SULLIVAN, UNITED STATES v. 332 U.S. 689 (1948)

In no other case has the Supreme Court more sweepingly construed the commerce clause. To protect consumers the Federal Food, Drug, and Cosmetic Act of 1938, passed under the national police power, prohibited the mis-branding of drugs "held for sale after interstate shipment." Nine months after a bottle of sulfathiazole tablets had been shipped from Chicago to Atlanta, a retail druggist in Columbus, Georgia, who had purchased the bottle, properly labeled with a warning that the drug could be toxic, sold twelve tablets in a box without the mandatory warning. The local druggist thereby committed a federal crime. A federal court of appeals reversed his conviction on the ground that the words "held for sale after interstate shipment" extended only to the first intrastate sale and could not apply to all subsequent local sales after any lapse of time.

The Supreme Court, in an opinion by Justice hugo l. black for a bare majority, reversed and sustained the constitutionality of the statute. Black declared that it prohibited misbranding no matter when the drug was sold and without regard to how many local sales intervened; the statute remained in force "to the moment of … delivery to the ultimate consumer" in an intrastate transaction. Sullivan, the druggist, had contended that the statute so construed exceeded the commerce power and invaded powers reserved to the states under the tenth amendment. Black replied merely that a 1913 precedent, McDermott v. Wisconsin, which had sustained the misbranding provision of the pure food and drug act of 1906, controlled the case. He thought that the "variants" between the two cases were "not sufficient" to distinguish McDermott, although he conceded that the retailer in McDermott had been the direct consignee of an interstate shipment. That fact should have made the precedent inapplicable. Black did not take notice that in McDermott the Court had reversed the state conviction of a grocer who misbranded under state law but complied with federal law. Black did not consider that under the original package doctrine the druggist sold local merchandise. Justice wiley rutlege concurred without reaching the constitutional issue and like the three dissenters wrote only on the construction of the statute.

After Sullivan the commerce power seemed to have no statable limits, though the rationale of the decision is unclear. The transaction involved in Sullivan was neither intrastate commerce that affected interstate commerce, nor the production of goods for interstate commerce. The reach of the national police power, which began with champion v. ames (1903), seems to have no end.

Leonard W. Levy
(1986)