v. United States, supra; United States v. Dotterweich, 1943, 320 U,S, 277, 280, 64 S. Ct. 134, 88 L. Ed. 48.
The question, therefore, is whether the public, having in mind the specious statements of the leaflets, would buy Fairfax cigarettes primarily for smoking enjoyment or with the hope of mitigating, curing or preventing disease.
In Bradley v. United States, 5 Cir., 1920, 264 F.79, mineral water was sold in interstate commerce with the labeling, 'Recommended in the treatment of Birght's disease' and other named diseases. The court was called upon to decide whether these words, properly construed, meant that the water had curative or therapeutic qualities. Claimant argued that the label made no statement regarding these qualities. The court held, however, that the use of the above-quoted words in the label 'could only mean that the use of the water in the treatment of the diseases named would effect a cure or alleviation of such diseases; otherwise, why recommend it?' 264 F. at page 81.
'* * * The contention is made that the water condemned in this case is not a drug, within the meaning as used in the act. * * * as Justice Hughes says, in Seven Cases v. United States, 2380 U.S. (510) 517, 36 S. Ct. (190) 193, 60 L. Ed. 411, L.R.A. 1916D, 164. 'That false and fraudulent representations may be made with respect to the curative affect of substances is obvious,' and when so made of water it seems to us it would be trifling to say that water ordinarily is not a drug in the true meaning of the word, and therefore does not fall within the condemnation of * * * the act. If the allegations of the libel are true, the claimant has put the substance, water, in interstate commerce with the recommendation that it possesses certain elements or ingredients which are curative, or at least alleviative, for the diseases named in the label. He will not be heard now to say the substance recommended is water, and not a drug. Such a construction would nullify the act of Congress.' 264 F. at pages 81, 82.
Although the case at bar may be less obvious, the principles involved are nevertheless the same as those of the Bradley case. If claimant's labeling was such that it created in the mind of the public the idea that these cigarettes could be used for the mitigation or prevention of the various named diseases, claimant cannot not be heard to say that it is selling only cigarettes and not drugs.
On this point legislative intent is clear. 'The use to which a product is to be put will determine the category into which it will fall. If it is to be used only as a food it will come within the definition of food and no other. If it contains nutritive ingredients but is sold for drug use only, as clearly shown by the labeling and advertising, it will come within the definition of drug, but not that of food. If it is sold to be used both as a food and for the prevention or treatment of disease it would satisfy both definitions and be subject to the substantive requirements for both. The manufacturer of the article, through his representations in connection with its sale, can determine the use to which the article is to be put. For example, the manufacturer of a laxative which is a medicated candy or chewing gum can bring his product within the definition of drug and escape that of food by representing the article fairly and unequivocally as a drug product.' Senate Report No. 361, 74th Congress, 1st Session from the Committee on Commerce Report to accompany S. 5.
How, then, has the manufacturer in the case at bar represented his product to the public? What is the nature and import of the labeling as shown by the leaflet?
Claimant, understandably, does not believe it is selling drugs. It admits that the product has none of the curative or preventive powers implied in the leaflet. But throughout the leaflet claimant has tried to capture a share of the cigarette market by a subtle appeal to a natural and powerful desire on the part of us all to avoid the infectious diseases or ailments therein mentioned. Should the buying public or some portion of it turn to Fairfax cigarettes, it would most likely do so because of the means claimant has used to bring the cigarettes to public attention. It is not likely that the buying public would ordinarily carefully study or weigh each word in the leaflet. 'The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.' Aronberg v. Federal Trade Commission, 7 Cir., 1942, 132 F.2d 165, 167. The clear import of the leaflet is at least that the smoking of the cigarettes will make it less likely that the smoker will contract colds or other virus infections. This is enough to bring the product within the statutory meaning of 'drug.' If claimant wishes to reap the reward of such claims, let it bear the responsibility as Congress has seen fit to impose it. United States v. Dotterweich, supra; cf. Barnes v. United States, 9 Cir., 1944, 142 F.2d 648.
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