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UNITED STATES v. VITASAFE CORP.

September 4, 1964

UNITED STATES of America
v.
VITASAFE CORPORATION, a corporation, Nutritional Quality Controls, Inc., a corporation, the Dollar Vitamin Plan, Inc., a corporation, Life Nutrition, Inc., a corporation, International Oil and Metals Corporation, a corporation, Dr. Parker Medicine Company, a corporation, Philip S. Volosov, an individual, and Henry D. Cohen, an individual, Defendants



The opinion of the court was delivered by: LANE

In an opinion filed January 24, 1964, United States v. ,'Vitasafe Formula M * * *', D.C., 226 F.Supp. 266, this court granted the government a decree of condemnation for certain vitamin products and advertising materials used in connection therewith, earlier held to constitute labeling therefor, 226 F.Supp. at 269, footnote 1. The grounds for the decree were that the assertions contained in the labeling gave impressions to the user which were misleading and contrary to fact in violation of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.; 226 F.Supp. at 278-279. The decree of condemnation was filed on April 10, 1964. The Vitasafe Corporation, claimant in the condemnation suit, is one of a group of corporations, defendants in the present case, which distributes vitamins and similar products to the general public. Although the defendant companies are separate entities, they share officers and directors to a significant extent (see appended chart). Samuel David Leon Josephowitz Josephowitz Potash Director, V.S. * X X X Officer, V.S. X X X Director, Nut. * Officer, Nut. Director, $ $* Officer, $ $ X Director, Life * Officer, Life X Director, I.O. * X X Officer, I.O. X Director, Dr. P. Officer, Dr. P. Henry D. Adolf W. Benjamin Cohen Goldschidt Oren Director, V.S. * Officer, V.S. X Director, Nut. * X X Officer, Nut. X X Director, $ $ * X Officer, $ $ Director, Life * Officer, Life Director, I.O. * Officer, I.O. X X Director, Dr. P. X Officer, Dr. P. X Samuel David Leon Josephowitz Josephowitz Potash Director, V.S. * X X X Officer, V.S. X X X Director, Nut. * Officer, Nut. Director, $ $ * Officer, $ $ X Director, Life * Officer, Life X Director, I.O. * X X Officer, I.O. X Director, Dr. P. Officer, Dr. P. Samuel David Leon Josephowitz Josephowitz Potash Director, V.S. * X X X Officer, V.S. X X X Director, Nut. * Officer, Nut. Director, $ $ * Officer, $ $ X Director, Life * Officer, Life X Director, I.O. * X X Officer, I.O. X Director, Dr. P. Officer, Dr. P. Arthur P. William H. Harry S. Silverstein Sylk Sylk Director, V.S. * Officer, V.S. Director, Nut. * X Officer, Nut. X Director, $ $ * X Officer, $ $ X Director, Life * X X Officer, Life X Director, I.O. * Officer, I.O. Director, Dr. P. X Officer, Dr. P. X Benjamin Leonard Louis Lerner Joseph Robbins Director, V.S. * Officer, V.S. Director, Nut. * Officer, Nut. Director, $ $ * Officer, $ $ Director, Life * X Officer, Life X Director, I.O. * X X Officer, I.O. Director, Dr. P. Officer, Dr. P. Gordon Philip Ben Holt Volosov Cale Director, V.S. * Officer, V.S. Director, Nut. * Officer, Nut. Director, $ $ * X Officer, $ $ Director, Life * Officer, Life Director, I.O. * Officer, I.O. X Director, Dr. P. X Officer, Dr. P. X *V.S. = Vitasafe Corporation

Nut. = Nutritional Quality Controls, Inc.

 $ = The Dollar Vitamin Plan, Inc.

 Life = Life Nutrition, Inc.

 I.O. = International Oil and Metals Corporation

 Dr. P. = Dr. Parker Medicine Company

 Their mail order businesses are centered in the same place and conducted in the same manner by the same personnel. None of the companies manufacture vitamins; they repackage drugs bought in bulk and resell them by mail. The style of their ads, customer service programs, vitamin containers, and other literature is strikingly similar. In short, while separately incorporated, all defendant companies are parts of the same operation and in substance are one.

 On August 17, 1964, the United States filed in this court a complaint for injunction against these six corporations and two individuals connected therewith. Pursuant to the complaint, the court issued a temporary restraining order on that date. The order restrained defendants, inter alia, from distributing or otherwise using literature which is objectionable under the condemnation opinion. It further specified a number of circulars which were not to be used.

 The order also prohibited defendants from:

 'Introducing and causing to be introduced and delivering and causing to be delivered for introduction into interstate commerce any of the aforesaid articles which are addressed (a) to any persons to whom defendants have previously sent any of the items of written, printed, and graphic matter and referred to in paragraph A(a) above, and (b) to any person who has sent to the defendants any of the order forms or order blanks which have been mailed by the defendants prior to the date of this decree or which have appeared in any newspaper, magazine, Sunday supplement or other advertisement prior to the date of this decree.'

 A hearing was held to allow a determination by this court of defendants' motion for relief from portions of the restraining order. The parties agreed that the court would consider together the motion for relief and the government's application for preliminary injunction.

 Present Labeling

 The government has established that both before and after the decree defendants used some material which would be subject to condemnation under the terms of the 'Vitasafe Formula M * * *' opinion. An injunction will therefore issue prohibiting defendants from distributing any labeling which falls within the categories we have ...


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