Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
The defendant, 2600 State Drugs, Inc., and the individual defendants, Edward Kravetz, Melburn Holtzman and Raymond Holtzman, all of whom were either officers or employees of the defendant drug corporation, were charged in a criminal information with having sold, without a prescription, certain drugs in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A.§ 301 et seq. In a trial before the District Court all of the defendants were found guilty of violating the Act.
The principal question presented by this appeal is whether or not those sections of the Federal Food and Drug Act which prohibit the sale of dangerous drugs without a prescription are sufficiently definite to give reasonable notice to persons bound by the proscriptions of the Act and subject to its penalties.
The applicable parts of Section 331 of 21 U.S.C.A. provide:
"The following acts and the causing thereof are hereby prohibited:
"(b) The adulteration or misbranding of any * * * drug * * * in interstate commerce.
"(k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded."
Section 353 of 21 U.S.C.A., concerning prescriptions by physicians, prescription requirements and the misbranding of drugs provides:
"(b) (1) A drug intended for use by man which -
"(B) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug; or
"(C) is limited by an effective application under section 355 of this title to use under the professional supervision of a practitioner licensed by law to administer such drug,
shall be dispensed only (i) upon a written prescription of a practitioner licensed by law to administer such drug * * *. The act of dispensing a drug contrary to the provisions of this paragraph shall be deemed to be an act ...