[Memorandum for Dr. Bigelow.] OFFICE OF THE SOLICITOR, June 5, 1909. This morning we held a hearing on a sample of Swamp Root purchased from Tschiffely. After the hearing Mr. Duane E. Fox, attorney for the Swamp Root people, appeared and stated to me that the New York hearing had been postponed for 60 days from June 9, the date originally set. Will you please tell me who consented to this postponement and why it was granted? It seems to be an extreme case of misbranding, and I am a little surprised at such extension without discussion with the board. G. P. M., Acting Chairman. an 66 [Hearing No. 326. June 5, 1909. Subject: Swamp Root." I. S. 21172-a.] Present: Mr. McCabe, Dr. Kebler, and Mr. F. A. Tschiffely, jr., Washington, D. C. 66 Mr. MCCABE. This is a hearing granted Mr. F. A. Tschiffely, jr., on I. S. 21172-a, on a sample purchased from him as Swamp Root on January 27, 1909, by an authorized inspector of this department. This sample appears to be misbranded within the meaning of the food and drugs act, June 30, 1906, in that the name Swamp Root is not justified from the analysis of the product; the statements, "The great specific * *: * kidney, liver, and bladder cure,' are unwarranted; the statement, "Prevents Bright's disease," is false; the statement, Dissolves and expels gravel stone in bladder," is false; the statement, "Expels gallstones," is false; the statement, "Possessing the rarest therapeutic properties in a very concentrated form," is misleading; the statement, "Heals and removes * * * ulceration or catarrh of bladder, etc.," is unwarranted. Mr. Tschiffely appears in person. What have you to say, Mr. Tschiffely? Mr. TSCHIFFELY. I presented the bill and freight bill to Mr. Earnshaw on January 13. Mr. MCCABE. This receipt is dated January 13. Now, Mr. Tschiffely, have you a guaranty on this product? Mr. TSCHIFFELY. I think so. Mr. MCCABE. Where is it? Mr. TSCHIFFELY. I think you have already got it. Mr. MCCABE. It is not with these papers. Mr. TSCHIFFELY. Let me see that freight bill. You ought to have the invoice also. Mr. MCCABE. I presume you purchased this product and relied upon the serial number guaranty that was on the box? Mr. TSCHIFFILY. Yes; and on the bill, too. Sometimes they just file a letter, but now they have all got to guarantee on the invoices. Here is a statement they sent me. [Submits statement.] Mr. MCCABE. This doesn't seem to have any guaranty on it. Mr. TSCHIFFELY. I didn't look at it, very carefully. Mr. MCCABE. As there was a guaranty legend and serial number on the bottle, I don't see but what that will be sufficient. Thank you, Mr. Tschiffely. (Adjourned.) Dr. KILMER & Co. (For R. R. Land), Binghamton, N. Y. JUNE 5, 1909. GENTLEMEN: The chief of the New York laboratory has conveyed to me your request to be supplied with dealer's sample of I. S. No. 21172-a. In reply I beg to advise you that this sample has been sent to you by express. Please acknowledge receipt. Respectfully, Acting Chairman. NEW YORK LABORATORY: JUNE 7, 1909. Referring to case I. S. No. 21172-a, concerning which you were instructed to accord Dr. Kilmer & Co., Binghamton, N. Y., a hearing in your laboratory, I beg to say that Mr. Duane E. Fox, attorney for this company, appeared at the department and stated that this hearing had been postponed for 60 days from June 9, 1909. There is no record with the case showing that you have taken action of this kind, and I would ask, therefore, that you please advise the bureau regarding the matter. Respectfully, Acting Chief. Mr. GEORGE B. MCCABE, BINGHAMTON, N. Y., June 7, 1909. Board of Food and Drug Inspection, United States Department of Agriculture, Washington, D. C. DEAR SIR: We beg to inform you that the package of Swamp Root, dealer's sample I. S. No. 21172-a, was received by us this morning by express. Thanking you, we remain, very respectfully, DR. KILMER & Co. [Bureau of Chemistry's letterhead.] FOOD AND DRUG INSPECTION LABORATORY, CHIEF OF THE BUREAU OF CHEMISTRY: In reply to yours of the 7th instant concerning adjournment of case I. S. 21172-a, I beg to state that the hearing on same was adjourned to August 9, 1909, as per inclosed copies of correspondence between this laboratory and the parties cited for hearing, viz, Dr. Kilmer & Co. Respectfully, R. E. DOOLITTLE, Chief New York Laboratory. [Bureau of Chemistry's letterhead.] FOOD AND DRUG INSPECTION LABORATORY, CHIEF OF THE BUREAU OF CHEMISTRY: In the matter of I. S. 21172-a (Swamp Root), concerning which this laboratory were instructed to cite Dr. Kilmer & Co., of Binghamton, N. Y., to hearing, I beg to state that there appeared at this laboratory Mr. Walter C. Booth (see inclosed copy of appearance), attorney representing Dr. Kilmer & Co., who requested that he be furnished with a copy of the complete analysis of the goods in question. I did not think that I should give Mr. Booth the analytical data that was contained in the copy of memo furnished the Board of Food and Drug Inspection, and I therefore informed him that I would transmit his request to the Secretary of Agriculture for consideration. I would therefore respectfully request that you reply to Mr. Booth, at 32 Liberty Street, New York City, to his request for the complete analysis of the product, furnishing this laboratory with copy of same in order that we may have the data at hand in conducting the hearing. Very respectfully, R. E. DOOLITTLE, Chief New York Laboratory. NEW YORK, June 9, 1909. Appearance: Mr. Walter C. Booth, attorney for Dr. Kilmer & Co., Binghamton, N. Y. In the matter of I. S. 21172-a (Swamp Root). Mr. BOOTH. I would respectfully request that we be furnished with a copy of the Government analysis of the goods in question, I. S. 21172-a. Mr. DOOLITTLE. The analysis was not made at this laboratory but at the drug laboratory in Washington, and the data furnished this laboratory does not contain a complete analysis of the product, but simply the conclusions from the analysis and examination of the label, which conclusions are already stated in our notice of hearing. However, I will be glad to transmit your request to the Secretary of Agriculture at Washington. Mr. BOOTH. Yes, if you will do that. I understand that by agreement this case has been adjourned to August 9, 1909, at 1.30 p. m. Mr. DOOLITTLE. It is. (Hearing adjourned to August 9, 1909, at 1.30 p. m.) JUNE 14, 1909. NEW YORK LABORATORY: I am in receipt of your letter of the 9th instant conveying the request of Mr. W. C. Booth to be supplied with the analytical data in case I. S. No. 21172–a, Swamp Root. I inclose herewith a copy of letter which has to-day been sent to Mr. Booth concerning the matter. In response to your request to be supplied with analytical data, I would say that you will find in the memorandum to the board regarding this case the complete results of the analysis. These were copied verbatim from the analytical card. Respectfully, Mr. WALTER C. BOOTH, Acting Chiej. JUNE 14, 1909. 32 Liberty Street, New York, N. Y. DEAR SIR: The chief of the food and drug inspection laboratory located in New York City has conveyed to me your request to be supplied with the results of the analysis of a sample of Swamp Root designated as I. S. No. 21172-a, concerning which Dr. Kilmer & Co. have been appointed a hearing in the New York laboratory. In reply, I beg to advise you that it is the uniform custom of the department not to make known the results of the analyses of samples obtained by the chemists of the department, and we regret, therefore, that an exception can not be made in connection with the sample above mentioned. Respectfully, Acting Chairman. Hon. JAMES WILSON, WASHINGTON, D. C., August 5, 1909. Secretary of Agriculture, Washington, D. C. SIR: A hearing in the case of I. S. 21172-a has been set before the chief of the food and drug inspection laboratory in New York on August 9. I have just been retained to represent Kilmer & Co. in this matter and write to request that the hearing be had before you in this city at such time as it may suit your convenience to hear the same, giving me, however, reasonable time to prepare for such hearing. Respectfully, WARWICK M. HOUGH. [Memorandum for Dr. Wiley.] OFFICE OF THE SOLICITOR, Please note the attached request of Mr. Hough in re I. S. No. 21172-a. Inasmuch as we will be absent at Denver the latter part of the month, I suggest that you fix the hearing for some time in September. I expect to be away the first part of September. G. P. M., Solicitor. Dr. R. E. DOOLITTLE, New York. ATLANTIC CITY, August 10, 1909. DEAR SIR: About 10 days ago I was retained by the Kilmer & Co. in the Swamp Root matter and wrote to the Secretary requesting a hearing before him in Washington. I was in Washington at this time, and was told that the hearing would be transferred to Washington, but that inasmuch as there was not a full board, the hearing would be set later. I was under the impression that you were to be notified by the department that the case had been transferred, but I also instructed my Washington office to write you advising you of the request. I learned to-day that this was overlooked, and write this in explanation of my failure to appear before you yesterday, and the apparent neglect of the Kilmer Co. Yours, truly, W. M. HOUGH. WARWICK M. HOUGH, Esq., 701 Hibbs Building, Washington, D. C. AUGUST 11, 1909. DEAR SIR: The board is in receipt of your letter of the 5th instant, stating that you had been retained to represent Kilmer & Co. in connection with hearing which has been appointed that company under the food and drugs act, concerning a sample of Swamp Root designated as I. S. No. 21172-a, and requesting an opportunity to appear before the board concerning the matter. In reply, I beg to advise you that a hearing has been appointed you for 10 o'clock a. m., September 3, 1909. This hearing will take place in the main building of the department. Respectfully, GEO. P. MCCABE, BUREAU OF CHEMISTRY, CHIEF OF THE BUREAU OF CHEMISTRY: New York, August 13, 1909. In the case of I. S. 21172-a (Swamp Root), concerning which this laboratory was, under date of May 20, 1909, instructed to cite Messrs. Dr. Kilmer & Co., of Binghamton, N. Y., to hearing, I beg to report that in accordance with these instructions the above-mentioned firm were cited to appear at this laboratory on June 9, 1909. Under date of May 27, 1909, there appeared at this laboratory Mr. R. R. Land, of the Dr. Kilmer & Co., and requested a postponement of the hearing for two months. The chief of the New York laboratory was absent on that date, and Mr. Land again called on May 28, and there was received from Mr. Land a written request for a postponement of the hearing for two months. This was accordingly granted, as per attached letter. On the same date Mr. Douglas, attorney for Dr. Kilmer & Co., requested the dealer's sample of the goods in question to be sent to Dr. Kilmer & Co., at Binghamton, N. Y. This request was in turn forwarded to the department at Washington. Under date of June 9, 1909, there appeared at this laboratory Mr. Walter C. Booth, attorney, who requested that he be furnished with a copy of the Government's analysis of the goods in question, as per inclosed transcript of verbal request. No one appearing on the date set for hearing, namely, August 9, 1909, this laboratory called by telephone Mr. Walter C. Booth, of the firm of King & Booth, attorneys and counselors at law, who appeared in this case, and he stated that he only appeared at the request of Mr. Frank H. Reid, of Chicago, and he supposed that Mr. Reid had attended to the matter, but that he would at once telegraph to Mr. Reid and inform us accordingly. Under date of August 10, 1909, Mr. Booth called by telephone and stated that he was informed by Mr. Reid that he had no authority to represent Dr. Kilmer & Co., and this: message was afterwards confirmed by letter dated August 10, addressed to: the chief of the New York laboratory. Under date of August 10, 1909, there was received a letter from Mr. W. M. Hough, attorney, by which it appears that Mr. Hough had been retained as attorney for Dr. Kilmer & Co.. and that arrangements had been made with the Secretary of Agriculture for a hearing direct before the Board of Food and Drug Inspection. 13287-XVII--11---2 Under the circumstances, therefore, the record in so far as it has been completed, is herewith transmitted for your information; calling your particular attention to Mr. Hough's letter of August 10 with reference to the transfer of the hearing from this laboratory to Washington, D. C. Very respectfully, R. E. DOOLITTLE, Chief New York Laboratory. AUGUST 16, 1909. 'WARWICK M. HOUGH, Esq., 701 Hibbs Building, Washington, D. C. DEAR SIR: The board is in receipt of your letter of the 5th instant, stating that you have been retained to represent Kilmer & Co. in connection with hearing which has been appointed that company under the food and drugs act, concerning a sample of Swamp Root designated as I. S. No. 21172-a, and requesting an opportunity to appear before the board concerning the matter. In reply I beg to advise you that a hearing has been appointed you for 10 o'clock a. m., September 3, 1909. This hearing will take place in the main building of the department. Respectfully, F. L. DUNLAP, Dr. F. L. DUNLAP, WASHINGTON, D. C., August 18, 1909. Acting Chairman Board of Food and Drug Inspection, Department of Agriculture, Washington, D. C. DEAR SIR: I have yours of the 16th instant, advising me that the hearing in the Swamp Root matter has been set for September 3, 1909, which has been noted. This information was also conveyed to me in a letter from George P. McCabe, acting chairman, under date of August 11. Respectfully, WARWICK M. HOUGH. ATLANTIC CITY, N. J., August 18, 1909. BOARD OF FOOD AND DRUG INSPECTION, Department of Agriculture, Washington, D. C. GENTLEMEN: Yours of August 11 in re I. S. No. 21172-a, being a hearing accorded me, representing Kilmer & Co., concerning a sample of Swamp Root, received and noted, for which accept thanks. Inasmuch as my present engagements extend beyond the middle of September, the date you have fixed-September 3-will not be convenient unless I should succeed in changing some of them; and if I should be unable to do so, I trust that it will not be inconvenient for the board to fix a later date. I now suggest, tentatively, October 1. Respectfully, W. M. HOUGH. Mr. W. M. HOUGH, AUGUST 24, 1909. 143 South North Carolina Avenue, Atlantic City, N. J. DEAR SIR: Receipt is acknowledged of your communication of the 18th instant, and in reply, beg to say that the hearings set for 10 a. m., September 3, 1909, in the two I. S. cases, 21172-a, Kilmer & Co., Swamp Root, and 25019-a, Furst Bros., Sure Thing Tonic, have been postponed until 10 a. m., October 1, 1909. The hearings will be held in the board room, Department of Agriculture, Washington, D. C. Acting Chairman. |