LOCATION: Symphony Cinema, Boston, Massachusetts
DOCKET NO.: 87
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Sixth Circuit
CITATION: 397 US 1 (1970)
ARGUED: Nov 20, 1969
DECIDED: Feb 24, 1970
Facts of the case
Media for United States v. Kordel
Audio Transcription for Oral Argument - November 20, 1969 in United States v. Kordel
Warren E. Burger:
Number 87, the United States against Kordel and others.
Mr. Wallace, you may proceed whenever you're ready.
Lawrence G. Wallace:
Mr. Chief Justice and may it please the Court.
This is a criminal prosecution under the federal food and drug laws.
Respondents and Detroit Vital Foods Incorporated, the corporation of which they were officers were convicted after a jury trial on five counts of an indictment charging them with misbranding of drugs.
The corporation is not before this Court on present petition.
The sentences imposed by the District Court are summarized in our brief on pages 2 and 3.
The evidence showed that respondent Kordel was President of the corporation and the author of books and leaflets promoting its products and that he traveled across the country delivering lectures which were advertised and open to the public.
The writings and lectures claimed that specified ailments could alleviated by the consumption of certain foods and food elements and that the best sources of these were the products offered for sale by the corporation.
These products were sold in booths and/or near the lecture halls and were also available in health food stores generally.
Respondent Feldten acted as Kordel's assistant selling products at the lectures and taking orders for shipments from Detroit.
The criminal charges were that as to some of the products certain of the books and leaflets constituted part of the labeling and contained false and misleading statements.
And as to all of the counts on which respondents were convicted, the products which they claim to be merely food supplements were in fact drugs because they were intended by the defendants to be used for the prevention and treatment of various diseases and health conditions, and that the labeling of these products failed to set forth adequate directions for the uses for which they were intended as required by the act.
Since the oral representations made in respondent Kordel's public lectures were relevant in showing the uses for which the products were intended, tape recordings of his public lectures were introduced into evidence by the Government at the trial.
At this point, I believe a summary of the relevant procedural chronology will be helpful to the Court.
The indictment in this case was returned in the summer of 1963.
Previously, in June of 1960, the Government had filed a libel proceeding under Section 334 of the Act to condemn quantities of the corporation's products as misbranded.
The corporation appeared as claimant in this in rem proceeding and filed an answer denying the material allegations of the complaint.
The parties then served interrogatories upon each other, pursuant to Rule 33 of the Rules of Civil Procedure.
The Government's interrogatories were served in January and April of 1961 and sought among other things detailed information about the labeling, testing, manufacture, and composition of certain of the products and about Kordel's oral representations concerning the efficacy of these products made during public lectures that he gave in Detroit.
In late January 1961, shortly after service of the Government's initial interrogatories, the corporation received a notice from the Government pursuant to Section 335 of the Act, indicating that criminal prosecution of the corporation and of respondents was contemplated in part for the same conduct that was the subject of the libel.
The corporation then in April 1961 moved that the District Court extend its time to respond to the interrogatories until final disposition of any criminal prosecution that might be brought.
The District Court denied this motion in June 1961, holding that their was no certainty, when or whether a criminal prosecution would be brought and that there is no prejudice in requiring the corporation to answer the interrogatories since the same information would otherwise become available to the Government in any event from the trial of the libel proceeding.
Pursuant to the Court's order, the corporation then filed answers to some of the interrogatories in September 1961 and filed specific objections to others.
In subsequent proceedings, some of the objections were sustained and some are overruled and the Government withdrew some of the interrogatories.
The corporation then answered the remaining interrogatories in September 1962.
Respondent Feldten subscribed to all of the corporation's answers as Vice President and stated that they were true to the best of his knowledge and belief, but that not all of the answers were known to him personally.
The libel proceeding thereafter terminated in a consent decree, entered in November 1962.
In June 1962, after service of the interrogatories and after the corporation's initial answers, but prior to its supplemental answers, the Food and Drug Administration referred the matter to the Department of Justice with the recommendation for criminal prosecution.
The indictment was returned in August 1963.