Opinion
No. 10487.
December 8, 1943.
Appeal from the District Court of the United States for the Southern District of Texas; Thomas M. Kennerly, Judge.
Libel by the United States of America against 15 cartons, more or less, of Sekov Reducer for condemnation thereof under the Federal Food, Drug and Cosmetic Act, claimed by Sekov Corporation. From a judgment condemning such article, 45 F. Supp. 52, Sekov Corporation appeals.
Affirmed.
Wm. M. Ryan, of Houston, Tex., for appellant.
William R. Eckhardt, III., Asst. U.S. Atty., of Houston, Tex., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
The appeal is from a judgment condemning fifteen cartons of Sekov Reducer, an alleged remedy for obesity. The trial court found that the product had been falsely labeled and misbranded and shipped in interstate commerce contrary to the provisions of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq., § 334, § 352(a), (f), and (j). The findings of fact and conclusions of law of the trial court are included in a published opinion, United States v. Fifteen Cartons, More or Less, of Sekov Reducer, D.C., 45 F. Supp. 52.
The Sekov Reducer containers bore a picture of a woman with a slender figure. Printed booklets intended for distribution with the product were titled "Sekov, A Path to Slenderness". The labels on the packages, and the booklets which appellant alleges were distributed to purchasers, were false and misleading in that they represented Sekov Reducer to be a safe and appropriate treatment for the reduction of weight.
Properly admitted testimony of practicing physicians clearly establishes that Sekov Reducer is not a remedy for obesity; that it will not, as claimed, reduce the figure of a stout woman to the slender proportions shown in the picture on the container; that directions for use of the product were inadequate; and that its use is dangerous to health when used with the frequency or duration prescribed in the directions on the label, "and this is true whether the patient is or is not suffering from hyperthyroidism or from hypothyroidism".
Appellant Sekov Corporation contends that the fact that it had been previously proceeded against by the Federal Trade Commission barred inquiry by the District Court into the questions presented by the Government's libel. There is no merit in this contention. The issues in that proceeding were not identical with those here presented. Moreover, the power and duty of the District Court to condemn the misbranded articles was not impaired or diminished by the former proceeding. United States v. Research Laboratories, 9 Cir., 126 F.2d 42, 45.
The findings of the District Court are supported by the evidence and its judgment is in accordance with the applicable law.
The judgment is affirmed.