Dr. F. L. DUNLAP, WASHINGTON, D. C., August 25, 1909. Acting Chairman of the Board of Food and Drug Inspection, Agricultural Department, Washington, D. C. DEAR SIR: I have yours of the 24th instant, setting the hearings as to Kilmer & Co. and Furst Bros. for October 1, at 10 a. m., which has been noted. Respectfully, WARWICK M. HOUGH. SEPTEMBER 28, 1909. WARWICK M. HOUGH, Esq., 701 Hibbs Building, Washington, D. C. DEAR SIR: In accordance with your request, the hearing on I. S. 21172-a, Swamp Root, Kilmer & Co., manufacturers, and I. S. 2017-B, Holland Gin, Baird-Daniels Co., has been postponed from 10 a. m., October 1, 1909, until 10 a. m., October 15, 1909, and will be held in the board room, Department of Agriculture. Respectfully, H. W. WILEY, Chairman, WASHINGTON, D. C., September 29, 1909. Hon. H. W. WILEY, Chairman of the Board of Food and Drug Inspection, Department of Agriculture, Washington, D. C. SIR: I have yours of the 28th instant, setting the hearings for Kilmer & Co.'s Swamp Root and the Baird-Daniels Co.'s Gin for October 15 at 10 a. m., which I have noted. Respectfully, WARWICK M. HOUGH. [Hearing No. 397. October 15, 1909. Subject: Swamp Root." I. S. 21172-a.] Present: Dr. Wiley; Dr. Dunlap; Dr. Kebler; W. M. Hough, representing Kilmer & Co., Binghamton, N. Y.; and A. B. Hayes, Washington, D. C. 66 Dr. WILEY. The charge in this case is that the name Swamp Root" is not justified from the analysis of the product. The statements "the great specific 66 " * 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. Hough, you may make any statement you may care to make, Mr. HOUGH. This name "Swamp Root" is a name which has been used exclusively by these people and their predecessors in business for 30 years, and the public understands it as applying to their product only. This is a sort of arbitrary term and was not intended to be descriptive, and it is a name which the courts of equity protect, giving them the right to use it against anybody else. It is probably one of the leading proprietary medicines or patent medicines. They have been using it now for 30 years, and it is one of those names which the law recognizes and will prohibit anybody else from using because it has been associated in the mind of the public generally with the product of this company. Dr. DUNLAP. It is a trade-mark name, which the courts will protect these people in the use of? Mr. HOUGH. Yes; they will enjoin anybody else from using that name or any similar sounding name on the ground that it would be unfair. The food law was not intended to interfere with the use of any name of that kind. There is nothing in the law which indicates that an arbitrary name of that kind should not continue to be used, because if it had been false or misleading or deceptive in any particular no court of equity would have protected their right. That is one of the principles of equity jurisprudence. Dr. WILEY. Do you mean to say that this name has actually been in the court and that people have tried to take the same name for other products and that the court has decided that this is not a false and misleading name? Mr. HOUGH. Yes. Dr. WILEY. Could you give us a reference to the cases so we could look up the decisions? Mr. HOUGH. None of those cases went to the higher courts, and they don't report the cases in the lower courts. Dr. WILEY. If not reported they would be no good to us. Mr. HOUGH. It is such a perfectly plain case in trade-mark law that all we have got to do is to satisfy the court that the other thing is a similar name. Nobody has ever undertaken to use the words "Swamp Root "-that has never been used by anybody else in the United States-but they have attempted to use similar sounding names, and the courts have stopped it. No court would stop that if there was the slightest doubt that it was misleading or deceptive or that it was not a name which they had a right to appropriate. In other words, if it is simply descriptive, then anybody can use it, but no one has ever had the temerity to assert that it is descriptive. Dr. DUNLAP. Will you let me have references to some of those cases you spoke of? Mr. HOUGH. Yes. It will take a little while to get them, but I will send them to you. One point I want to make right here, Doctor: Section 8 of the act is the only part which by any construction could be regarded as applying to this product. It is not misbranded or adulterated under the specific provisions of the act in relation to the misbranding or adulteration of drugs. Dr. DUNLAP. Is there any charge made here except that of misbranding under section 8? Mr. HOUGH. It doesn't refer to section 8. I am leading up to the question of the proper construction to be given to section 8. Dr. DUNLAP. I thought you were complaining about the citation. Mr. HOUGH. No. Now, section 7 of the act says when an article shall be deemed to be adulterated in the case of drugs. Now, section 8 of the act says an article shall be deemed to be misbranded, in the case of drugs, first, if it be an imitation of or offered for sale under the name of another article; and, second, if the contents of the package as originally put up shall have been removed and other contents shall have been placed in such package, etc. Now, this is not a misbranding under either of those provisions. If it is misbranded, it must be misbranded under the first part of section 8, which says if a package or label shall bear any statement, design, or device regarding such article or ingredients or substances contained therein which shall be false or misleading in any particular. Now, that must be read in connection with the rest of the law, and in the light of a number of decisions of the courts in equity-cases, however, not of this kind-that would be considered as being confined to statements as to what the ingredients are and not to statements of opinion as to what they think the ingredients will do, because that is always a matter of opinion, and in expressing a matter of opinion as to what particular things will do the greatest latitude is allowed before there can be any charge of deception. That question has been in the courts a number of times in these trade-mark cases, and from decisions of the courts I would say these statements would not be violations of the law. I just want to call your attention to that, because I don't know that that point has ever been raised. Dr. DUNLAP. It has. Mr. HOUGH. Has it ever been passed upon? Dr. DUNLAP. They have passed upon questions of fact. Mr. HOUGH. The courts have set a vast difference between the two. Dr. WILEY. The courts will hold them to strict accountability as to questions of fact and questions of what it will do. 66 Mr. HOUGH. Now, there is another point, and that is upon what amount of evidence a man is justified in expressing certain opinions. I may have the impression that if I take certain medicines when I am in a certain physical condition which we may call disease, and then get well, it was that medicine that cured me. We use the word cure more or less loosely, and I may think that my changed condition is due to that thing. Now, if a thousand people have that same impression and I am making that medicine. I would be justified, or would I be justified, in saying that medicine cured or relieved that condition? I don't know whether this board has ever become so technical on a point of that kind as to say whether a thing can cure a condition of that kind. Now, the most important point in this case is the fact that the Dr. Kilmer Co. has made efforts to interpret the food and drugs act by changing their statements on the label to the best of their ability. That is a fact which I understand the board always takes into consideration in determining whether or not a case should go to court. These people want to comply with the law. As soon as the law was enacted, and before this board was formed, a representative of this firm called on Dr. Wiley. Did he not, Doctor? Dr. WILEY. I don't remember; very possibly. Mr. HOUGH. Mr. Merchant was the representative, and he asked the doctor to tell him what changes they must make. The doctor said they must interpret the law for themselves, so they went ahead and made some changes-that is, a change from the label which they had before the food and drugs act was passed. Dr. DUNLAP. Have you got one of those old labels? Dr. KEBLER. Yes; we have one of them. Mr. HOUGH. If you haven't, I will be glad to furnish you with one, showing their efforts to comply with the law. Dr. DUNLAP. What changes did they make? Dr. KEBLER. They substituted the word "prevents" for "cure." Mr. HOUGH. They afterwards changed the word "prevents" to 66 sometimes prevents." As they would see a decision of the board which they thought would bear on their case they would change their labels accordingly, and they are in the attitude to-day of being perfectly willing to receive suggestions from the board as to what changes they should make, as they want to make a conservative statement of fact, not more than the evidence which they possess justifies them in making. Now, they originally had the word cure on their label and they took that out and said "prevents"; then they said "often prevents," and, of course, all these changes represent the expenditure of a good deal of money. It is not something you can do just by turning over the hand. Dr. WILEY. Another example of evolution. [Refers to previous hearing, 396.] [Laughter.] 66 Mr. HOUGH. Evolution is something that grows out of things that happen outside of one individual. It is usually brought about by a large number of forces combining together to produce evolution. Dr. DUNLAP. It must have been a pretty large force that caused them to change their labels. Mr. HOUGH. No; just between this company and the board, it wasn't due to what was taking place between the mass of mankind. Now, of course, under the law this hearing is primarily to know whether your analysis is right; I don't know what your analysis is, and if you don't object I would like to have the analysis to see if it is correct. May I have a copy of the analysis? Dr. WILEY. I don't believe there is anything said about the analysis. It says it is misbranded because it says certain things on the label; I don't think the analysis is mentioned. Mr. HOUGH. It says in the citation "the finding of the analyst." Dr. WILEY. That is just a stock phrase. Now, the label says "it is a great specific kidney, liver, and bladder cure"; that it "prevents Bright's disease"; that it "expels gallstones." Mr. HOUGH. Does the analysis show that it does not do those things? Dr. KEBLER. I might say that it consists chiefly of sugar and water colored with caramel, and that doesn't dissolve gallstones and dispel them. Mr. HOUGH. You might let me see a copy of the analysis. I am sure there are more things in it than that. Dr. WILEY. Your principals can tell you exactly what is in it and all about it. Mr. HOUGH. But suppose you don't find something in there which they say is in it; your conclusions as to the effect of these things would be erroneous. Dr. WILEY. We don't find any substance there that will dissolve and dispel gallstones. Mr. HOUGH. What substance will? Dr. WILEY. An acid will dissolve them, but nothing will dispel them but the force of nature, the contraction of muscles Mr. HOUGH. If a person having that trouble takes this remedy and then passes gallstones, would you say that this remedy had contributed to that result? Dr. WILEY. That isn't a case charged in the indictment. Mr. HOUGH. You say it won't do it; they say it will do it; at least, they have a reason to believe it because of conditions of that kind. I would like to ask again if that is the general question instead of a matter of analysis? What weight would you give to the testimony of people who have used this thing and been benefited by it? Dr. WILEY. None whatever; not a particle, because a lot of people who haven't used it have expelled gravelstones. That is what the physicians would call a non causa pro causa-assigning a cause which is not the cause. There are many more gravelstones expelled by people who have not taken that remedy than by those who have. I would say there is no medicine that ever cured anybody in the sense in which the public understands it. There are many medicines which favor conditions which enable nature to effect a cure. Mr. HOUGH. A usual way of expressing it is, "Your medicine cured me, Doctor." Dr. WILEY. We won't discuss that now. That is a common method of speech, a common usage of the term. Mr. HOUGH. Isn't that in that sense a legitimate form of stating what you expect a remedy will do? Dr. WILEY. They don't say they expect it to do it; they say it does do it. Dr. WILEY. They don't say persons sometimes expel gallstones who take this remedy. Mr. HOUGH. They do now. Dr. DUNLAP. How much evidence is there from reputable physicians as to the value of this medicine? Mr. HOUGH. I have seen a lot of statements, which I didn't bring here with me because I didn't know whether the board wanted to consider anything of that kind. They have plenty of statements of the most marvelous cures as the result of taking this Swamp Root. Dr. WILEY. We don't doubt that. Mr. HOUGH. I know a little something about it myself, and I think it has merit. Dr. WILEY. We don't deny that. Mr. HOUGH. I know druggists who have handled it for years and used it in their families. It is a poor man's remedy; he can buy it for a dollar or two. Dr. DUNLAP. How much does it cost to make a bottle of it? Mr. HOUGH. What does it cost a doctor to come to visit you? It isn't a question of cost of production. Dr. KEBLER. This costs about 10 cents a bottle to make. Mr. HOUGH. I don't think that makes any difference what it costs; the question is whether it has any merit, and whether in advertising it as a remedy for anything they are misleading the public. Dr. DUNLAP. Will you be so kind as to let me know if you have any statements from men we can look upon as being thoroughly reputable—men of high standing as to the value of this remedy; evidence as to whether these statements on here are absolutely warranted? Dr. WILEY. Some professors of pharmacy Dr. DUNLAP. Pharmacologists, men we can look up to and not laymen or the man who has taken it. Mr. HOUGH. Why should you exclude the latter? Human experience is the best and safest foundation upon which to make any statement as to what a thing will do, and that is the only way you can get human experience from the layman. Dr. DUNLAP. Have you any evidence of the kind I think is valuable? Mr. HOUGH. I will get it for you. The courts have held that the formula of these things is a secret, which nobody is required to disclose in equity cases. Now, I have suggested that you simply take some doctors-I suggested doctors and you suggested pharmacologists; of course, you must also consider the rivalry between doctors and manufacturers of patent medicines and tell them what is in there, and let them certify without disclosing their secret, whether or not the things that are in there will contribute to those resultsDr. KEBLER. Water may contribute Mr. HOUGH. What statement can you make about any medicine? Dr. WILEY. I would make the statement that it works on therapeutics; I would say quinine reduces temperature. Mr. HOUGH. Is it a remedy for anything? Dr. WILEY. Yes; for chills and fever-malaria. Malaria is produced by the bite of the mosquito, and quinine seems to be an antidote. Dr. KEBLER. As far as that lay testimony is concerned, in some of our post-office cases men brought in trunks of testimonials, and the judge just brushed them aside. The case was of a man who had made $75,000 a year from the remedy, and it was nothing but water with a little alcohol in it, and yet he presented affidavits from people who said they were eured of cancer; it was simply absurd, a layman expressing an opinion. Mr. HOUGH. I think they are entitled to express an opinion if they have used a particular medicine and have observed particular results. Dr. KEBLER. Not as to the effect of the medicine or the value of it. Mr. HOUGH. When a man says to the doctor, "Doctor, your medicine cured me," he was talking through his hat, was he? Dr. KEBLER. I am not prepared to answer that. Mr. HOUGH. That is the sense in which we use these things. The layman doesn't know what is in the medicine that the doctor prescribes, but he says, "Your medicine cured me." Dr. KEBLER. We hear that expression frequently, and the man who uses it doesn't know what he is talking about. Mr. HOUGH. How would any pharmacologist or physician know what the effect of any medicine would be except by such things as that? Dr. WILEY. We have a perfect scientific way of ascertaining the results of medicine. Mr. HOUGH. Why does the doctor ask the patient, "How do you feel," after he has taken the medicine? Dr. KEBLER. Just to get an expression from the patient. He may be giving a medicine just to deceive the patient-pure and simple. Dr. WILEY. We won't prolong the discussion as to the value of medicines and testimonials. You can present them to this board if you want to, but the question here is whether these statements which I have read to you can be maintained and are justified. Mr. HOUGH. That article contains ingredients which will do these things as much as anything will. Dr. WILEY. That is not the question. Are your clients willing to stand for these statements? Mr. HOUGH. Yes. Dr. WILEY. Now, if we think they are not true we will go to the courts and settle the matter. Mr. HOUGH. You are too keen to go to the courts. You ought not to be so keen to destroy a man's business. Dr. WILEY. If it is to deceive and is false it ought to be destroyed. Mr. HOUGH. Then I think nine-tenths of all the doctors ought to be put in jail. Dr. WILEY. What about the lawyers? [Laughter.] Mr. HOUGH. Here is a firm that has been using a name for 30 years; the name has come to be identified with their product; it is not descriptive and nobody else can use it, consequently they are entitled to continue the use of that name under the food and drugs act. In addition they claim certain things for the article which they sell under that name. Now, you say you have made an analysis of that article and find that it only contains water and caramel color. Dr. KEBLER. We made no such statement. "chiefly." We didn't say ony." We said Mr. HOUGH. Why not state whatever else you found in there, because the conclusions you reached as to the propriety of the statements on the label are based upon what you did find. Dr. WILEY. We would much rather your clients would state what it is. Mr. HOUGH. You wouldn't want my clients to publicly state what the article contains? Dr. WILEY. This is not public. If your clients go to court and want to substantiate your claim that this will do so and so, don't you think the court will want to know what it contains? Dr. DUNLAP. I think it would be better for you to tell us what is in this medicine and then let us arrive at some conclusion. Mr. HOUGH. You suggested awhile ago of taking some doctors or pharmacologists of well-known repute and letting them investigate and certify as to the effect of the ingredients which they find in this remedy. I think there would be no objection to that, providing these reports of ours never go to the public. Suppose I would ask my clients to tell you what is in this medicine, how would you go about determining whether or not those things would have the effect stated there? Dr. WILEY. We find a little alcohol won't do that; we find sugar in there, and we know it won't do it; we find caramel and two or three other things which we |