{
  "id": 3636547,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. AMERICAN DAILY PUBLISHING COMPANY, d/b/a S. I. Trader, Defendant-Appellee",
  "name_abbreviation": "People v. American Daily Publishing Co.",
  "decision_date": "1985-07-11",
  "docket_number": "No. 5-84-0174",
  "first_page": "1028",
  "last_page": "1031",
  "citations": [
    {
      "type": "official",
      "cite": "134 Ill. App. 3d 1028"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 6358,
    "ocr_confidence": 0.779,
    "sha256": "c52f26a5af230bc2ebb2a520257be5a9a24ab856e955c263d0dda647a47e788b",
    "simhash": "1:952f59853b8316d9",
    "word_count": 1025
  },
  "last_updated": "2023-07-14T19:26:11.266607+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. AMERICAN DAILY PUBLISHING COMPANY, d/b/a S. I. Trader, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE JONES\ndelivered the opinion of the court:\nThis is an appeal by the State from an order dismissing an information charging the defendant with the offense of advertising a lookalike substance in violation of section 404(b) of the Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56\u00bd, par. 1404(b)).\nThe defendant, American Daily Publishing Company, is the owner and publisher of a newspaper or circular called the S. I. Trader. The S. I. Trader is principally a publication in which people place advertisements for goods and property they would like to buy or sell.\nOn August 10, 1983, the S. I. Trader published an advertisement for diet pills placed by a third party identified as \u201cD.M.\u201d The advertisement listed a Missouri post office box number to which people could send orders and a Missouri number for telephone calls.\nOn August 12, 1983, the State filed an information charging the defendant with the offense of advertising a look-alike substance under section 404(b) of the Controlled Substances Act. The information did not charge the defendant with knowing that the substance for sale was a look-alike drug, but with having knowingly advertised a lookalike substance. The defendant filed a motion to dismiss the information. The circuit court held that the charge against the defendant failed to allege a criminal offense because the defendant was not an advertiser within the meaning of the statute, and it dismissed the information. This appeal followed and we affirm.\nThis is a case of first impression since no Illinois court has construed section 404(a)(1) or section 404(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56\u00bd, pars. 1404(a)(1) and (b)). Section 404(a)(1) reads as follows:\n\u201c \u2018Advertise\u2019 means the attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire, any substance within the scope of this Section.\u201d\nSection 404(b) reads as follows:\n\u201cIt is unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look-alike substance. Any person who violates this subsection (b) shall be guilty of Class 3 felony, the fine for which shall not exceed $150,000.\u201d\nExamination of statutes in other States has revealed that similar statutes in some States, such as Wisconsin (Wis. Stat. Ann. sec. 161.41(4)(a) (West Supp. 1984)) and Oklahoma (Okla. Stat. Ann. tit. 63, sec. 2 \u2014 401 (1984)) do not mention advertising, while statutes of other States, such as Nevada (Nev. Rev. Stat. sec. 453.332(4)(b) (Supp. 1982)) and Colorado (Colo. Rev. Stat. sec. 18 \u2014 5\u2014601 (1984)), prohibit one from placing an advertisement, not publishing one.\nThe circuit court interpreted section 404(a)(1) in the following manner in arriving at its decision to dismiss the charges against defendant. One who \u201cadvertises,\u201d as required by section 404(a)(1), is attempting to induce others to acquire a look-alike substance. The defendant here merely sold space in its paper for use of the third party in inserting his advertisement; it did not attempt to induce any person to acquire a look-alike substance.\nWe believe the circuit court was correct in its analysis and its ruling.\nThe position of the State is that defendant advertised because it published. Webster\u2019s Third New International Dictionary defines \u201cpublication\u201d as \u201ccommunication (as of news or information) to the public.\u201d Defendant did this, of course, when it carried the advertisement in question as placed by the third party, \u201cD.M.\u201d However, such \u201ccommunication to the public\u201d does not bring \u201cpublication\u201d within the statutory definition of \u201cadvertise\u201d as contained in 404(a)(1) since it lacks the additional requirement of the statute that the publication be made \u201cto induce *** any person to acquire *** a controlled substance.\u201d\nThe interpretation the State places on the statutory provisions in question is overly technical and places an unwarranted, and we believe wholly unintended, burden on publishers. In a somewhat analogous statutory setting, where the legislature addressed a prohibition against false or fraudulent advertising, the legislature expressly exempted from penalty any publisher that publishes or disseminates false or fraudulent advertising in good faith and without knowledge of the deceptive character of such advertising. Ill. Rev. Stat. 1983, ch. 121\u00bd, par. 157.21d.\nIn the case under consideration, the standard the State seeks to have imposed upon publishers by its interpretation of the statutes here is well beyond the confines of what is reasonably to be expected of publishers of advertisements. The advertisement that was the subject of the information was not created by the defendant. It was created by an unknown third party, \u201cD.M.\u201d The defendant had no pecuniary interest in the sale of the pills. The defendant had no supplies from which to fill orders and it was not a conduit for the sale of the pills, nor was the defendant an agent for the person who placed the advertisement for publication. The defendant simply supplied space for the third party to place the advertisement. It did nothing of its own volition to induce anyone to buy the pills.\nThe party placing the advertisement within the purview of 404(a)(1) was the party who was advertising in the publication that he had diet pills for sale. He was making the information known to the public through his advertisement. The third party chose to place an advertisement in the S.I. Trader, and defendant thereby became simply a vehicle used by the third party to advertise, not a willing participant in the illegal sale of look-alike drugs and not one the legislature intended to make criminally responsible as an advertiser of look-alike drugs.\nAffirmed.\nEARNS and EASSERMAN, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE JONES"
      }
    ],
    "attorneys": [
      "Michael P. O\u2019Shea, Jr., State\u2019s Attorney, of Cairo (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.",
      "Paul M. Caldwell, of Caldwell, Troutt, Alexander, Quindry & Popit, of Benton, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. AMERICAN DAILY PUBLISHING COMPANY, d/b/a S. I. Trader, Defendant-Appellee.\nFifth District\nNo. 5 \u2014 84\u20140174\nOpinion filed July 11, 1985.\nMichael P. O\u2019Shea, Jr., State\u2019s Attorney, of Cairo (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nPaul M. Caldwell, of Caldwell, Troutt, Alexander, Quindry & Popit, of Benton, for appellee."
  },
  "file_name": "1028-01",
  "first_page_order": 1050,
  "last_page_order": 1053
}