Kordel v. United States/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER, Mr. Justice MURPHY and Mr. Justice JACKSON concur, dissenting.

I agree with the Court's interpretation of § 502(a) and § 201(m) of the Federal Food, Drug, and Cosmetic Act. These sections considered together provide a definition for the 'misbranding' of drugs. I agree that a drug is misbranded within the meaning of the statute if false and misleading written, printed, or graphic matter is either placed upon the drug, its container or wrappers, or used in the sale of the drug as a supplement to the package label to advise consumers how to use the drug. I agree that false labels may, within the meaning of the statute, 'accompany,' that is go along with, a drug on its interstate journey even though not in the same carton, on the same train, in the same mail, or delivered for shipment the same day. But these agreements do not settle all the problems in this case.

The Federal Food, Drug, and Cosmetic Act does not purport to make all misbranding of drugs within the foregoing definition a federal offense. Congressional power to pass the Act is based upon the commerce clause. Consequently misbranding is only an offense if the misbranded drugs bear the statutorily defined relationships to interstate commerce. For illustration, if a person misbranded a drug which had not been and was not thereafter introduced into interstate commerce, there would be no violation of the federal Act, whatever violation there might be of state law.

As we pointed out in United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, the Federal Food, Drug and Cosmetic Act creates several offenses each of which separately depends upon the relationshi  the misbranded drug then bears to interstate commerce. Section 301(a) forbids the 'introduction or delivery for introduction into interstate commerce' of misbranded drugs; § 301(b) forbids misbranding while the drugs are 'in interstate commerce'; § 301(c) prohibits the 'receipt' of such drugs in interstate commerce; and § 301(k) forbids misbranding while drugs are 'held for sale after shipment in interstate commerce'.

The twenty counts of the information upon which this petitioner's conviction rests, charge that he had introduced drugs into interstate commerce, and that 'when' he so introduced the drugs, they were 'misbranded * * * in that * * * statements appearing in * * * bulletins and booklets accompanying' the drugs 'were false and misleading.' (Emphasis supplied.) The undisputed evidence as to thirteen of these counts showed that when the drugs were 'introduced' into interstate commerce for shipment, they were not within any fair meaning of the word 'accompanied' by the printed matter relied on as 'labeling.' The evidence under one count was that the drugs were shipped July 10, 1942, while the booklets said to be 'labels' were sent a year and a half later, January 18, 1944. Thus, each of these counts charged a violation of the separate and distinct offense of introducing misbranded drugs into interstate commerce, prohibited by § 301(a). The evidence proves the offense, if any, of violation of § 301(k), which prohibits the misbranding of drugs while held for sale after an interstate shipment.

The Court's interpretation of § 301(a) seems to me to create a new offense to make it a crime to introduce drugs into interstate commerce if they should subsequently be misbranded, even so long as eighteen months later while held for sale. This judicial action is justified in part on the ground that the offense Congress created in § 301(k) for holding misbranded drugs for sale after interstate shipment might not reach all situations covered by the congressionally created offense defined by § 301(a). If as the Court believes, Congress in § 301(k) has limited the situations for which it will direct punishment for holding misbranded articles for sale, I cannot agree that we should rewrite § 301(a) so as to broaden its coverage. If Congress left a hiatus, Congress should fill it if it so desires. While I do not doubt the wisdom of separating these offenses as Congress has here done, we must remember that there are dangers in splitting up one and the same transaction into many offenses. See Blockburger v. United States, 284 U.S. 299, 304, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306.

These are serious offenses. While petitioner was fined only $200 on each count, or a total of $4,000, the maximum allowable punishment was $1,000 per count and imprisonment for one year, or for three years under other circumstances. § 303(a). The approach of Congress in this field of penal regulation has been cautious. The language used by Congress in the present law in defining new offenses has been marked by precision. I think we should exercise a similar caution before reading into the 'introduction into interstate commerce' offense, conduct which patently fits into the 'held for sale' offense.

I would reverse the judgment here insofar as it rests on the thirteen counts in which the Government charged offenses under § 301(a) and failed to prove them. 

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