In reversing the decision below in this condemnation proceeding
under the Federal Food, Drug, and Cosmetic Act and remanding the
case to the Court of Appeals,
335 U. S. 355,
this Court decided that the separate shipment of certain machines
and certain leaflets relative to their alleged diagnostic and
curative value was immaterial because the movement of the machines
and leaflets constituted a single interrelated activity; but it
left for consideration by the Court of Appeals the question whether
the evidence as to the falsity of the advertising as to the
diagnostic capabilities of the machines was adequate to sustain
their condemnation even though error in exclusion of other evidence
were conceded.
Held: the United States was entitled to a hearing on
the latter question, and the Court of Appeals failed to follow the
mandate of this Court when it remanded the case to the District
Court for determination of a question as to which of the shipments
might be considered a single interrelated activity. Pp.
336 U. S.
804-806.
172 F.2d 386, reversed.
After the decision of this Court, reversing the decision below
and remanding this case to the Court of Appeals,
335 U.
S. 355, the latter court remanded it to the District
Court for further proceedings. 172 F.2d 386.
Certiorari
granted, and judgment reversed, p.
336 U. S. 806.
PER CURIAM.
The question presented by this petition is whether the Court of
Appeals followed our mandate on remand of the cause in
335 U.
S. 355.
Page 336 U. S. 805
The case, when it was here earlier this Term, appeared in the
following posture:
A condemnation proceeding was instituted by the United States
under the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1044, 21
U.S.C. ยง 334. Sixteen machines with alleged diagnostic and curative
capabilities had been shipped in interstate commerce. Leaflets
describing the uses of the machine had been shipped at a separate
time. The Court of Appeals, 164 F.2d 245, had held that the
separate shipments of the machines and leaflets precluded a
conclusion that the leaflets had accompanied the device in
interstate commerce, and therefore the transaction was outside the
reach of the Act. We reversed the Court of Appeals and held that
the separate shipment of the machines and leaflets constituted a
single interrelated activity.
On remand, the Court of Appeals, 172 F.2d 386, concluded that,
because there were several shipments of machines and a single
shipment of advertising matter, it was not clear which shipments
might be considered a single interrelated activity. Therefore, it
remanded the case to the District Court for a determination of this
fact.
When the case was here before, we decided that the fact of
separate shipments of machines and leaflets was immaterial. The
controlling factors were whether the leaflets were designed for use
with the machine, and whether they were so used. Since the function
of the leaflets and the purpose of their shipment were established,
nothing more was needed to show that the movements of the machines
and leaflets constituted a single interrelated activity. Moreover,
the case is not complicated by shipments of machines and leaflets
to different persons. One Kelsch was the recipient of both.
On remand, the Court of Appeals adhered to its former ruling
that the District Court erroneously excluded evidence
Page 336 U. S. 806
as to the therapeutic or curative value of the machines. When
the case was here before, we did not disturb that ruling. But we
did leave to the Court of Appeals for consideration a further
question -- whether the evidence as respects the falsity of the
diagnostic capabilities of the machine was adequate to sustain the
condemnation even though error in exclusion of the other evidence
were conceded. The United States is entitled to a hearing on that
question.
The petition for certiorari is granted, and the judgment is
Reversed.
