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UNITED STATES v. 353 CASES

July 13, 1961

UNITED STATES OF AMERICA, LIBELANT,
v.
353 CASES, ETC., OF MOUNTAIN VALLEY WATER, MOUNTAIN VALLEY SALES COMPANY ET AL., CLAIMANTS.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On June 13, 1961, the costs in the above entitled case were taxed by the Clerk of the Court in the sum of $7,085.50. On June 14, 1961, claimants H.B. McFarling, John G. Scott, and Mountain Valley Sales Company filed their motion under Rule 54(d), Fed.R. Civ.P., 28 U.S.C.A., to review the taxation and to retax the costs in accordance with the objections set forth in the motion.

There are no objections to items 1, 4, 7 and 8, but the claimants object to a portion of items 2, 3, 5 and 6, and ask the court to "disallow the part of such expenses incurred in libelant's unsuccessful effort to prove its charges of false claims under Sections 352(a) and 343(a) of the Act, as alleged in paragraphs 3 and 5 of the libel."

The libel was originally filed in the United States District Court for the Western District of Tennessee on August 19, 1953. An examination of D.C.W.D.Ark. 1953, 117 F. Supp. 110; D.C.E.D.Ark. 1955, 135 F. Supp. 333; United States v. United States District Court, etc., 8 Cir., 1955, 226 F.2d 238; United States v. 363 Cases, etc., D.C.W.D.Ark. 1956, 143 F. Supp. 219; United States v. 353 Cases, etc., 8 Cir., 1957, 247 F.2d 473, and United States v. Miller, 8 Cir., 1958, 256 F.2d 89, will disclose the course that this proceeding has followed since its filing.

The case was finally tried to a jury May 21 to June 2, 1956. At the close of the claimants' evidence, the Government filed a written motion for directed verdict on the ground that the uncontroverted evidence showed that the Mountain Valley mineral water was recommended and used as a food for special dietary uses because of its mineral contents; that the labels on both sizes of bottles failed to bear the information required by 21 U.S.C.A. § 343(j), and 21 C.F.R. § 125.4. For this reason the mineral was, as a matter of law, misbranded within the meaning of 21 U.S.C.A. § 343(j), and should be condemned pursuant to 21 U.S.C.A. § 334(a) and (b). The motion was denied, the case was argued to the jury, and immediately after the instructions to the jury were given by the court, counsel were called upon, in the absence of the jury and before the jury retired to consider its verdict, to state their objections, if any, to the instructions. Whereupon counsel for the Government said:

    "The libelant has no objections except for the
  failure to direct a verdict upon the charge that the
  water is misbranded because it fails to bear
  statements required by Section 343 — J, of the
  Federal Food, Drug, and Cosmetic Act, since it is
  represented as a food for special dietary uses
  because of its mineral

  content * * *." 247 F.2d 476-477.

The jury returned a verdict in favor of the claimants and against the libellant, and judgment was entered upon the verdict.

In due time the libelant filed its motion for judgment notwithstanding the verdict on two grounds, which motion, omitting the formal parts, is as follows:

    "(1) The uncontroverted evidence in this case shows
  that Mountain Valley mineral water is recommended and
  suggested for use as a food for special dietary uses
  because of its mineral content. The labels on both
  sizes of bottles seized failed to bear the
  information required by 21 U.S.C. § 343(j) and
  21 C.F.R. [Sec.] 125.4. For this reason the mineral
  water is as a matter of law misbranded within the
  meaning of 21 U.S.C. § 343(j) and should be condemned
  pursuant to 21 U.S.C. § 334(a) and (b).
    "(2) For further grounds, libelant urges that all
  of the evidence in the case with respect to the
  charge that the article is falsely represented as
  effective treatment for tetany due to disturbances of
  the parathyroid glands, including that adduced by the
  claimants, is to the effect that statements and
  representations are made for such condition, and the
  water will not provide the promised benefits."
  143 F. Supp. 222.

The motion was denied, and an appeal to the United States Court of Appeals for the Eighth Circuit was perfected.

Of the eight pamphlets seized in the distributor's place of business and introduced in evidence, the claimants conceded that four were "labeling." The Government contended that four additional pamphlets were also "labeling." The claimants contended that the four disputed pamphlets were not labeling because the evidence showed that they had not been used by the distributor in connection with selling the water in Memphis, but all of the pamphlets were approved advertising matter and available upon request.

At page 478 of 247 F.2d, the court said:

    "We do not propose to set out in this opinion all
  of the statements in all of the pamphlets, which the
  Government contends were conclusively shown by the
  evidence to constitute `labeling', representing that
  the water has `special dietary uses'. From the sales
  literature received in evidence, it is clear that the
  water was recommended for such uses."

At page 480 of 247 F.2d, the court said:

    "We think that all of the sales literature received
  in evidence was, as a matter of law, `labeling' * *
  and that the question whether the literature was
  `labeling' was not an issue for the jury."

The court further said:

    "Our conclusion is that the water in suit was
  conclusively shown to be misbranded, because it was
  represented, by its labeling, for special dietary
  uses and because the labels on the bottles did not
  contain the information required by the applicable
  regulations.
    "The judgment appealed from is reversed, and the
  case is remanded with directions to enter a judgment
  of condemnation."

Upon the filing of the mandate, this court on December 19, 1957, entered a judgment, to the provisions of which the libelant objected. The libelant filed a petition for writ of mandamus, which was heard by the Court of Appeals on May 28, 1958, and the court directed the Judge of this court to amend the judgment that had been entered on December 19, 1957, "by eliminating paragraph 2 and striking out in paragraph 5 the words, `which are directly referable to the misbranding adjudged herein.'" 256 F.2d 89-90.

Accordingly, on October 24, 1958, the court amended the judgment, and on October 28, 1958, the Court of Appeals found that since "the said order or amended judgment is in accordance with the opinion, ruling and order of this court, it is, therefore, now here ordered and adjudged by this court that the petition for writ of mandamus be, and it is, hereby dismissed."

Title 21 U.S.C.A. § 343, is as follows:

"A food shall be deemed to be ...


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