Neslen v. Board of Health of State of California

[203]

SHINN, J.

Plaintiff is in the business of manufacturing and selling a medicinal preparation known as Miacene tablets. He brought this action to enjoin the State Department of Public Health, the City Attorney of Los Angeles, and others from prosecuting him for advertising his product for sale. He appeals from a judgment for defendants after demurrer sustained without leave to amend.

.The complaint alleged that the defendants are about to prosecute plaintiff for violation of section 26271 of the Health and Safety Code, which forbids the advertising of any drug or device as having an effect upon any of some 48 specified diseases, and that such prosecutions would destroy his established business and render it impossible for him to earn a livelihood. Plaintiff challenges the constitutionality of the section, which reads as follows: “The advertisement of a drug or device shall be deemed to be false if the drug or device is represented to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright’s disease, cancer, carbuncles, cholecystitis, diabetes, cataracts, diptheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, dental caries, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, alcoholism, erosion, periodontal diseases, epilepsy, goiter, scarlet fever, sexual impotence, sinus infection, smallpox, encephalitis, tumors, typhoid, uremia, venereal disease, whooping cough, tuberculosis, ulcers of the stomach and varicose ulcers.”

While the section does not in terms make it unlawful to advertise drugs and devices as effective in the named diseases, this result is accomplished by the provision that such advertising shall be deemed to be false. Plaintiff contends that in a prosecution for untrue or misleading advertising, which is made an offense by section 17500 of the Business and Professions Code, proof of the advertising of a drug or device in the manner specified in section 26271,

supra,

would be sufficient, under the latter section, to establish the commission of an offense, without proof that the advertising was untrue or misleading in fact. He fears that he is about to be prosecuted for advertising that his product has an effect upon one or more of the. diseases specified in section 26271, and that under this section his statements will be conclusively presumed