This case and United States v. Urbuteit, 335 U.S. 355, 69 S.Ct. 112, decided this day, are here on certiorari to resolve a conflict among the circuits in the construction of the Federal Food, Drug, and Cosmetic Act of June 25, 1938. 52 Stat. 1040, 21 U.S.C. § 301 et seq., 21 U.S.C.A. § 301 et seq.
Kordel was charged by informations containing twenty counts of introducing or delivering for introduction into interstate commerce misbranded drugs. He was tried without a jury, found guilty, and fined two hundred dollars on each count, 66 F.Supp. 538. This judgment was affirmed on appeal. 164 F.2d 913.
Kordel writes and lectures on health foods from information derived from studies in public and private libraries. Since 1941 he has been marketing his own health food products, which appear to be compounds of various vitamins, minerals and herbs. The alleged misbranding consists of statements in circulars or pamphlets distributed to consumers by the vendors of the products, relating to their efficacy. The petitioner supplies these pamphlets as well as the products to the vendors. Some of the literature was displayed in stores in which the petitioner's products were on sale. Some of it was given away with the sale of products; some sold independently of the drugs; and some mailed to customers by the vendors.
It is undisputed that petitioner shipped or caused to be shipped in interstate commerce both the drugs and the lite ature. Seven of the counts charged that the drugs and literature were shipped in the same cartons. The literature involved in the other counts was shipped separately from the drugs and at different times-both before and after the shipments of the drugs with which they were associated. The question whether the separate shipment of the literature saved the drugs from being misbranded within the meaning of the Act presents the main issue in the case.
Section 301(a) of the Act prohibits the introduction into interstate commerce of any drug that is adulterated or misbranded. It is misbranded according to § 502(a) if its 'labeling is false or misleading in any particular' and unless the labeling bears 'adequate directions for use'. § 502(f). The term labeling is defined in § 201(m) to mean 'all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.' Section 303 makes the violation of any of the provisions of § 301 a crime.
In this case the drugs and the literature had a common origin and a common destination. The literature was used in the sale of the drugs. It explained their uses. Nowhere else was the purchaser advised how to use them. It constituted an essential supplement to the label attached to the package. Thus the products and the literature were interdependent, as the Court of Appeals observed.
It would take an extremely narrow reading of the Act to hold that these drugs were not misbranded. A criminal law is not to be read expansively to include what is not plainly embraced within the language of the statute (United States v. Resnick, 299 .S. 207, 57 S.Ct. 126, 81 L.Ed. 127; Kraus & Bros. v. United States, 327 U.S. 614, 621, 622, 66 S.Ct. 705, 707, 708, 90 L.Ed. 894), since the purpose fairly to apprise men of the boundaries of the prohibited action would then be defeated. United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665. But there is no canon against using common sense in reading a criminal law, so that strained and technical constructions do not defeat its purpose by creating exceptions from or loopholes in it. See Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722.
It would, indeed, create an obviously wide loophole to hold that these drugs would be misbranded if the literature had been shipped in the same container but not misbranded if the literature left in the next or in the preceding mail. The high purpose of the Act to protect consumers who under present conditions are largely unable to protect themselves in this field would then be easily defeated. The administrative agency charged with its enforcement has not given the Act any such restricted construction. The textual structure of the Act is not agreeable to it. Accordingly, we conclude that the phrase 'accompanying such article' is not restricted to labels that are on or in the article on package that is transported.