improving memory, stimulating the appetite, normalizing growth of underdeveloped children, extending the span of human life, digestive disturbances, activating glands of the body, physical and mental symptoms of approaching old age; and whether it is a 'natural super-tonic' which produces a pleasing state of well being.
The promotional literature accompanying the article of drug in this case holds out the hope to the public that any of the above-mentioned conditions may be effectively remedied by the ingestion of Jenasol RJ Formula '60' Capsules because they contain 'miracle' royal jelly. In addition to this ingredient, the capsule is said to contain numerous vitamins in a natural base of wheat germ oil. The evidence adduced establishes that the vitamins contained in the pills may be efficacious in treating some of the disabilities listed.
Dr. Gyorgy, a Government witness, conceded that loss of appetite caused by insufficiency of the Thiamin vitamin might respond to treatment with the product with which we are here concerned. However, such occasions are very rare, and occur only when the condition complained of is a result of a vitamin deficiency. In such cases the effective agent is not the royal jelly but the vitamins contained in the product, and it is clear from reading the literature advertising the capsule that it is not being marketed as a vitamin compound but as a miraculous panacea for the ills described, by reason of its inclusion of the ingredient described in bold print as 'ROYAL JELLY'. The promotional literature must be read as a whole. United States v. 38 Dozen Bottles * * * Tryptacin, D.C., 114 F.Supp. 461. It is upon the royal jelly that sufferers from the conditions stated are induced by the literature to pin their hopes and fasten their expectations of alleviation and restoration. When read as a whole, the labelling creates and is intended to create the impression upon the sufferer of the stated ills that it is the royal jelly ingredient of the capsule which constitutes the efficacious palliative or therapeutic agent. I find this to be false, and the labelling as a whole consequently misleading. In view of this unmistakable implication of the labelling, the conclusion is inescapable that the labelling is false and misleading in all respects. The specific findings upon which the Court relied in determining royal jelly to be ineffective for the purposes stated in its labelling are set forth in its opinion filed December 14, 1961. The testimony of the witnesses presented by the Government amply supports the libellant's burden of proof.
The remaining question to be resolved is whether libellant's proposed amendment to the libel, to include a prayer for injunctive relief, should be granted. No case has been found on point, i.e., where a plenary trial was held and decision rendered prior to the application to amend the prayer to include additional and novel relief. However, under the general principles of law, there does not appear to be a prohibition against granting such additional relief.
In Zig Zag Spring Co. v. Comfort Spring Corp., 3 Cir. 1953, 200 F.2d 901, the Court upheld District (now Circuit) Judge Smith who, upon completion of the trial allowed the plaintiff to amend its complaint to include 'and maliciously' thus entitling it to punitive damages, where the case was tried upon that theory, or at least that element was stressed during the trial, and no surprise pleaded or request for continuance made.
The dispositive question is whether or not the opposing party has been prejudiced. Even in cases where the amendment involves a change of the legal theory or cause of action, such changes have been allowed in the absence of a showing of prejudice.
Thus there appears to be no adequate reason to preclude the Government from obtaining the additional relief it now seeks where the legal theory upon which the case was tried would justify the injunction sought, in addition to a decree of condemnation.
There has been no showing that the illegal conduct complained of has ceased. In fact, upon oral argument, it was conceded that sales of the condemned product are continuing with similar labelling. They are likely to continue unless enjoined.
An injunction may be granted even after the illegal conduct has ceased. See United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303.
The prayers of the libel will be deemed amended to include one for an injunction against further sales of the condemned product with any of the labelling here found to be false and misleading. The injunction so sought is hereby granted.
An order in conformity with the foregoing shall be submitted.
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