Argument for the United States. 221 U. S. opposition failed. House bill No. 6295, § 5, 58th Cong., 2d sess., p. 34; bill No. 3342, 57th Cong., 1st sess; Sen. Rep. No. 972, 58th Cong., 2d sess., Sen. Rep. No. 1209, pp. 4-68; 58th Cong., 2d sess.; Id. pp. 97-100. The amendment to the bill changing the definition of misbranding so as to cover not merely "any statement regarding the ingredients or substances contained in the article," but statements regarding the article itself, was made as a result of doubt whether this sort of thing would otherwise be covered. A substitute bill which was urged as preferable because it excluded misstatements of curative properties was rejected. The practice of patent-medicine concerns to make extravagant "cure-all claims" was one of the principal evils denounced in the public agitation contemporaneous with the progress of the bill. The facts of this agitation being part of the history of the times can be examined as indicating the nature of the evils attacked. United States v. Pac. R. R. Co., 91 U. S. 72, 79; Church of the Holy Trinity v. United States, supra, p. 464; Smith v. Townsend, 148 U.S. 490; Aldridge v. Williams, 3 How. 1, 24; United States v. Freight Assn., 166 U. S. 290; McKee v. United States, 164 U. S. 287, 292; Mobile R. R. v. Tennessee, 153 U. S. 486, 502; Preston v. Browden, 1 Wheat. 115, 121; Ex parte Milligan, 4 Wall. 2, 114; Hamilton v. Rathbone, 175 U. S. 419; Pac. Coast S. S. Co. v. United States, 33 Ct. Cl. 36, 56. From the first enforcement of the act the officers charged by it with the duty to put it in operation have construed and applied it to include fraudulent labels of the character here involved, and this construction was uniformly acquiesced in except that the present defendant has contested it. United States v. Moore, 95 U. S. 760, 763; Heath v. Wallace, 138 U. S. 573, 582; Hastings Co. v. Whitney, 132 U. S. 357, 366; Five Per Cent Cases, 110 U. S. 471; Edwards v. Darby, 12 Wheat. 206; Brown v. United States, 221 U.S. Argument for the United States. 113 U. S. 568; Union Insurance Co. v. Hoge, 21 How. 35; Smyth v. Fiske, 23 Wall. 374. See also Notices of Judgment, published by the Department of Agriculture, Nos. 16, 25, 29, 54; see also United States v. Munyon's Remedy Co., U. S. Dist. Ct., E. D. Pennsylvania, Dec. 14, 1910. The similar provisions of various state statutes have been construed by the administrative officers as covering false statements as to curative properties. Practically the general definition of misbranding would have no application to the second class of drugs unless it applies to the sort of thing here involved. The cure-all evil is the one great misbranding evil of the patent-medicine trade. In using the unlimited language which it did use Congress cannot have intended not to exclude this evil, thereby practically leaving the misbranding provisions without application to this great branch of the subject of the act. Nor are these affirmative indications of the intent of Congress to be overruled on the theory advanced in the argument below that such statements of curative properties of patent medicines are matters of scientific opinion. and that Congress has no power to control them. As the bill passed the Senate it contained the word "knowingly." Cong. Rec., vol. 40, pt. 1, p. 897. But that word was eliminated by the House amendment (H. R. Rep. 2118, 59th Cong., 1st sess.), and without the word the bill became a law. Our jurisprudence does not place matters beyond legal control merely because their correct solution may depend upon opinion. See Buttfield v. Stranahan, 192 U. S. 470; Act of July 1, 1902, c. 1378, 32 Stat. L. 728, and see also annual appropriation acts for the Department of Agriculture, June 30, 1906, 34 Stat. 674; Mar. 4, 1907, 34 Stat. 1260; May 23, 1908, 35 Stat. 254; Mar. 4, 1909, 35 Stat. 1043; May 26, 1910, 36 Stat. 419; August 30, 1890 (ch. Argument for the United States. 221 U.S. 839, 26 Stat. 414); Crossman v. Lurman, 192 U. S. 189; acts of August 3, 1888, c. 376, 22 Stat. 214; March 3, 1891, c. 551, 26 Stat. 1084; and see State v. Board of Examiners, 32 Minnesota, 324; People v. McCoy, 125 Illinois, 289; Dent v. West Virginia, 129 U. S. 114. The law of malpractice holds a physician to that degree of skill and learning which is possessed by the average member of his profession. Pike v. Housinger, 155 N. Y. 201; Logan v. Field, 75 Mo. App. 594; Jackson v. Burnham, 20 Colorado, 532; Patten v. Wiggin, 51 Maine, 594; Nelson v. Harrington, 72 Wisconsin, 591. The laws for the determination of insanity and the segregation of the insane, and in general all health and quarantine laws, stand entirely upon matters of scientific opinion. Edgington v. Fitzmaurice, 29 L. R. Ch. Div. 459. Even in this class of cases matters which may theoretically be matters of opinion or state of mind are not exempt from the notice of the law. Durland v. United States, 161 U.S. 306; Butler v. Watkins, 13 Wall. 456; Mo. Drug Co. v. Wyman, 129 Fed. Rep. 623; Rogers v. Va. Car. Chem. Co., 149 Fed. Rep. 1, 78 C. C. A. 615; Ten Mile Coal & Coke Co. v. Burt, 170 Fed. Rep. 332; Kohler Mfg. Co. v. Beeshore, 59 Fed. Rep. 572; Fenwick v. Grimes, 8 Fed. Cases, 4734, 5 Cranch C. C. 603; Hedin v. Minn. Medical Institute, 62 Minnesota, 146; Olston v. Oreg. Water Power Co. (Ore.), 96 Pac. Rep. 1095; Walters v. Rock (N. Dak.), 115 N. W. Rep. 511; McDonald v. Smith, 139 Michigan, 211; Nowlin v. Snow, 40 Michigan, 699; Totten v. Burhans, 91 Michigan, 495; Stoney Creek Woolen Co. v. Smalley, 111 Michigan, 321; Johnson v. Monell (N. Y.), 2 Keyes, 655; Stewart v. Emerson, 52 N. H. 301; Bugham v. Bank, 159 Pa. 94; Ayres v. French, 41 Connecticut, 142; Down v. Tucker, 41 Connecticut, 197; Laing v. McKee, 13 Michigan, 124; Sweet v. Kimball, 166 Massachusetts, 333; Adams v. Gillig, 139 App. Div. (N. Y.) 494; Smith v. Smith (Ala.), 45 So. Rep. 168; Brady v. Elliott, 146 N. Car. 578; Carr v. 221 U.S. Argument for Defendant in Error. Craig (Iowa), 116 N. W. Rep. 720; City Deposit Bank v. Green (Iowa), 115 N. W. Rep. 893; Wolfe v. Burke, 56 N. Y. 115, 122; Edgington v. Fitzmaurice, 29 L. R. Ch. Div. 459, supra. Am. School of Healing v. McAnnulty, 187 U. S. 94, distinguished. From the point of view necessary to be taken by a legislature, these statements of cure-all properties of patent medicines are not in any real scientific sense matters of opinion. They are charlatanic and their falseness is generally demonstrable without real dispute. See the code of the American Medical Association, 1883, Art. 1, § 3. The constitutional power of Congress to prohibit use of the instruments of interstate commerce to the injury of the public is no longer open to question. Reid v. Colorado, 187 U. S. 137, 146; The Lottery Case, 188 U. S. 321; Buttfield v. Stranahan, 192 U. S. 470, 492–493; Crossman v. Lurman, 192 U. S. 189, 199, 200; St. L. & I. M. Ry. v. Taylor, 210 U. S. 281, 287. And see the following cases upholding the constitutionality of this act. United States v. Seventy-four Cases of Grape Juice, 181 Fed. Rep. 629; Shawnee Milling Co. v. Temple, 179 Fed. Rep. 517. This power does not exist in the States because delegated to the Federal authority. Bowman v. Railway Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100, 108. See Re Rahrer, 140 U. S. 545. The statute is remedial, and should not be narrowly construed. In this respect it is like the Interstate Commerce Act-a remedial statute with penal incidental features. N. H. R. R. v. Int. Com. Comm., 200 U. S. 361, 391; Taylor v. United States, 3 How. 191. Mr. James H. Harkless, with whom Mr. Charles S. Crysler and Mr. Clifford Histed were on the brief, for defendant in error: The purpose of the statute is to secure pure food and drugs. Argument for Defendant in Error. 221 U. S. As related to drugs the term "misbranded" used in § 8 is confined to representations concerning the identity of the drug, its physical constituents, or chemical ingredients. It does not refer to claims for curative properties of such drugs. A claim that certain beneficial results will follow the use of a prescribed drug or medicine obviously is not a statement of an existing fact, but is a forecast concerning a future event and is in the nature of things an expression of an opinion. The court will take judicial notice that there are many different schools of medicine whose methods of treatment, and whose opinions concerning the curative properties of drugs and medicines, radically differ some refusing to ascribe any medicinal virtue to any drug under any circumstances. No method has yet been devised by finite man to harmonize these warring factions, and indeed, it cannot be said that the truth lies entirely with any one of them. Congress cannot under the circumstances be deemed to have intended by this legislation to invade a field so speculative and conjectural-certainly not in the absence of apt language clearly and irresistibly evincing such a purpose. The drug is the subject-matter of the commerce. The brand or label which it bears is but an incident to the commodity itself and forms a part of the commerce in the article only in so far as it deals with the identity of the commodity contained in the package. But a statement which gives no information concerning the commodity itself, its physical constituents, or its chemical ingredients is not so related to the commodity as to form a part of the commerce in the article and is not, therefore, a part and parcel of the commerce within the regulating power contemplated by this statute. This is a criminal statute creating and denouncing a new offense. All matters of doubtful interpretation are |