Before MAJOR, KERNER, and MINTON, Circuit Judges.
This is an appeal from a decree entered January 22, 1946, in a proceeding commenced by the filing of a Libel Information under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., which prayed the condemnation of an article called Dr. Peter's Kuriko, on the ground that it was misbranded when in interstate commerce. The res involved is a medicine manufactured by Dr. Peter Fahrney & Sons Company, referred to as the claimant which intervened and defended the action. The cause was tried to a jury and a special verdict was returned which constitutes the basis for the decree in controversy.
The libel as filed charged misbranding in a number of ways, all of which charges have been eliminated in one way or another except that contained in paragraph IIIa, which alleged that the article was misbranded within the meaning of 21 U.S.C.A. § 352(a) in that certain representations in the labeling were false and misleading since the product, when taken as directed, will not fulfill the promises of benefit stated and implied therein.
The special verdict of the jury, on questions framed by the court, was as follows:
"1. Is the labeling of Kuriko false or misleading in that the product, when taken as directed, will not fulfill the promises of benefit, stated or implied?
"2. Does the labeling of Kuriko, including the directions thereon, provide for the continuous use of Kuriko?
"3. If you answer Question 2 'Yes,' then answer this question. Is the continuous use of Kuriko capable of causing a dependency upon laxatives to move the bowels?
"4. Is Kuriko misbranded in that the labeling fails to bear adequate directions for use in any respect?
The primary issue raised before this court arises from the contention that there was no substantial evidence which would justify the submission of the case to the jury and that there should have been a directed verdict in favor of the claimant. It is also contended that the submission to the jury of question 4 was prejudicial error because there was no charge in the libel to which it was responsive. In connection with this contention, ...