation of § 301(k) of the Act.
The Federal Food, Drug, and Cosmetic Act, so far as material, provides:
"Sec. 201 [ § 321]. For the purposes of this Act [chapter] -
"(m) The term 'labeling' means 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.
"Sec. 301 [ § 331].The following acts and the causing thereof are * * * prohibited;:
"(a) The introduction or delivery for introduction into interstate commerce of any * * * drug, * * * that is * * * misbranded.
"(b) The * * * misbranding of any * * * drug * * * in interstate commerce.
"(k) The alteration, * * * of * * * any part of the labeling of, or the doing of any other act with respect to, a * * * drug, * * * if such act is done while such article is held for sale after shipment in ...