The Washington herald., 1908-04-19

The first prosecution under the food
and drugs act, that of Robert N. Harper.
Of Washington City, has turned out to
be a farce There were several specific
charges of misbrending In the infoFma-
| tioB fled against him. but he was con-
vieted, according TO the statement
of one of the jurors, made aft
er the trial. on the ground that
the words ''brane fude.' which were a
part of the name of Harper's product,
constituted "a false or misleading state
ment," according TO the meaning Of the
law The court instructed the jury, at
the request Of the government. that, un-
less they found from the evidence that
/ there is a known and distinct kind of
food that feeds and nourishes the brain
as distinguished from that which feeds
and nourishes the entire body. and that
the defendants drug or preparation is a
food. and that 1t feeds and nourishes the
brain particularly, as distinguished from
a food that nourishes all parts Of the
body. then the jury are instructed as a
matter OF law that the words brain
| food" and ''brane fude''-if you find that
''brane fude" means brain food--are false
and misleading, and your verdict shall be
guilty on the first count of the informa-
tion.
The juror, quoted above correctly, said
that, under the judges charge there was
nothing for the jury TO do but 70 bring
in a verdict of guilty. even though they
might be OF the opinion that the name
''brane fude' was not calculated to de-
oeive people. and make them think that
they were buying a food to nourish the
brain and nourish it specifically and ex-
clusively.
This part Of the charge Of the court,
according to our view. is absurd and
ridiculous; and it is manifestly incon-
sistent with the instruction given later
in the charge that;
The jury ars Instructed that the purpose Of the
act Of june %, 1895 to prevent the public from
being deceived misled ia the purchase II drugs.
and that the defendant cannot b. found guilty Of
misbfanding his PREPARATION unless, the label.
bottle. package Of bis drugs he made any false
statements OF such statements concerning the ssme
as would naturally and reasonably deceive or mis-
lead. or tend 10 deceive or misead.
Had the court refused 10 grant the re-
quest OF the prosecution to make the
absurd ruling as to the name "brane
fude, H. In fact, the jury had not been
instructed 10 convict. following the in
structlons just quoted. the defendant
would most probably have been acquit-
ted
It may be, and doubtless is, true that
there is no soOd which feeds and nOur-
ishes the brain, that does not, at the
same time, feed and nourish the body as
whole; but must one be compelled TO
specify in detail all the properties. or
each and every effect and use OF the
foods and drugs one makes and must the
fact that he is not so minutely specific,
but mentions only a portion Of those
properties. effects. or uses. constitute a
criminal offense and subject the offender
10 Imprisonment and disgrace? II this
ruling is upheld. then no man IN the
drug business can ever feel safe from
criminal prosecution. For instance. cod
liver oil has been held out 10 be a flesh
producer. Other remedies are called
blood makers blood purifiers &c: others.
again, are claimed to cure headache and
other maladies. but, according TO this
Judge, all such statements are false and
misleading because they do not directly
and specifically produce flesh, make or
purify the blood. cure headache. and SO
on. and because they have some other
effect on the system besides that for
which they are specifically recommended
We think It may be said with truth that
most remedies act indirectly 20 accom-
plsh their purpose, and that they have
other effects than those il is sought 70
produce by those who take them; but to
a sane mind Il is not false or misleading
for manufacturer not 10 furnish an
elaborate treatise with each package Of
the. medicines he makes setting forth all
known information about them, and de-
scribing in detail how they act to pro-