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UNITED STATES v. 60 28-CAPSULE BOTTLES, MORE OR LESS, ETC.

No. 14437.

325 F.2d 513 (1963)

UNITED STATES of America v. 60 28-CAPSULE BOTTLES, MORE OR LESS and 47 7-Capsule Bottles, more or less, of an article of drug labeled in part: "— UNITROL A TRUE APPETITE DEPRESSANT ONE CAPSULE WORKS ALL DAY, Republic Drug Company, Buffalo, New York — Each Capsule Contains: Phenyl Propanolamine Hydrochloride 75 Mg. In a Special Base that Provides for Timed Disintegration of the Contents Over a Period of Approx. 6 to 10 hours. This Capsule is Equal to One tablet of 25 Mg. Potency Taken 3 Times Daily — R 9229" (Other Codes: 9131: R 9172): and one Counter Display Carton reading in part: "Safe Easy Reducing Plan": one window banner reading in part: "Lose Weight up to 14 lbs. in 14 days Unitrol . . . That's All" Nysco Laboratories, Inc., Claimant-Appellant.

United States Court of Appeals Third Circuit.

Decided December 3, 1963.

Attorney(s) appearing for the Case

Solomon H. Friend, New York City, (Bass & Friend, New York City, on the brief), for appellant.

William E. Brennan, Dept. of Health, Education and Welfare, Washington, D. C. (Herbert J. Miller, Asst. Atty. Gen., David M. Satz, Jr., U. S. Atty., James D. Butler, Asst. U. S. Atty., Newark, N. J., William W. Goodrich, Asst. Gen. Counsel, Joanne S. Sisk, Atty., Dept. of Health, Education and Welfare, Washington, D. C., on the brief), for appellee.

Before STALEY, HASTIE and SMITH, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment of the district court condemning certain articles of drug as misbranded within the meaning of 21 U.S.C. § 352(a) (1958 ed.). The appellant contends that the district court erred in holding that the burden of proof on the United States in a misbranding action requires only that it prove its contention by a fair preponderance of the evidence. It is asserted that our decision...

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