Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.
The government brought this action in rem under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334, to condemn Slim-Mint Chewing Gum allegedly misbranded in violation of the Act, 21 U.S.C.A. § 352(a), which provides that a drug shall be deemed misbranded:
"If its labeling is false or misleading in any particular."
The libel of information refers to:
[The] following described articles of written, printed and graphic matter which accompany said article of drug as labeling and which contain statements relating thereto, namely:
A newspaper mat reading "Eat What You Want - Yet Lose Up to 3-5-9 Pounds a Week"
An unknown number of tear sheets reading "Eat What You Want - Yet Lose Up to 3-5-9 Pounds a Week!" and "Eat What You Want - Yet Lose Pounds and Inches Fast"
An unknown number of streamers entitled "Reduce Without Dieting" (in red ink) and
An unknown number of placards reading "Life! Now! Lose Up To 5 Pounds a Week - Reduce * * *"
3. That the aforesaid article (all lots) was misbranded when introduced into, while in, and while held for sale after shipment in interstate commerce, within the meaning of said Act, 21 U.S.C. 352(a) in that the name "Slim-Mint Chewing Gum" and statements and designs appearing in its labeling, namely, the display carton and card, the box label and insert, the newspaper mat and tear sheet reading "Eat What You Want - Yet Lose Up to 3-5-9 Pounds a Week!", the tear sheet reading "Eat What You Want - Yet Lose Pounds and Inches Fast", the streamers entitled "Reduce Without Dieting" (in red ink); and the placards reading "Life! Now! Lose Up To 5 Pounds a Week * * * Reduce * * *", accompanying said article, contains statements and designs which represent and suggest that the article is an adequate and effective treatment for obesity, which statements are false and misleading since the article is not an adequate and effective treatment for obesity.
A claim to the attached cases of Slim-Mint was filed by Thompson Medical Company as bona fide owner.
There was no contention that the Slim-Mint article was adulterated or harmful to health.
The jury heard evidence of medical witnesses called by the government and by the claimant, and lay witnesses who testified for claimant. There was no motion for a directed verdict. The jury returned a verdict for claimant. The Trial Court denied the government's motion for new trial. This appeal followed.
The government contends that the record shows that the labeling is false and the article clearly misbranded. The Trial Court instructed the jury:
You must find the Slim-Mint Gum to be misbranded, therefore, if you find that any one of the statements made in the labeling is false or misleading.
The government asserts that the jury failed to follow this instruction. The government also poses the theory that it is not precluded from seeking review of the adequacy of the evidence, even though it first raised the question in its motion for a new trial.
The government relies on United States v. Harrell, 8 Cir., 1943, 133 F.2d 504. That case involved eminent domain proceedings. The ...