Kordel v. United States - 335 U.S. 345 (1948)
U.S. Supreme Court
Kordel v. United States, 335 U.S. 345 (1948)
Kordel v. United States
Argued October 14, 1948
Decided November 22, 1948
335 U.S. 345
1. It is a violation of § 301(a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 331(a), to ship in interstate commerce to the same consignee a drug and also false and misleading pamphlets designed for use in the advertisement, sale, and use of the drug and constituting an essential supplement to the label on the drug -- even though the punphlets are shipped separately and at a different time. Pp. 335 U. S. 346-350.
(a) The phrase "accompanying such article" in § 201(m) defining "labeling" is not restricted to labels that are on or in the article or package that is transported. Pp. 335 U. S. 347-350.
(b) That the pamphlets are shipped prior to or subsequent to the shipment of the drug does not prevent the drug from being "misbranded" when introduced into commerce within the meaning of § 301(a), in spite of § 301(k), which forbids misbranding of a drug while it is held for sale after shipment in interstate commerce. Pp. 335 U. S. 350, 335 U. S. 351-352.
2. That such pamphlets bear a sale price and are offered for sale is immaterial, since the Act cannot be circumvented by the easy device of a "sale" of the pamphlets where they perform the function of labeling. P. 335 U. S. 350.
3. The fact that, in the evolution of the Act, the ban on false advertising was eliminated and its control was transferred to the Federal Trade Commission did not eliminate from the Act advertising which performs the function of labeling. P. 335 U. S. 351.
4. Since the informations charging violations of § 301(a) did not allege that the acts committed were done "with intent to defraud," the maximum penalty was imprisonment for not more than a year, or a fine of not more than $1,000, or both. Therefore, prosecution by information was authorized by the statute and by § 7(a) of the Rules of Criminal Procedure. P. 348, n 3.
164 F.2d 913 affirmed.
Petitioner was convicted in a federal district court of violating § 301(a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 331(a). 66 F.Supp.
538. The Court of Appeals affirmed. 164 F.2d 913. This Court granted certiorari. 333 U.S. 872. Affirmed, p. 335 U. S. 352.