CONCURRING OPINION
Mollison, Judge:I concur in the conclusion reached by my colleagues in this case, but I do so for somewhat different reasons than set forth in the majority opinion. As I understand the contention made by the plaintiff herein, it is, in substance, that the definition of the term “drug” in paragraph 34 is divisible into two parts, and that in order to be classifiable as a drug under that paragraph, in addition to other requirements which seem to have been met by the unirradiated ergosterol in issue, a substance must' — •
(1) have therapeutic or medicinal properties,
and
(2) be chiefly used for medicinal purposes.
Plaintiff contends that the testimony of its witnesses Raab and Takacs as to the results observed in their experience in the use of unirradiated ergosterol in connection with tuberculosis and poliomyelitis, even though experimental or clinical in nature, established prima facie that unirradiated ergosterol has therapeutic or medicinal properties, and that this prima facie showing was not overcome by the evidence offered by the defendant consisting of the opinion of a *331doctor of medicine and of pharmacology that unirradiated ergosterol "would be unlikely to have any therapeutic effect” and that he did not believe that unirradiated ergosterol "has any curative or healing effect or properties in connection with curing and healing ailments and diseases.”
Plaintiff seemingly admits that unirradiated ergosterol is not chiefly used for medicinal purposes by reason of the therapeutic or medicinal properties the existence of which is claimed to have been ■ established by the testimony of witnesses Raab and Takacs, but contends, in effect, that it is not required that a substance claimed to be a drug shall be chiefly used for the therapeutic or medicinal properties which satisfy requirement (1) above. It is contended that since the chief use of unirradiated ergosterol is for medicinal purposes, i. e., the production of vitamin D-2, it fulfills requirement (2) above.
While the results obtained by the witnesses Raab and Takacs in their experimental or clinical work with ergosterol indicate possibilities of therapeutic or medicinal properties in unirradiated ergosterol, I am not wholly satisfied that the evidence thereof may be said to have established that unirradiated ergosterol possesses such properties. However, assuming, without holding, that the plaintiff established that unirradiated ergosterol has therapeutic or medicinal properties of the nature indicated, and that the opinion evidence offered on behalf of the defendant was insufficient in weight to shift the burden of going forward with the evidence back to the plaintiff, I am, nevertheless, convinced that the plaintiff has failed to establish that unirradiated ergosterol is a drug within the definition contained in paragraph 34 of the tariff act.
I am of the opinion that when the statutory definition of the term “drug” requires that the substances included thereunder have therapeutic or medicinal properties and be chiefly used for medicinal purposes, the said medicinal purposes must be related to the said therapeutic or medicinal properties. There is no question but that unir-radiated ergosterol is not chiefly used for medicinal purposes on account of any therapeutic or medicinal property it may possess along the lines indicated by the witnesses Raab and Takacs. So far as its use in the production of vitamin D-2 is concerned, the evidence indicates that in the unirradiated form ergosterol has no therapeutic or medicinal properties, but rather that these properties are created by irradiation. In this sense, as noted by my colleagues, unirradiated ergosterol is a mere material, which, after processing, acquires the characteristics of a drug, but does not possess them in the unprocessed form. ^