Digitized by the Internet Archive in 2012 with funding from Open Knowledge Commons and Yale University, Cushing/Whitney Medical Library http://archive.org/details/fooddrugsactjuneOOunit U. S. DEPARTMENT OF AGRICULTURE OFFICE OF THE SOLICITOR FRANCIS G. CAFFEY, Solicitor FOOD AND DRUGS ACT JUNE 30, 1906 AND AMENDMENTS OF AUGUST 23, 1912 AND MARCH 3, 1913 WITH THE RULES AND REGULATIONS FOR THE ENFORCEMENT OF THE ACT, FOOD INSPECTION DECISIONS, SELECTED COURT DECISIONS, DIGEST OF DECISIONS, OPINIONS OF THE ATTORNEY GENERAL AND APPENDIX Compiled by C. A. GWINN UNDER THE DIRECTION OF THE SOLICITOR WASHINGTON GOVERNMENT PRINTING OFFICE 1914 LETTER OF TRANSMITTAL. U. S. Department op Agriculture, Office of the Solicitor, Washington, D. C, January 29, 1914-. Sir: I recommend the publication of the compilation transmitted herewith of the Food and Drugs Act of June 30, 1906, the amend- ments thereto of August 23, 1912, and March 3, 1913, rules and regu- lations for the enforcement of the act, Food Inspection Decisions, selected court decisions, digest of decisions, opinions of the Attorneys General, legislative history of the act and amendments, and other matters of interest pertaining to the act. No attempt has been made to reconcile conflicting court decisions or to inject into the work the views of the administrative officers charged with the enforcement of the act, except as they have been expressed in regulations and Food Inspection Decisions. It has been considered impracticable and undesirable to refer to all of the approximately 3,000 cases under the act terminated in the courts. Only those in which there is an opinion or a charge to the jury are included. This compilation was prepared under my direction by C. A. Gwinn, a law clerk of this office. It is believed that a publication of this character will be of mate- rial assistance in the enforcement of the act. Respectfully, Hon. D. F. Houston, Secretary of Agriculture. 2 Francis G. Caffey, Solicitor* UrJT Wo/ kiS' CONTENTS. Page, Table of cases 5 The statutes 9 Food and Drugs Act, approved June 30, 1906 , 9 Sherley amendment, approved August 23, 1912 14 Gould amendment, approved March 3, 1913 15 Rules and regulations 17 Food Inspection Decisions . 32 Decisions of courts 163 Digest of court decisions 717 Opinions of the Attorneys General 768 Appendix : Legislative history of Food and Drugs Act 806 Majority house committee report on bill enacted into Food and Drugs Act. . 807 Legislative history of Sherley amendment 817 Legislative history of Gould amendment 818 Report of the Solicitor General to the President on labeling of whisky 818 Decision of the President on labeling of whisky 831 Weeks v. United States 836 General index , 843 3 TABLE OF CASES. * Page. Alsop Process Co. v . James Wilson, Secretary of Agriculture 206 American Chicle Co., United States v 524 American Druggists' Syndicate, United States v 406 Antikamnia Chemical Co., United States v 684 Antikamnia Tablets, United States v. 100 packages of 416 Asafcetida, United States v. Five Boxes of 318 Asaf oetida, United States v. Nine Boxes of 323 Auerbach & Sons, United States v . D 520 Baumert et al., United States v 267 Bettman-Johnson Co., United States v 460 Bi-Carb-Sodarine, United States v. 165 Cases of 357 Blanke, C. F., Tea & Coffee Co., United States v. (N. J. 2493) 598 Blanke, C. F., Tea & Coffee Co., United States v. (N. J. 2797) 601 Boeckmann, United States v 242 Brina v. United States 259 Buffalo Cold Storage Co., United States v 257 Buffalo Lithia Water, United States v. Seven Cases of 697 Calcium Acid Phosphate, United States v. 100 Barrels of 212 Champagne, United States v. Five Cases of 662 Coca-Cola, United States v. 40 Barrels and 20 Kegs of (D. C.) 395 Coca-Cola, United States v. 40 Barrels and 20 Kegs of (C. C. A.) 710 Coburn, District of Columbia v '. 275 Confectionery, United States v. 307 Cases of 516 Corn Meal, United States v. 58 Sacks and 70 Sacks of 480 Corno Horse and Mule Feed, United States v. One Carload of 434 Dade, United States v 554 District of Columbia v. Coburn 275 Drug Products, United States v. Eight Packages or Casks of 305 Dunham Manufacturing Co. , United States v 602 Egg Product, United States v. 443 Cans of Frozen (D. C.) 351 Egg Product, United States v. 443 Cans of Frozen (CCA.) 507 Egg Product, 443 Cans of Frozen, v. United States (Sup. Ct.) 582 Egg Product, United States v. One Barrel of Desiccated 253 Eggs, United States v. Two Barrels of Desiccated 388 Eggs, United States v. 50 Cans of Preserved Whole 227 Eggs, United States v. 13 Crates of Frozen (D. C) 669 Eggs, United States v. 13 Crates of (C C A.) 709 Eggs, United States v. 300 Cans of Frozen 444 Eggs, United States v. 3,000 Pounds of Frozen 353 Excelsior Baking Co., United States v. 660 Finlayson et al. , United States v 672 Flour, United States v. 420 Sacks of 250 Flour, United States v. 625 Sacks of 285 Flour, United States v. 350 Sacks of " Princess " and 50 Sacks of " Fancy Melba ". 513 Frank et al, United States v 360 Frank et al. v. United States 490 French Silver Dragee Co. , United States v •. 194 French Silver Dragee Co., v. United States 276 Fruit Puddine, United States v. 150 Cases of 690 Gait & Co., Wm. M., v. United States 588 German American Specialty Co., U. S. v 619 Ghirardelli Co., United States v. D 563 5 6 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Page. Gidden, United States v 522 Goodman, United States v 641 Grape Juice, United States v. 74 Cases (D. C.) 303 Grape Juice, United States v. 74 (or 20) Cases of (C. of A.) 413 Grenadine Syrup, United States v. 30 Cases Purporting to be 561 Griebler , ^United States v 182 Gumpert*& Co., United States v. S 335 Hall-Baker Grain Co., United States v 452 Hall-Baker Grain Co. v. United States 557 Harper, United States v 163 Heide, United States v 487 Heinle Specialty Co., United States v. Chas. L 236 Henning & Co. , United States v. William 506 Hipolite Egg Co. v. United States 378 Hobart et al., United States v 328 Holland Gin, United States v. Five Cases of 681 Hopkins & Co., United. States v. J. L., (N. J. 1881) 528 Hopkins & Co., United States v. J. L. (N. J. 2436) 568 Houston, Secretary of Agriculture, Huyler's v 694 Hudson Manufacturing Co. v. United States 506 Hudson Manufacturing Co. , United States v 622 Huyler's v. Houston, Secretary of Agriculture 694 Hygienic Health Food Co. , United States v 415 Italian Importing Co. , United States v 340 Johnson, United States v. (D. C). 238 Johnson, United States v. (Sup. Ct.) 427 Jones, Savage v 538 Knowlton Danderine Co., United States v 243 Koca Nola Co., United States v 213 Lehn & Fink, United States v. (Cir. 49) 384 Lehn & Fink, United States v. (N. J. 2841) 579 Lexington Mill & Elevator Co. v. United States 604 Lexington Mill & Elevator Co., United States v 701 Libby, McNeill & Libby, United States v 678 Liquid Extracts, United States v. 65 Casks of 199 London Dry Gin, United States v. 36 Bottles of (D. C.) 647 London Dry Gin, United States v. 36 bottles of (C. C. A) 695 Lorick & Lowrance, United States v 357 McConnon & Co. , United States v 654 McDermott et al. v. Wisconsin 629 Macaroni et al., United States v. 1,950 Boxes of 267 Macaroni, United States i>.175 Boxes of 591 Mapleine, United States v. 300 Cases of 190 Mayfield et al., United States v 244 Mohn Wine Co. , United States v 477 Molasses, United States v. 779 Cases of 218 Morgan etal., United States v. (C. C.) 300 Morgan et al. , United States v. (Sup. Ct.) 494 Nave-McCord Mercantile Co. v. United States 316 Olives, United States v. Nine Barrels of 284 Olives, United States?;. 10 Barrels of. •. 280 Oriental Dragee Co., United States v 188 Pepper, United States v. 75 Boxes of Alleged 502 Philadelphia Pickling Co. v. United States 612 Piso Co., United States v 484 Potter, United States v 576 Psaki et al. , United States v 324 TABLE OF CASES. 7 Page. Richie Co., United States v. The 447 Binchini, United States v 479 Rosebrock & Co., United States v. F. E 343 St. Louis Coffee & Spice Mills, United States v 196 Savage v. Jones 538 Savage v. Scovell •. . . 170 Scanlon, United States v 181 Scovell, Savage v 170 Schraubstadter et al., United States v 393 Schraubstadter et al. v. United States 504 Schuch, United States v 364 Schurman, United States v 249 Scudder Syrup Co. , United States v 619 Scully, D. B. Syrup Co., United States v 621 Shawnee Milling Co. v. Temple et al 260 Sprague et al., United States v 665 Spraul & Co., United States v. George 372 Steinhardt Brothers & Co. v. United States 488 Stephens Co., United States v. Dr. J. L 466 Stephens Co., Dr. J. L., v. United States 628 Sugar, United States v. 46 Fackages and Bags of 324 Sweet Valley Wine Co., United States v 625 Syrup, United States v. Certain Cans of 490 Syrup, United States v. 68 Cases of 216 Temple et al. , Shawnee Milling Co. v 260 Temple et al., Updike Milling Co. v 260 Tepee Apples et al. , United States v. 100 Cases of 172 Thomson & Taylor Spice Co. , United States v 553 Tolman & Co., United States v. John A 231 Tomato Catsup, United States v. 200 Cases of 706 Tomato Catsup, United States v. 275 Cases of 297 Tomato Catsup, United States v. 650 Cases of 183 Tomatoes, United States v. 2,000 Cases of Canned 342 Tucker, United States v 404 Union Pacific Tea Co. , United States v 350 Updike Milling Co. v. Temple et al 260 Vanilla Tonka and Compound, United States v. Three Barrels of (D. C.) 356 Vanilla Tonka and Compound, United States v. Three Barrels of (C. of A.). . . 586 Vinegar, United States v. 10 Barrels of 410 Vinegar, United States v. 75 Barrels of 497 Vinegar, United States v. 100 Barrels of 448 Von Bremen et al., United States v 347 Von Bremen et al. v. United States 500 Weeks, United States v 643 Weeks v. United States 836 Westen Tea & Spice Co. , United States v. Edward 222 Wells Co., United States v. J. Lindsay 326 Wells, United States v 637 Whisky, United States v. 50 Barrels of 174 Wilson, In re 186 Wilson, Secretary of Agriculture, Alsop Process Co. v 206 Wisconsin, McDermott et al. v 629 Wright et al.. United States v 639 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. THE STATUTES. THE FOOD AND DRUGS ACT, JUNE 30, 1906.1 AN ACT For preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be unlawful for any person to manufacture within any Territory or the District of Columbia any article of food or drug which is adul- terated or misbranded, within the meaning of this Act; and any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and for each offense shall, upon convic- tion thereof, be fined not to exceed five hundred dollars or shall be sentenced to one year's imprisonment, or both such fine and imprison- ment, in the discretion of the court, and for each subsequent offense and conviction thereof shall be fined not less than one thousand dollars or sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court. Sec. 2. That the introduction into any State or Territory or the District of Columbia from any other State or Territory or the Dis- trict of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited ; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to -any other person, any such article so adulterated or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or ex- port or offer to export the ^ame to any foreign country, shall be guilty of a misdemeanor, and 'for such offense be fined not exceeding *34 Stat. 768; U. S. Comp. Stat. 1901, Supp. 1911, p. 1354. 10 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court : Provided, That no article shall be deemed misbranded or adul- terated within the provisions of this Act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no sub- stance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped ; but if said article shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall not exempt said article from the operation of any of the other provisions of this Act. Sec. 3. That the Secretary of the Treasury, the Secretary of Agri- culture, and the Secretary of Commerce and Labor shall make uni- form rules and regulations for carrying out the provisions of this Act, including the collection and examination of specimens of foods and drugs manufactured or offered for sale in the District of Colum- bia, or in any Territory of the United States, or which shall be offered for sale in unbroken packages in any State other than that in which they shall have been respectively manufactured or produced, or which shall be received from any foreign country, or intended for shipment to any foreign country, or which may be submitted for ex- amination by the chief health, food, or drug officer of any State, Territory, or the District of Columbia, or at any domestic or foreign port through which such product is offered for interstate commerce, or for export or import between the United States and any foreign port or country. Sec. 4. That the examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agri- culture, or under the direction and supervision of such Bureau, for the purpose of determining from such examinations whether such articles are adulterated or misbranded within the meaning of this Act ; and if it shall appear from any such examination that any of such specimens is adulterated or misbranded within the meaning of this Act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained. Any party so notified shall be given an opportunity to be heard, under such rules and. regulations as may be prescribed as aforesaid, and if it appears that any of the provisions of this Act have been violated by such party, then the Secretary of Agriculture shall at once certify the facts to the proper United States district attorney, with a copy of the results of the analysis or the examination of such article duly authenticated by the analyst or officer making such examination, under the oath of such officer. After judgment of the court, notice shall be given by publication in such manner as may be prescribed by the rules and regulations aforesaid. Sec. 5. That it shall be the duty of each district attorney to whom the Secretary of Agriculture shall report any violation of this Act, or to whom any health or food or drug officer or agent of any State, Territory, or the District of Columbia shall present satisfactory evi- dence of any such violation, to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States, THE STATUTES. 11 without delay, for the enforcement of the penalties as in such case herein provided. Sec. 6. That the term " drug " as used in this Act, shall include all medicines and preparations recognized in the United States Phar- macopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals. The term " food," as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound. Sec. 7. That for the purposes of this Act an article shall be deemed to be adulterated : In case of drugs : First. If, when a drug is sold under or by a name recognized in the United States Pharmacopoeia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation : Provided, That no drug defined in the United States Pharmacopoeia or National Formu- lary shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or National Formulary. Second. If its strength or purity fall below the professed standard or quality under which it is sold. In the case of confectionery : If it contain terra alba, barytes, talc, chrome yellow, or other min- eral substance or poisonous color or flavor, or other ingredient dele- terious or detrimental to health, or any vinous, malt, or spirituous liquor or compound or narcotic drug. In the case of food : First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. Second. If any substance has been substituted wholly or in part for the article. Third. If any valuable constituent of the article has been wholly or in part abstracted. Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or other added deleteri- ous ingredient which may render such article injurious to health: Provided, That when in the preparation of food products for ship- ment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise, and directions for the re- moval of said preservative shall be printed on the covering or the package, the provisions of this Act shall be construed as applying only when said products are ready for consumption. Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. 12 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Sec. 8.1 That the term " misbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the com- position of food, the package or label of which shall bear any state- ment, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manu- factured or produced. That for the purposes of this Act an article shall also be deemed to be misbranded : In case of drugs : First. If it be an imitation of or offered for sale under the name of another article. Second. If the contents of the package as originally put up shall have been removed, in whole or in part, and other contents shall have been placed in such package, or if the package fail to bear a state- ment on the label of the quantity or proportion of any alcohol, mor- phine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein. In the case of food : First. If it be an imitation of or offered for sale under the dis- tinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser, or purport to be a foreign product when not so, or if the contents of the package as originally put up shall have been removed in whole or in part and other contents shall have been placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any of such substances contained therein. Third.2 If in package form, and the contents are stated in terms of weight or measure, they are not plainly and correctly stated on the outside of the package. Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the sub- stances contained therein, which statement, design, or device shall be false or misleading in any particular : Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accom- panied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word " compound," " imitation," or " blend," as the case may 1 See amendment of Aug. 23, 1912, p. 14, post. 2 See amendment of Mar. 3, 1913, p. 15, post. THE STATUTES. 13 be, is plainly stated on the package in which it is offered for sale: Provided, That the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavor- ing only: And provided further, That nothing in this Act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingre- dient to disclose their trade formulas, except in so far as the provi- sions of this act may require to secure freedom from adulteration or misbranding. Sec. 9. That no dealer shall be prosecuted under the provisions of this Act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this Act, des- ignating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach, in due course, to the dealer under the provisions of this Act. Sec. 10. That any article of food, drug, or liquor that is adulter- ated or misbranded within the meaning of this Act, and is being transported from one State, Territory, District, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia or the Territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. And if such article is condemned as being adulterated or misbranded, or of a poisonous or deleterious character, within the meaning of this Act, the same shall be disposed of by destruction or sale, as the said court may direct, and the proceeds thereof, if sold, less the legal costs and charges, shall be paid into the Treasury of the United States, but such goods shall not be sold in any jurisdiction contrary to the provisions of this Act or the laws of that jurisdiction: Provided, however, That upon the payment of the costs of such libel proceed- ings and the execution and delivery of a good and sufficient bond to the effect that such articles shall not be sold or otherwise disposed of contrary to the provisions of this Act, or the laws of any State, Territory, District, or insular possession, the court may by order direct that such articles be delivered to the owner thereof. The pro- ceedings of such libel cases shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any such case, and all such pro- ceedings shall be at the suit of and in the name of the United States. Sec. 11. The Secretary of the Treasury shall deliver to the Secre- tary of Agriculture, upon his request from time to time, samples of foods and drugs which are being imported into the United States or offered for import, giving notice thereof to the owner or consignee, 14 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. who may appear before the Secretary of Agriculture, and have the right to introduce testimony, and if it appear from the examination of such samples that any article of food or drug offered to be im- ported into the United States is adulterated or misbranded within the meaning of this Act, or is otherwise dangerous to the health of the people of the United States, or is of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported, or is otherwise falsely labeled in any respect, the said article shall be refused admission, and the Secretary of the Treasury shall refuse delivery to the con- signee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter on execution of a penal bond for the amount of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of the bond: And provided further, That all charges for storage, cartage, and labor on goods which are refused admission or delivery shall be paid by the owner or consignee, and in default of such pay- ment shall constitute a lien against any future importation made by such owner or consignee. Sec. 12. That the term " Territory " as used in this Act shall in- clude the insular possessions of the United States. The word " per- son " as used in this Act shall be construed to import both the plural and the singular, as the case demands, and shall include corporations, companies, societies and associations. When construing and enforc- ing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corpora- tion, company, society, or association, within the scope of his employ- ment or office, shall in every case be also deemed to be the act, omis- sion, or failure of such corporation, company, society, or association as well as that of the person. Sec. 13. That this Act shall be in force and effect from and after the first day of January, nineteen hundred and seven. Approved June 30, 1906. SHEELEY AMENDMENT.1 AN ACT To amend section eight of the Food and Drugs Act approved June thirtieth, nineteen hundred and six. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That that part of section eight of the Food and Drugs Act of June thirtieth, nineteen hundred and six, defining what shall be misbranding in the case of drugs, be, and the same is hereby, amended by adding thereto a third paragraph to read as follows : !37 Stat., 416, C. 352. THE STATUTES. 15' " If its package or label shall bear or contain any statement, de- sign, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent." So that the said part of said section eight shall read as follows : " Sec. 8. That the term ' misbranded,' as used herein, shall apply to all drugs or articles of food or articles which enter into the com- position of food, the package or label of which shall bear any state- ment, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manu- factured or produced. " That for the purposes of this Act an article shall also be deemed to be misbranded. In case of drugs : " First. If it be an imitation of or offered for sale under the name of another article. " Second. If the contents of the package as originally put up shall have been removed, in whole or in part, and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol? morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein. " Third. If its package or label shall bear or contain any state- ment, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent." Approved, August 23, 1912. GOULD AMENDMENT.1 AN ACT To amend section eight of an Act entitled " An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poison- ous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes," approved June thirtieth, nineteen hundred and six. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section eight of an Act entitled " An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or dele- terious foods, drugs, medicines, and liquors, and for regulating: traffic therein, and for other purposes," approved June thirtieth, nineteen hundred and six, be, and the same is hereby, amended by striking out the words " Third. If in package form, and the contents are stated in terms of weight or measure, they are not plainly and correctly stated on the outside of the package," and inserting in lieu thereof the following : " Third. If in package form, the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count : Provided, however, 137 Stat., 732, C. 118. 16 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. That reasonable variations shall be permitted, and tolerances and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of Section three of this Act.1 Sec. 2. That this Act shall take effect and be in force from and after its passage: Provided, however, That no penalty of fine, im- prisonment, or confiscation shall be enforced for any violation of its provisions as to domestic products prepared or foreign products imported prior to eighteen months after its passage. Approved, March 3, 1913. 1 See regulations published in F. I. D. 154, May 11, 1914. RULES AND REGULATIONS.3 GENEKAL. Regulation 1. Short Title of the Act. The act, " For preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes," approved June 30, 1906, shall be known and referred to as " The Food and Drugs Act, June 30, 1906." Regulation 2. Original Unbroken Package.2 (Section 23.) The term " original unbroken package " as used in this act is the original package, carton, case, can, box, barrel, bottle, phial, or other receptacle put up by the manufacturer, to which the label is attached, or which may be suitable for the attachment of a label, making one complete package of the food or drug article. The original package contemplated includes both the wholesale and the retail package.4 Regulation 3. Collection or Samples.5 (Section 4.) Samples of unbroken packages shall be collected only by author- ized agents of the Department of Agriculture, or by the health, food, or drug officer of any State, Territory, or the District of Columbia, when commissioned by the Secretary of Agriculture for this purpose. Samples may be purchased in the open market, and, if in bulk, the marks, brands, or tags upon the package, carton, container, wrapper, or accompanying printed or written matter shall be noted. The col- lector shall also note the names of the vendor -and agent through whom the sale was actually made, together with the date of the purchase. The collectors shall purchase representative samples. 1 Under date of Oct. 17, 1906, 40 Rules and Regulations for the Enforcement of the Food and Drugs Act, June 30, 1906, were adopted by the Secretaries of the Treasury, Agriculture, and Commerce and Labor by virtue of authority conferred in section 3 of the act. Since that time eight regulations, Nos. 3, 5, 9, 15, 17, 19, 28, and 34, have been amended, as shown in the text : and one regulation, No. 39, has been revoked by F. I. D. 151. The initial letters " F. I. D.," as used herein, mean Food Inspection Decision. 2 See also F. I. D. 86. 3 The sections mentioned after the titles of these regulations refer to sections of the Food and Drugs Act, June 30, 1906. * See United States v. Five Boxes of Asafcetida, p. 318, post; United States v. 65 Casks of Liquid Extracts, p. 199, post; United States v. 300 Cases of Mapleine, p. 190, post; United States v. Two Barrels of Desiccated Eggs, p. 388, post; United States v. The Dr. J. L. Stephens Co., p. 466, post; Hipolite Egg Co. v. United States, p. 378, post; and McDermott et al. v. Wisconsin, p. 629, post. 8 As amended by F. I. D. 79, Oct. 8, 1907. 40066—14 2 17 18 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. A sample taken from bulk goods shall be divided into three parts, and each shall be labeled with the indentifying marks. If a package be less than 4 pounds, or in volume less than 2 quarts, three packages shall be purchased, when practicable, and the marks and tags upon each noted as above. When three samples are pur- chased, one sample shall be delivered to the Bureau of Chemistry or to such chemist or examiner as may be designated by the Secretary of Agriculture ; the second and third samples shall be held under seal by the Secretary of Agriculture, who, upon request, shall deliver one of such samples to the party from whom purchased or to the party guaranteeing such merchandise. When it is impracticable to collect three samples, or to divide the sample or samples, the order of delivery outlined above shall obtain, and in case there is a second sample the Secretary of Agriculture may, at his discretion, deliver such sample to parties interested. All samples shall be sealed by the collector with a seal provided for the purpose. Regulation 4. Methods of Analysis.1 (Section 4.) Unless otherwise directed by the Secretary of Agriculture, the methods of analysis employed shall be those prescribed by the Association of Official Agricultural Chemists and the United States Pharmacopoeia. Regulation 5. Hearings.2 (Section 4.) (a) When the examination or analysis shows that samples are adulterated or misbranded within the meaning of this act notice of that fact shall be given in every case to the party or parties against whom prosecution lies under this act for the shipment or manufacture or sale of the particular product and such other inter- ested parties as the Secretary of Agriculture may direct, and a date shall be fixed at which such party or parties may be heard before the Secretary of Agriculture or such other person as he may direct. The hearings shall be had at places designated by the Secretary of Agriculture most convenient for all parties concerned. These hear- ings shall be private and confined to questions of fact. The parties interested therein may appear in person or by attorney and may submit oral or written evidence to show any fault or error in the findings of the analyst or examiner. Interested parties may present proper interrogatories to analysts, to be submitted to and propounded by the Secretary of Agriculture or the officer conducting the hearing. Such privilege, however, shall not include the right of cross-examina- tion. The Secretary of Agriculture may order a reexamination of the sample or have new samples drawn for further examination. (b) If, after hearings held, it appears that a violation of the act has been committed, the Secretary of Agriculture shall give notice to the proper United States attorney. (c) Any health, food, or drug officer or agent of any State, Terri- tory, or the District of Columbia who shall obtain satisfactory evi- 1 See United States v. 100 Barrels of Vinegar, p. 448, post. 2 As amended by F. I. D. 130, Jan. 18, 1911. RULES AND REGULATIONS. 19 dence of any violation of the Food and Drugs Act, June 30, 1906, as provided by section 5 thereof, shall first submit the same to the Sec- retary of Agriculture in order that he may give notice and fix dates for hearings to the proper parties. Regulation 6. Publication. (Section 4.) (a) When a judgment of the court shall have been rendered there may be a publication of the findings of the examiner or analyst, together with the findings of the court. (b) This publication may be made in the form of circulars, notices, or bulletins, as the Secretary of Agriculture may direct, not less than thirty days after judgment. (c) If an appeal be taken from the judgment of the court before such publication, notice of the appeal shall accompany the publication. Regulation 7. Standards for Drugs. (Section 7.) (a) A drug bearing a name recognized in the United States Phar- macopoeia or National Formulary, without any further statement respecting its character, shall be required to conform in strength, quality, and purity to the standards prescribed or indicated for a drug of the same name recognized in the United States Pharmaco- poeia or National Formulary, official at the time.1 (b) A drug bearing a name recognized in the United States Phar- macopoeia or National Formulary, and branded to show a different standard of strength, quality, or purity, shall not be regarded as adulterated if it conforms to its declared standard. Regulation 8. Formulas — Proprietary Foods. (Section 8, last paragraph.) (a) Manufacturers of proprietary foods are only required to state upon the label the names and percentages of the materials used, in so far as the Secretary of Agriculture may find this to be necessary to secure freedom from adulteration and misbranding. (b) The factories in which proprietary foods are made shall be open at all reasonable times to the inspection provided for in regula- tion 16. Regulation 9. Form or Guaranty.2 (Section 9.) (a) No dealer in food or drug products will be liable to prosecution if he can establish that the goods were sold under a guaranty by the wholesaler, manufacturer, jobber, dealer, or other party residing in the United States from whom purchased.3 (b) A general guaranty may be filed with the Secretary of Agricul- ture by the manufacturer or dealer and be given a serial number, 1 See United States v. Lehn & Fink, p. 384, post. 2 As amended by F. I. D. 99, Dec. 8, 1908. For information concerning the use of fuaranties under section 9 of the Food and Drugs Act, see F. I. D. Nos. 40, 62, 70, 72, 3, 96, and 99. See also F. I. D. 153, May 5, 1914, amending this regulation. 3 See United States v. Heinle Specialty Co., p. 236, post. 20 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. which number shall appear on each and every package of goods sold under such guaranty with the words " Guaranteed by [insert name of guarantor] under the Food and Drugs Act, June 30, 1906." (c) The following form of guaranty is suggested: I (we) the undersigned do hereby guarantee that the articles of foods or drugs manufactured, packed, distributed, or sold by me (us) [specifying the same as fully as possible] are not adulterated or misbranded within the meaning of the Food and Drugs Act, June 30, 1906. (Signed in ink.) [Name and place of business of wholesaler, dealer, manufacturer, jobber, or other party.] (d) If the guaranty be not filed with the Secretary of Agricul- ture as above, it should identify and be attached to the bill of sale, invoice, bill of lading, or other schedule giving the names and quan- tities of the articles sold. ADULTERATION. Regulation 10. Confectionery. (Section 7.) (a) Mineral substances of all kinds (except as provided in regu- lation 15) are specifically forbidden in confectionery whether they be poisonous or not.1 (b) Only harmless colors or flavors shall be added to confec- tionery. (c) The term " narcotic drugs " includes all the drugs mentioned in section 8, Food and Drugs Act, June 30, 1906, relating to foods, their derivatives and preparations, and all other drugs of a nar- cotic nature. Regulation 11. Substances Mixed and Packed with Foods. (Section 7, under " Foods.") No substance may be mixed or packed with a food product which will reduce or lower its quality or strength. Not excluded under this provision are substances properly used in the preparation of food products for clarification or refining, and eliminated in the further process of manufacture. Regulation 12. Coloring, Powdering, Coating, and Staining. (Section 7, under " Poods.") (a) Only harmless colors may be used in food products. (b) The reduction of a substance to a powder to conceal infe- riority in character is prohibited. (c) The term " powdered " means the application of any pow- dered substance to the exterior portion of articles of food, or the reduction of a substance to a powder. (d) The term " coated " means the application of any substance to the exterior portion of a food product. J-But see French Silver Dragee Co. v. United States, p. 276, post. EULES AND REGULATIONS. 21 (e) The term " stain " includes any change produced by the addi- tion of any substance to the exterior portion of foods which in any way alters their natural tint. Regulation 13. Natural Poisonous or Deleterious Ingredients. (Section 7, paragraph 5, under " Foods.") Any food product which contains naturally a poisonous or deleteri- ous ingredient does not come within the provisions of the Food and Drugs Act, June 30, 1906, except when the presence of such ingre- dient is due to filth, putrescence, or decomposition. Regulation 14. External Application or Preservatives. (Section 7, paragraph 5, under " Foods," proviso.) (a) Poisonous or deleterious preservatives shall only be applied externally, and they and the food products shall be of a character which shall not permit the permeation of any of the preservative to the interior, or any portion of the interior,* of the product. (b) When these products are ready for consumption, if any por- tion of the added preservative shall have penetrated the food product, then the proviso of section 7, paragraph 5, under " Foods," shall not obtain, and such food products shall then be subject to the regula- tions for food products in general. (c) The preservative applied must be of such a character that, until removed, the food products are inedible. Regulation 15. Wholesomeness of Colors and Preservatives.1 (Section 7, paragraph 5, under " Foods.") (a) Respecting the wholesomeness of colors, preservatives, and other substances which are added to foods, the Secretary of Agri- culture shall determine from chemical or other examination, under the authority of the agricultural appropriation act, Public 382, approved June 30, 1906, the names of those substances which are permitted or inhibited in food products; and such findings, when approved by the Secretary of the Treasury and the Secretary of Com- merce and Labor, shall become a part of these regulations. (b) The Secretary of Agriculture shall determine from time to time, in accordance with the authority conferred by the agricultural appropriation act, Public 382, approved June 30, 1906, the principles which shall guide the use of colors, preservatives, and other sub- stances added to foods; and when concurred in by the Secretary of the Treasury and the Secretary of Commerce and Labor, the prin- ciples so established shall become a part of these regulations. () The use of a geographical name shall not be permitted in connection with a food or drug product not manufactured or produced in that place, when such name indicates that the article was manufactured or produced in that place. (c) The use of a geographical name in connection with a food or drug prod- uct will not be deemed a misbranding when by reason of long usage it has come to represent a generic term and is used to indicate a style, type, or brand; but in all such cases the State or Territory where any such article is manufactured or produced shall be stated upon the principal label. . There are many cases which have been considered by the Board of Food and Drug Inspection in which it has been necessary to decide whether or not, in its opinion, certain geographical names have been sufficiently generic to indicate a style, type, or brand, and in conse- quence might be used without offending any of the provisions of the Food and Drugs Act. Among the geographical names which have been under consideration are " Eocky Ford " as applied to canta- loupes, and " Indian Eiver " as applied to oranges. 132 FEDERAL EOOD AND DRUGS ACT AND DECISIONS. The Rocky Ford melon is not a new variety of melon, but is one of the older varieties of melons which in the environment of Rocky Ford, Colo., has attained particular excellence. The same remark applies to the Indian River oranges of Florida. They are not a new variety, but various varieties which in the en- vironment of the Indian River have attained unusual excellence. The board holds that the terms " Rocky Ford " and " Indian River " have not become sufficiently generic to indicate styles, types, or brands of melons and oranges, respectively, but that these geo- graphical names are only properly applied to the product of the re- stricted area for the melons which are grown in or near Rocky Ford, and for the product grown in or near the Indian River. Inasmuch as the term " Rocky Ford " has thus become associated with a melon of peculiar excellence of a certain geographical locality, the board holds that it is unlawful to sell in interstate commerce melons not grown in the Rocky Ford district as " Rocky Ford Seed " melons. The terms are nearly alike, the intent is to deceive, and the law provides that a label should not be false or deceptive in any particular. P. I. D. 116 (Apr. 12, 1910). AMENDMENT TO FOOD INSPECTION DECISION 74. In Food Inspection Decision 74, it is provided that— Stearin, for mixture with domestic oils, not animal, may be admitted without certificate if the importer executes a penal bond conditioned upon the subsequent export of all stearin thus imported. This provision is revoked, and hereafter stearin will not be ad- mitted into the United States unless accompanied by a certificate, in the form prescribed in Food Inspection Decision 74, showing its free- dom from disease, as in the case of meats and other meat food prod- ucts of cattle, sheep, swine, and goats. P. I. D. 117 (Apr. 7, 1910). THE USE OF CERTIFIED COLORS.1 Food Inspection Decision No. 76, published July 13, 1907, gives a list of seven coal-tar dyes, which may, without objection from the Department of Agriculture, be used in foods until further notice. Food Inspection Decision No. 77, published September 25, 1907, pro- vides for the certification of dyes. Food Inspection Decision No. 77 was amended March 25, 1909, by Food Inspection Decision No. 106. Some manufacturers have succeeded in producing the seven colors, under the conditions outlined in Food Inspection Decision No. 77.. Certified dyes are now on the market. Certified dyes may be used in foods without objection by the Department of Agriculture, pro- vided the use of the dye in food does not conceal damage or inferior- ity. If damage or inferiority be concealed by the use of the dye, the food is adulterated. 1 See also F. I. D. 51, 76, 77, 92, 102, 106, 129, 148, and 149 relative to use of colors In foods. FOOD INSPECTION DECISIONS. 133 Uncertified coal-tar dyes are likely to contain arsenic and other poisonous material, which, when used in food, may render such food injurious to health and, therefore, adulterated under the law. In all cases where foods subject to the provisions of the Food and Drugs Act of June 30, 1906, are found colored with dyes which con- tain either arsenic or other poisonous or deleterious ingredient which may render such foods injurious to health, the cases will be reported to the Department of Justice and prosecutions had. The department is in possession of facts which show that there are so-called vegetable colors on the market which contain excessive quantities of arsenic, heavy metals and contaminations due to imper- fect or incomplete manufacture. While the department has raised no objection to the use of vegetable colors, per se, yet the use of colors even of vegetable origin, open to the objection of excessive arsenic, etc., should not be used for coloring food products. F. I. D. 118 (Apr. 18, 1910). 1 LABELING OF WHISKEY COMPOUNDS UNDER F. I. D. 113.2 At the instance of certain parties in interest we have considered the suggestion for a modification of the rules embodied in Food Inspec- tion Decision No. 113. The suggestion was that mixtures of whiskey with a potable alcohol distillate from sources other than grain, such as cane, fruit, or vegetables, are not misbranded if labeled a blend of whiskey and neutral spirit." After exhaustive consideration we have concluded that such a change would be in conflict with the controlling reason of the rule itself. It has also been suggested that the term " blend " might be em- ployed under the circumstances given if the neutral spirit disclosed its origin by the designation " neutral molasses spirit," or other like terms. While a modification in that form might protect the public against deception or misunderstanding, we are nevertheless of the opinion that such a modification would still be in conflict with the fundamental principle adopted in the President's opinion and in Food Inspection Decision No. 113. In our opinion such a combina- tion, if it is to be designated according to the terms of the law, would be a compound, and not a blend, and if either term is to be employed the former is the only one that is permissible. Our conclusion accordingly is that we must decline to modify the decision heretofore adopted in any respect. F. I. D. 119 (May 6, 1910). USE OF SHELLAC AND OTHER GUMS FOR COATING CHOCOLATES AND OTHER CONFECTIONS. The Board of Food and Drug Inspection has carefully considered the evidence which has been presented at various times respecting the practice of coating chocolates and other confections with shellac and other gums. 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. 2 See F. I. D. 45, 65, 95, 98. 113 and 127 relative to the labeling of whiskies ; also opinions of the Attorneys General, pp. 775, 783, 797, post; Report of the Solicitor General, p. 818, post; and Decision of the President, p. 831, post, on the same subject. 134 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The board is of the opinion that it is not a proper proceeding under the provisions of the Food and Drugs Act. It is evident that such coating will not only conceal inferiority, but it appears further that as a rule the gums are dissolved in alcohol. One man in giving evidence before the board stated that in his opinion there was no objection to wood alcohol as a solvent. In dipping confections into an alcoholic solution of a gum a certain quantity of the alcohol must necessarily permeate the product. Evidence is adduced showing that the product is not submitted to any subsequent process of heating whereby the traces of alcohol could be removed. Although only mere traces of alcohol may remain, the addition of these substances, and especially of wood alcohol, to a confection is specifically prohibited by the act. Evidence is also in the possession of the board to show that a large number of the manufacturers either never have employed this method or have discontinued it, and that goods can be, and are, made and sold in all quantities with no difficulty without the use of shellac or other gums. Evidence further shows that one of the reasons for adding the coating is that the goods may be held for a longer time. The exposure of confections for a long while before use is not advisable nor desirable. f F. I. D. 120 (May 13, 1910). 1 LABELING OF OHIO AND MISSOURI WINES.2 The question has arisen whether fermented beverages made in the States of Ohio and Missouri by the addition of a solution of sugar and water to the natural juice of grapes before fermentation may be labeled, under the Food and Drugs Act, as " Ohio Wine," or " Mis- souri Wine," respectively, without further qualification. In Food Inspection Decision 109 it was announced that the term " wine " without qualification is properly applied only to the product made from the normal alcoholic fermentation of the juice of sound, ripe grapes without addition or abstraction, except such as may occur in the usual cellar treatment for clarifying and aging. It has been decided after a careful review that the previous an- nouncement is correct and that the term " wine " without further characterization must be restricted to products made from untreated must without other addition or abstraction than that which may occur in the usual cellar treatment for clarifying and aging. How- ever, it has been found that it is impracticable, on account of natural conditions of soil and climate, to produce a merchantable wine in the States of Ohio and Missouri without the addition of a sugar solu- tion to the grape must before fermentation. This condition has recognition in the laws of the State of Ohio, by which wine is defined to mean the fermented juice of unclried grapes, and it is provided that the addition, within certain limits, of pure white or crystallized sugar to perfect the wine or the use of the necessary things to clarify and refine the wine, which are not injurious to health, shall not be construed as adulterations and that the resultant product may be sold under the name " wine." Furthermore, it is permitted in some 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. 2 See also F. I. D. 109, 122, and 156 on the labeling of wines. FOOD INSPECTION DECISIONS. 135 of the leading wine-producing countries of Europe to add sugar to the grape juice and wine, under restrictions, to remedy the natural deficiency in sugar or alcohol, or an excess of acidity, to such an extent as to make the quality correspond to that of wine produced, without any admixture, from grapes of the same kind and vintage in good years. It is conceived that there is no difference in principle in the adding of sugar to must in poor years to improve the quality of the wine than in the adding of sugar to the must every year for the same purpose in localities where the grapes are always deficient. In view of this practice, and having regard to the fact that fer- mented beverages have been produced in the States of Ohio and Missouri by the addition of a sugar solution to grape must before fermentation and sold and labeled as " Ohio Wine " and " Missouri Wine," respectively, for a period of over 60 years, it is held a compliance with the terms of Food Inspection Decision 109 if the product made from Ohio and Missouri grapes by complete fermenta- tion of the must under proper cellar treatment, and corrected by the addition of a sugar solution to the must before fermentation so that the resultant product does not contain less than five parts per thou- sand acid and not more than 13 per cent of alcohol after complete fermentation, are labeled as " Ohio Wine " or " Missouri Wine " as the case may be, qualified by the name of the particular kind or type to which it belongs. An Ohio or Missouri dry still wine made as above stated and sweetened with a sugar solution which does not increase the volume of the wine more than 10 per cent, and fortified with tax-paid spirits, may be labeled as " Ohio Sweet Wine " or " Missouri Sweet Wine " as the case may be, qualified by the name of the particular kind or type to which it belongs. The product made in Ohio and Missouri by the addition of water and sugar to the pomace of grapes from which the juice has been partially expressed, and by fermenting the mixture until a fermented beverage is produced, may be labeled as " Ohio Pomace Wine " or "Missouri Pomace Wine" as the case may be. If a sugar solution be added to such products for the purpose of sweetening after fer- mentation they should be characterized as " Sweet Pomace Wines." The addition to such products of any artificial coloring matter or sweetening or preservative other than sugar must be declared plainly on the label to render such products free from exception under the Food and Drugs Act. F. I. D. 121 (May 14, 1910). THE FLOATING OF SHELLFISH.1 Considerable evidence has been submitted to the department since the issuance of Food Inspection Decision 110 on the practice of float- ing or drinking oysters in water of less saline content than that in which they were grown to maturity. Full consideration has been given to all the hearings and to the briefs and other information submitted subsequent to the hearings and the board is of the opinion that it is not improper to drink oysters in water of a saline content equal to that in which oysters 1 Amendment to F. I. D. 110. 136 FEDEKAL FOOD AND DRUGS ACT AND DECISIONS. will grow to maturity. If, however, oysters are floated in water of a less saline content than that in which oysters will properly mature, the packages containing such oysters must be very clearly and legibly labeled " Floated Oysters," otherwise they will be considered adulter- ated under section 7 of the law. Particular attention should be paid by the growers and handlers of oysters to the character of the water in which the oysters are brought to maturity or floated. Where such waters are polluted it will invariably follow that the oysters will also partake of this pollution and subsequent washing of the oysters, or even floating in water which is not polluted is likely not to cleanse them of this pollution. Oysters found in interstate commerce in a polluted condition be- cause of the character of the water in which they are grown or floated are adulterated under the Food and Drugs Act. F. I. D. 122 (May 31, 1910). THE LABELING OF PORT AND SHERRY WINES PRO- DUCED IN THE UNITED STATES.1 A hearing was held on March 21, 1910, before the Secretary of Agriculture and the Board of Food and Drug Inspection on the labeling of wines produced in California, which for many years have been known as " California Port " and " California Sherry," respectively. It is the view of the department that the terms " Port " and " Sherry " without qualification are properly applied only to the products from Portugal and Spain, respectively, but it is held that domestic ports and sherries are not misbranded if the terms "Port" or " Sherry," as the case may be, are qualified by the name of the State where the wine is produced. F. I. D. 123 (June 16, 1910). LABELING OF RICES.2 Inquiries have been received as to what is the proper branding under the Food and Drugs Act of certain varieties of rice which have come to be known under geographic names. It is well known among the trade that there are current in commerce in the United States varieties of rice grown in Japan and varieties of rice grown within the United States from seed originating in Japan, which are marked and sold as " Japan Rice " irrespective of origin, and that a variety of rice grown in Mexico is imported as " Honduras Rice." The names " Japan Rice " and " Honduras Rice," used without qualifica- tion, in the opinion of the board, clearly convey the impression to consumers that the rices are grown in Japan and Honduras, respec- tively, and if applied to rices not there grown, constitute misbrand- ing within the meaning of section 8 of the Food and Drugs Act, which provides — That the term " misbranded " as used herein shall apply * * * to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced. 1 See also F. I. D. 109, 120, and 156, on the labeling of wines. 3 See F. I. D. 67 on the polishing and coating of rice. FOOD INSPECTION DECISIONS. 137 The labeling of rices which have come to be known under geo- graphical names, and which are not grown in the State or country which the names indicate, is covered by regulation 19, paragraph (c), reading as follows: Tlie use of a geographical name in connection with a food or drug product will not be deemed a misbranding when by reason of long usage it has come to represent a generic term and is used to indicate a style, type, or brand ; but in all such cases the State or Territory where any such article is manu- factured or produced shall be stated upon the principal label. To meet the requirements of this regulation rices grown within the United States, labeled " Japan Eice," should have also plainly stated on the label " Grown in the United States ;" rices grown in Mexico or Louisiana, for example, labeled " Honduras Rice," should have also stated plainly on the label " Grown in Mexico," or " Grown in Louisiana," as the case may be. There are also on the market varieties of rice labeled " Carolina White " and " Carolina Gold," which are grown in North and South Carolina, and also in any other States from Carolina seed. The board is of the opinion that the names " Carolina White " and " Carolina Gold " by long usage have come to mean particular varie- ties of rice rather than rice grown in North or South Carolina, and such rices will not be held to be misbranded if plainly labeled " Caro- lina White " or " Carolina Gold," as the case may be, whether qualified or not, as growers or packers may see fit, by a statement of the name of the locality where the rice is actually grown. On the other hand, if it is desired to designate rices grown from Carolina seed in States other than North and South Carolina as " Carolina Rice," there should also be plainly stated on the label the name of the locality where the rice is actually grown, as, for example, " Carolina Rice, Grown in Arkansas." F. I. D. 124 (June 28, 1910). LABELING OF STOCK FEED.1 It has been brought to the attention of the Board of Food and Drug Inspection that considerable uncertainty exists in the minds of manufacturers of stock feed as to what ingredients are included within the terms " nitrogen-free extract," " carbohydrates," and " sugar and starch." Confusion in this particular results in part from the varied interpretation given to the feeding stuff laws of dif- ferent States. Each of the terms has a definite significance. The term "nitrogen-free extract" includes starch, sucrose, reducing sugars, pentosans, organic acids, coloring matter, and certain other ingredi- ents in small quantities, and the amount of nitrogen-free extract present in a stock feed is determined by subtracting the sum of the moisture, crude fiber, protein, fat, and ash content from 100 per cent. Stock feed will not be held to be misbranded on account of statements on labels of the " nitrogen- free extract" content if analysis shows that the amount obtained by this method is correctly declared. The term " carbohydrates " includes most of the specified ingredi- ents which make up the nitrogen-free extract, plus crude fiber, but 1 See also F. I. D. 90 on the labeling of stock and poultry feeds. 138 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. does not include organic acids and coloring matter. The amount of ingredients included in nitrogen- free extract which are not carbohy- drates is so small in stock feeds that they may be disregarded in stat- ing the amount of carbohydrates, and stock feeds will not be held to be misbranded on account of statements on labels of the proportion of carbohydrates if analysis shows that the percentage of carbohy- drates declared equals the percentage of nitrogen-free extract obtained as indicated, plus the percentage of crude fiber. Sugar and starch are carbohydrates and are included in determin- ing the amount of carbohydrates present in stock feed. The term " starch and sugar," however, is properly applied only to the actual starch, sucrose, and reducing sugars contained therein, and stock feed will not be held to be misbranded on account of statements on labels of the percentage of starch and sugar, as such, if the percentage stated is the correct percentage of the amount of the starch, sucrose, and reducing sugars actually present. This decision will go into effect January 1, 1911. F. I. D. 125 (July 7, 1910). THE LABELING OF CORDIALS. The term " cordial " is usually applied to a product, the alcohol content of which is some type of a distilled spirit, commonly neutral spirits or brandy. To this is added sugar and some type of flavor. The flavor is sometimes derived directly by the addition of essential oils, again by use of synthetic flavors, and also by the treatment of some vegetable product with the alcoholic spirit to extract the flavor- ing ingredients. It is likewise the general custom to color cordials. When a cordial is colored in such a way as to simulate the color of the fruit, flavor, plant, etc., the name of which it bears, the legend "Artifically Colored " in appropriate size type shall appear immedi- ately beneath the name of the cordial, as is required by . regulation 17. Where the color used is not one which simulates the color of a natural product, the name of which is borne by the liqueur, then the legend as to the presence of artificial color need not be used. For example, creme de menthe which is artificially colored green should be labeled "Artificially Colored." On the contrary, chartreuse, either green or yellow, need bear no such legend for color. When the flavoring material is not derived in whole directly from a flower, fruit, plant, etc., the name of any such flower, fruit, plant, etc., should not be given to any cordial or liqueur unless the name is preceded by the word " Imitation." The term cordial carries with it the significance of sugar (sucrose) as the sweetening agent. When anhydrous sugar (dextrose) is used, the label should bear a statement substantial^ as follows : " Prepared with anhydrous sugar," which statement should be made in a distinct fashion on the main label. FOOD INSPECTION" DECISIONS. 139 F. I. D. 126 (Sept. 22, 1910). SALTS OF TIN IN FOOD.1 The attention of the board has been directed to canned goods which contain salts of tin derived from the solvent action of the contents of the package upon the tin coating. Pending further investigations on this question all canned goods which are prepared prior to January 1, 1911, will be permitted to enter and pass into interstate commerce without detention or restriction in so far as their content of tin salts is concerned. All foods which are canned subsequently to January 1, 1911, will be permitted importation and interstate commerce if they do not contain more than 300 milligrams of tin per kilogram, or salts of tin equivalent thereto. When the amount of tin, or an equivalent amount of salts of tin, is greater than 300 milligrams per kilogram, entry of such canned goods packed subsequently to January 1, 1911, will be refused, and if found in interstate commerce proper action will be taken. It is the opinion of the board that the trade will experience little hardship in adjusting itself to this condition, as the results of exam- inations made by the Bureau of Chemistry of various types of canned goods indicate that in a very large majority of cases inconsiderable quantities of tin are found, well within the limit herein set. P. I. D. 127 (Oct. 26, 1910). 2 DECISION OF THE ATTORNEY-GENERAL IN REGARD TO THE LABELING OF WHISKIES SOLD UNDER DIS- TINCTIVE NAMES. The following decision of the Attorney- General in regard to the labeling of whisky is hereby promulgated as Food Inspection Deci- sion No. 127 : opinion of the attorney general.3 Department of Justice, Washington, October 19, 1910. The honorable the Secretary of Agriculture. Sir : I have received your letter of July 28, 1910, in which you sub- mit to me the following question of law for my opinion : Is " Canadian Club whisky " such a distinctive name, under the provisions of section 8, paragraphs 10 and 11, of the food and drugs act of June 30, 1906 (34 Stat., 768), as to relieve a mixture of two separate and distinct distillates of grain from the requirement of being labeled "A blend of whiskies," under section 8, paragraph 12, of the same act? Your letter informs me that — " Canadian Club whisky " is a mixture of grain distillates, duly aged after mixing, without further admixture, and reaches the consumer at 90° proof. It is a particular kind and brand of whiskies made by Hiram Walker & Sons (Limited), at Walkerville, Ontario, and is now and has been for years known xSee United States v. 2,000 Cases of Canned Tomatoes, p. 382, post. 2 See F. I. D. 45, 65, 95, 98, 113, and 118 on the labeling of whiskies; also opinions of the Attorneys General, pp. 775. 783, 797, post; Report of the Solicitor General, p. 818, post; and Decision of the President, p. 831, post, on the same subject. 3 28 Op. Atty. Gen., 455. 140 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. and sold under the name " Canadian Club whisky." It is known by that name and no other to the trade and consumers in the United States and other coun- tries, and no other whisky is known by that name. " The Department of Agri- culture," you advise me, " claims that the product is required to be labeled 'a blend of whiskies,' under the law as interpreted in Food Inspection Deci- sion 113. The distillers contend that ' Canadian Club whisky,' under section 8 of the food and drugs act, is such a distinctive name as is there described, and therefore that the product is not required to be labeled as a blend." By arrangement between your department and Messrs. Hiram Walker & Sons (Limited) briefs were submitted to me by the solicitor of your department and the counsel of Messrs. Hiram Walker & Sons, respectively, in support of their respective conten- tions; and I have also had the assistance of oral argument by such solicitor and counsel. By executive order dated April 8, 1909, the President referred to the Solicitor General of the United States certain questions, includ- ing, among others: I. What was the article called whisky as known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure-food law? II. What did the term whisky include? The Solicitor General took a voluminous amount of testimony and heard the arguments of parties appearing before him, and reported to the President on May 24, 1909, among other things, that — (1) The article called whisky as known to the manufacturers at and prior to the date of the passage of the pure-food law was — (o) What is often spoken of as "straight whisky," made from grain. (ft) Also what is often spoken of as "rectified whisky," made from grain, when not a mere neutral spirit, as described in section (d) below, of the answers to this question I. (c) Also a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II (Proceedings, etc., p. 1245). * * * The article called whisky as known to the consumers * * * was — - (a) What is often spoken of as "straight whisky," made from grain. (ft) Also what is often spoken of as "rectified whisky" if conforming to the description of whisky given below in answer to question II. (c) Also a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to Question II. In answer to the question, " What did the term ' whisky ' include? " he reported as follows: The term " whisky " included, both at and prior to the date of the passage of the pure-food law, and has since included, the spirituous liquor composed of (1) alcohol derived by distillation from grain; (2) a substantial amount of by- products (often spoken of as congeners), likewise derived by distillation from grain, and giving a distinctive flavor and properties; (3) water sufficient with- out unreasonable dilution to make the article potable; and (4) in some cases — though such addition is not essential — harmless coloring or flavoring matter, or both, in amount not materially affecting other qualities of whisky than its color or flavor. FOOD INSPECTION DECISIONS. 141 A mixture of two or more articles, being each a whisky within the foregoing description, was at and prior to the date of passage of the pure-food law, and has since been, tohislcy. A mixture of one or more whiskies, being each whisky within the foregoing description, with alcohol or a neutral spirit — being an article different from whisky through lack of a substantial amount of by- products derived by distillation from grain and giving distinctive flavor and properties — is whisky if the alcohol or neutral spirit is derived by distillation from grain and if the mixture still conforms to the above general description of whisky ; and so it was at and prior to the date of passage of the pure-food law. (Proceedings, etc., p. 1246.) Upon exceptions to this report the decision of the Solicitor General was reviewed by the President, who differed with him only in that he thought the Solicitor General had fallen into the error of — making too nice a distinction in reference to the amount of congeneric sub- stances or traces of fusel oil required to constitute whisky for practical pur- poses, when the flavor and color of all whiskies but straight whiskies have been chiefly that of ethyl alcohol and burnt sugar. And the President held : After an examination of all the evidence it seems to me overwhelmingly es- tablished that for a hundred years "the term " whisky " in the trade and among the customers has included all potable liquor distilled from grain ; that the straight whisky is, as compared with the whisky made by rectification or re- distillation and flavoring and coloring matter, a subsequent improvement, and that therefore it is a perversion of the pure-food act to attempt now to limit the meaning of the term " whisky " to that which modern manufacture and taste have made the most desirable variety. It is undoubtedly true that the liquor trade has been disgracefully full of frauds upon the public by false labels, but these frauds did not consist in palm- ing off something which was not whisky as whisky, but in palming off one kind of whisky as another and better kind of whisky. Whisky made of rectified or redistilled or neutral spirits and given a color and flavor by burnt sugar, made in a few days, was often branded as Bourbon or rye straight whisky. The way to remedy this evil is not to attempt to change the meaning and scope of the term " whisky," accorded to it for one hundred years, and narrow it to include only straight whisky ; and there is nothing in the pure-food law that warrants the inference of such an intention by Congress. Following the decision of the President, the Secretaries of the Treasury, Agriculture, and Commerce and Labor prepared and pro- mulgated a regulation under the Food and Drugs Act known as " Food Inspection Decision No. 113," the portions of which material to this opinion are as follows : Under the Food and Drugs Act of June 30, 1906, all unmixed distilled spirits from grain, colored and flavored with harmless color and flavor, in the cus- tomary ways, either by the charred barrel process or by the addition of caramel and harmless flavor, if of potable strength and not less than 80° proof, are entitled to the name whisky without qualification. * * * Whiskies of the same or different kinds, i. e., straight whisky, rectified whisky, redistilled whisky, and neutral spirits whisky are like substances; and mixtures of such whiskies, with or without harmless color or flavor used for purposes of coloring and flavoring only, are blends under the law and must be so labeled. This ruling would require " Canadian Club whisky " to be sold under a label stating it to be " A Blend of Whiskies," unless, as claimed by the manufacturers, " Canadian Club whisky " is its own distinctive name, within the meaning of section 8 of the pure-food law. That section prohibits the misbranding of all articles of food (which include drink) , and specifies that the term " misbranded " shall apply to all articles the package or label of which shall bear 142 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. any statement, design, or device regarding the article or ingredients contained therein which shall be false or misleading in any partic- ular; that the article shall also be deemed misbranded — If it be labeled or branded so as to deceive or mislead the purchaser. * * * If the package containing it, or its label, shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular : Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article. * * * Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word " com- pound," " imitation," or " blend," as the case may be, is plainly stated on the package in which it is offered for sale. * * * It is conceded that the requirements in paragraphs first and second, above cited, are alternative, and that a mixture or compound which may be sold under its own distinctive name, pursuant to the pro- visions of the first paragraph, need not be marked as a " compound," " imitation," or " blend " under the provisions of the second para- graph. Canadian Club whisky is, you say, entirely " a mixture of grain distillates, duly aged after mixing, without further admixture * * *." It is, therefore, a mixture of two whiskies, as under the President's decision the term " whisky " in the trade and among customers includes all potable liquor distilled from grain. Being a mixture of whiskies it. is distinguished from all other whiskies by the name " Canadian Club." Regulation 20 of the " Rules and Regulations for the enforcement of the Food and Drugs Act," promulgated by the three Secretaries under date of October IT, 1906, and published as Circular No. 21 of the office of the Secretary of Agriculture, reads as follows : (a) A "distinctive name" is a trade, arbitrary, or fancy name which clearly distinguishes a food product, mixture, or compound from any other food pro- duct, mixture, or compound. (6) A distinctive name shall not be one representing any single constituent of a mixture or compound. (c) A distinctive name shall not misrepresent any property or quality ol a mixture or compound. (d) A distinctive name shall give no false indication of origin, character, or place of manufacture, nor lead the purchaser to suppose that it is any other food or drug product. Applying this definition, it will be seen (1) that "Canadian Club whisky " is a trade or arbitrary name which clearly distinguishes the particular mixture of whiskies so designated from any other whisky or mixture of whiskies. (2) This distinctive name "Canadian Club whisky" is not one representing any single constituent of the mixture, because the word whisky applies to both of the component elements of the mixture, and to each of them. (3) The name "Canadian Club whisky" does not misrepresent any property or quality of the mixture, because within the Presi- dent's definition each of the elements of the mixture is whisky, and the resultant mixture is whisky. FOOD INSPECTION DECISIONS. 143 (4) The name " Canadian Club whisky " gives no false indication of the origin, character, or place of manufacture, because the mix- ture in fact is made in Canada; nor does it lead the purchaser to suppose that it is any other food or drug product, as it clearly asserts that it is whisky — which is the fact — and in your letter it is stated that it is known by that name and no other to the trade and con- sumers in the United States and other countries, and no other whisky is known by that name. " Canadian Club whisky " is therefore the distinctive name of a whisky so called; that name distinguishes the product to which it is attached from all other whiskies and clearly identifies it as the particular kind and brand of whiskies made by Hiram Walker & Sons (Limited) at Walkerville, Ontario. The name distinguishes the particular goods in relation to which it is used from other goods of a like character belonging to other people. (Hopkins on Unfair Trade, sec. 2.) It is certainly as distinctive as the designation " S. N. Pike's Magnolia Whiskey," which, in Kidd v. Johnson (100 U. S., p. 617), was held to constitute a trade-mark, because distinguishing the whisky of the manufacture of S. N. Pike & Co., and their successors in Cincinnati, from all other whisky. The brief of the Solicitor of the Department of Agriculture con- tends that the distinctive name under which a mixture or compound may be sold must, in its entirety, be purely arbitrary or fanciful, and must not contain the name of the component elements of the com- pound. A mixture of wheat and barley, he concedes, might be sold as " Force " or " Vita " without stating of what elements it was composed, but a mixture of two kinds of barley could not be sold as " Melrose barley " without stating that it was " a blend of barleys." It seems to me that such a construction of the term " distinctive name" is not only unwarranted, but undesirable. The two main purposes which the pure-food law was designed to accomplish are, first, to prevent the sale of adulterated foods, and, second, to prevent deception being practiced on the public. It would seem to me that the latter purpose is more apt to be secured by permitting the sale of a product under its own name, qualified by some distinguishing characterization, than by requiring it to be masked in an anonymity which would give no clue to any of its component elements. But, without entering into an analysis of the many decisions cited in the briefs of the respective parties, or further pursuing a discus- sion of the question, it appears to me clear that the name " Canadian Club whisky " is a distinctive name, so arbitrary and so fanciful as to clearly distinguish it from all other kinds of whisky or other things, and a name which, by common use, has come to mean a sub- stance clearly distinguishable by the public from everything else. (See United States v. 300 Cases of Mapleine, per Sanborn, D. J.; Notice of Judgment 163, Food and Drugs Act, p. 3.)1 In my opinion, therefore, it is not necessary that the label under which " Canadian Club whisky " is sold shall state that it is " a blend of whiskies." I have the honor to be, respectfully, Geo. W. Wickersham, Attorney General. 1 P. 190, post. 144 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. F. I. D. 128 (Oct. 31, 1910). SAGO AND TAPIOCA. It has come to the attention of the Board of Food and Drug In- spection that there exists among the trade in various parts of the United States a very general misunderstanding with respect to sago and small pearl tapioca. Sago is prepared from the starch obtained from the pith found in the stem of several species of palm trees, natives of the East Indies, and tapioca is prepared by heating in a moist state the starch made from the root of the cassava or tapioca plant, which is indigenous to certain South American countries. Both products ordinarily reach the consumer in granulated form and are designated as " pearl sago " and " pearl tapioca," respectively. While " pearl sago " and " pearl tapioca " are separate and distinct articles of commerce, each resembles the other closely in appearance, and fine pearl tapioca frequently has been labeled and sold as sago. Under the Food and Drugs Act of June 30, 1906, articles of food are misbranded if the labels or packages contain statements which are false or misleading, or if particular articles are imitations of or offered for sale under the distinctive names of other articles. In the opinion of the board, the name " sago," or " pearl sago," without qualification, means the product obtained from the pith of East Indian palm trees, and starch products of different origin will be held to be misbranded under the act if labeled or offered for sale as " sago," " pearl sago," etc. The prepared starch product derived from the root of the cassava plant is tapioca, and should be sold and labeled as such. There is also on the market an imitation sago made from potato starch. Imitation food products are misbranded under the act unless they are labeled so as to indicate plainly that they are imitation prod- ucts and unless the word " imitation ' is also plainly stated on the packages in which imitation products are offered for sale. Potato or. other starch prepared to resemble pearl sago, therefore, should be labeled, for example, " Imitation sago. Made from potato starch," the words " Imitation " and " Made from potato starch " being de- clared as plainly and conspicuously as the word " sago." The word " Imitation " must appear on the label, but an equivalent expression may be substituted for " Made from potato starch," which will indi- cate unmistakably that the product is not made from the pith of East Indian palm trees, but is derived from a different source. F. I. D. 129 (Nov. 8,1910). THE CEETIFICATION OF STEAIGHT DYES AND MIX- TUEES UNDEE SECONDAEY CEETIFICATES. (Amendment to F. I. D. 77.)1 In Food Inspection Decision 77 provision is made for the recertifica- tion of straight dyes (i. e., the seven accepted dyes of F. I. D. 76) and mixtures thereof, with or without other harmless ingredients. Doubt has been expressed as to whether the requirements of F. I. D. 77, with respect to certification, are the same for those who are not 1 See also F. I. D. 51, 76, 77, 92, 102, 106, 117, 148, and 149 relative to the use of colors in foods. FOOD INSPECTION DECISIONS. 145 manufacturers as they are for manufacturers. This amendment is issued relative to recertification in order to remove uncertainty and to indicate the scope of F. I. D. 77. All persons, manufacturers or others, requesting certification of mixtures or recertification of straight dyes, or of mixtures or combi- nations thereof, shall submit the following form of secondary certifi- cate to the Secretary of Agriculture : Secondary Certificate. I, , residing at , do hereby depose and state that I have (Full address.) repacked lbs. of certified lot (or lots) purchased from , of This repacking has been accomplished in the following fashion : (Full description of what has been done with the lot or lots.) Certified mixture No. J. D. & Co or certified straight dye No. J. D. & Co Trade name (Name.) Subscribed and sworn to before me, , in and for the- of at , this day of , (Name of officer authorized to administer oaths.) When the secondary certificate refers to mixtures, the term " mix- ture" means — not only such mixtures as consist wholly of certified coal-tar dyes but also those which contain one or more certified coal-tar dyes (and no other coal-tar dye or dyes) in combination with other components, constituents, or ingredients not coal-tar dyes, which other components, constituents, or ingredients are in and of themselves or in the combination used harmless and not detrimental to health or are not prohibited for use in food products ; the exact formula of such mixtures, including all of the components, constituents, or ingredients, or other parts of the mixture, together with a statement of the total weight of mixtures so made, must be deposited with the Secretary of Agriculture. (F. I. D. 106.) The term " straight dye," as used herein, refers to the seven dyes specified in F. I. D. 76. In the case of mixtures one (1) pound samples, and in the case of straight dyes one-half (-J) pound samples must be submitted with the secondary certificate. If larger samples are needed in individual cases the department will ask for them. Only those mixtures will be certified which contain no other dyes than coal-tar dyes previously certified. Mixtures containing animal or vegetable dyes are not subject to certification. The above form for secondary certificates varies but slightly from that given in Food Inspection Decision No. 77. It contains the addi- tion " Certified mixture No. J. D. & Co " and " Certified straight dye No. J. D. & Co " When the manufacturer or other person submits a secondary certificate, whichever legend is appropriate to the certificate is to be used. The initials are to be those of the person or firm filing the certificate ; the blank space is to be filled with the number of the secondary certificate filed by that particular person or firm. For example, the firm of J. D. & Co. has already filed fourteen secondary certificates, the new one to be filed under the form given above will then be labeled " Certified mixture No. J. D. & Co. 15," or " Certified straight dye No. J. D. & Co. 15," as the case may be. 40066—14 10 146 FEDEEAL FOOD AND DRUGS ACT AND DECISIONS. That is, the recertified straight dyes or certified mixtures are to be given a number in regular order, according to the number of such secondary certificates filed by any person or firm. The completed legend is the one to be used in marketing the products thus sub- mitted under the secondary certificate. Notification will be given of the acceptance or rejection of the certificate when investigation of the product has been completed. Makers of secondary certificates must submit the trade name of mixtures produced, and no such trade name or keyed modification thereof should be used on anj^ other mixture prepared by the same person or company. Secondary certificates are to be sent in duplicate to the Department of Agriculture; the duplicate need not, however, be signed or sworn to. The samples should be submitted with the secondary certificates. F. I. D. 130 (Jan. 18, 1911). * AMENDMENT TO REGULATION 5, HEARINGS. [See regulation 5, p. 18, ante.~\ P. I. D. 131 (Feb. 27, 1911). THE COMPOSITION OF EVAPORATED MILK. For a considerable period of time the Dairy Division of the Bu- reau of Chemistry has been conducting an extended investigation in regard to the manufacture of evaporated milk (i. e., unsweetened condensed milk) and the character of the milk used by the manu- facturers. This investigation has been carried on through the various seasons of the year and in various parts of the country, so that knowledge has been obtained of the seasonal variations in milk from herds of different types, and the different manufacturing methods in use, as well as of the character of the finished product from many sources. The fault of the standards, as approved by the committee on food standards of the Association of Official Agricultural Chemists and the Interstate Food Commission, published as Circular No. 19 of the Office of the Secretary, lies in the low percentage of fat in the total solids, namely, 27.5 per cent. This low figure the board believes has encouraged the use of a partially skimmed milk, which fact is amply borne out by the many analyses made in the department. Again, this standard of 28 per cent total solids in Circular No. 19 is one not easily attained in all localities of the United States, during all sea- sons, by the usual methods of manufacture under ordinary working conditions, with the production of a satisfactory marketable article. Considering the natural variations in the richness of milk from dif- ferent breeds of cows and at different times of the year, as well as the practical conditions of manufacture, the department has decided upon the following requirements, which it considers reasonable and just, with respect to the manufacture and composition of evaporated milk (i. e., unsweetened condensed milk) : (1) It should be prepared by evaporating the fresh, pure, whole milk of healthy cows, obtained by complete milking and excluding all 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. FOOD INSPECTION DECISIONS. 147 milkings within 15 days before calving and 7 days after calving, pro- vided at the end of this 7-day period the animals are in a perfectly normal condition. (2) It should contain such percentages of total solids and of fat that the sum of the two shall be not less than 34.3 and the percentage of fat shall be not less than 7.8 per cent. This allows a small reduc- tion in total solids with increasing richness of the milk in fat. (3) It should contain no added butter or butter oil incorporated either with whole milk or skimmed milk or with the evaporated milk at any stage of manufacture. In view of the well-known tendency of factory analyses — often of necessity made rapidly and by persons not skilled as analysts — to give results above the truth with respect to fat, and especially with respect to total solids, manufacturers are advised always to allow a safe margin between their factory practice and the above-stated re* quirements as to percentage composition. This can' be done without difficulty in all localities and at all seasons of the year. P. I. D. 132 (Mar. 28, 1911). THE USE OF HOMOGENIZED BUTTEE AND SKIMMED MILK IN THE MANUFACTURE OF ICE CREAM. Investigations have shown that there has lately come into use in the trade an apparatus known as a " homogenizer," which has the faculty of so disrupting the globules of fat that a whole milk homo- genized does not permit the separation of the cream through the ordi- nary gravity methods. In like manner butter or other fat and skimmed milk passed through the homogenizer form a product from which the butter does not separate on standing and which resembles in its other physical characteristics whole milk. Investigations have further shown that butter and skimmed milk are passed through the homogenizer to form a so-called " cream," which is used in place of real cream in the manufacture of ice cream. The board is of the opinion that skimmed milk and butter fat in appropriate proportions passed through the homogenizer are not entitled to the name of " milk " or the name of " cream," as the case may be, according to the quantity of fat which is present. The board is further of the opinion that the product made from a homo- genized butter or skimmed milk can not be properly called " ice cream." P. I. D. 133 (Mar. 28, 1911). THE COLORING OF GREEN CITRUS FRUITS. The attention of the Board of Food and Drug Inspection has been directed to the shipment in interstate commerce of green, immature citrus fruits, particularly oranges, which have been artificially col- ored by holding in a warm, moist atmosphere for a short period of time after removal from the tree. Evidence is adduced showing that such oranges do not change in sugar or acid content after removal from the tree. Evidence further shows that the same oranges re- maining on the tree increase markedly in sugar content and decrease 148 FEDERAL POOD AND DRUGS ACT AND DECISIONS. in acid content. Further, there is evidence to show that the con- sumption of such immature oranges, especially by children, is apt to be attended by serious disturbances of the digestive system. Under the Food and Drugs Act of June 30, 1906, an article of food is adulterated " if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed." It is the opinion of the board that oranges treated as mentioned above are colored in a manner whereby inferiority is concealed and are, there- fore, adulterated. The board recognizes the fact that certain varieties of oranges attain maturity as to size, sweetness, and acidity before the color changes from green to yellow, and this decision is not intended to interfere with the marketing of such oranges. F. I. D. 134 (Apr. 12. "-911). THE LABELING OF NEW OKLEANS MOLASSES. It appears from an investigation conducted by the Board of Food and Drug Inspection that there is a wide variety of opinions with respect to the meaning of the term "New Orleans molasses." The evidence at hand shows that " New Orleans " molasses is generally understood to be a product of Louisiana. It is apparent that the original significance of the term " New Orleans " molasses as applied to open-kettle drippings or " bleedings " has disappeared. The Food and Drugs Act requires a label to be free from any state- ment which is false or misleading in any particular. In view of the general understanding of the term " New Orleans " molasses the tioard is of the opinion that the term " New Orleans " should be re- stricted to molasses produced in Louisiana. In addition, all molasses so labeled may bear the further statement of its quality or grade, namely, " open kettle," " first centrifugal," " second centrifugal," " black strap," etc. F. I. D. 135 (Apr. 26, 1911). 1 SACCHARIN IN FOOD.2 At the request of the Secretary of Agriculture, the Referee Board of Conusulting Scientific Experts has conducted an investigation as to the effect on health of the use of saccharin. The investigation has been concluded, and the referee board reports that the continued use of saccharin for a long time in quantities over three-tenths of a gram per day is liable to impair digestion; and that the addition of sac- charin as a substitute for cane sugar or other forms of sugar reduces the food value of the sweetened product and hence lowers its quality. Saccharin has been used as a substitute for sugar in over thirty classes of foods in which sugar is commonly recognized as a normal and valuable ingredient. If the use of saccharin be continued it is evident that amounts of saccharin may readily be consumed which will, through continual use, produce digestive disturbances. In every 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. a See also F. I. D. 138, 142 and 146, on saccharin in foods. FOOD INSPECTION DECISIONS. 149 food in which saccharin is used, some other sweetening agent known to be harmless to health can be substituted, and there is not even a pretense that saccharin is a necessity in the manufacture of food prod- ucts. Under the Food and Drugs Act articles of food are adulterated if they contain added poisonous or other added deleterious ingredients which may render them injurious to health. Articles of food are also adulterated within the meaning of the act, if substances have been mixed and packed with the foods so as to reduce or lower or injuri- ously atfect their quality or strength. The findings of the referee board show that saccharin in food is such an added poisonous or other added deleterious ingredient as is contemplated by the act, and also that the substitution of saccharin for sugar in foods reduces and lowers their quality. The Secretary of Agriculture, therefore, will regard as adulterated under the Food and Drugs Act foods containing saccharin which, on and after July 1, 1911,1 are manufactured or offered for sale in the District of Columbia or the Territories, or shipped in interstate or foreign commerce, or offered for importation into the United States. P. I. D. 136 (May 20, 1911). LABELING OF CHOCOLATE AND COCOA. After consideration of the evidence submitted in regard to the meaning of the terms " chocolate " and " cocoa," the Board of Food and Drug Inspection has reached the conclusion that the definitions laid down in the " Standards of Purity for Food Products," adopted by the Committee on Food Standards, Association of Official Agri- cultural Chemists, and printed in Circular No. 19, Office of the Secre- tary of Agriculture, are substantially correct. By these definitions the names " chocolate," " plain chocolate," " bitter chocolate," " choco- late liquor," and " bitter chocolate coatings," are applied to the solid or plastic mass obtained by grinding cocoa nibs without the removal of fat or other constituents except the germ, containing not more than three (3) per cent of ash insoluble in water, three and fifty hundredths (3.50) per cent of crude fiber, and nine (9) per cent of starch, and not less than forty-five (45) per cent of cocoa fat. " Sweet chocolate " and " sweet chocolate coatings " are terms applied to chocolate mixed with sugar (sucrose), with or without the addition of cocoa butter, spices, or other flavoring materials, and contain in the sugar and fat-free residue no' higher percentage of either ash, fiber, or starch than is found in the sugar and fat-free residue of chocolate. Cocoa, and powdered cocoa, are terms applied to cocoa nibs, with or without the germ, deprived of a portion of its fat and finely pul- verized, and contain percentages of ash, crude fiber, and starch cor- responding to those in chocolate after correction for fat removed. Sweet cocoa, and sweetened cocoa, are terms applied to cocoa mixed with sugar (sucrose), and contain not more than sixty (60) per cent of sugar (sucrose), and in the sugar and fat-free residue no higher percentage of either ash, crude fiber, or starch than is found in the sugar and fat-free residue of chocolate. 1 Date changed to Jan. 1, 1912, by P. I. D. 138. 150 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Cocoa nibs, and cracked cocoa, are the roasted broken seeds of the cacao tree freed from shell or husk. Milk chocolate and milk cocoa, in the opinion of the board, should contain not less than 12 per cent of milk solids, and the so-called nut chocolates should contain substantial quantities of nuts. If sugar is added, for example, to milk chocolate, it should be labeled " sweet milk chocolate," " sweet nut chocolate," etc. When cocoa is treated with an alkali or an alkaline salt, as in the so-called Dutch process, and the finished cocoa contains increased mineral matter as the result of this treatment, but no alkali as such is present, the label should bear a statement to the effect that the cocoa contains added mineral ingredients, stating the amount. Cocoas and chocolates containing an appreciable amount of free alkali are adulterated. In the opinion of the board, cocoa not treated with alkali is not soluble in the ordinary acceptance of the term. Cocoa before and after treatment with alkali shows essentially the same lack of solubility. To designate the alkali-treated cocoa as " soluble " cocoa is misleading and deceptive. F. I. D. 137 (June 16, 1911). THE USE OF CHARLOCK AS A SUBSTITUTE FOR MUSTARD. It has come to the attention of the Board of Food and Drug In- spection that the seed of charlock {Brassica arvensis L.) is being substituted by some manufacturers, in whole or in part, for that of the true mustards, viz, yellow or white mustard {Sinapis alba L., synonym Brassica alba [L.] Boiss.), brown mustard (B. juncea L.), and black mustard (B. nigra L.). It is the opinion of the board that when charlock is substituted in part for mustard the label should clearly indicate this fact. A con- diment prepared from mustard or mustard flour and charlock with salt, spices, and vinegar is not " Prepared Mustard," but, provided a greater quantity of mustard than of charlock is used, it should be called " Prepared Mustard and Charlock." F. I. D. 138 (June 20, 1911). i SACCHARIN IN FOOD.2 Paragraph 3 of Food Inspection Decision No. 135 is hereby modi- fied to read as follows : The Secretary of Agriculture, therefore, will regard as adulterated under the Food and Drugs Act foods containing saccharin which, on and after January 1, 1912, are manufactured or offered for sale in the District of Columbia or the Territories, or shipped in interstate or foreign commerce, or offered for impor- tation into the United States. 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. 2 See also F. I. D. 135, 142, and 146 on saccharin in foods. FOOD INSPECTION DECISIONS. 151 F. I D. 139 (Feb. 10, 1912). USE OF THE TERM " SWEET OIL." From time to time this department has received inquiries asking whether or not it is permissible, under the Food and Drugs Act, to label cottonseed oil as " sweet oil." Investigations have shown that some samples marked " sweet oil " consist of cottonseed oil or a mixture of olive oil and cottonseed oil. A careful consideration of the subject leads to the conclusion that the only oil to which the term " sweet oil " may be correctly applied is olive oil. It is held, therefore, that any oil other than olive oil is misbranded when sold under the name " sweet oil." It is not correct, for ex- ample, to label cottonseed oil as " sweet oil " and then elsewhere on the label to describe correctly the true character of the oil. F. I. D. 140 (Feb. 12, 1912). LABELING OF VINEGARS. The Board of Food and Drug Inspection has given this question much consideration. A public hearing was given, a series of ques- tions submitted to the various State food commissioners, interested manufacturers, wholesalers, retailers, and consumers, and a study of the various State laws and regulations was made, believing that these represent the general understanding of the terms by the people of those States. From the information thus obtained the board has reached the conclusion that the definitions given in Circular No. 19, Office of the Secretary, are in accordance with the facts. These are as follows: 1. Vinegar, cider vinegar, apple vinegar, is the product made from the alcoholic and subsequent acetous fermentations of the expressed juice of apples. 2. Wine vinegar, grape vinegar, is the product made by the alco- holic and subsequent acetous fermentations of the juice of grapes. 3. Malt vinegar is the product made by the alcoholic and subse- quent acetous fermentations, without distillation, of an infusion of barley malt or cereals whose starch has been converted by malt. 4. Sugar vinegar is the product made by the alcoholic and subse- quent acetous fermentations of solutions of sugar, sirup, molasses, or refiner's sirup. 5. Glucose vinegar is the product made by the alcoholic and subse- quent acetous fermentations of solutions of starch sugar or glucose. 6. Spirit vinegar, distilled vinegar, grain vinegar, is the product made by the acetous fermentation of dilute distilled alcohol. Several questions regarding these definitions have been raised and after investigation the board has reached the following conclusions: Meaning of the term " vinegar." — While the term " vinegar " in its etymological significance suggests only sour wine, it has come to have a broader significance in English-speaking countries. In the United States it has lost entirely its original meaning and when used without a qualifying word designates only the product secured by the alco- holic and subsequent acetous fermentation of apple juice. 152 FEDERAL POOD AND DRUGS ACT AND DECISIONS. "Second pressings.''' — It is held that the number of pressings used in preparing the juice is immaterial so long as the pomace is fresh and not decomposed. The practice of allowing the pomace from the presses to stand in piles or in vats for a number of days, during which time it becomes heated and decomposed, and then pressing, securing what is ordinarily called " second pressing," in the opinion of the board produces a product which consists in whole or in part of a filthy and decomposed material and is therefore adulterated. Vinegar from dried-apple products. — The product made from dried- apple skins, cores, and chops, by the process of soaking, with subse- quent alcoholic and acetous fermentations of the solution thus ob- tained, is not entitled to be called vinegar without further designa- tion, but must be plainly marked to show the material from which it is produced. The dried stock from which this product is prepared must be clean and made from sound material. Addition of water. — When natural vinegars made from cider, wine, or the juice of other fruits are diluted with water, the label must plainly indicate this fact ; as, for example, " diluted to per cent acid strength." When water is added to pomace in the process of manufacture, the fact that the product is diluted must be plainly shown on the label in a similar manner. Dilution of vinegar natu- rally reduces, not only the acid strength, but the amount of other ingredients in proportion to the dilution, so that reduced vinegars will not comply with the analytical constants for undiluted products; but the relations existing between these various ingredients will remain the same. Diluted vinegars must have an acid strength of at least 4 grams acetic acid per 100 cubic centimeters. Mixtures of vinegars. — As different kinds of vinegar differ in source, flavor, and chemical composition, mixtures thereof are com- pounds within the meaning of the Food and Drugs Act, and if they contain no added poisonous or other added deleterious ingredients, will not be held to be misbranded if plainly labeled with the word " compound," together with the names and proportions of the various ingredients. Addition of boiled cider and coloring matter. — The Food and Drugs Act provides that a product shall be deemed to be adulterated if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed; and, in the opinion of the board, the addition of coloring matters, boiled cider, etc., to vinegar, wine vinegar, and the other types of vinegar, or mixtures thereof, is for the purpose of concealing damage or inferiority or producing an imitation product. In the first instance, the use of such products is an adulteration and therefore prohibited. Products artificially col- ored or flavored with harmless ingredients in imitation of some particular kind of vinegar will not be held to be misbranded if plainly labeled " Imitation vinegar " in accordance with the provisions of the law.1 Mixture of distilled and sugar vinegars. — The product prepared by submitting to acetous fermentation a mixture of dilute alcohol (ob- tained, for example, from molasses by alcoholic fermentation and subsequent distillation) and dilute molasses, which has undergone 1 See United States v. 10 Barrels of Vinegar, p. 410, post; and United States v. 100 Barrels of Vinegar, p. 448, post. FOOD INSPECTION DECISIONS. 153 alcoholic fermentation, is not " molasses vinegar " but a compound of distilled vinegar and molasses vinegar ; such mixtures, however, must contain a substantial amount of molasses vinegar and not a small amount for the purpose of coloring the distilled vinegar. The mo- lasses used must be fit for food purposes and free from any added deleterious substances. Acetic acid diluted. — The product made by diluting acetic acid is not vinegar and when intended for food purposes must be free from harmful impurities and sold under its own name. Product obtained by distilling ivood. — The impure product made by the destructive distillation of wood, known as " pyroligenous acid," is not vinegar nor suitable for food purposes. Acid strength. — All of the products described above should contain not less than four (4) grams of acetic acid per one hundred (100) cubic centimeters. F. I. D. 141 (Feb. 17, 1912). THE LABELING OF MARASCHINO AND MARASCHINO CHERRIES.1 The question of the proper labeling of the products designated as " Maraschino Cherries," " Cherries of Maraschino," " Bigarreau au Marasquin," etc., has been presented to the board for consideration; and after due investigation and examination of the evidence secured, the board is of the opinion that the term " Maraschino Cherries " should be applied only to the marasca cherries preserved in mara- schino. Maraschino is a liqueur or cordial prepared by process of fermen- tation and distillation from the marasca cherry, a small variety of the European wild cherry indigenous to the Dalamatian Mountains. Liqueurs or cordials prepared in imitation of maraschino with artifi- cial flavors or otherwise will not be held to be misbranded if plainly labeled " Imitation " in some manner to show their true character. In considering the products prepared from the large light-colored cherry of the Napoleon Bigarreau, or Royal Anne type, which are artificially colored and flavored and put up in a sugar sirup, flavored with various materials, the board has reached the conclusion that this product is not properly entitled to be called " Maraschino Cherries," or " Cherries in Maraschino." If, however, these cherries are packed in a sirup, flavored with maraschino alone, it is the opinion of the board that they would not be misbranded, if labeled " Cherries, Maraschino Flavor," or " Maraschino Flavored Cherries." If these cherries are packed in maraschino liqueur there would be no objection to the phrase " Cherries in Maraschino." When these artificially colored cherries are put up in a sirup flavored in imitation of mara- schino, even though the flavoring may consist in part of maraschino, it would not be proper to use the word " Maraschino " in connection with the product unless preceded by the word " Imitation." They may, however, be labeled to show that they are a preserved cherry, artificially colored and flavored. 1 See United States v. Bettman-Johnson Co., p. 460, post. 154 FEDEEAL POOD AND DRUGS ACT AND DECISION'S. The presence of artificial coloring or flavoring matter, of any sub- stitute for cane sugar, and the presence and amount of benzoate of soda, when used in these products must be plainly stated upon the label in the manner provided in Food Inspection Decisions Nos. 52 and 104. The same principle applies to the labeling of cherries put up in sirup flavored with creme de menthe or other flavors. F. I. D. 142 (Feb. 29, 1912 ).* SACCHARIN IN FOOD.2 The following decision which relates to the use of saccharin in food will not go into effect until the 1st of April, 1912, the month of March being given to interested parties so as to arrange their business and take such steps as they deem proper. After full consideration of the representations made in behalf of the manufacturers of saccharin at the hearing before us and of the briefs filed by their attorneys, as well as the briefs filed, at our re- quest, by officers of the Department of Agriculture, we conclude that the use of saccharin in normal foods, within the jurisdiction of the Food and Drugs Act, is a violation of law and will be prosecuted. It is true that the referee board did not find that the use in foods of saccharin in small quantities (up to 0.3 gram daily) is injurious to health. However, the referee board did find that saccharin used in quantities over 0.3 gram per day for a considerable period is liable to disturb digestion, and the Food and Drugs Act provides that articles of food are adulterated which contain any added poisonous or other added deleterious ingredient which may render them injurious to health. The Bureau of Chemistry of the Department of Agriculture. reports that saccharin has been found in more than fifty kinds of foods in common use. It is argued, therefore, that if the use of saccharin in foods be allowed, the consumer may very easily ingest, day by day, over 0.3 gram, the quantity which, acording to the findings of the referee board, is liable to produce disturbances of digestion. On the other hand, it is claimed by the manufacturers that the sweeten- ing power of saccharin is so great that, in a normal dietary, the amount of saccharin ingested daily would not exceed 0.3 gram, the amount found to be harmless by the referee board. However this may be, it is plain, from the finding of the referee board, that the substitution of saccharin for sugar lowers the quality of the food. The only use of saccharin in foods is as a sweetener, and when it is so used, it inevitably displaces the sugar of an equivalent sweetening power. Sugar has a food value and saccharin has none. It appears, therefore, that normal foods sweetened with saccharin are adulterated under the law. In making this decision we are not unmindful of the fact that per- sons suffering from certain diseases may be directed by their physi- cians to abstain from the use of sugar. In cases of this kind, sac- charin is often prescribed as a substitute sweetening agent. This de- 1 Signed by the Secretary of Agriculture and the Secretary of Commerce and Labor, the Secretary of the Treasury dissenting. 2 See also F. I. D. 135, 138, and 146 on saccharin in foods. POOD INSPECTION" DECISIONS. 155 cision will not in any manner interfere with such a use of saccharin. The Food and Drugs Act provides that any substance which is in- tended to be used for the prevention, cure, or mitigation of disease is a drug, and a product containing saccharin and plainly labeled to show that the mixture is intended for the use of those persons who, on account of disease, must abstain from the use of sugar, falls within the class of drugs and is not affected by this decision. P. I. D. 143 (Apr. 15, 1912). THE LABELING OF CANDIED CITRON. The Board of Food and Drug Inspection has given consideration to the question of what is the correct use of the term " Candied citron," when applied to the preserved peel of fruits. The evidence gathered by the board shows distinctly that the term " Candied citron " is generally recognized in the trade, and by the consumer, to be applicable only to the candied peel of fruit of the citron tree, Citrus medico, L., variety genuine/, Engl., a citrus fruit similar to the lemon, but larger and possessing a thick rind of char- acteristic flavor. The rind of the citrus melon, Citrullus vulgaris Schrad., is often used in a similar manner to true candied citron. The board is of the opinion that the candied rind of this variety of watermelon, when sold in interstate commerce, must not be designated as " Candied citron." It should be labeled " Candied citron melon," " Candied watermelon," or some similar designation. It is also considered that such terms as "American citron," " Can- died domestic citron," or the like, are not correct designations for the candied citron melon and when used will be deemed misbranding, except when applied to the American product of the citrus fruit " citron," described above. P. I. D. 144 (May 22, 1912). CANNED FOODS: USE OF WATER, BRINE, SIRUP, SAUCE, AND SIMILAR SUBSTANCES IN THE PREPARATION THEREOF.1 The can in canned food products serves not only as a container but also as an index of the quantity of food therein. It should be as full of food as is practicable for packing and processing without injuring the quality or appearance of the contents. Some food products may be canned without the addition of any other substances whatsoever — for example, tomatoes. The addition of water in such instances is deemed adulteration. Other foods may require the addition of water, brine, sugar, or sirup, either to combine with the food for its proper preparation or for the purpose of sterilization — for instance, peas. In this case the can should be packed as full as practicable with the peas and should contain only sufficient liquor to fill the inter- stices and cover the product. 1 See P. I. D. 66 on the use of sugar in canned foods. 156 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Canned foods, therefore, will be deemed to be adulterated if they are found to contain water, brine, sirup, sauce, or similar substances in excess of the amount necessary for their proper preparation and sterilization.1 It has come to the notice of the department that pulp prepared from trimmings, cores, and other waste material is sometimes added to canned tomatoes. It is the opinion of the board that pulp is not a normal ingredient of canned tomatoes, and such addition is there- fore adulteration. It is the further opinion of the board that the addition of tomato juice in excess of the amount present in the toma- toes used is adulteration — that is, if in the canning of a lot of toma- toes more juice be added than is present in that lot, the same will be considered an adulteration. F. I. D. 145 (June 24, 1912). BLEACHED OATS AND BARLEY. The Department of Agriculture has received numerous inquiries relative to the application of the Food and Drugs Act to oats, barley, and other grains bleached with the fumes of sulphur. It appears that by this process grains which are damaged or of inferior quality may be made to resemble those of higher grade or quality, and their weight increased by addition of water,. Such products, therefore, are adulterated within the meaning of the Food and Drugs Act of June 30, 1906, and can not be either manufactured or sold in the District of Columbia, or in the Territories, or transported or sold in interstate commerce. It is represented, however, that grains which are weather-stained, or soil-stained, the quality of which is in no wise injured in other respects, are sometimes bleached with sulphur fumes. Pending the report of the Referee Board of Consulting Scientific Experts as to the effect upon health of sulphur dioxid, and the results of experi- ments being made by this Department as to the effect of sulphur- bleached grains on animals, no objection will be made to traffic in sound and wholesome grains which have been bleached with sulphur dioxid and from which the excess water has been removed, provided that each and every package is plainly labeled to show that the con- tents have been treated with sulphur dioxid. Bulk shipments should be properly designated on invoices. The terms " purified," " purified with sulphur," "processed," etc., are misleading and not proper designations for these products. Attention is called to the fact that grains bleached with sul- phur fumes may have their germinating properties very seriously impaired. F. I. D. 146 (June 22, 1912). ON THE USE OF SACCHARIN IN FOODS.2 There appears to exist a misconception of the position of the De- partment of Agriculture as to the use of saccharin in foods as an- nounced in Food Inspection Decision No. 142. That decision pro- 1 See United States v. Potter, p. 376, post. - See also F. I. D. 135, 138, and 142 on the use of saccharin in food. POOD INSPECTION DECISIONS. 157 hibits the use of saccharin in foods. The law defines the term " drug " and it is considered that saccharin has its proper place in products coming within this definition. It is recognized that certain specific products generally classified as foods, and sweetened with saccharin, may be required for the mitigation or cure of disease. It is not intended to prohibit the manufacture or sale of such products, provided they are labeled so as to show their true purpose and the presence of saccharin is plainly declared upon the principal label. This must not be interpreted to mean that the use of saccharin in foods prepared for ordinary con- sumption is permissible even if declared on the label. F. I. D. 147 (July 12, 1912). ABSINTH. It is generally recognized in countries which have had experience with the sale and consumption of absinth that this beverage is dan- gerous to health. Belgium, Switzerland, and Holland have forbid- den its manufacture, sale, and importation ; absinth is also condemned by the laws of Brazil and its importation forbidden. The Food and Drugs Act of June 30, 1906, section 11, forbids the importation of any food or drug which is " of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made, or from which it is exported," and also of any food or drug which is " ctherwise dangerous to the health of the people of the United States." Importations of absinth into the United States, therefore, are pro- hibited, both because they come from countries which forbid or re- strict its manufacture and sale, and because these products are in- jurious to the health of the people of the United States. Section 7, paragraph 5, in the case of foods, of the Food and Drugs Act, June 30, 1906, provides further that an article shall be deemed to be adulterated within the meaning of the Act " if it contains any added poisonous or other added deleterious ingredient which may render such article injurious to health." The beverage commonly known as absinth is a manufactured product containing wormwood, or absinth {Artemisia absinthium) , an added deleterious ingredient. The interstate shipment of this product is, therefore, prohibited under the provisions of the Food and Drugs Act. The Secretary of Agriculture, therefore, will regard as adulterated under the Food and Drugs Act absinth which, on and after October 1, 1912, is manufactured or offered for sale in the District of Columbia or the Territories, or shipped in interstate commerce or offered for importation into the United States. F. I. D. 148 (July 12, 1912). USE OF COPPER SALTS IN THE GREENING OF FOODS.1 The question of the use of copper salts in the greening of foods was referred by the Secretary of Agriculture, on March 11, 1909, to the Referee Board of Consulting Scientific Experts. Exhaustive inves- x See also F. I. D. 76, 92, 102, and 149 on the use of copper salts in the greening of foods. 158 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. ligations have been conducted by that board and the Department of Agriculture has received the report of the investigations. The questions which were referred to the referee board are as follows : Are vegetables greened with copper salts adulterated under the Food and Drugs Act of June 30, 1906, because, (a) a substance has been mixed or packed with them so as to reduce or lower or injuriously affect their quality or strength; (&) they have been mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed; (c) they contain any added poisonous or other added deleterious ingredient which may render such articles injurious to health? (1) in large quantities? (2) in small quantities? The main general conclusions reached by the Referee Board from a study of their experimental results and other considerations are as follows : (a) Copper salts used in the coloring of vegetables as in commercial practice can not be said to reduce or lower or injuriously affect the quality or strength of such vegetable as far as the food value is concerned; (6) Copper salts used in the greening of vegetables may have the effect of concealing inferiority inasmuch as the bright green color imparted to the vegetables simulates a state of freshness they may not have possessed before treatment ; (c) In attempting to define a large daily quantity of copper regard must be had to the maximum amount of greened vegetables which might be consumed daily. A daily dose of 100 grams of coppered peas or beans, which are the most highly colored vegetables in the market, would not ordinarily contain more than 100 to 150 milligrams of copper. Such a bulk of greened vegetables is so large however, that it would hardly be chosen as a part of a diet for many days in succession. Any amount of copper above 150 milligrams daily, may, therefore, be considered excessive in practice. A small quantity is that amount which in the ordinary use of vegetables may be consumed over longer periods. From this point of view 10 to 12 milligrams of copper may be re- garded as the upper limit of a small quantity. It appears from our investigations that, in certain directions, even such small quantities of copper may have a deleterious action and must be considered injurious to health. The Food and Drugs Act of June 30, 1906, provides that a food is adulterated " if it contain any added poisonous or other added dele- terious ingredient which may render such article injurious to health." The act also provides that a food is adulterated " if it be * * * colored * * * in a manner whereby damage or inferiority is concealed." It is apparent from the findings of the referee board that all foods greened with copper salts are positively adulterated under the first above-quoted provision of the law, and that in certain cases foods may be adulterated under the second above-quoted pro- vision. The Secretary of Agriculture, therefore, will regard as adulterated under the Food and Drugs Act foods greened with copper salts which, on and after January 1, 1913, are offered for entry into the United States, or are manufactured or offered for sale in the District of Columbia or the Territories, or are shipped in interstate commerce.1 All previous food inspection decisions on the subject of greening of foods with copper salts are amended accordingly. The complete report of the investigations and conclusions of the referee board on this subject will be published by the Department of Agriculture. 1 Amended by F. I. D. 149. FOOD INSPECTION DECISIONS. 159 F. I. D. 149 (Dec. 26, 1912). USE OF COPPER SALTS IN THE GREENING OF FOODS.1 Paragraph 4 of Food Inspection Decision 148 is hereby modified to read as follows: The Secretary of Agriculture, therefore, will regard as adulterated, under the Food and Drugs Act, foods greened with copper salts which, on and after Janu- ary 1, 1913, are offered for entry into the United States or are manufactured or offered for sale in the District of Columbia or the Territories, or which, on and after May 1, 1913, are shipped in interstate commerce. F. I. D. 150 (Jan. 24, 1913). FROZEN CITRUS FRUIT. It has come to the attention of the Board of Food and Drug In- spection that, as a result of a recent freeze, citrus fruit that has been badly damaged by frost is being placed on the market. Citrus fruit is injured in flavor by freezing and soon becomes dry and unfit for food. The damage is evidenced at first by a more or less bitter flavor, followed by a marked decrease in sugar, and espe- cially in acid content. Fruit which has been materially damaged by freezing is inferior and decomposed within the meaning of the Food and Drugs Act. For the guidance of those engaged in shipping citrus fruit, it is announced that, pending further investigation, the following princi- ples will be observed in enforcing the Food and Drugs Act : Citrus fruit will be deemed adulterated within the meaning of the Food and Drugs Act if the contents of any package found in inter- state commerce contain 15 per cent or more of citrus fruit which, on a transverse section through the center, shows a marked drying in 20 per cent or more of the exposed pulp. F, I. D. 151 (June 16, 1913). 2 APPLICATION OF REGULATIONS. Regulation 39 of the Rules and Regulations made in pursuance of the authority conferred by section 3 of the Food and Drugs Act, June 30, 1906 (34 Stat., 768), which reads as follows: REGULATION 39. APPLICATION OF REGULATIONS. These regulations shall not apply to domestic meat and meat food products which are prepared, transported, or sold in interstate or foreign commerce under the meat-inspection law and the regulations of the Secretary of Agriculture made thereunder. is hereby revoked. 1 See also F. I. D. 76, 92, 102, and 148 on the use of copper salts in the greening of foods. 2 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce. The title of the Secretary of Commerce and Labor changed to Secretary of Commerce by act of Mar. 4, 1913, 37 Stat., 736. See also opinion of the Attorney General of May 24, 1913, p. 800, post 160 FEDERAL FOOD A1STD DRUGS ACT AND DECISIONS. P. I. D. 152 (Aug. 29, 1913). BRANDY. The Board of Food and Drug Inspection is of the opinion that brandy is the alcoholic distillate obtained solely from the fermented juice of fruit, distilled under such conditions that the characteristic bouquet, or volatile flavoring and aromatic principles, is retained in the distillate. Grape brandy is the distillate obtained from grape wine under these conditions. Apple, peach, and other fruit brandies are similarly prepared from the fermented juices of the respective fruits. The board is of the further opinion that so-called brandy prepared from grain, potato, or other form of industrial alcohol, or from alcohol obtained from the by-products of wine manufacture, mixed with more or less true brandy or other flavoring material, is adulter- ated and misbranded unless labeled to indicate its true composition. F. I. D. 153 (May 5, 1914). l AMENDMENT TO EEGULATION 9, KELATING TO GUAR- ANTIES BY WHOLESALERS, JOBBERS, MANUFACTUR- ERS, AND OTHER PARTIES RESIDING IN THE UNITED STATES TO PROTECT DEALERS FROM PROSECUTION. Regulation 9 of the Rules and Regulations for the enforcement of the Food and Drugs Act, June 30, 1906 (34 Stat., 768), is hereby amended, effective May 1, 1915, so as to read as follows: REGULATION 9. GUARANTY. (Section 9.) (a) It having been determined that the legends " Guaranteed under the Food and Drugs Act, June 30, 1906," and "Guaranteed by (name of guarantor), under the Food and Drugs Act, June 30, 1908," borne on the labels or packages of food and drugs, accompanied by serial numbers given by the Secretary of Agriculture, are each misleading and deceptive, in that the public is induced by such legends and serial numbers to believe that the articles to which they relate have been examined and approved by the Government and that the Gov- ernment guarantees that they comply with the law, the use of either legend, or any similar legend, on labels or packages should be discontinued. Inasmuch as the acceptance by the Secretary of Agriculture for filing of the guaranties of manufacturers and dealers and the giving by him of serial numbers thereto con- tribute to the deceptive character of legends on labels and packages, no guaranty in any form shall hereafter be filed with and no serial nurtfber sball hereafter be given to any guaranty by the Secretary of Agriculture. All guaranties now on file with the Secretary of Agriculture shall be stricken from the files, and the serial numbers assigned to such guaranties shall be canceled. (6) The use on the label or package of any food or drug of any serial number required to be canceled by paragraph (a) of this regulation is prohibited. (c) Any wholesaler, manufacturer, jobber, or other party residing in the United States may furnish to any dealer to whom he sells any article of food or drug a guaranty that such article is not adulterated or misbranded within the meaning of the Food and Drugs Act, June 30, 1906, as amended. (d) Each guaranty to afford protection shall be signed by, and shall contain the name and address of, the wholesaler, manufacturer, jobber, dealer, or other 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secre- tary of Commerce. Amended by F. I. D. 155. FOOD INSPECTION DECISIONS. 161 party residing in the United States making the sale of the article or articles covered by it to the dealer, and shall be to the effect that such article or articles are not adulterated or misbranded within the meaning of the Federal Food and Drugs Act. (e) Each guaranty in respect to any article or articles should be incorporated in or attached to the bill of sale, invoice, bill of lading, or other schedule, giving the names and quantities of the article or articles sold, and should not appear on the labels or packages. (/) No dealer in food or drug products will be liable to prosecution if he can establish that the articles were sold under a guaranty given in compliance with this regulation. F. I. D. 154 (May 11, 1914). * REGULATION OF MARKING THE QUANTITY OF FOOD IN PACKAGE FORM. Under section 3 of the Food and Drugs Act of June 30, 1906 (34 United States Statutes at Large, pages 768 to 772), as amended by the act of March 3, 1913, entitled "An act to amend section eight of an act entitled 'An act for preventing the manufacture, sale, or trans- portation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes,' approved June thirtieth, nineteen hundred and six" (37 United States Statutes at Large, page 732), regulation 29 of the Rules and Regulations for the Enforcement of the Food and Drugs Act is hereby amended so as to read as follows : STATEMENT OF WEIGHT, MEASURE, OR COUNT. (Section 8, paragraph 3, under " Food," as amended by act of March 3, 1913.) (a) Except as otherwise provided by this regulation, the quantity of the contents, in all cases of food, if in package form, must be plainly and conspicu- ously marked, in terms of weight, measure, or numerical count, on the outside of the covering or container usually delivered to consumers. (&) The quantity of the contents so marked shall be the amount of food in the package. (c) The statement of the quantity of the contents shall be plain and con- spicuous, shall not be a part of or obscured by any legend or design, and shall be so placed and in such characters as to be readily seen and clearly legible when the size of the package and the circumstances under which it is ordi- narily examined by purchasers or consumers are taken into consideration. (d) If the quantity of the contents be stated by weight or measure, it shall be marked in terms of the largest unit contained in the package; for example, if the package contain a pound, or pounds, and a fraction of a pound, the con- tents shall be expressed in terms of pounds and fractions thereof; or of pounds and ounces, and not merely in ounces. (e) Statements of weight shall be in terms of avoirdupois pounds and ounces; statements of liquid measure shall be in terms of the United States gal- lon of 231 cubic inches and its customary subdivisions, i. e., in gallons, quarts, pints, or fluid ounces, and shall express the volume of the liquid at 68° F. (20° C.) ; and statements of dry measure shall be in terms of the United States standard bushel of 2,150.42 cubic inches and its customary subdivisions, i. e., in bushels, half bushels, pecks, quarts, pints, or half pints: Provided, That, by like method, such statements may be in terms of metric weight or measure. (/) The quantity of solids shall be stated in terms of weight and of liquids in terms of measure, except that in case of an article in respect to which there exists a definite trade custom otherwise, the statement may be in terms of weight or measure in accordance with such custom. The quantity of viscous or semisolid foods, or of mixtures of solids and liquids, may be stated either 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secre- tary of Commerce. 40066—14 11 162 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. by weight or measure, but the statement shall be definite and shall indicate whether the quantity is expressed in terms of weight or measure, as, for ex- ample, " Weight, 12 ounces," or " 12 ounces avoirdupois " ; " volume, 12 ounces," or " 12 fluid ounces." (g) The quantity of the contents shall be stated in terms of weight or meas- ure unless the package be marked by numerical count and such numerical count gives accurate information as to the quantity of the food in the package. (h) The quantity of the contents may be stated in terms of minimum weight, minimum measure, or minimum count, for example, "minimum weight, 16 ounces " ; " minimum volume, 1 gallon," or " not less than 4 ounces " ; but in such case the statement must approximate the actual quantity, and there shall be no tolerance below the stated minimum. (i) The following tolerances and variations from the quantity of the contents marked on the package shall be allowed : (1) Discrepancies due exclusively to errors in weighing, measuring, or count- ing which occur in packing conducted in compliance with good commercial practice. (2) Discrepancies due exclusively to differences in the capacity of bottles and similar containers resulting solely from unavoidable difficulties in manufactur- ing such bottles or containers so as to be of uniform capacity : Provided, That no greater tolerance shall be allowed in case of bottles or similar containers which, because of their design, can not be made of approximate uniform ca- pacity than is allowed in case of bottles or similar containers which can be manufactured so as to be of approximate uniform capacity. (3) Discrepancies in weight or measure, due exclusively to differences in atmospheric conditions in various places, and which unavoidably result from the ordinary and customary exposure of the packages to evaporation or to the absorption of water. Discrepancies under classes (1) and (2) of this paragraph shall be as often above as below the marked quantity. The reasonableness of discrepancies under class (3) of this paragraph will be determined on the facts in each case. (j) A package containing two avoirdupois ounces of food or less is " small " and shall be exempt from marking in terms of weight. (fc) A package containing one fluid ounce of food or less is "small" and shall be exempt from marking in terms 'of measure. (I) When a package is not required by paragraph (g) to be marked in terms of either weight or measure, and the units of food therein are six or less, it shall, for the purpose of this regulation, be deemed " small " and shall be exempt from marking in terms of numerical count. F. I. D. 155 (May 29, 1914). l CHANGING EFFECTIVE DATE OF FOOD INSPECTION DECISION NO. 153, WHICH AMENDS REGULATION 9, RELATING TO GUARANTIES BY WHOLESALERS, JOBBERS, MANUFACTURERS, AND OTHER PARTIES RESIDING IN THE UNITED STATES TO PROTECT DEALERS FROM PROSECUTION. The effective date of Food Inspection Decision No. 153, issued May 5, 1914, is hereby postponed until May 1, 1916 : Provided, That as to products packed and labeled prior to May 1, 1916, in accordance with law and with the regulations in force prior to May 5, 1914, it shall become effective November 1, 1916: And provided further, That compliance with the terms of regulation 9 of the Rules and Regula- tions for the Enforcement of the Food and Drugs Act as amended by Food Inspection Decision No. 153 will be permitted at any time after the date of this decision. 1 Signed by the Secretary of the Treasury, the Secretary of Agriculture, and the Secre- tary of Commerce. DECISIONS OF COURTS. UNITED STATES v. HARPER. (Police court. District of Columbia, March 12, 1908.) Notice of Judgment No. 25.1 A drug product labeled " Harper's Cuforbedake Brane-Fude * * * " held misbranded on account of false and misleading statements borne on tb^ label and inclosed in tbe package. Information alleging violation of sections 1 and 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. [2]2 Ivory G. Kimball, Judge (charge to the jury). I want td congratulate you upon your arrival at the last stage of this very" long, but very interesting and important case. As was stated by Mr. Baker, the United States district attorney, it is the first case under the pure food [3] law in any court in the country, and it i^ one that may, in its final results, test many questions that are raised by the law and necessary to its proper administration, which ques- tions must be finally settled by the courts. The act known as the pure food law was passed on the 30th of June, 1906, but did not go into effect, as far as this case is concerned, until the 1st of January, 1907, thus giving to manufacturers a chance of changing their labels and packages, if they found it necessary to do so, and giving opportunity to dealers to get rid of any drug that might come under the purview of the law. So that in this case, ag you have noticed in the prayers, the date is given to you as froni January 1, 1907, up to the date of the filing of this information. The information as originally filed had four counts, but the Gov- ernment has abandoned the second and third ; and, therefore, in your" deliberations you will take no account of the second and third counts, but will confine yourselves to the first and fourth. The first count relates to the manufacture of a misbranded drug; the fourth count relates to the sale of such a misbranded drug. There was no law on this subject before the passage of this act. So that up to the 1st day of January, 1907, this drug might have been legally branded as the Government claims it was branded after that date; but from the 1st day of January, 1907, the law of June 30, 1906$ went into effect, and is effective upon all manufacturers coming withiri its purview. The first section of this information charges that the defendant,- Robert N. Harper, manufactured a drug which was misbranded ; and to fully inform you as to what is meant by the law by " misbranded," I will state what the law requires, because the law uses the word 1 Notices of Judgment will hereinafter be referred to by the initial letters, N. J. 2 Numbers in brackets refer to pages in Notice of Judgment. 163 164 EEDEBAL FOOD A15TD DEUGS ACT AND DECISIONS. t: misbranding " and then defines it, and the court and jury are bound by the definition of misbranding as laid down in the law. The term applies to all drugs or articles of food, or articles which enter into the composition of food, " the package or label of which shall bear any statement, design, or device regarding such article or the ingredi- ents or substances contained therein which shall be false or misleading in any particular." You will notice how broad the law is in its definition. If it is found from the evidence that in any particular this drug known as w Harper's Cuf orhedake " misstates or states falsely, then the law has been violated. It is not necessary that each one and all of them have been broken, but the law s^ys " in any particular." So that if you find from the evidence that in any one point there has been a mis- branding under the definition which I have read to you then you shall find a verdict of guilty. I might say here that there are several items in this first count which, before entering upon the trial, Mr. Baker, on behalf of the Government, abandoned. So, in considering this, you will only take Into account the items that I shall name, they being the only items on account of which Mr. Baker says the law was violated. The first claim that he made is that said drug was not a cure for headache, nor a food for the brain, and I want to read in that con- nection, because the words " Cure " and " Brain Food " have been referred to by each one of the counsel who has appeared before you, the prayer that I have granted as to the meaning of those words : The jury are instructed that in determining the meaning of the words " brain- food," " cure," " poisonous," and " harmless," the definition of which has been called into question by this inquiry, they are to give such words their ordinary and customary meaning as understood by the general public and not a technical meaning as given by any expert witness. This law was passed not to protect experts especially, not to protect scientific men who know the meaning and the value of drugs, but for the purpose of protecting ordinary citizens, like the jury and like counsel and others, who have learned during the hearing of this trial a great deal more about these things than they ever knew before in all their life. [4] In determining the meaning of the words used upon these car- tons, bottles, and circulars, they are to be taken in the way that an ordinary, plain, common citizen, without scientific knowledge, would understand them if they were put before him. And so with regard to this " Cuforhedake," you can take it to mean what an ordinary man would take it to mean — the meaning which it conveys to an ordinary person when he gets a remedy said to be a cure for headache. The first prayer as presented to me on the part of the Government touches that subject. I do not know that it is necessary for me to read it to you again. It has been read three times. If that word, spelled in the two different ways that it is spelled, would convey to the ordinary citizen the idea that it was a food for the brain as contradistinguished from the idea of a food for the whole body, then it is — and I so charge you in this first prayer — misleading, and therefore a violation of the law ; and if you find that such a definition is what the ordinary citizen would apply to it, then you, under that first prayer, would be compelled to bring in a verdict of guilty, and you have the right, in considering that question, to DECISIONS OF COUETS. 165 take it in the connection in which it is placed. You have the right to consider that it is on a medicine which it is claimed is a cure for headache, an ache which is supposed by most citizens to be from the brain, and the words brain food spelled in the two different ways you have had demonstrated to you so many times are used in connection with a cure which is said to cure the headache — an ache that is seated in the head. You have a right to consider all that. How would an ordinary citizen, in taking that up and seeing these words, understand it? What would he understand by the use of those words? I have granted some other prayers where the subject of brain food is referred to. Mr. Baker. If your Honor please, when you read the other ones) will you spell out the words? The Court. The jury are further instructed that if they find fronl the evidence that the use by the defendant of the name " branefude '* as a part of the name of the defendant's preparation was not reason- ably or fairly calculated to deceive or lead to the belief that the preparation was a food for the brain, then they shall find that the use by the defendant of the word " branefude " was not false or mis^ leading. That is the question that I suggested to you a moment ago* How would the ordinary citizen, upon reading that, understand it? If it would mislead him or have a tendency to mislead him, then the case is made out. If there is nothing in the term in the way in which it is used that would mislead an ordinary citizen, then, of course, that, under the prayers that I have granted, is to be taken into coiv si deration by you. Mr. Baker. Would your Honor read that first prayer now ? The Court. I will read, at the request of- counsel, the first prayer i If the jury find from the evidence beyond a reasonable doubt (and you gentle-^ men are old jurors and understand perfectly well what is meant by a reasonable doubt. I need not again charge you on that point, because you have had that charge over and over again. The doubt must be a reasonable one — one that a reasonable man would entertain from the evidence), that the defendant Robert N. Harper, on the fifth day of August, 1907, or at any time between the first day of January, 1907. and the date of the filing of this information, in the District of Columbia, did manufacture a certain liquid medicine or preparation, styled and designated " Harper's Cuforhedake Brain Food," or " Harper's Cuforhedake Brane Fude," and did place on the bottle, box, or circular thereof the following statements, designs, and devices, or any of them, viz, " Cuforhedake Brain Food " or " Cuforhedake Brane Fude," unless you further find from the evi- dence that there is a known aud distinct kind of food that feeds and nourished the brain as distinguished from a food that feeds and nourishes the whole body; and that the said drug or preparation is a food, and that it feeds and nourishes the brain particularly, as distinguished from a food that nourishes all parts of the body, then the jury are instructed as a matter of law that the words [5] "Brain Food" and "Brane Fude" — if you find that "Brane Fnde " means' brain food — are false and misleading, and your verdict shall be guilty on the first count of the information ; and if the jury further find that the defendant did sell or offer for sale to the said Stone & Poole, on the date or within the" time mentioned and in the District of Columbia, the said drug in this prayer1 described, they shall find the defendant guilty on the fourth count of the information. The next objection that is made in this information is " nor did said drug contain any poisonous ingredients of any kinds." Gentlemen, the question raised is not whether it is a poison in the doses prescribed in the preparation. That is not the question before you as jurors. You have nothing to do with the question of whether it is poisonous in the doses prescribed or in larger doses. The sole 166 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. question raised here for you to consider is whether the said drug contains poisonous ingredients of any kind. If you find from the evidence, beyond a reasonable doubt, that it did contain poisonous ingredients, whether taken in the doses named, whether they would or would not be harmful — if you find that the drug contained a poisonous ingredient — then your verdict must be guilty, because that is the plain issue. Of course, that you must find beyond a reasonable doubt. The next point is : " Nor was said drug a harmless relief." I do not need to say anything in particular upon that point. That has been fully argued by counsel, and I can not go into the evidence. It is a question for you. Of course, if you find, beyond a reasonable doubt, any one of these points against the defendant, then your verdict must be guilty, whatever you may do with the others, because the law provides " in any particular." Now, I will say nothing fur- ther with regard to the " harmless relief " than to refer you to the evidence, which is in your own minds. I can not tell you what the evidence is. You have the right to carefully consider it, and it is your duty to carefully consider all the evidence bearing upon the point, and to determine beyond a reasonable doubt whether, in your •judgment as jurors, the case has been made out by the Government beyond that reasonable doubt. If it has been made out that it is a harmful relief and not a harmless one, then of course your verdict must be guilty. If you do not so find upon that point, your verdict would be in favor of the defendant upon that point. The next one is : " Nor did each ounce of said drug contain 30 per cent of alcohol." I do not think I need to say anything upon that point. The evidence you know. You know the evidence of the two who analyzed it, and you know what they said. I will merely read the prayer that was granted on that subject. If the jury shall find from the evidence that the defendant's preparation in question contained 30 per cent of alcohol at the time of the manufacture and gale thereof, then they should find that he did not make a false or misleading Statement as to the quantity or proportion of alcohol contained therein. In this prayer the jury are instructed that under the law the de- fendant had the right to use in the manufacture of preparations com- mon alcohol, which is considered to be a little more than 5 per cent water and a little more than 94 per cent pure alcohol ; that is to say, alcohol composed of 94.9 per cent pure alcohol and 5.1 per cent water; and in determining whether the statements on his carton and label regarding the quantity or proportion of alcohol contained in his preparation were either true or false, the jury shall consider that 5.1 per cent of the alcohol he used, if they shall find he used common filcohol, was composed of water. X think that those two prayers contain all that I need say upon that question. You understand the evidence. There is one other prayer on the subject of alcohol. I will read that: If the jury shall find from the evidence that the statement on the carton and label of the defendant's preparation concerning the quantity or proportion of the [6] alcohol contained in such preparation was a true statement of the maximum or the average quantity or proportion of the alcohol contained in his preparation, such statement was in conformity with the law, and his carton and label was not misbranded so far as such statement was concerned. DECISIONS OF COURTS. 167 These three prayers cover all that is necessary for me to say on that point. I will read the other prayers granted, first taking up prayer No. 2 for the Government: The jury are instructed as matter of law that if they find from the evidence bejrond a reasonable doubt that the defendant, Robert N. Harper, on the fifth day of August, 1907, or at any time between the first day of January, 1907, and the filing of this information, in the District of Columbia, did manufacture a certain liquid medicine or preparation, styled and designated " Harper's Cuforhedake Brain Food " or " Harper's Cuforhedake Brane Fude," and did on the bottle, box, or circular thereof place the following statements, designs, and devices, or any one of them, " Cuforhedake Brane Fude," or " Cuforhedake Brain Food," " that said drug contained no poisonous ingredients of any kind; " "that said drug was a harmless relief; " "that each ounce of said drug con- tained 30 per cent of alcohol ; " and if the jury find beyond a reasonable doubt that the word " Cuforhedake " means cure for headache, and that the said drug is not a cure for headache, or that said drug contains poisonous ingredients of any kind, or that said drug was not a harmless relief, or that each ounce of said drug did not contain as the maximum quantity 30 per cent of alcohol, or that all or any of said statements were in any way false or misleading, then they shall find the defendant guilty as charged in the first count of the informa- tion ; and if they further find that the said defendant, Harper, did sell and offer for sale, on the day and days aforesaid, the said drug to Frank T. Stone and S. Stuart Poole, then they shall find the defendant guilty on the fourth count of said information. The fourth count, I believe, is a charge of selling. One charge is for making in the District of Columbia, and the other charge is for selling a misbranded article in the District of Columbia. The two are to be considered separately. If you believe that he sold a mis- branded article then you will bring a verdict on the fourth count. If you believe that he misbranded in any of the ways claimed by the Government, beyond a reasonable doubt, then you shall bring in a verdict of guilty on the first count. There is one other prayer for the Government : A false statement within the meaning of the act of June 30, 1908, is any state- ment that is untrue, erroneous, not strictly in accordance with fact, or calculated in any way to deceive; a misleading statement within the meaning of said act is any statement that may in any way tend to lead a person wrongly, or mis- guide, or lead astray or into error, or cause to mistake, or delude or deceive ; and if the jury find that any of the statements charged as false or misleading in respect to said drug, from any point of view, or from any aspect considered, may in any way reasonably be considered untrue, or not strictly in accordance with fact, or calculated in any way to deceive, or lead into error, or cause to mistake or be deceived, then the jury should find that such statement or state- ments are false or misleading, and that said drug is misbranded. In considering the expert testimony, a prayer was prepared, which was also read, but I will read it again : The jury are instructed that the evidence of the expert witnesses who have testified in this case is to be received and treated by them precisely as other testimony. The weight to be given to it by the jury is to be determined by the character, the capacity, the skill and experience, the opportunities for observa- tion, and the state of mind of the experts themselves, as seen and heard and estimated by the jury, by the nature of the case, and all its developed facts. [7] In other words, I charge you, in substance, that in testing the evidence of experts you have the right to consider whether they have shown sufficient knowledge, and to consider their conduct upon the witness stand, everything about them that has occurred in your sight, and everything that they have given upon the witness stand, for 168 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. you are the ones to determine the weight to be given to the testimony of experts or those who come to testify as experts. The law presumes that a person charged with a crime is innocent until he is proved by competent evidence to be guilty. To the benefit of this presumption the defendant is entitled, and this presumption stands as his sufficient protection, unless it has been removed by evi- dence proving his guilt beyond a reasonable doubt. That, you gen- tlemen understand, has been charged you over and over again. The right of a defendant in a court of law in this country is that he stands before you as innocent until he is proven by competent evi- dence guilty beyond a reasonable doubt. Here is another prayer granted for the defense : The jury are instructed that under the act under which this information is filed the defendant is not required to state on the label or package containing the preparation in question any of the ingredients contained therein except the quantities or proportions of acetanilid and alcohol. Whilst that is true, yet the statement upon the label of the pro- portion of those two ingredients, if there are other statements upon the carton or label, or other document a part of the carton, which are false and misleading, the fact of the statement of the two drugs would not take away the character of the misleading statements. For instance, the ordinary purchaser of such drugs at a drug store does not know the value or the effect of these several drugs, and if there is put upon the outside of the package the quantity of this drug, and at the same time a statement that there are no harmful ingredients in it, or no poisonous ingredients in it, the fact that the label would show that there was a poisonous or harmful ingredient in it, if such were the fact, would not remove the liability to a pen- alty under this law, because it is the ordinary purchaser that we are dealing with. The ordinary purchaser does not know, except in some few instances of well-known poisons, the nature of the various in- gredients going into drugs. If there is that which is false or mis- leading upon any part of that which is sold accompanying the drug, he would be liable under the provisions of this act. Here is a prayer granted to the defense which is somewhat on that line: The jury are instructed that the purpose of the act of June 30, 1906, was to prevent the public from being deceived or misled in the purchase of drugs, and that the defendant can not be found guilty of misbranding his preparation un- less on the label, bottle, or package of his drug he made any false statements or such statements concerning the same as would naturally and reasonably de- ceive or mislead or tend to deceive or mislead. The jury are further instructed that in order to convict the de- fendant in this case of the offenses charged in the information, or either of them, they must believe and find beyond a reasonable doubt that all or some one of the alleged false or misleading statements are or is false or misleading in some particular. Another prayer : The jury are instructed that the burden of proof in this case is upon the prosecution, and before they can find the defendant guilty the evidence adduced must satisfy them beyond a reasonable doubt that the statements contained on the label or package of the defendant's preparation or the printed matter connected therewith or some one or more of said statements was or were false or is misleading. That covers all the prayers. DECISIONS OF COUETS. 169 Gentlemen, in considering this case, you do not want to take into consideration the position or standing of the defendant. Everyone that appears before the bar of this [8] Court stands on an equal plane, as far as the verdict of the jury is concerned. We are not trying Mr. Harper, the president of the American National Bank, or Mr. Harper, the president of the Chamber of Commerce ; but we are trying here Kobert N. Harper, a citizen of the District, and you gentlemen are sworn to try the case, standing between the defend- ant on one side and the United States on the other. You have nothing to do with the question, as counsel have told you, of the penalty. You are here to determine the plain questions of fact that are presented. If 3^011 find any one of the charges brought by the Government in the first count against Mr. Harper, although you may find him not guilty on all the others, any one of them would be sufficient and would require you to bring in your verdict of guilty, because if he is guilty beyond a reasonable doubt upon any one of the charges of false or misleading statements coming under the word " misbranded," then he is guilty, because the law requires that when a man puts out to the general public a drug he shall put on that no statement, he shall put on that no label which is false or misleading in any par- ticular. If you find that this has been done, that there is a false or misleading statement in any particular upon this preparation put out by Mr. Harper, then your verdict must be " Guilty." If, however, you find that in no one of the points named has Mr. Harper made a statement which is false or misleading, then, of course, your verdict would be in favor of Mr. Harper and would be " Not guilty." If you find him guilty upon the first count and find that he sold this article to the firm of Stone & Poole, then you would find him, in that connection, guilty on the fourth count. If, however, you find him not guilty on the first count, you must necessarily find him not guilty on the fourth count. Mr. Tucker. Has your Honor concluded? The Court. Yes; unless there is something that counsel wants me to say further. Mr. Tucker. What I want to say is this: Under the rule estab- lished by the Court of Appeals, where instructions are repeated in the charge of the court, it is necessary for the parties to reserve their exceptions again to the prayers, repeating their exceptions. I accord- ingly except, for the reasons I have stated, to the granting of each and every of the prayers granted on behalf of the prosecution, and to the refusal of the court to grant each and every of the prayers presented on behalf of the defense and refused, and to the modifica- tion of the court to such of the defendant's prayers as have been modified by the court ; all on the grounds I have stated. The Court. There was only one, I think. Mr. Tucker. Only one, I think. I simply put it in the plural to cover any possibility. I also object and reserve an exception to the language of the court in the charge relating to the subject of dosage, and in instructing the jury, in effect, that they should disregard the dosage as prescribed on the label of the defendant's bottle. 170 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. I also object and except to such part of the charge as stated to the jury that the ordinary purchaser does not know the nature of the in- gredients in drugs, as a rule, on the ground that that is a matter for determination by the jury. The Court. Gentlemen, take the case. Motions by the defendant in arrest of judgment and for a new trial were severally made and overruled, and notice was given of appeal to the Court of Appeals of the District of Columbia. Subsequently the appeal was withdrawn. SAVAGE v. SCOVELL.1 (Circuit Court, E. D. Kentucky, July 16, 1908.) 171 Fed. 566. Statute of the State of Kentucky (Laws 1906, p. 282, c. 48) held not unconsti- tutional as being in conflict with the Food and Drugs Act, June 30, 1906 (34 Stat., 768). It is valid as an inspection law, and not in conflict with the provisions of the said act of Congress. In Equity. On motion for preliminary injunction and demurrers to the bill. Demurrers overruled. Cochran, District Judge. This cause has been submitted on motion for a preliminary injunction and demurrers, special and gen- eral to the bill. It is claimed by plaintiff that he is entitled to the relief he seeks because the article manufactured and sold by him is not covered by the Kentucky act involved herein. Laws 1906, p. 282, c. 48. He maintains that said act covers only that which is a food, and said article is not a food, but a medicine. I think the distinction between what is a " food " and what is a " medicine " is clear, and there can be no question that said act covers the former, and not the latter. A "condiment " is a food, and not a medicine. It is therefore covered by the act, and that by express terms, but the act is not prevented from covering that [567] 2 which is a food because it is a medicine also. Conceivably an article may be a food and a medicine both, and that when used in the same way, i. e., when taken internally. Such an article is covered by the act notwithstanding its medicinal quality. I have considered the evidence carefully and have reached the conclusion that the article of plaintiff's manufacture is a food — probably it is better to say that it is a condiment — and that such is the effect of his representations and claims in regard thereto. Un- doubtedly he claims it to be a medicine also, and it may be said that the stress of his claims lies here; but in a real sense it must be said to be at least a " condimental food," and hence that it is covered by the act. Plaintiff is in no position to complain of his article being treated as what he calls it. The evidence shows that his action in naming it a food was not purely arbitrary, but based on reality. The act itself is not unconstitutional. It is an inspection law, and the States have the right to pass inspection laws. This is expressly 1 Not arising under the Food and Drugs Act, June 30, 1906. 2 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 171 recognized in the second clause, section 10, article 1, of the Federal Constitution; but, this apart, a State has power to enact inspection laws, even though it affects interstate commerce, at least in the absence of congressional legislation making a difference in the situ- ation. This is on the ground that Congress by its nonaction has impliedly consented to the enactment thereof, i. e., Congress, instead of regulating interstate commerce in such particular directly, does so through the State legislature enacting the law. At the time of the passage of the Kentucky act and its going into force, the Federal pure food law (act June 30, 1906, c. 3915, 34 Stat., 768 [U. S. Comp. St. Supp. 1907, p. 928] ) had not been enacted. The position that the act is valid as an inspection law finds direct support in the case of Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 351, 18 Sup. Ct. 862, 43 L. Ed. 191. The case of Bowman v. Chicago & N. W. R. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700, is not to the contrary. The law involved there was not an inspection law. It is claimed that said act is unconstitutional, in that it authorizes the director of the agricultural experiment station to take as much feeding stuff as he might desire, provided he confined himself to 2 pounds from every package. I do not think that such is the meaning of this provision of the act. An inspection law can properly provide the taking of so much of an article covered by it as is necessary for analysis in order to determine its true nature. This is just as proper as a fee for the inspection. The meaning of this act is that said director may take as much, not as he desires, but as much as is neces- sary for analysis; but in no event shall it exceed 2 pounds. It was not intended that the director should have the right to take 2 pounds in every instance out of every package, whether necessary to make an analysis or not. It is not alleged that in the execution of the law defendant has taken, or intends to take, more from the packages con- taining plaintiff's article than is necessary to make an analysis. Again, it is urged that said act has been done away with by the Federal law before referred to. It is questionable whether Congress can affect a State inspection law simply by legislation covering the same [568] subject — whether in order to do so it must not enact legis- lation under clause 2, section 10, article 1, of the Federal Constitu- tion, expressly revising and controlling same. But, this apart, the two laws do not cover the same territory. The Federal law simply covers the subject of adulteration and misbranding. The State law has nothing to do with either. It has to do with the subject of dis- closing the ingredients of the articles covered by it. Its policy is to compel a statement of ingredients so that purchasers thereof in Ken- tucky may know exactly what they are buying. There may be no adulteration or misbranding, i. e., no violation of the Federal law, and yet there may be a violation of the State law in not disclosing ingredients. It follows therefore that the motion for a preliminary injunction must be denied. Inasmuch as the bill alleges that plaintiff's article is a medicine, and not a food or condiment, and hence not covered by the act, the bill sets forth a good cause of action, unless defendant's point that this is a suit against the State of Kentucky, and hence within the 172 FEDEKAL FOOD AND DRUGS ACT AND DECISIONS. prohibition of the eleventh amendment, is well taken. I do not think that this point is well taken. This is not a suit against the State, but against M. A. Scovell. If the plaintiff's article is not a food, but a medicine, as alleged in the bill, then said defendant has no right to set on foot prosecutions against plaintiff and dealers in his article under said act, and he owes plaintiff a duty not to do so, and plaintiff is entitled to have this duty performed. I have covered this whole subject in a paper read before the Kentucky State Bar Association, on July 8, 1908. at Louisville, to which I refer as setting forth fully my views on it. It took considerable time to prepare this paper, and this accounts somewhat for my delay in disposing of this case. The subject was in so much confusion that I could not handle a case suc- cessfully involving the question of maintainability of suits against the executive officers of a State without a thorough investigation on my own part covering the whole ground. The demurrers to the bill are overruled. If parties agree, the cause can be submitted on bill, answer, and affidavits, as was done in the case of Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604. If so, a decree will be entered dismissing plaintiff's bill at his costs. Of course, the temporary restraining order granted herein ceases as of this date to be of any force. UNITED STATES v. 100 CASES OF TEPEE APPLES et al. (District Court, W. D. Missouri. October 23, 1908.) 179 Fed. 985 ; N. J. No. 36. Apples and blackberries labeled "Tepee Apples (or Blackberries) Packed by C. H. Godfrey & Son, Benton Harbor and Watervliet, Michigan," which were shown by the evidence to have been grown in Arkansas, held misbranded, because the labels indicated that the fruits were grown in Michigan. Libel under section 10 of the Food and Drugs Act. C. H. Godfrey & Son intervened as claimants and excepted to the sufficiency of the libel on the grounds that the act was unconstitutional and because no preliminary hearing as provided by section 4 of the act had been accorded the claimants by the Secretary of Agriculture. These exceptions were overruled by the court. Jury was waived and the case tried to the court on an agreed statement of facts and depo- sition of C. H. Godfrey. Decree of condemnation and forfeiture. [986] 1 Smith McPherson, District Judge. This case is by infor- mation filed by the United States attorney, charging that Ridenour- Baker Grocery Company, of Kansas City, Missouri, has in its pos- session cases of apples and blackberries in original unbroken pack- ages which are misbranded within the meaning of the act of Con- gress approved June 30, 1906, entitled " Food and Drugs." The fruits were thereupon seized by the marshal, and notice thereof given. In due time C. H. Godfrey & Son, of Benton Harbor, Michi- gan, appeared and made defense. A jury was waived and the case tried to the court. The evidence consists of an agreed statement of facts and the deposition of C. H. Godfrey. And these are the facts: 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 173 Godfrey & Son pack and can fruits, with their factory at Benton Harbor, Michigan, and such has been their business for several years, with their principal office at that place, the fruits grown there, as well as in other States. Their only post office address was there. The apples and berries in suit were grown at and near Springdale, Arkansas, and by Godfrey & Son there bought and canned, and by them later on sold and shipped to the Kidenour-Baker Company at Kansas City. Each can of apples was labeled with a blue paper about ten inches long and five inches wide, with a picture of a red apple, an Indian tent, or " tepee," with the words " Tepee Apples ; Packed by C. H. Godfrey & Son, Benton Harbor and Watervliet, Mich." The berry cans had the same label in all respects, except the pic- ture was of a cluster of blackberries and the words " Tepee Black- berries." The opinion of the Secretary of Agriculture was that such words to the exclusion of Springdale, Arkansas, where the fruit was grown and packed, mislead the public. Evidence is offered that Godfrey & Son did not know of such opinion, and that they believed the cans were properly labeled. Such evidence is not admissible and is ruled out. The evidence shows that Michigan and northern apples are of a better quality and flavor than are Arkansas apples, and that is a matter of common information. As to the berries, the evidence is not [987] so certain, although the deposition of Mr. Godfrey fairly shows that Michigan blackberries, with one variety excepted, are better than those of Arkansas. Adulteration of goods and false labeling had become so common that it was well-nigh impossible to purchase pure goods, or that which was called for. The same was true as to medicines. Congress un- dertook to remedy it. The one purpose was to prevent the sale of adulterations. The other purpose was to enable a purchaser to obtain what he called for and was willing to pay for. And under this latter view it is immaterial whether Michigan fruits are better than those grown in Arkansas. A purchaser of canned goods may prefer Michi- gan fruits. He may believe them to be better than Arkansas fruits. He has the right to call for them, and when he pays or is debited for them he has the right to have Michigan fruits. The pur- chaser has the right to determine for himself which he will buy and which he will receive and which he will eat. The vendor can not determine that for the purchaser. He, of course, can make his arguments, but they should be fair and honest arguments. In this case the label is very attractive to the eye, and of course its only purpose is to sell the fruit. But for that the label would not be on the can. That is what the purchaser at retail looks for, and that is what, more than any other statement or argument, induces the purchase. That the evidence shews that to be misleading, because the words thereon. " Packed by C. H. Godfrey & Son, Benton Harbor and Watervliet, Mich.." is understood by all adults and children as not only being there packed, but fruits grown in that vicinity. Of course it is idle to insist, as Mr. Godfrey does, that the fruits could not have been raised within the city of Benton Harbor. The term "misbranded" as used in the statute, as defined bv the statute, is 174 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. " the package or label of which shall bear any statement, design, or device regarding such article * * * which shall be false or mis- leading in any particular^ and to any food which is falsely branded as to the State, Territory, or country in which it is manufactured or produced." Again, the statute recites, " If it be labeled or branded so as to de- ceive or mislead the purchaser, it should be considered as mis- branded." There can be no doubt, as it seems to me, that any purchaser from this label would be deceived, in that he would be receiving Arkansas fruits instead of Michigan fruits. Deception is seldom practiced by a literal falsehood, but is usually joined with some truth, so that the entire statement will deceive. And so in this case. Of course the statement is true that Godfrey & Son reside and do business at Ben- ton Harbor; but that one true statement is used in conjunction with the packing of the fruits, and I repeat that I would believe from that, as would all others, that it is Michigan fruit within the cans. And if Godfrey & Son believe, and if it be true, that Arkansas fruits are as good or better than Michigan fruits, let that fact be disclosed by labels and otherwise. This statute is to protect consumers and not producers. It is a most beneficent and righteous statute, and within the powers of Congress to legislate concerning, and should be en- forced. It can not be [988]. enforced if it is to be emasculated, as is sought in the present case. The order will be that the fruits and cans under seizure will be sold by the marshal after being properly branded. This will be done, instead of destroying them, as the fruits are not deleterious. But this order may be avoided under the statute if Godfrey & Son will pay the costs and give bond to properly brand the goods in ac- cordance with this opinion, and sell them in all respects in conformity to law. UNITED STATES v. 50 BARRELS OF WHISKY. (District Court, D. Maryland, October 26, 1908.) 165 Fed., 966; N. J. No. 68; Circular No. 10. Office of the Solicitor. A product made in Louisiana from a cheap grade of New Orleans molasses (commonly known as "blackstrap"), sulphuric acid, and water, labeled "Bourbon Whisky," held misbranded. Libel under section 10 of the Food and Drugs Act. On exception to libel, and charge to jury. Exception overruled. Libel sustained. STATEMENT OF FACTS. [967] x This was a libel filed by the United States seeking the con- demnation of 50 barrels, more or less, of alleged whisky. The libel charged that the product had been distilled at New Orleans, La., out of molasses, and had been there branded " Bourbon Whisky ;" that such branding was a misbranding, in that whisky was a distillate of grain, Bourbon whisky a distillate of fermented mash of a mixture of grains — of which mixture corn constituted the larger part — and that 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COUETS. 175 to entitle the product to be called Bourbon whisky it must be dis- tilled in certain localities, particularly in the State of Kentucky, and not in Louisiana. There was no allegation in the libel that there had been any hearing before the Secretary of Agriculture, as prescribed in sections 4 and 5 of Food and Drugs Act, June 30, 1906, c. 3915, 34 Stat. 769 (U. S. Comp. St. Supp. 1907, pp. 929, 930) . The claimants excepted to the sufficiency of the libel because of the absence of this allegation. Morris, District Judge. (Overruling exception to libel.) In this case, which is a libel for the seizure and forfeiture of 50 barrels of distilled spirits alleged to be misbranded contrary to the provisions of the act of Congress of June 30, 1906, the libel does not allege that there had been any preliminary examination such as is provided for by section 4 of the act. The claimant has excepted to the libel upon the ground that the court has no jurisdiction unless such a preliminary examination has preceded the seizure. It is urged that the harshness of the proceeding in seizing goods alleged to be misbranded without giving the owner the opportunity of being heard as to their true nature is such that the court should if possible construe the law so as to require the examination as a pre- requisite to seizure. Such seizures are not unusual, and it is plain that if the harshness were conceded, it would not justify the court in reading into the law a limitation which it does not contain. The act provides two different proceedings to enforce the provisions. One is by a criminal proceeding in personam; the other is by a proceeding in rem, by seizure of the offending thing itself, and forfeiture if found to be in violation of the law. In this latter case there is no provision for a preliminary examination. Section 10 of the act provides that any article of food, drugs, or liquor that is adulterated or mis- branded, which is being transported from one State to another, shall be liable to be proceeded against and seized for confiscation by process of libel for condemnation. It is further provided that the proceed- ings of such libel cases shall conform as near as may be to the pro- ceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any such case. The libel alleges that fifty barrels of distilled liquor are now at a named place within the district, having been transported from the city of New Orleans, in Louisiana, to Baltimore, Maryland, branded " Bourbon Whisky," which brand indicates a liquor containing all the congeneric sub- stances obtained by distillation from a fermented mixture of grain, of which Indian corn forms the chief part, and confined to whisky distilled in the State of Kentucky, and that the fifty barrels of dis- tilled liquor in question, branded Bourbon Whisky, [968] are not whisky at all but a distillate of molasses distilled in New Orleans, La. The libel then prays that the fifty barrels of liquor may be proceeded against and seized for condemnation, in accordance with the act of Congress approved June 30, 1906, and prays the court to order process of attachment in due process of law, and that all persons having or pretending to have any right, title, or claim in said liquor may be cited to appear and answer the premises. This is according to the course of proceeding in libels in admiralty, and in similar proceed- ings in rem for forfeitures for violation of the internal revenue laws. 176 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Such seizures are made in cases in which forfeiture of the goods is the penalty, without preliminary examination or proceedings of any kind, in cases of violation of the customs laws and the shipping reg- ulations, as well as violations of the internal revenue laws. The exception is overruled. At the trial it was proved, and not denied, that the spirits libeled had been distilled in New Orleans, La. ; that the material from which they had been distilled was the cheaper grade of New Orleans molasses (commonly known as " Blackstrap ") ; that to each 350 gallons of molasses was added about 1 gallon of sulphuric acid; and that this mixture was further diluted by the addition of 5 J gallons of water to every gallon of molasses. The libelant produced some 50 or more witnesses, being distillers of rye and Bourbon whiskies, retail liquor dealers, retail grocers, druggists, the chairman of the revision committee of the United States Pharmacopoeia, physicians, chemists, and food experts, who testified that in their understanding the word " whisky " imported a distillate of grain ; that the words " Bourbon Whisky " imported a distillate of mixed grains, of which mixture Indian corn constituted the larger part. Most of these witnesses were further of the opinion that the phrase " Bourbon Whisky " implied that the whisky had been distilled in Kentucky. xVll the chemical witnesses, on both sides, testified that in the present state of chemical knowledge it is not possible by chemical analysis, alone, certainly to tell whether a given product is brandy from grapes, whisky from grain, or rum from molasses. The claimant proved that its distillery had always been surveyed and registered as a sweet-mash molasses distillery; that during the six years immediately preceding the seizure, 12,000 barrels of its product were branded and entered as " Bourbon Whisky," and that, out of said 12,000 barrels, 9,000. of which the 50 barrels, more or less, seized were a part, had been withdrawn and sold to various persons as Bourbon whisky ; that the said barrels so entered and withdrawn were reported by the claimant and the government storekeeper at the distillery to the collector of the district, by him reported to the Com- missioner of Internal Revenue, and by the latter reported in his printed annual reports as entries and withdrawals of Bourbon whisky ; that the branding of the words " Bourbon Whisky " had been put on each of the said barrels by the United States gauger in charge of such distillery. The claimant offered the annual reports of the Commissioner of Internal Revenue for the years from 1901 to 1907, inclusive, to prove that during most of these years there had been only one distillery in Louisiana, and that was the claimant's molasses distillery ; that no material other than molasses was used for distillation in that district, and that these reports did not show that any rum had been distilled in the district of Louisiana. The claimant further offered said reports to show that for many years next preceding the seizure the records of the Internal Revenue De- partment purport to show that Bourbon whisky had been produced in some 10 states other than in Kentucky. These reports, in this re- spect, show that more than 90 per cent of all the whisky branded " Bourbon Whisky " produced in this country was produced in Ken- tucky, and that the larger part of the small percentage not produced DECISIONS OF COURTS. 177 in Kentucky was produced in States immediately bordering on Ken- tucky. The claimant further offered chemical evidence to the effect that whenever starch, malted cereal, cane sugar, or grape sugar are subjected to the ordinary processes [969] preliminary to fermenta- tion a common sugar is derived from them. So that, while there are chemical differences in the mash, depending on the material out of which the mash is made, a large part of such mash in each case con- sists of a sugar common to all. The claimant further offered chemical testimony to the effect that the character and kind and race of the yeast used in fermentation has an important effect upon secondary products and upon the flavor of the finished product; that a large part of the distinction in the aroma between American whiskies on the one hand, and Scotch and Irish whiskies on the other, is due to the circumstance that American whiskies are aged in charred bar- rels; that such improvement in the flavor of whisky in charred packages as takes place after the fourth year is due largely to con- centration, and the oily appearance of matured whisky is due to material extracted from the charred packages, and that the body of whisky, so called, is due largely to the solids extracted from the wood. The claimant further offered evidence to the effect that sulphuric acid is used to invert the sucrose, so that fermentation can be ac- celerated, and ammonia is used as a yeast food ; that there were no poisonous or deleterious substances in the whisky seized, and that chemical analysis showed that no sulphuric acid or ammonia re- mained in the whisky seized, those substances having been eliminated in the process of distillation. The libelant proved in rebuttal that the gauger who branded the barrels in this case " Bourbon Whisky " received his information that the contents of the barrels were Bourbon whisky from the distiller, and that many gaugers in the service in other districts had habitually acted upon such information in determining what was the name, known to the trade, by which each package of distilled spirits should be branded. The Government further proved that once a month the distiller made a sworn return of the quantities and kinds of spirits distilled by him, giving to each class of them the name by which he asserted they were known in the trade, and further proved an in- ternal revenue regulation which provides that, as to the kind of spirits produced, the gauger should see that his returns agreed with those made by the distiller, and that the tables in the annual reports of the Internal Revenue Department read in evidence by the respond- ents were simply compilations of these distillers' monthly reports. The government offered evidence of a chemical expert, who has made a special study of fermentation and distillation, to the effect that it is not necessary to use sulphuric acid in distilling molasses for the pur- pose of accelerating fermentation ; that he had made accurate experi- ments to determine whether the addition of sulphuric acid to the mash would increase the rate of fermentation, and the result of the experiment was to show that the addition of sulphuric acid made no difference either in the rate at which the sugar was inverted, as de- termined by examinations with the polariscope, or in the rate at which the sugar was fermented, as determined by the study of the rate at which the specific gravity of the liquid diminished ; that there may at times be a very good reason for the use of sulphuric acid, and 40066—14 12 178 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. that is to check the multiplication of foreign ferments or acetic acid bacteria. A good many different antiseptic materials have been used for such purposes. Of these sulphuric acid is one, and it is also about the cheapest, and about as readily obtained as any. Another way of preventing the existence of these false ferments is to keep the distillery clean. The libelant offered three prayers and the respondent one prayer, which latter was as follows : The Louisiana Distillery Company, the claimant in this ease, prays the court to instruct the jury that a portion of the product of its distillery, including therein the 50 barrels, more or less, seized in these proceedings, having been branded by the United States gauger, from time to time, during the seven years preceding the seizure herein, as " Bourbon Whisky," and having during that period been as " Bourbon Whisky " entered in bond in the United States bonded warehouses of said claimant, the entries thereof reported as " Bourbon Whisky " to the internal revenue collector in the district of Louisiana, and having been reported as " Bourbon Whisky" to the Commissioner of Internal Revenue, and portions thereof, as shown by the evidence in the case, having been withdrawn from said bonded warehouses as Bourbon [970] Whisky" and the said with- drawals having been reported as " Bourbon Whisky " to said collector, and by him reported to the Commissioner of Internal Revenue as " Bourbon Whisky,' and the taxes on all said withdrawals having been paid to the United States Government, and the said Commissioner of Internal Revenue having full knowl- edge during all this time that the said distillery was surveyed as a sweet-mash molasses distillery, and that molasses and not grain was used therein for the distillation of spirits, and that the product thereof was during said period of seven years branded " Bourbon Whisky," and that the entries and withdrawals therefore were as " Bourbon Whisky " and the taxes thereon paid as such, then the libelant is estopped from claiming that the contents of the said 50 barrels of whisky, more or less, were or are other than " Bourbon Whisky." and their verdict must be for the Louisiana Distillery Company. Morris, District Judge (charge to the jury). I will not call upon counsel for the United States to reply. The case as it is presented to the jury is a very clear one. I reject the only prayer offered by the defense. Really, that prayer concedes the misbranding of the liquor, and asks me to say to the jury that if they shall find that this was done under the control and by the agents of the United States, the United States, which is the plaintiff in this case, is estopped from proceeding to condemn these goods and forfeit the goods for mis- branding. That proposition I reject. Every one who deals with agents of the United States deals with them with the knowledge imputed to him of the restriction upon their authority. It seems to me it can not be successfully contended that any agent of the United States has authority to do a thing which is forbidden by law; and it is forbidden by this law passed in 1906, the pure food law, to mis- brand any goods which are intended to be or are actually transported from one State to another. Of course the gentlemen of the jury would know, or should know, that the United States has no authority, under the Constitution of the United States, to regulate the sale of goods within the limits of a State. It is only when they are trans- ported from one State to another, and become a part of interstate commerce of the country, that the United States has the authority to pass laws regulating them. So this liquor, without infraction of any law so far as I know, might have been offered for sale and sold in Louisiana, unless there is some law of Louisiana which prohibits the misbranding of or misrepresentation with regard to the constituents of an article that is offered for sale. It is only, therefore, when these DECISIONS OF COURTS. 179 goods become a part of the interstate commerce of the country that this pure food law of 1906 applies to them, that " misbranding " shall apply to the placing on the package of any statement which shall be false or misleading in any particular, and provides that any article misbranded, which is transported from one State to another for sale, is liable to confiscation. Therefore I do not think that anything that was done in the distillery in Louisana, in New Orleans, in any way estops the United States or estops the authorities, or the agents of the United States in Maryland, from proceeding to condemn these goods upon the ground that they were misbranded. It would be destructive of the enforcement of many of the laws of the United States if the act of any agent of the United States could be set up as a defense [971] against the explicit law ; the explicit law in this case being that any goods that are misbranded shall be forfeited. If any ganger^ at the request of a distiller or under a generally understood practice of the distillery, should misbrand an article of distilled liquor, it would be utterly subversive of the law, if the act of the gauger could be a defense to the positive enactment of the act of 1906 which forbids misbranding goods that are to be transported from one State to another. I, therefore, reject that contention on behalf of the claimant of the goods in this case. The real issue which the jury are to determine is whether theses goods are whisky as known to the trade and to the community generally, and to those who deal in whisky. If it is not whisky, the case is made out in favor of the United States. If the jury believes — ■ and there is a great deal of testimony to that effect — that the word " whisky " is applied only to a distillate made of grain, that is an end of the defense in this case. If they so find, their verdict must be for the United States, because it is admitted in this case, and it is not a question of dispute, that this liquor is not made from grain, but is a distillate of molasses with a slight infusion of sulphuric acid. But the jury might possibly find that it could be called " whisky." Then there is a second question, can it be called " Bourbon Whisky " ? There is a great deal of testimony to show that Bourbon whisky, in its most general sense, is a whisky made from grain of which corn is the larger constituent. If you find that this was not such a whisky, then it is not Bourbon whisky, and your verdict must be' for the United States. Then there is testimony also to the effect that Bourbon whisky, as understood in the trade, is confined to a whisky made in Kentucky. If you find that to be the fact — and that is for you, entirely, on the testimony— if you find that in the trade$ and among those who deal in and who are familiar with the article, Bourbon whisky implies that it is made in Kentucky, then of course that is an end of the case so far as the claimant is concerned, be^ cause it is admitted that this liquor was made in New Orleans. I might say that a good deal has been said about the hardship and injustice of condemning an article which once has been branded by the gauger, but I do not think that that appeals very strongly to any one's sense of morality, because a gauger is not a man who is to decide what is the trade-name of an article. He takes that largely from the distiller. He is not a dealer in liquor, nor is he a man of science who is to determine once for all, and incontrovertibly, whether it is what it is branded or something else. 180 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. I will now give you the instructions asked for by counsel for the United States. The first prayer is as follows : The jury are instructed that if from the evidence they shall And that the word *' whisky," as understood by scientific men, the liquor trade, and by the public generally, is confined to a distillate of grain, and shall further find that the contents of the barrels libeled in this case are a distillate of molasses, and that the said barrels were branded " Bourbon Whisky," then the said barrels were misbranded, and their verdict must be for the libelant. [972] The second prayer has reference to the restricted meaning of " Bourbon Whisky," as applying to whisky distilled in the State of Kentucky. It is as follows : The jury are instructed that if they shall find from the evidence in this case that the phrase " Bourbon Whisky," as defined in the standard works of ref- erence in use in this country, and as understood by scientific men, the liquor trade, and by the public generally, imports a liquor distilled in the State of Kentucky, and shall further find that the contents of the barrels libeled in this case were distilled at New Orleans, in the State of Louisiana, and shall further find that the said barrels were branded " Bourbon Whisky," then the barrels are misbranded, and their verdict must be for the libelant. The third prayer has reference to what you may find from the evidence is the more general acceptation of the words " Bourbon Whisky," in case you find that the words do not necessarily require that it shall be made in Kentucky. The instruction is as follows: The jury are instructed that if they shall find from the evidence that the phrase " Bourbon Whisky," as understood by scientific men, the liquor trade, and the public generally, is confined to a distillate of grain made from the mixture of fermented grain, of which mixture corn constituted the greater part, and shall find that the contents of the barrels libeled in this case are a distillate of molasses, and shall further find that the said barrels are branded " Bourbon Whisky," then the said barrels are misbranded, and their verdict must be for the libelant. I do not think there is anything further that I need say to the jury, except to remind you that there is no dispute at all as to the material out of which this distillate was made. The whole case, in my judgment, and I so instruct you, turns upon whether the general acceptation of the word " whisky " means that it is made from grain. Of course, this liquor was not so made. Further, in regard to Bourbon whiskey, if the term " Bourbon Whisky " implies that the article was made of corn in greater part — not made of molasses, but made of grain of which corn was the greater part — then, of course, it was misbranded. So, further, if you find that Bourbon whisky is confined to whisky made in Kentucky, and of grain, and that the larger constituent part must be corn, then, of course, this would not be Bourbon whisky, because it was not so made. As to what the testimony has proved to your satisfaction are the proper meanings, accepted by the trade and by scientific men, of »' whisky " and " Bourbon Whisky," those are facts to be found by you from the testimony, which I leave entirely to you. It is my duty to instruct you upon the law, and to leave the facts to be found by you. The jury returned a verdict " for the libelant," and on December .19, 1908, the court decreed the condemnation of the product. DECISIONS OF COTJETS. 181 UNITED STATES v. SCANLON. (District Court, N. I). Ohio, E. I)., November 27 1908.) 180 Fed. 485 ; N. J. No. 47. Syrup, manufactured from cane sugar, flavored with an extract from the wood of the maple tree after it had been chopped down, labeled " Western Re- serve Ohio Blended Maple Syrup," and in smaller type, " This syrup is made from the sugar maple tree and cane sugar." held misbranded. Information charging misbranding under Food and Drugs Acb Jury waived. Tried by the court. Convicted. Tayljer, District Judge (orally). A cursory examination of this label — that is the only examination that the ordinary customer makes.; and that is the examination which is controlling in a case of this [486] x kind — presents the suggestion, if it does not carry with it the absolute statement, that this bottle contains Ohio maple syrup ; but a careful scrutiny discloses, between the red words " Ohio " above and " Maple* Syrup " below, a blue word " Blended," and then, below that, in smaller type, the statement that " This syrup is made from the sugar maple tree and cane sugar." I think it was intended to convey the impression that there was a mixture, in the popular meaning of a mixture, of maple syrup and of a syrup which is made from cane sugar or New Orleans molasses or something of that kind, that people prefer to use rather than the heavier or thicker kinds of syrup; a kind of appropriate union of syrups that are used for a common purpose. At all events, the infor- mation conveyed by this label as one looks at it is that it is primarily a maple syrup, and then, upon a little closer inspection, that it is not exactly all maple syrup but that it has some syrup in it made from cane sugar. The label was evidently designed to go as far as it could in advertising the fact that maple syrup was there and still to comply with the pure food act. Now, it would be very interesting to enter into this discussion, not exactly sophistical, but still drawing rather sharp lines of distinction1 between various conceptions of the meaning of the law and the chemi- cal aspects of these various products of the maple tree ; but I do not think it is necessary for me to go into it. It is not so much a question of chemistry as of popular comprehension. We would not have any pure food laws if we were all chemists, because then we would be able to find out for ourselves what the thing was we were buying; and, oi course, the opportunity and suggestion of temptation to deception would be very much reduced if a man who sold knew that he was dealing with a person who could find out easily just what he was buy- ing. It is not a question of chemistry in this case, any more than it is* with butter. It is a question of what is the popularly recognized defi- nition of maple syrup; and that undoubtedly is, and we do not need the chemists to testify to it, that it is the syrup produced from boiling down the sap that flows in the spring of the year from the live maple tree. It has a certain consistency, and, of course, a certain specific gravity, which a chemist can tell us about ; but those persons who have used it know in a general way when it has a proper consistency and a 1 Numbers In brackets refer to pages of Federal Reporter. £82 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. proper specific gravity, as they certainly do whether it has the proper flavor. So that, if this syrup is made, as Mr. Scanlon says it is made, by some treatment of the chopped-down maple tree, whereby he gets an enormously larger amount of what may be called maple saccharine than is obtained from the free flowing of sap from the live tree, that is not maple syrup which he gets from it. If his statement is true — and I have no right to question its truth, except that I can hardly believe him when he says he obtains so much — that he gets his maple syrup and maple sugar that way, that is not maple sugar which he makes, and, therefore, he is not permitted to make use of that word [487] under the pure food ac.t. It seems to me that is all there is in this matter for me to consider now. It is an interesting question whether this is not a " blend." But I do not pass upon that. I pass upon the broad question and lay down the broad proposition that this label is misleading and is a violation of the law ; that the contents of the bottle are not what the label manifestly and suggestively declares those contents to be; and, primarily, I think the fundamental fact is that it is not maple syrup. The people who buy maple syrup would be in a very different frame of mind if they knew that the so-called maple syrup that made this so-called maple blend was derived from a treatment of the wood of the maple tree after it was chopped down from that in which they are when they buy what they understand to be maple syrup made from the boiled-down sap drawn from the live tree. So I will have to find the defendant guilty. UNITED STATES v. GRIEBLER. (District Court, E. D. Illinois, November 30, 1908.) N. J. No. 37. Milk containing added water held adulterated. Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. [2] Wright, District Judge (charge to the jury). Gentlemen of the jury: In this case the Government charges the defendant that he shipped and delivered for shipment from Trenton, in the county of Clinton, in the State of Illinois, to Carlyle Dairy Company, at St. Louis, in the State of Missouri, an article of food, to wit, a certain quantity of milk which was then and there adulterated by having mixed and packed therewith water so as to reduce and lower and injuriously affect the quality and strength of said milk, contrary to the statute, etc. There are two counts in this information, but it isn't necessary to specifically call your attention to more than one, because, as I under- stand the prosecution, they are not claiming that the statute was violated but the one time. The act of Congress makes it unlawful for a person to ship an article of food from one State to another State, or to deliver such article for shipment from one State to another State, which, at the time of the delivery, or shipment, was, or had been, adulterated. The adulteration to be contrary to the statute must be, first, if any sub- DECISIONS OF COUKTS. 183 stance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength; second, if any substance has been substituted wholly, or in part, for the article. Before the Government can claim a conviction at your hands it must be proved by the evidence in the case beyond a reasonable doubt that the defendant is guilty as charged in the information. If, after a fair and impartial investigation, you have a reasonable doubt of his guilt, as charged in the information, then it would be your duty to acquit him. If, after the same investigation of all the evidence in the case, you have an abiding conviction of his- guilt, then it would be your duty to convict him. A reasonable doubt is not such a doubt as is engendered by imagi- nation, or by an undue sensibility of the consequences of your verdict. Nor can you go outside of the evidence. A doubt must arise from a fair and impartial consideration of the evidence, and it is such a doubt as if interposed in the graver transactions of life it would cause a reasonable man to pause before acting upon it. Now, if you have such a doubt of the guilt of the defendant in this case as I have endeavored to define, you will acquit him. If you have an abiding conviction of the truth of this charge, then you will convict. The real issue in this case is whether, under the evidence here, the milk, at the time it was shipped, or delivered for shipment, contained water. That is the charge in the information. It is not necessary for the Government to prove that the defendant actually put the water in himself, nor is it necessary to prove that he knew at that time there was water in the milk, if there was water in it. Under this statute, for the protection of the public, those who consume, a person who undertakes to ship food products must be held to know what it is he puts into commerce, must know at his own peril what it contains. It is sufficient if you believe he delivered the milk for ship- ment, or shipped it, and that there was water in it, and that the water was mixed therewith so as to reduce or lower or injuriously affect its quality or strength, and as to that question you know as much as any witness. It is not a matter for an expert. It is a matter of everyday knowledge as to whether water in the milk would reduce or lower its strength. Everybody knows that it does. So if you believe from the evidence that there was water in the milk you will convict the defendant. If you find there was no water in it you will acquit him. UNITED STATES v. 650 CASES OF TOMATO CATSUP. (District Court, D. Rhode Island, January 21, 1909.) 166 Fed. 773. Where a libel for the condemnation of tomato catsup charged misbranding in that the label recited that the catsup was made from choice ripe tomatoes, when in fact it was made in part from tomato pulp screened from peelings and cores, as the offal of tomato canning factories, held that, the libel being confessed, the burden was on the Government to prove that the label contained a statement which was substantially false and misleading. Case allowed to stand for ex parte hearing of proof in support of the libel. [774] Brown, District Judge. This libel prays condemnation of 650 cases of tomato catsup, under act Cong. June 30, 1906, c. 3915, 184 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. 34 Stat. 768 (U. S. Comp. St.'Supp. 1907, p. 928), known as the " pure food law." The charge is of misbranding. The only material part of the label is the following : Made from choice ripe tomatoes, granulated sugar, selected high grade spices, grain vinegar. The libel alleges that the articles are misbranded — For the reason that said catsup is made in part from tomato pulp screened from peelings and cores, as the offal of tomato canning factories, and not from choice ripe tomatoes, granulated sugar, and selected high grade spices, grain vinegar, as stated in said labels. It is not charged that there is a violation of section 7, paragraph 6, which relates to preparations — " consisting in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance," etc. The sole allegation is that the label is in the above particulars mis- leading and false. The words " as the offal of tomato canning factories " are not of exact signification. They do not charge a violation of section 7, paragraph 6. The indefinite suggestion of the word " offal " cannot be considered as the equivalent of a charge that the tomato pulp was a filthy, decomposed, or putrid vegetable substance. The incon- sistency, if there be any, must be between the statement that the catsup is " made from choice ripe tomatoes " and the fact that it is " made in part from tomato pulp, screened from peelings and cores." [775] The act in question imposes criminal penalties and the forfeiture of the offending article. Where the charge is of mis- branding, it is essential that the libel should set forth the branding and facts inconsistent therewith. If there is indefiniteness in the statement, this indefiniteness must be removed by proof. The mere fact that certain portions of the tomato are not used in a tomato canning factory does not establish the fact that they are not suitable for the making of tomato catsup. In order to decide that the libel states on its face a case of misbranding, the court would be required to rule that tomato pulp, screened from peelings and cores, is not made from choice ripe tomatoes. Among the processes of catsup making which may be considered to be within judicial notice is the process of screening or sifting. The tomato is usually reduced to pulp, and that pulp made from peel- ings and cores is substantially different from the pulp of choice ripe tomatoes, in catsup making, cannot be inferred from a mere inter- pretation of the language of the libel. It is especially necessary, in administering an act like the pure food law (however beneficial it may be), that there should be reasonable definiteness and accuracy, not only in the statement of offenses against the act, but in concep- tions of what is within the intent of Congress and what is not within that intent. In the administration of such an act it is particularly essential that it should not be given forced or strained constructions. Though the claimant has not answered or contested the allegations of the libel, so that it may be taken pro confesso, yet it is the duty of the court, before entering a decree of condemnation in spite of such confession by default, to see that a case is made out. DECISIONS OF COURTS. 185 The pure food act provides that proceedings for condemnation shall conform as near as may be to the proceedings in admiralty. By the twenty-ninth admiralty rule, upon the taking of a libel pro confesso, " the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain." The rule stated in Thomson v. Wooster, 114 U. S. 104-111, 5 Sup. Ct. 788, 792, 29 L. Ed. 105, seems applicable to this proceeding : The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty ; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant. Ohio Central Eailroad Co. v. Central Trust Co., 133 U. S. 83-90, 10 Sup. Ct. 235, 237, 33 L. Ed. 561, also contains language appro- priate to proceedings upon default in condemnation proceedings : A decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it ; but it is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill assumed to be true. If the allegations are dis- tinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of the complainant is in its nature uncertain, the requisite certainty must be afforded by proof. The counsel for the claimant protests that nothing putrid or un- wholesome is contained in the catsup. He states that defendant's position [776] is substantially that of one pleading nolo contendere, and that it prefers to throw up all claim to the goods rather than to contest the matter further. This, however, amounts to nothing more than a concession that what is alleged in the libel is true, with a pro- test against any objectionable significance in the word " offal." I consider it to be the duty of the court, before condemning prop- erty, to see that there is a proper basis for such condemnation; and this duty is not changed by the concession of the defendant that it would rather its property should be condemned than that it should be put to the expense of contesting the matter with the Government. I am of the opinion that it is incumbent upon the United States to produce evidence to support the allegation that these goods are mis- branded, in that the label contains a substantially false and mislead- ing statement. Where, upon the facts alleged, there can be no doubt of the sub- stantial and necessary inconsistency between the statements of the label and the actual facts, the court may proceed at once to enter a decree of condemnation upon defendant's concession by default of the facts alleged, without requiring of the Government further proof. The present case, however, is not of that class, but requires further examination of details to determine whether the charge of misbrand- ing is true. The case may stand for ex parte hearing of proof in support of the libel.1 1 On Mar. 15, 1909, a decree of condemnation and forfeiture was entered by the court. 186 FEDERAL EOOD AND DRUGS ACT AND DECISIONS. IN KE WILSON. (Circuit Court. D. Rhode Island, March 8, 1909.) 168 Fed., 566. Syrup composed of maple sugar 10 per cent and white sugar 90 per cent put up in bottles bearing labels containing the name " Gold Leaf Syrup," with a trade-mark consisting of a gold leaf in the form of a maple leaf and stalks • of sugar cane, and the words " composed of maple and white sugar " in plain and distinct letters, with the name of the maker, held not misbranded. On motion for leave to file an information. Denied. Brown, District Judge. The attorney for the United States moves for leave to file an information alleging violation of the Food and Drugs Act, June 30, 1906, in accordance with the practice followed in United States v. Smith (C. C), 40 Fed. 755. [567] It is conceded that it is proper for the court to examine the information and the affidavits in support thereof, and if the same shall be found insufficient to deny the motion. - The information charges that a certain company shipped, by a carrier, from the state of Rhode Island to the District of Columbia, a certain article of food in bottles, to wit, syrup, bearing a certain label upon which was printed the following words: "Gold Leaf Syrup, composed of Maple and White Sugar; Huntington Maple Syrup and Sugar Company, Providence, R. I." — and that the label bore also, in the center thereof, the design and representation of the leaf of the maple tree, as the trade-mark of said company. It is alleged that the syrup was misbranded, and that — the design and device and said printed matter were false and misleading and calculated to deceive and mislead the purchaser thereof, in that said article of food was in fact composed principally of white sugar, and contained no sub- stantial quantity, but, on the contrary, a very small quantity, of maple sugar, to wit, not more than 10 per centum by weight of maple sugar ; whereas, said design and device, and said printed matter upon said label as aforesaid, repre- sent, and are calculated to lead the purchaser thereof to believe, that said article of food is composed principally or in substantial part of maple sugar. Appended to the motion is an affidavit in support of the informa- tion by an analyst of the Bureau of Chemistry to the effect that as a result of an analysis of the syrup it was found to contain approxi- mately 90 per cent of white sugar and not more than 10 per cent of maple sugar. A sample of the bottle is also presented, with a label printed in gold, blue, and red, which at the top has in plain large letters the words " Gold Leaf " in gold, " Syrup " in red, with a blue circular underscoring, a trade-mark consisting of a gold leaf, said to be a maple leaf, with stalks projecting on each side, apparently represent- ing sugar cane, with the name of the company in smaller letters in the middle ; the words " composed of " in white on a blue field, being very distinct, and the words " maple and white sugar " in blue on a white field at the bottom, being also very distinct. The very con- spicuous features are the words " Gold Leaf Syrup," " Composed of," and " Maple and White Sugar." It is impossible, upon the most partial interpretation of these state- ments, and having in mind the decisions of the courts concerning what DECISIONS OF COURTS. 187 amounts to fraudulent misrepresentation upon labels, to find any intimation as to the proportions of maple and white sugar contained in this preparation, which is given the general title of " Gold Leaf Syrup." The purchaser is informed in the most distinct and une- quivocal manner that he is buying a compound of maple and white sugar, and from the report of the analyst it appears that this is the fact. There is no statement contained on the label which is in the slightest degree calculated to convey the impression that there is more maple than white sugar, and, if a purchaser should suppose that there was, such an idea would come entirely from his own imagina- tion, and not from any suggestion fairly implied by the label. The label affords not the slightest evidence of an intention to convey such an idea to the purchaser. [568] Such remote possibilities of the immagination cannot be a basis for a proper interpretation by the courts of terms of clear and unambiguous meaning. The label says nothing of proportions, either directly or by any reasonable implication. As to the maple sugar, it appears as a fact that 10 per centum is contained in the avowed compound. The article is designed for table use. The addition of so substantial an amount of maple- sugar as 10 per cent, if sufficient to give to this compound syrup a maple flavor, serves to make the article more palatable and to satisf}^ the purpose of the buyer. A person who should buy this syrup would expect that he was getting a considerable portion of white sugar, with the addition of a sufficient amount of maple sugar to please his palate. Unless his palate is disappointed by the absence of the flavor which he expects, I am unable to imagine how there can be any variance between the contents of this bottle and the statements on the label. Even if we search this label with a most prejudiced eye, and en- deavor to discover upon it some innuendo or insinuation, we are at great difficulty in finding even the most remote suggestion. Is there an innuendo that there is more maple than white sugar in the com- position? Clearly not. Is there an innuendo that there is more than 10 per cent of maple sugar? Viewing this in the light of the subject- matter, to wit, the purpose of the purchaser and the expectations aroused in him as a consequence of statements on the label, I am unable to perceive any more definite suggestion than that there is imparted to the Gold Leaf Syrup a desirable quality due to the presence of maple sugar. In order to convict a person of misbranding upon such a showing of fact, the court would be obliged to go entirely beyond all the established legal principles upon the question of deceit and mis- representation, and beyond any of the decisions of the equity courts as to what is abhorrent to the conscience of a chancellor. In fact, I think that we should be obliged to go, not only outside the boundaries of legal and equitable rules, but also outside the boundaries of ra- tional common sense. From examination of former cases dealing with the subject of mis- leading representations on labels, I am impressed with the great value of the legislation known as the "pure food act" (act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1907, p. 928]) ; but I am further impressed with the fact that an attempt to apply that act to cases of this character cannot but serve to bring that act 188 FEDERAL POOD AND DRUGS ACT AND DECISIONS. into such disfavor as to impair its usefulness. The distinction be- tween the enforcement of law and the abuse of law is lost sight of in the attempt to make this obviously innocent act a criminal misde- tnea nor. The motion for leave to file the information is denied. UNITED STATES v. OEIENTAL DKAGEE COMPANY. (District Court, D. New Jersey, April 10, 1909.) N. J. No. 176. An article of confectionery coated with metallic silver held adulterated within the meaning of the Food and Drugs Act, section 7, in that it contained a mineral substance.1 Information charging violation of section 2 of the Food and Drugs Act. On demurrer to the information. Overruled. Jury trial. Verdict of guilty. [3] Cross, District Judge (overruling demurrer to information). Omitting the formal parts, the information alleges that the defend- ant, a corporation of New Jersey, and carrying on business at Jersey City, within said State, on July 31, 1907, at Jersey City, aforesaid, and within the jurisdiction of this court, did wilfully and unlawfully deliver for shipment, and ship and caused to be transported in in- terstate commerce from the State of New Jersey to the State of New York, an article of food which was adulterated within the meaning of the act of Congress, entitled, "An act for preventing the manu- facture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, or liquors, and for regulating the traffic therein, and for other purposes," approved June 30, 1906, in that the said defendant on the day and year aforesaid, and within the jurisdiction of this court, did ship from Jersey City in the State of New Jersey, and did cause to be delivered to E. W. Dunstan Company, in the City of New York, in the State of New York, a large quantity, to wit, 25 boxes of Argente Moyens Assortis or Silver Dragees, which said Argente Moyens Assortis or Silver Dragees was an article of food, that is to say, was confectionery and was adulterated within the meaning of the act aforesaid, in that being confectionery as aforesaid, the same contained a mineral substance, to wit, 48 [hundredths] per centum of metallic silver,. and in that the said confectionery known as " Silver Dragees" was coated with silver, being a mineral substance and which formed a constituent part of the said confectionery; the said defendant then and there well knowing that the said confectionery was an article of food and was so adulterated. Then follow the usual formal statements. As will have been observed, the informa- tion is founded upon what is popularly known as the " pure food act" (34 Stat. 768; Comp. Stat. Supp., 1907, p. 928). The material parts of the act pertinent to the present controversy, will be found in section 7, and are as follows : — " That for the purposes of this act an article shall be deemed to be adulterated : * * * In the case of 3 Contra, French Silver Dragee Co. ;;. United States (C. C. A.), p. 276, post. DECISIONS OF COURTS. 189 confectionery: If it contain terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor, or other in- gredient deleterious or detrimental to health, or any vinous, malt, or spirituous liquor or compound or narcotic drug." The defendant has demurred to the information, claiming, among other things, that silver, with which the confectionery in this case is alleged to have been adulterated, is not a mineral substance of like character, with those specifically mentioned in the act ; that the information does not allege that the adulterant, to wit, silver, is an ingredient deleterious or detrimental to health, or that the strength and purity of the con- fectionery falls below the professed quality or standard under which it is sold. As I construe the section in question so far as it relates to the confectionery, it contains five classes of prohibited articles; the introduction of any designated ingredient of either of which violates the act ; that is to say, the act would be violated if the con- fectionery contained terra alba, barytes, talc, chrome yellow or other mineral substance, or if it contained any poisonous color or flavor, or if it contained any other ingredient deleterious or detrimental to health; or if it contained any vinous, malt or spirituous liquor or compound thereof, or lastly, if it contained any narcotic drug. If the construction suggested is correct, then it was unnecessary that the pleader should aver that silver, the mineral substance alleged to have been introduced in this case, was " deleterious or detrimental to health." Those words are limited to the term " ingredient," they qualify that word only, and not any pre [4] ceding word or words. If a comma had been interposed after the word ingredient," the construction would perhaps have been different. The introduction into confectionery of mineral substances, is, in my judgment, there- fore prohibited irrespective of the presence or absence of any poison- ous, deleterious or detrimental quality; they are prohibited because they are adulterants, and for that reason only. Coloring or flavoring matter however, may be introduced provided it is not poisonous, but any other ingredient, although not theretofore specified or classi- fied, which is deleterious or detrimental to health, is prohibited. Certain specified articles are, by the first clause quoted, inferentially denominated minerals, and their use is prohibited ; then to the specific mineral substances whose use is thus prohibited, is added " or any other mineral substance." The information in brief, alleges that confectionery was shipped by the defendant and delivered in inter- state commerce ; that such confectioner}^ was adulterated by having in it as one of its constituent parts silver, which is alleged to be a mineral substance. Assuming, because it is admitted by the de- murrer, that silver is a mineral substance, its introduction into con- fectionery as an ingredient, which is also admitted, brought the con- fectionery within the prohibition of the statute, once it was shipped in interstate commerce. It is urged, however, that silver is not of the class of the specified mineral substances, whose use is prohibited. It must be borne in mind nevertheless, that we are considering an act which relates to the adulteration of food products of which confec- tionery is one. Silver is a mineral incapable of assimilation through the stomach. It will not yield to the processes of digestion. One of the main purposes of the act is to prevent the introduction of such substances into food products. The title of the act embraces adul- terated foods as completely as it embraces misbranded foods, or 190 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. poisonous foods, or deleterious foods. It refers to each class sepa- rately and in the alternative, and the act deals with each class. Technical rules of construction must give way to the avowed pur- pose and intention of an act. If it be that an act admits of more than one construction, then that one will be adopted, which best serves to carry out the purpose of the act. Hence I do not feel warranted in permitting the doctrine of ejusdem generis or other technical rule of construction to limit the scope of the act. If silver may be used, as claimed, to beautify the confectionery, why not lead to give it weight. The language under consideration is clear and does not require for its construction, the application of technical rules. To yield to the construction of defendant's counsel would open the door for the emasculation of the act. As to the contention that it was necessary to allege that by the use of silver the strength and purity of the confectionery fell below the professed quality or strength under which it was sold ; it is only necessary to say that that clause of the act applies to drugs and to drugs only. It is found in the paragraph dealing with drugs and precedes that which relates to confectionery, which in turn precedes the clause relating to food. Each paragraph is dealt with separately. The clause referred- to can not be read into that part of the act which relates to confectionery. It is no part of it. The demurrer will be overruled. UNITED STATES v. 300 CASES MAPLEINE. (District Court. N. D. Illinois. April 30, 1909.) N. J. No. 163. An article labeled " Mapleine " which contained no product of the maple tree, held misbranded. Libel under section 10 of the Food and Drugs Act, against 300 cases of Mapleine, alleging that said product was misbranded in that the label " Crescent Mapleine " falsely represented the article to contain a product of the maple tree. Crescent Manufacturing Co. appeared as claimant and filed exceptions to the libel. Exceptions overruled. Jury trial. Verdict for the libelant. [2] Sanborn, District Judge (charge to the jury). This is a civil case, as distinguished from a criminal case, and is called a suit in rem. That is, a suit against property, there being in the first instance no defendant, but the owner of the property being allowed to intervene and set up a claim for the property and defend, proceeding just as if such owner Avere an original defendant in the suit. But it does not become a suit against any person at any stage of the case. If there was a misbranding under the food and drugs statute, then as soon as the misbranded packages were started on shipment from Seattle to Chicago, they became forfeited to the United States. They might then be seized by the officers of the United States as its own property wherever the boxes might be found, so long as they are either being transported, or after transportation so long as they re- main unloaded, unsold, or in the original packages. If, however, the Government waits until the cases are broken open, then it at once DECISIONS OF COUBTS. 191 loses all its title and ownership to the goods which it previously had, and then can only proceed under the criminal provision of the Food and Drugs Act by prosecuting any person or any corporation who either ships misbranded goods or receives them, or delivers them in original packages to any other person. I call to your attention this because counsel have adverted to the fact that the Government might have proceeded against the bottles. The Government had no right to proceed against the bottles, but must proceed only against the original packages, or else prosecute any person who has anything to do with the packages themselves. Now, as this case is not technically brought against any person or any corporation, but only against the boxes, the fact that the Crescent Manufacturing Company may sustain a loss, if you find the cases were misbranded, or there was any false statement on the label, is not in question, and should not be considered by you in reaching the verdict, but as the case involves a forfeiture [3] of property, that is as the property becomes the property of the Government immediately upon being misbranded and shipped, and as the burden of proof is on the Government to show by the greater weight of the evidence that the label in question is false or misleading to the ordinary pur- chaser, it is your duty under these circumstances to scrutinize the evi- dence tending to show that the label was calculated to deceive more carefully than you otherwise would in the ordinary civil case. This is because misbranding is attended with harsh consequences operat- ing, as it does, as a forfeiture of the property, of the ownership of all the articles so misbranded. Now, in deciding the meaning of the word " Mapleine," you are to give it its ordinary and customary meaning, as understood by the general public, and not any technical meaning given it by any expert witness. You may consider, of course, all the testimony of all the witnesses, expert or otherwise, but the test is what the common run of purchasers would understand by the word. The important ques- tion is whether there was or was not a misbranding. You will notice how broad the law is in its definition. If the statement, design or device in question is false, or misleading, not necessarily as a whole, but in any particular, then there was a misbranding, if from the evidence you find that in any one point there was a false or mislead- ing statement on the label, taking into consideration what I shall state hereafter as to the bottles and the cartons, then there should be a verdict of guilty. The purpose of the law is not to protect experts or scientific men alone who know the nature and value of food products, but to protect ordinary people like you and me — people without scientific knowledge or experience. Was there a false statement on the label — that is, a statement that was untrue, erroneous, or not strictly according to the fact ? Or, was there in the label a misleading statement — one which would in any way tend to lead an ordinary person wrongly, and misguide or lead astray, lead into error, cause to mistake, delude or deceive? If you find the label was either false in any particular, or misleading in any particular, from any point of view, or any aspect which may reason- ably be considered false or untrue, or calculated to deceive, mislead, delude, cause to mistake or lead into error or mistake, the ordinary purchaser ; then there was a misbranding under the provisions of the 192 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. statute. Now, in considering this question of false statement or mis- branding, there are certain things which appear in the evidence, which you are not only allowed to take into account, but which you should consider. I may mention them as follows : Whether purchasers of " Mapleine " bought from the box label alone, or from the box label and the statements on the cartons or wrappers and the bottles. Now, if you find that the " Mapleine " was bought from the labels on the cartons and bottles, then you may consider whether the ordinary purchaser, the average purchaser, would be deceived or misled. Another question which you should take into account is whether " Mapleine " is known, or was when these boxes were seized, known as an article of food under its own distinctive name — and a distinctive name is either one so arbitrary or fanciful as to clearly distinguish it from all other things, or one which by common use has come to mean a substance clearly distinguishable by the public from every- thing else. In this connection, you should consider whether the evidence shows that there was no other article in the market or com- mon or general to the public, used as a maple extract or containing maple product. You should also consider if you think that " Maple- ine " was bought from the carton or bottle as well as from the words on the box, the size and appearance of the boxes or the cases or bottles, and the labels, the color of " Mapleine " as compared with genuine maple — its taste and smell — the price asked for it, and [4] the direc- tions for its use. Even if you should believe that the word " Maple- ine " standing alone would be deceptive and misleading, yet you may consider any statement contained on the carton or bottle which you believe the common run of purchasers would read in making their purchases. If you believe that " Mapleine " has been on the market a sufficient length of time and has been sufficiently advertised so as to have become generally known to the public as an article containing no genuine maple syrup or any maple product, but only to produce a maple flavor, then you should take this into consideration on the question whether the label was or was not deceptive or misleading. You should also consider that the label was registered as a trade- mark by the Commissioner of Patents of the United States, in con- nection with the picture of a leaf, as having some bearing on the question whether the word " Mapleine " has become a distinctive name, or is a distinctive name, as I have defined that term to you. You should also remember that " Mapleine " is not injurious to health. Further, if you believe from the evidence that no complaints of mis- take or of being deceived or misled have been made by purchasers of " Mapleine," you may consider this as tending to show that the label on the cases, cartons and bottles is not calculated to deceive or mis- lead. But, it is not necessary, in order that you should render a verdict of guilty, that any person was actually deceived or misled into purchasing " Mapleine " by the label on the cases in question. It is enough if }^ou find that the label is misleading in any particular. Gentlemen, I stated to you that the Government had the right to seize the boxes, but after the boxes had become opened the Govern- ment lost its right to seize the contents of the boxes. I was slightly in error in making that statement, in not going further and stating that while the Government can only seize the original package, yet it may open the package, and if it finds anything wrong on the inside DECISIONS OF COURTS. 193 of the package which does not appear on the outside, that is any mis- branding or any false statement, it has just as much right to proceed in a case of this kind upon that false statement or misbranding as it has upon the label on the outside of the package which is seized. But, if it does not seize the original package before it is opened, then it has no right whatever to do anything more than to prosecute any party who may deliver the goods or receive the goods in a criminal case. Your verdict will be " Guilty " or " Not Guilty," and the verdict will be handed to you by the officer. Referring to the second page of the charge, the paragraph com- mencing : " Now, in deciding the meaning of the word ' Mapleine,' you are to give to it its ordinary and customary meaning." The instruction given was that in deciding the meaning of the word " Mapleine " you are to give it its ordinary and customary meaning, as understood by the general public, and not any technical meaning given it by any expert witness. You are to consider all the testimony of all the witnesses, expert or otherwise, but the test is what the common run of purchasers would understand by the word. What is there about that that is uncertain or mixed ? The question is what this word " Mapleine " in connection with all the facts and circumstances of this case, means to the common run of purchasers. You are to consider whether they bought on the box label, or on the label on the cartons and bottles; consider the language on the car- tons ; and after you have considered all of them, you are then to try and solve the question of misbranding — that is, whether the common run of purchasers would understand by that word that there was or was not any genuine maple in the product. The question is what would the ordinary purchaser — just the com- mon run of purchasers — in view of the way in which they buy it — ■ language on the box [5] and everything that comes to their attention, looks of the bottle, color of it (if they see it) , the fact that the bottle is small, and all other facts that present themselves to the purchaser when they come to buy the goods. What would they understand from the whole situation ? Not exactly what the word " Mapleine " standing by itself — but the question is, what it means in connection with all the facts and circumstances that present themselves to the purchaser; how would the purchaser understand it, seeing the bottle, or seeing the box ? Even if you should believe that the word "Mapleine" standing alone, would be deceptive and misleading, yet you may consider any statement contained on the carton or bottle which you believe the common run of purchasers would read in making the purchase. Now, gentlemen of the jury, in another part of the charge it was stated, the question was stated in this way : Was there a false state- ment on the label, that is a statement that was untrue, erroneous, or not strictly according to the facts. Or, was there in the label a mis- leading statement, one which would in any way tend to lead an ordi- nary person wrongly, or misguide, or lead astray. Now, there were two questions submitted there, and that was taken from the first part of section 8 of the law denning the word, " misbranded." 40066—14 13 194 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. It says the word misbranded shall apply to all articles of food, the label, the package label, of which shall bear any statement, design or device regarding such article, or the ingredients or substances con- tained therein, which shall be false or misleading in any particular. Now, in determining what the meaning of this word misbranding was, you are to determine two things : Was the label false in any par- ticular? was it misleading in any particular? Now, whether or not it was false, depends a good deal, you see, upon whether it would mislead anybody, whether it would deceive anybody, because this term "Mapleine," of course, is a coined word, and is not in the dictionary. You heard the testimony as to what meaning was given it by the Crescent Manufacturing Company, but that is not the test. The test is, what is the general signification of the word, as the ordinary man would understand it? Was it false in any particular, in its true and proper signification? Now, its true and proper signification depends upon what the ordinary man would understand from all the facts and circumstances appearing in the evi- dence. These two things, while they are separate, are yet connected, because here is a term which starts out without any meaning — I mean an}^ settled or definite, or dictionary meaning. The parties who coin the word give it a meaning, and then they send out the label with the word upon it. Now, the question is : Is there anything false in that word, any suggestion of any falsehood in that word, or any sugges- tion of anything misleading or deceiving in that word? Now, I think it comes down to the question as to what the people would un- derstand by that word from the whole situation, including all the statements on the label, and anything else the purchaser would natu- rally see. Here is a word that starts out without any meaning at all in the dic- tionary. It may be plain on its face, and may not. If you think this word is plain on its face, of course, you must find the property guilty under the law, but if you think this word is ambiguous on its face, then you may go into the question, what would the ordinary man un- derstand by it, in view of all the facts and circumstances brought to his notice in purchasing the goods ? The real purpose of the act is to protect the public against imposition. You may take that into con- sideration. Now, if nobody is injured, nobody harmed, what differ- ence does it make? I can see it is a close case, gentlemen, and a difficult question, but you must do the best you can with it. UNITED STATES v. FRENCH SILVER DRAGEE CO. (Circuit Court, S. D. New York, May 19, 1909.) N. J. No. 249. A confectionery labeled " Silver Dragees " which was coated with metallic silver held adulterated within the meaning of section 7 of the Food and Drugs Act in the case of confectionery, in that it contained a mineral substance.1 Information charging adulteration under Food and Drugs Act. On demurrer to information. Demurrer overruled. Jury trial. Verdict of guilty. 1 Reversed, French Silver Dragee Co. v. United States, p. 276, post. DECISIONS OF COURTS. 195 Hough, District Judge (overruling demurrer) . [2] The brevity of this memorandum does not indicate that in my opinion the question raised by this demurrer is trivial. On the contrary, it is extremely important and presents (I think) a question of first impression under the pure-food law which will ultimately require either amendment of the act or decision of the highest court. I incline to the following view : What is or is not an adulteration in commercial or scientific par- lance is wholly unimportant, because section 7 of the act defines adul- teration and whether such definition squares with the views of the trade or of scientists is no concern of the courts. [3] Confectionery is therefore by statute adulterated " if it contains terra alba, barytes, talc (or) chrome yellow." This much is not open to doubt. Next it seems to me the court may take judicial notice of the nature of the substances declared adulterants by statute. They are all undoubtedly mineral substances; — they are not all poisonous, though all possess color. Nor can it be said that they all possess flavor in the sense of that word as applied by most people to confectionery. There being no punctuation between the phrase wt or other mineral substances " and the phrase " or poisonous color or flavor," the word " other " must be held to apply to " mineral substance " and " poison- ous color or flavor." But the enumeration of terra alba et al. gives an illustration (so to speak) of " mineral substances " and of " poison- ous color " (i. e. chrome yellow) , but so far as I understand the nature of the articles enumerated it does not give an instance of a poisonous flavor as distinguished from poisonous color. Let therefore the rule so insisted upon by the defendant be applied and the act be limited to mineral substances, poisonous colors and poisonous flavors ejusdem generis with the articles enumerated; — and it must then follow that while the proscribed poisonous color or flavor must be a mineral substance, it does not follow that every mineral substance to be proscribed must possess either poisonous color or poisonous flavor. The act is undoubtedly obscure in connecting color and flavor with substance, for strictly speaking neither color nor flavor can have substance, nor be mineral. I am therefore inclined to think that this statute must be construed as prohibiting the use in confectionery of all mineral substances of the same nature as those enumerated, and of those enumerated some are well known to be merely inert, possessing no poisonous qualities whatever (e. g. terra alba and talc). The best that can be said of silver is that it is inert, and it is just as much a mineral substance as is terra alba. With some doubt I overrule the demurrer. 196 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES v. ST. LOUIS COFFEE & SPICE MILLS. (District Court, E. D. Missouri, May 22, 1909.) 189 Fed. 191; N. J. No. 301. An information charging that defendant shipped in interstate commerce a liquid labeled " Flavor of Vanilla," which liquid did not contnin any ex- tract of vanilla, held not to state a case of adulteration or misbranding of vanilla extract in violation of Food and Drugs Act, the words " extract '■ and " flavor " not being synonymous terms.1 Information charging adulteration under section 2 of the Food and Drugs Act, On demurrer to evidence. Demurrer sustained and jury directed to return verdict for defendant. [192] Dyer, District Judge (sustaining the demurrer). Since the adjournment of court on yesterday I have considered more fully the demurrer interposed by the defendant's counsel to the case as stated in the two counts of the information and the evidence offered by the Government in support thereof. This is the first case arising under the act of June 30, 1906 (act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187] ) , entitled "An act for preventing the manufacture, sale or transportation of adulterated or misbranded or poisonous or delete- rious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes," that has been presented to this court for determination. For a violation of this statute penalties are imposed and it is made the duty of the United States attorney, when the Secretary of Agri- culture shall report to him any violation of the act to cause ap- propriate proceedings to be commenced and prosecuted without delay for the enforcement of the penalties, etc. The Secretary reported this defendant to the district attorney and as a result the information now under consideration was filed in this court. The proceeding is for a violation of the statute that imposes pen- alties, and by its terms declares each violation a misdemeanor. The information therefore should be as certain and definite as if the offense were charged in an indictment. Judging by the well-recognized requirement of pleading in such cases, do the counts or either of them state clearly and with sufficient certainty any offense against the statute under which the proceeding was commenced, and is now [193] prosecuted? The importance of and the great good to the public that will follow the enforcement of this act, can hardly be measured, and the delay taken by the order of adjournment yesterday was for the purpose of enabling the court to determine (with proper regard to the contention of the district attorney on the one side and of defendant's attorneys on the other) its decision. The first count in the information charges in substance: " That by Circular No. 19 of the United States Department of Agriculture, dated June 26, 1906, the Secretary established certain standards of purity for food products as authorized by an act of Congress of 1 See subsequent ruling of the same court in United States v. Edward Westen Tea & Spice Co., p. 222, post, in which this question was left to the jury. DECISIONS OF COURTS. 197 March 3, 1903 (act Mar. 3, 1903, c. 1008, 32 Stat. 1158). That said order No. 19 provided that ' Vanilla extract is a flavoring extract prepared from vanilla bean,' " etc. The count then states " that in trade and commerce and the science of food chemistry, the words ' vanilla extract ' signify an extract prepared from the ' vanilla bean; etc., etc' and in trade and commerce the words ' vanilla extract ' are synonymous with the words ' vanilla flavor ' when placed on bottles containing a liquid to be used for flavoring purposes." The information (after making the foregoing recitals) charges that the defendant on the 26th of October, 1907, unlawfully and knowingly shipped by the Missouri Pacific Railroad from St. Louis, Mo., to Kansas City, for sale in interstate commerce, a certain bottle labeled "Nectar Choice Flavor of Vanilla, sugar colored, for flavoring ice cream, etc." That the contents of the bottle were adulterated in vio- lation of the act of June, 1906, in that said bottle contained a liquid which did not contain any extract of vanilla, as defined by Circu- lar No. 19, and by the usages of trade and commerce, and was in fact an imitation and substitute therefor, etc. By the word " adulteration " as used in the act, it is understood to mean " to corrupt, debase, or make impure by an admixture of a for- eign or a baser substance." How can it be successfully claimed that because the liquid in the bottle offered in evidence did not contain extract of vanilla that it was therefore adulterated within the meaning of the statute ? The circular No. 19 issued by the Secretary of Agriculture was issued long before the enactment of the statute under which this pro- ceeding is had, and for that reason, if for no other, cannot be con- sidered in determining the question of the guilt or innocence of the defendant in this case.1 By section 2 of the act of June 30, 1906, it is made an offense to introduce into any State, etc., any food or drugs adulterated or misbranded. The first count charges that the bottle sent from St. Louis to Kan- sas City contained '' adulterated liquid extract or flavor." It also charges that the liquid did not contain any extract from the " vanilla bean," but did have a vanilla flavor. The court is now asked to say that " Vanilla Extract " and " Va- nilla Flavor " as known to the trade, is one and the same thing, and that in dealing with the defendant in this case "extract" and " flavor " are synonymous in meaning, and that, therefore, if the de- fendant shipped a liquid which had the flavor [194] of vanilla it was guilty of adulteration of the extract of vanilla, within the mean- ing of the statute. Neither the Secretary of Agriculture nor the public generally can change the meaning of the words " extract " and " flavor." Without reference to the dictionaries and the definition of the words contained therein, it is known that " extract " is one thing and " flavor " another. The evidence in this case has failed to convince the court that even among dealers the words " extract " and " flavor " are considered synonymous terms. 1 See United States v. Frank et al., p. 360, post, holding that the Standards of Purity for Food Products (Circular 19) govern in determining what constitutes adulteration under the Food and Drugs Act. 198 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The information charges that there was an adulteration of the article, but fails to state in what particular and how it was adul- terated. It states a conclusion without making the necessary aver- ments from which the conclusion could be fairly reached. Section 7 of the act of June, 1906, provides that an article shall be deemed to be adulterated when : In case of food: First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. Second. If any substance has been substituted wholly or in part for the article. Third. If any valuable constituent of the article has been wholly or in part abstracted. Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or other deleterious ingredient which may render such article injurious to health. The information fails to charge that the article sold and delivered to the grocer in Kansas was mixed or packed in such a manner as to reduce or lower or injuriously affect its quality or strength; nor does it charge that any substance was substituted for the article; nor does it charge that any valuable constituent was abstracted ; nor does it charge that the article was colored in a manner whereby in- feriority was concealed; nor does it charge that the article contained any added poisonous or other deleterious ingredient that would ren- der it injurious to health. It would seem that one or more of these things should be specifically charged in the information, and that the charge should be made with such particularity as to fairly inform the defendant of the act of violation complained of, and for which it is to answer. The conclusion reached by the court is that the first count does not sufficiently charge an offense under the statute, and that the evidence offered by the Government does not aid the defect. The second count is similar in all respects to the first, as far as the recitals are concerned. This count seeks to charge " misbranding " under section 8 of the act. That section is as follows: Sec. 8. That the term " misbranded " as used herein shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced. That for the purposes of this act an article shall also be deemed to be mis- branded * * * in case of food: First. If it be an imitation of or offered for sale under the distinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser. or purport to be a foreign product, when not so, or if the contents of the package as originally put up shall have been removed in whole or in part and other con- tents shall have been placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetaui- lide, or any derivative or preparation of any of such substances contained therein. Third. If in package form, and the contents are stated in terms of weight or measure, they are not plainly and correctly stated on the outside of the package. DECISIONS OF COURTS. 199 Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular ; provided that any article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged so as to plainly Indicate that they are compounds, imitations, or blends, and the word "com- pound," " imitation," or " blend," as the case may be, is plainly stated on the package in which it is offered for sale ; provided that the term " blend " as used herein shall be construed to mean a mixture of like substances, not exclud- ing harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only. [195] It will thus be seen that this count does not follow the words of the statute in charging the offense, but repeats the facts con- tained in the first count. The charge in this, as in the first count, should be specific enough to fairly inform the defendant of the charge it is to meet. In my opinion the count is insufficient. There is nothing left for the court to do on this information but to direct a verdict of not guilty. UNITED STATES v. 65 CASKS OF LIQUID EXTRACTS. (District Court, N. D. West Virginia, May 25, 1909.) 1T0 Fed. 449 ; N. J. No. 284. Liquid extracts, contained in casks, shipped in interstate commerce from the manufacturing agent to the owner, for the purpose of bottling and labeling, held not misbranded by reason of the absence of statements on the casks showing the quantity or proportion of alcohol contained therein.1 Libel under section 10 of the Food and Drugs Act. Jury trial waived. Judgment in favor of claimant. Libel dismissed. AGREED STATEMENT OF FACTS. [450] The said Knowlton Danderine Company is a corporation organized under the laws of the State of Illinois, having a warehouse, laboratory, and finishing department in Wheeling, in the State of West Virginia, and is the proprietor of a preparation for the hair which it markets in 3-ounce, 6-ounce, and 12-ounce bottles, under the trade name of " Danderine," the formula of which is a trade secret and comprises liquid extracts and other ingredients. Parke, Davis & Co., who are mentioned in the said libel as shippers, are manu- facturing pharmacists at Detroit, in the State of Michigan, and are under contract with the said Knowlton Danderine Company, the respondent in this proceeding, to compound the said formula and to cause the same to be transported and delivered in bulk in carload lots to the respondent at Wheeling, and no sale of the said danderine is made to the public or any outside purchasers until the said casks 1 Affirmed, United States v. Knowlton Danderine Co., p. 243, post. 200 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. are emptied and the contents thereof placed in the properly marked bottles. The said casks are made of wood bound with iron hoops, and shipped like barrels, and for the purpose of safe transportation a sufficient number of casks, each holding about 50 gallons, are used, which, when emptied by the respondent, are returned to the said Parke, Davis & Co., to be again refilled and shipped. Each and every one of the 65 casks mentioned in said libel contained a drug product accurately compounded in accordance with said formula, and said drug product contained an average of 10 per centum of alcohol. All of the said casks are marked in the same manner, with the exception that the figures, some of which show the number of gallons contained therein, and others the number of casks, are marked in the same manner when shipped, and are marked wholly upon one end of the cask. Varying as in figures as aforesaid, each cask is marked as follows: 49 1/2 S 46022 # 63 Wheeling Terminal 19th St. Delivery Knowlton Danderine Company- Wheeling, W. Va. 505 lbs. There are no other marks, brands, or labels upon the said casks or any of them, and the casks which are referred to in the said libel were marked in the manner hereinbefore indicated and had no other marks, brands, or labels upon them. When the contents are removed from the said casks they are [451] placed in bottles, and on each bottle is a printed label containing in plain letters the words " Dan- derine Scalp Tonic, Alcohol 10 per cent." The said respondent has a spur track running into its building at Wheeling, upon which each car is left as soon after its arrival as possible, and the casks are removed from the car promptly by the respondent, which bottles and labels the contents, which process of bottling and labeling is known as the finishing process, and in pur- suance of this custom the respondent had before the seizure of the casks, which was made in this proceeding, emptied 59 of the said 65 casks, and was engaged in bottling and labeling the same, and would have continued so doing until all of the 65 casks were bottled and labeled but for the seizure in this proceeding of the 6 casks, which had not been emptied or bottled, though the last-mentioned 6 casks had been removed from the car in which they had been shipped and received. The 65 casks mentioned in the said libel were shipped by Parke, Davis & Co. to the respondent by boat to Sandusky, in the State of Ohio, where they were transferred to a car which contained nothing else, and the said last-mentioned car was forthwith transferred from Sandusky, in the State of Ohio, to Wheeling, in the State of West Virginia, and was delivered upon the premises and in the building of the respondent, and was emptied at the time of the seizure of the said 6 casks. The libel filed in this proceeding is based upon an examination of the samples of the contents of the said casks obtained from the re- DECISIONS OF COURTS. 201 spondent a few days prior to the filing of the said libel by a food and drugs inspector from the Department of Agriculture of the United States. The Secretary of Agriculture did not cause notice to the effect that it appeared from such examination of the said sample that the same was adulterated or misbranded to be given to the respondent as the owner and claimant thereof, or to any one else before the matter was directed to the attention of the district attor- ney, or before this proceeding was begun and the casks seized by the marshal. After the United States marshal had seized 6 of the 65 casks of liquid extracts mentioned in the said libel, he permitted a food and drugs inspector of the Department of Agriculture to open one or more of the said casks of liquid extracts and to transfer and remove therefrom about 3 gallons of the contents thereof. The situation and conditions as shown by the facts herein set forth were substantially the same from the time when the 65 casks involved in this proceeding were originally shipped from Detroit down to and including the present time. Dayton, District Judge (after stating the facts as above). The defences relied on are: (a) That the Food and Drugs Act (act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1907, p. 928] ) does not require a drug product to be labeled, nor if unlabeled, to bear any statement respecting the amount of alcohol contained, but, if labeled, the label must contain the statement. The casks in con- troversy were not labeled, therefore not subject to the provisions of the act. (b) The libel is predicated upon an examination of speci- mens under section 4 of the act ; but the Secretary of Agriculture did not cause any notice to be given to the party from whom the samples were obtained, nor afford such party any opportunity to be heard* (c) The goods seized were, at the time of seizure, no longer in the "package" or condition in which the importer received them, but had become merged with the property of the State, and were there- fore not under the operation of the interstate commerce clause of the Constitution or of any law subsisting [452] by virtue of such clause. The " original package " in this case was the car which was delivered upon the premises and into the possession of the defendant, and which had been entirely emptied of its contents before seizure of the 6 casks taken upon the warrant issued in this case, (d) Seizure of 6 casks upon a warrant for 65 casks was not authorized or legal, (e) In no event is a food or drug product subject to libel proceedings under section 10 of this act unless it is being or has been transported into another State for the purpose of sale. In this case the product seized was transported in bulk for the distinct purpose of being " finished " or, to use a nontechnical term, of being bottled and labeled; and it is admitted that, when ready for sale, the salable package bore a label containing a lawful statement respecting content of alcohol. In support of the first ground of defence, it is contended that " the courts of the United States, in determining what constitutes an of- fense against the United States must resort to the statutes of the United States enacted in pursuance of the Constitution." In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L, Ed. 813. That " regu- lations prescribed by the President and by the heads of the depart- 202 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. ments, under authority granted by Congress, may be regulations pre- scribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law ; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where the statute does not distinctly make the neglect in question a criminal offense." United States v. Eaton, 144 U. S. 688, 12 Sup. Ct. 767, 36 L. Ed. 591.) And that, therefore, this court, in construing this statute, cannot be influenced by any depart- mental rules or regulations prescribed for its enforcement, but can look alone to the terms of the statute, penal in character, to ascertain whether or not the owner of these casks of liquid can be held either liable to criminal prosecution or to confiscation of its property. In construing the terms of the statute, it is further insisted that a crimi- nal offense cannot be created by implication, but only by direct and positive terms. Granting at once these several propositions to be sound, the crucial question is, Does the Food and Drugs Act in express terms require drug products to be labeled ? The argument of counsel, that Congress intended by this act, not to correct the evil of failing to label, but of falsely and fraudulently labeling, and therefore drug products, even when put up in packages suitable for retailing, but which bear no labels, are not within the misbranding provisions of the act, is ingenious but untenable, and wholly refuted by the express terms of the act. The first section of it makes it " unlawful for any person to manufacture within any territory or the District of Colum- bia any article of food or drug which is adulterated or misbranded " within the meaning of the act. This is an unqualified prohibition against the manufacturing itself, so far as the Congress had the power to prohibit; that is, in these parts of the country over which it had full control and jurisdiction. Section 2 provides that : The introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia or from any [453] foreign country, or shipment to any foreign country, of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited. Here was the exercise, to the fullest limit, by Congress of its power, under the interstate commerce clause of the Constitution, to prevent adulterated and misbranded food and drug products from being placed upon the markets and sold as pure and genuine ones in the several States by expressly banishing them from lawful interstate commerce. In view of these express provisions, I cannot hold with counsel that the evil intended by Congress to be met was simply the false and deceptive branding of drug products and not the sale thereof. The question therefore, recurs to whether this act in such direct terms requires the labeling of drug products offered for sale in the original package as to subject one failing to do so to a criminal prosecution or to confiscation of the property. The two sections from which I have quoted expressly provide for criminal prosecution and penalties for their violation. Sections 6, 7, and 8 of this act define the terms " drug " and " food " as used ; what articles of each shall be deemed adulterated, and what articles of each shall be deemed mis- branded. It is provided that: The term " misbranded " as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or DECISIONS OF COURTS. 203 label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or mis- leading in any particular. And further, " if the package fail to bear a statement on the label of the quantity or proportion of any alcohol," and other specified substances contained therein. Counsel insist that these provisions do not directly require a label, and that in order to warrant prosecution the provision should have been in effect: For the purposes of this act an article shall also be deemed to be misbranded : In case of drugs * * * if the package or other container thereof fail to bear a label. I think this is too technical, even under the strict rules governing the construction of criminal statutes. Suppose the provision had read " if the package fail to bear a statement on a label of the quan- tity of alcohol," etc., would it not as well meet the view of counsel? A label is defined by Webster to be " a slip of paper, parchment, etc., affixed to anything, and indicating the contents, ownership, destina- tion," etc. The use of the word itself, therefore, carries the meaning that it is a descriptive paper affixed to the package, and in express terms the act requires the descriptive matter borne by the paper to include the statement of how much alcohol, etc., is contained in the package. It does not seem to me that the ruling in the case of United States v. 20 Boxes of Corn Whiskey, 133 Fed. 910, 67 C. C. A. 214, can be made at all applicable here. There an entirely different character of statute was being construed. It did not attempt to bar from interstate commerce the article unbranded, but only to bar the shipment " under any other than the proper name or brand known to the trade," of spirituous or fermented liquors or wines. This statute was unquestionably passed to prevent fraud upon the revenue, and not as a regulation of [454] interstate commerce. It follows that the first ground of defense must be unavailing. The second, to the effect that the Secretary of Agriculture did not cause notice to be given the owner and allow hearing before seizure has been directly decided in United States v. 50 Barrels of Whisky (D. C.) 165 Fed. 966, where Judge Morris, in overruling an exception to the libel based on this ground, says: Such seizures are not unusual, and it is plain that, if the harshness were con- ceded, it would not justify the court in reading into the law a limitation which it does not contain. The act provides two different proceedings to enforce its provisions. One is by criminal proceedings in personam ; the other is by a proceeding in rem. by seizure of the offending thing itself, and forfeiture if found to be violative of the law. In this latter case there is no provision for a preliminary examination. Wi'th this construction of the statute I am in entire accord, and defense on this ground must be overruled. Nor do I think sound the third ground of defense, to the effect that in this case the car arriving at Wheeling and shunted into the private side track of respondent was the " original package " and not the several casks in which the liquid was contained. The term " original package " as employed by law, admits of no precise definition appli- cable to all. Generally, it is said to be a parcel, bundle, bale, box or case made up of or packed with some commodity with a view to its safety and convenient handling and transportation. It does not nec- essarily mean that goods shall be inclosed in a tight or sealed recep- 204 PEDEEAL FOOD AND DRUGS ACT AND DECISION'S. tacle. It relates wholly to goods as prepared for transportation, and has no necessary reference whatever to the package originally prepared or put up by the manufacturer. Indeed, the idea of the " original package " may well be made to cover certain forms of property which do not ordinarily admit of being packed or incased in any other man- ner than in the car or vessel in which they are transported, such, for instance, as steel beams, threshing machines, and other bulky articles. Cook v. Marshall County, 119 Iowa, 384, 93 N. W. 372, 373, 104 Am. St. Rep. 283. This definition has been quoted as being the most favor- able I have found to the contention of respondent in this case. Many others have been carefully collated in 6 Words & Phrases, 5059, and the term has been fully discussed in Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224. Without prolonging discus- sion, it seems to me clear that in this case the cask is the " original package," for the very simple reason that the car was wholly incom- petent to " package " the liquid itself; the cask was a complete entity of itself, not connected or bound up with any other article, but capa- ble of and in fact containing some 50 gallons of this liquid, an amount capable thereby of being safely and conveniently handled and trans- ported ; each cask was marked to the consignee, and if separated from the car was capable of shipment independent thereof without either loss or inconvenience; the casks were shipped independently from Detroit to Sandusky by vessel, and then transferred to the car for shipment to Wheeling, their final destination. And holding the cask to be the " original package," it becomes unnecessary to consider to any extent the fourth ground of defense, that a seizure of six casks under a [455] warrant for 65 casks was unlawful. The warrant being for the whole shipment, the Government, if it had the right of seizure at all, could take the whole or any part it could find in the original packages. This brings us to the fifth and last defense relied upon, to the effect that this liquid extract was not shipped in these casks for the purpose of sale thus in bulk, but was so shipped to the owner thereof from one State to another for the purpose of bottling into small pack- ages suitable for sale, and when so bottled it is admitted the bottles were labeled so as to express the content of alcohol and comply with the requirements of the act. A careful analysis of the provisions of the act has convinced me that this defense must be sustained. The language of the statute is : Any person who shall ship or deliver for shipment from any State or Terri- tory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Terri- tory or the District of Columbia from any other State or Territory or the Dis- trict of Columbia, or foreign country, and having so received shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, a.ny such article so adulterated or misbrancled within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or mis- braudecl foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor. Again : Any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one State, Territory, District, or insular possession of the United States, or if it be imported from a DECISIONS OF COURTS. 205 foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any Distict Court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. These provisions must be construed strictly in favor of the accused. So construed, I am persuaded they must be held to mean that any one owning an adulterated or misbranded food or drug product who ships to another in another State such product is guilty ; that any one hav- ing received such product so shipped from another State by the owner or seller thereof, who shall, in the State where so received, deliver or offer to deliver such product to another in the original package, for pay or otherwise, shall be guilty ; that any person who has received such product from any other State, who sells or oifers it for sale, whether in the original package or not, in the District of Columbia or the Territories, is liable. Congress had no power except in the Dis- trict of Columbia and the Territories to prohibit one from manufac- turing adulterated food and drug products; it had no power to pre- vent one anywhere from personally consuming such products; it did have power to suppress the manufacture of such in the District of Columbia and the Territories, and by this act has done so ; it had the further power to restrict in the course of commerce the transportation from State to State of such products, and it has done so; it had power, after such product was received from another State, to restrict its sale in the original package, and it has done so. It did not, in my judgment, have power to restrict one from manufacturing in one State such [456] product and removing it from that State to another for the purpose of personal use and not sale, or for use in connection with the manufacture of other articles to be legally branded when so manufactured. The Government's inspector was entirely justified in concluding that this shipment in these original package casks was a violation of this act, because they were consigned for shipment by Parke, Davis & Co., of Detroit, Mich., to the Knowlton Danderine Company, at Wheeling, W. Va., and they were not branded. It was reasonably to be assumed that Parke, Davis & Co. were the owners and sellers, while the Knowlton Danderine Company was the purchaser. From the agreed statement of facts, however, it is apparent that the formula of the preparation is a trade secret; that Parke, Davis & Co. were not the owners of this formula, but only the manufacturing agents, under contract, of the owner, the Danderine Company, and only acted as agent for the owner in directing such shipment to the owner itself of its own property ; that such owner did not, " having so received " such product, either " deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person," the same; nor did it " sell, or offer for sale in the Dis- trict of Columbia or the Territories of the United States." It seems clear that the transportation of this liquid was solely to the bottles made in Wheeling instead of the transportation of the bottles from Wheeling to the liquid manufactured in Detroit, and that it was so bottled in Wheeling and properly branded before any sale or disposition of it was attempted. Under such circumstances I am con- strained to hold that the six casks must be surrendered to respondent, and the libel dismissed. 206 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES ex rel. ALSOP PROCESS CO., Petitioner, v. JAMES WILSON, SECRETARY OF AGRICULTURE, Re- spondent. (Supreme Court, District of Columbia, April 30, 1909; Court of Appeals, District of Columbia, Juue 1, 1909.) N. J. No. 498 ; 33 App. D. C. 472. Held that a United States court can not entertain a petition for a writ of man- damus to compel the Secretary of Agriculture to refrain from issuing, in the form of a Food Inspection Decision, his opinion in regard to the effect of bleaching flour by the Alsop process. Petition for a writ of mandamus to restrain the Secretary of Agri- culture from publishing and circulating Food Inspection Decision No. 100. Petition dismissed. [I]1 On or about January 23, 1909, the Alsop Process Company filed in the Supreme Court of the District of Columbia a petition for a»writ of mandamus directed to the Secretary of Agriculture alleging in substance that relator is a corporation engaged in the business of manufacturing and selling machinery and apparatus used by millers for the bleaching of flour by so-called Alsop process (giving a descrip- tion of said process) , and further, that the Secretary of Agriculture caused hearings to be held to determine whether flour bleached by the Alsop process was adulterated within the provisions of the Food and Drugs Act of June 30, 1906, and after hearing the evidence for and against flour thus bleached, decided that, in his judgment, flour so bleached was adulterated within the meaning of the aforesaid act, and that the Secretary of Agriculture, without warrant or color of law, published and caused to be published the said decision designated as Food Inspection Decision No. 100, which publicly condemned as adul- terated within the meaning of the Food and Drugs Act flour bleached by relator's process to the great damage of its business. The petition prayed that the Secretary of Agriculture be commanded to revoke and cancel and annul said decision and not to deliver or circulate addi- tional copies thereof. Upon the filing of the petition the court issued a rule directed to the Secretary of Agriculture as respondent requiring him to show cause by a certain date therein named why the prayer of said petition should not be granted. Respondent duly answered said petition and to this answer the relator filed a demurrer. The case came on for hearing upon the questions raised by the above-mentioned pleadings and the court [2] overruled relator's demurrer. The following is the opinion of the court : Stafford, /. This is a petition for a writ of mandamus. A rule to show cause was issued which the respondent has answered and to this answer the petitioner has demurred. The case was heard upon the demurrer and would have been disposed of at the time had it not been that the court understood that the parties desired that an opinion should be filed dealing fully with all the points involved. The case has been left undisposed of in the hope that opportunity would be 1 Numbers in brackets refer to pages of the Notice of Judgment. DECISIONS OF COURTS. 207 found to prepare such an opinion, but the pressure of other duties having thus far prevented, and no likelihood appearing that the same can be done within the next few days, it is thought best to dispose of the case without answering categorically the numerous points made in the brief of the petitioner. After all what the case amounts to is this. The Secretary of Agriculture has made up his mind that bleached flour is obnoxious to the provisions of the pure food act and has made that opinion public, announcing at the same time that after six months, during which time the manufacturers and dealers will have an opportunity to adjust themselves to the situationT he will call upon the respective district attorneys to proceed against violators of the law. The petitioner claims to be the owner of a patent on the bleaching process and to be injured by the announce- ment of this opinion and intention. He is not the owner of any flour ; he merely owns the patent and makes and sells the machinery. He says that the Secretary did not proceed according to the provisions of the pure food law in making up his mind ; that he had no right to tell the public what opinion he had formed, nor what course he in- tended to pursue ; that if he is going to recommend prosecutions at all he is bound to do so at once and not wait six months. He therefore asks this court, by the great writ of mandamus, to command the Secretary to vacate his decision, to take back what he has said, and hereafter to proceed strictly according to the law. The mere state- ment of the proposition seems to furnish its own answer and to render an elaborate opinion unnecessary. This court cannot change the fact that the Secretary entertains this opinion, nor the fact that he intends to call on the district attorneys to test the case in the courts. It cannot command him not to make his opinion and intention known and if it could it would be useless for he has already made it known, and the petitioner itself is making the fact still more widely known by this proceeding. The merits of the real question, namely, whether flour subjected to the bleaching process may be sold without violating the pure food law, is one that will ultimately be determined by the courts. In the meantime the Secretary is not violating any law in having an opinion and in telling the public what it is. The demurrer is overruled. The said Alsop Process Company stood upon its demurrer and prosecuted an appeal from the aforesaid judgment to the Court of Appeals for the District of Columbia. The case was then heard by said court on appeal and the judgment of the lower court was affirmed. [3] The following opinion was rendered by the appellate court. Robb, J. This is an appeal from the Supreme Court of the Dis- trict overruling the demurrer of the relator to an answer of the de- fendant, appellee here, to a rule to show cause why a mandamus should not be issued against him. In its petition the relator states that it is a corporation of the State of Missouri engaged in the manufacture of flour-bleaching machin- ery, which is sold throughout the United States and elsewhere and is extensively used by millers for bleaching flour. The process for which this machinery is designated is known as the "Alsop Process " and is covered by patent which is owned by the relator. The bleach- ing of flour by this process is accomplished by the passage of pure air 208 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. through a flaming discharge of electricity and the application of the resultant gaseous medium to the freshly milled flour as the latter passes through an agitator. The flour thus treated, the relator states, has no substance mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength, is not deprived of any valuable substance, nor has it been mixed, colored, or treated in any manner whereby inferiority is concealed, and contains no deleterious ingredient or other element injurious to health. The relator further states that prior to November 18, 1908, the Secretary of Agriculture inserted, or caused to be inserted, in certain milling journals and other periodicals throughout the country a notice to the effect that a hear- ing would be held on the subject of bleached flour at the Department of Agriculture on November 18, 1908, at which time the relator says it was present by a duly authorized officer and by an attorney, and that the hearing was also attended by many millers from various parts of the country ; that this hearing was continued five days, and testimony for and against said process was introduced ; that the attor- ney for the relator conducted the case for the millers favoring the bleaching process ; that the relator's manager gave extended testi- mony at this hearing; that the entire proceedings were transcribed by a stenographer and made accessible to the public generally. This hearing, the relator avers, was without color of authority of law. The petition further states that on the 10th of December, 1908, the said Secretary of Agriculture unlawfully, arbitrarily, and oppres- sively, and without color or right of law, issued the following bulletin : [Food Inspection Decision 100.] BLEACHED FLOUR. Flour bleached with nitrogen peroxide, as affected by the Food and Drugs Act of June 30, 1906, has been made the subject of a careful investigation extending over several months. A public hearing on this subject was held by the Secretary of Agriculture and the Board of Food and Drug Inspection, beginning November 18, 1908, and continuing five days. At this hearing those who favored the bleaching process and those who opposed it were given equal opportunities to be heard. [4] It is my opinion, based upon all the testimony given at the hearing, upon the reports of those who have investigated the subject, upon the literature, and upon the unanimous opinion of the Board of Food and Drug Inspection, that flour bleached by nitrogen peroxide is an adulterated product under the Food and Drugs Act of June 30, 1906 ; that the character of the adulteration is such that no statement upon the label will bring bleached flour within the law ; and that such flour can not legally be made or sold in the District of Columbia or in the Territories ; or be transported or sold in interstate commerce ; or be transported or sold in foreign commerce except under that portion of section 2 of the law which reads : « * * * Provided, That no article shall be deemed misbranded or adulter- ated within the provisions of this act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped " ; * * * In view of the extent of the bleaching process and of the immense quantity of bleached flour now on hand or in process of manufacture, no prosecutions will be recommended by this department for manufacture and sale thereof in the District of Columbia or the Territories or for transportation or sale in inter- state or foreign commerce, for a period of six months from the date hereof. James Wilson, Secretary of Agriculture. Washington, D. C, December 9, 1908. DECISIONS OF COURTS. 209 The promulgation and circulation of this bulletin, the relator states, has worked irreparable harm and injury to it, and in effect deprived it of its property without due process of law " in that since the issu- ance and promulgation of said unlawful decision aforesaid by the respondent herein, and by reason thereof your petitioner has been unable to sell its patented process and apparatus aforesaid, the pros- pective purchasers of said patented process and apparatus aforesaid, refusing to buy and install the same for fear that they or their cus- tomers will, upon the recommendation of the Secretary of Agricul- ture, be prosecuted for manufacturing or selling an adulterated food product in violation of the provisions of said Food and Drugs Act, June 30, 1906." The petition closes with a prayer that the writ of mandamus issue to compel the Secretary of Agriculture to withhold recommendation of prosecutions against manufacturers of and dealers in flour bleached by said Alsop Process ; to revoke, cancel and annul said decision of said Secretary, and not to deliver or circulate addi- tional copies thereof, and that the Secretary of Agriculture be com- manded to proceed relative to the subject of bleached flour in strict conformity with said Food and Drugs Act and the regulations of the department promulgated thereunder. A rule to show cause was issued. In the answer filed by the Secre- tary he states " that it does not appear by the said petition that the said relator has any right, title, or interest in the matters affected by the judgment and action of your respondent referred to in the said petition, and is not a party to nor legally interested in the proceed- ings in which said judgment and action of your respondent have been made." He admits the relator owns the patent known as the " Alsop Process " for bleaching flour, but claims that its patented rights are wholly collateral to the right of said Secretary of Agriculture to decide whether flour bleached by the use of nitrogen peroxide is dele- terious and adulterated within the meaning of said Food and Drugs Act; that the patenting of said process confers no right on relator and gives it no status to compel the respondent to change or revoke his decision that flour so bleached is adulterated. The answer denies that the effect on flour by the use of said process is as stated in the petition ; on the contrary, the answer states " that the flour which is bleached is reduced and lowered in its quality and strength ; that the said flour is so artificially colored as to conceal inferiority, and that it contains a poisonous and deleterious ingredient which has been added, and that the said flour is deleterious and injurious to [5] health." The respondent in his answer further says " that the bleach- ing of the said flour is effected by nitrogen peroxide, and that the resultant pro-duct is deleterious and is adulterated within the mean- ing of the aforesaid Food and Drugs Act approved June thirtieth, 1906"; that for many months prior to November 18, 1908, the re- spondent had made an exhaustive inquiry into the character, composi- tion and purity of bleached flour and had caused the matter to be investigated exhaustively by the Bureau of Chemistry of his depart- ment, and " that from all the evidence adduced it was conclusively established that flour bleached with nitrogen peroxide was adulter- ated within the meaning of said Food and Drugs Act " ; that in the exercise of abundant caution, however, the Secretary decided to renew the investigation and to consider the matter more fully before finally 40066—14 14 210 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. deciding under the authority of said act whether said bleached flour was adulterated; that accordingly he issued a notice for said public hearing; that this hearing was entirely advisory; and that the millers and manufacturers and others who attended did so voluntarily. The result of this hearing, the Secretary says, was to put him in possession of further and additional evidence relative to the subject; that this hearing was authorized both impliedly by the provisions in said Food and Drugs Act and expressly by the provisions of the Agricul- tural Appropriation Act of Congress of May 23, 1908 ; that after due consideration he decided that flour bleached by the use of nitrogen peroxide is adulterated within the meaning of said Food and Drugs Act and forbidden by the terms of said act, and that he thereupon announced and published said decision of December 10, 1908; that this decision in no wise mentioned or in any way relates to the relator, and that, therefore, it has no status to seek any relief or redress in connection therewith. The Secretary in his answer denies the aver- ments of the petition that his action was without right or color of law, denies the jurisdiction of the court to grant the writs, and states that he " passed no judgment upon the machinery of the relator, and has no jurisdiction over the same, nor concern therewith. The said relator is not an owner of bleached flour nor a manufacturer of the same. The judgment of the said respondent has to do only with the bleached flour, the product itself, and has no jurisdiction over or concern in one of the kinds of process by which the said product may be secured. And respondent submits that the claims of the said relator are wholly collateral, and that its petition fails to show any legal damage." To this answer a demurrer was filed, which was overruled, and, relator choosing to stand upon its demurrer, final judgment was entered, and this appeal taken. The first question to be disposed of is whether the interest of the relator in the subject matter involved is of such a nature as to entitle it to maintain this proceeding. The decision of the Secretary of Agriculture, which is here sought to be challenged, is to the effect that flour bleached by nitrogen peroxide is an adulterated product under said Food and Drugs Act. Neither the relator nor its process is mentioned in this decision. The relator is neither the owner nor the manufacturer of bleached flour. Its sole excuse for attempting to stay the hand of the Secretary is that since the promulgation of this decision by the Secretary it has been unable to sell its patented process and apparatus owing to the fear of prospective purchasers that upon the recommendation of the Secretary they will be prose- cuted for manufacturing or selling an adulterated food product. Whilst it is true that there is a distinction between cases where the extraordinary aid of mandamus is invoked merely for the purpose of enforcing or protecting a private right and cases where the pur- pose of the application is the enforcement of a purely public right, the people at large being the real party in interest (High on Extra- ordinary Remedies, Par. 430; 26 CYC 404 and cases there cited), it has never been held, at least to our knowledge, that such an indirect and collateral interest as is here shown will sustain a petition for the writ. Union Pac. E. E. Co. v. Hall, 91 U. S. 343, and Board of Liquida- tion v. McComb, 92 U. S. 531, in our opinion, do not sustain appel- DECISIONS OF COURTS. 211 lant's contention that it has a suffi[6]cient interest to entitle it to institute this proceeding. In the former case it was held that mer- chants in Iowa having frequent occasion to receive and ship goods over the Union Pacific Railroad Company might, without the inter- vention of the Attorney-General of the United States, institute a proceeding under an act of Congress which conferred upon the proper circuit court of the United States jurisdiction to hear and determine all cases of mandamus to compel said railroad company to operate its road as required by law. It will thus be seen that a duty was laid upon the railroad company to operate its road in the interests of the public. Its failure in that regard wrought a direct injury to the merchants who were permitted to institute proceedings. The court went no further than to hold that the writ of mandamus may be issued at the instance of a private relator in all cases " where the defendant owes a duty, in the performance of which the prose- cutor has a peculiar interest," and also " in case of applications to compel the performance of duties to the public by corporations." In the latter case the relator was the holder of bonds directly affected by the funding act, the carrying out of which he sought to have restrained. We have carefully examined the other cases cited by relator on this point, and find that they go no further than the cases above .reviewed. The relator as a corporate entity has no interest in the enforce- ment of duties owing by the Secretary to the public. It seeks to arrest the operations of an executive department of the Government solely because the indirect effect of the promulgation of an opinion by the head of that department has been to cause millers to cease purchasing relator's machinery. In all the cases relied upon by relator mandamus was granted to secure to the relators rights which they were entitled personally to enjoy. Measured by this test, it is apparent that the relator has no such interest in the subject matter of this controversy as to entitle it to the writ. Being neither an owner nor a manufacturer of bleached flour, its legal rights were not involved or invaded by the action of the Secretary. It is a mere volunteer in this proceeding and as such is without standing. There is some analogy between a suit in equity for the abatement of a public nuisance and the present case. Yet it is well settled that such a suit will not be sustained unless the complainant shows special, direct, and material damages; Georgetown v. Alexandria Canal Co., 12 Peters, 91; Irwin v. Dixon et al., 9 How. 9; State of Penna. v. Wheeling Bridge Co. et al., 13 How.' 518 ; Miss. & Mo. R. R. Co. v. Ward, 2 Black, 485. In the case last cited it was said: "A bill in equity to abate a public nuisance, filed by one who has sustained special damages, has succeeded to the former mode in England of an information in chancery, prosecuted on behalf of the Crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained, and is still sustaining, in- dividual damages, he can not be heard." The rule permitting private parties, whose rights are directly jeopardized, to maintain mandamus to compel a public duty is a salutary one, but it should not be enlarged to such an extent as to permit interference with the operations of the Government by those whose rights are only remotely and indirectly affected. 212 FEDERAL POOD AND DRUGS ACT AND DECISIONS. Having determined that the relator's interest in the subject matter involved is too remote to entitle it to institute this proceeding, it becomes unnecessary to consider any other question. The order is, therefore, affirmed, with costs. UNITED STATES v. 100 BAKRELS OF CALCIUM ACID PHOSPHATE. (District Court, N. D. California, June 22, 1909.) N. J. No. 300. A compound of calcium acid phosphate and corn starch labeled " C. A. P." held to be a mixture or compound sold under its own distinctive name and not adulterated or misbranded by reason of the presence of corn starch. Libel under section 10 of the Food and Drugs Act. Heard by court on libel and answer. Libel dismissed. [5] De Haven, District Judge. It is provided in subdivision 4, section 8 of the act of June 30, 1906 (34 Stat., 768), under which this action is prosecuted, that " an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names and not an imitation of or offered for sale under the distinctive name of another article, if the name be accom- panied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. * * * It clearly appears from the evidence that the substance referred to in the libel, and sought to be condemned in this action, is compounded of calcium acid phosphate and corn starch, the mixture containing about 33^ per cent of corn starch. It also appears that the addition of corn starch does not render the mixture deleterious or in any way dangerous to the health of persons eating food in the proportions in which said compound is used. It further appears that said compound when first manufactured was known as and sold as " Cream Acid Phosphate ; " that said name was thereafter condensed to the use of the arbitrary letters " C. A. P." and applied particularly to the substance or product referred to in the libel for the purpose of distinguishing it from other products; that the claimant herein adopted said letters C. A. P. as its trade-mark. In other words, the substance referred to is manufactured and sold under the distinctive name of " C. A. P." It follows from the foregoing that the plaintiff is not entitled to recover in this proceeding ; that while the article sold, under the trade name of " C. A. P." may be classed as an article of food, it does not contain any poisonous or deleterious ingredients, within the meaning of the statute above quoted, and the libel must therefore be dismissed. So ordered. DECISIONS OF COURTS. 213 UNITED STATES v. KOCA NOLA CO. (Circuit Court, N. D. Georgia, August 22, 1909.) N. J. No. 202. An article labeled " Koca Nola Syrup " held adulterated because it contained cocaine, and misbranded because the quantity or proportion of cocaine pres- ent was not declared on the label. Informations alleging violations of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. [2] Newman, Circuit Judge (charge to the jury). The defendant, the Koca Nola Coinpan^v, is charged in this information with the violation of what is known as " the Food and Drugs Act of 1906." This act provides first, so far as is material here, that " the introduc- tion into any State or Territory or the District of Columbia, from any other State or Territory or the District of Columbia, or from any foreign country or shipment to any foreign country of any article of food or drink which is adulterated or misbranded under the meaning of this act, is hereby prohibited," and then that any person who shall violate this act shall be guilty of a misdemeanor and shall be punished as provided in the act. You understand, of course, that this is a Federal statute, and conse- quently deals only with things between States and between States and the District of Columbia, and between the United States and for- eign powers. The United States have no jurisdiction whatever with reference to anything occurring within the States or within any Ter- ritory. The States themselves have jurisdiction of such matters. You are trying the defendant on two criminal informations which are consolidated for the purpose of this trial. The first information. No. 7594, charges that the defendant, the Koca Nola Company, shipped to New Orleans, in the State of Louisiana, from Atlanta, in the State of Georgia, a package of Koca Nola syrup containing co- caine, without having the same branded upon the label on the package containing the Koca Nola syrup. The second count in that information charges the defendant with shipping the same package from Atlanta, Georgia, to New Orleans, Louisiana, and charges that it contained a deleterious ingredient, to wit : Cocaine, which, the information alleges, may render and which did render said Koca Nola syrup injurious to health. [3] You see the first count in that first information charges that they shipped the package from Atlanta to New Orleans without the same being properly labeled, and the second count in that informa- tion is with reference to the same package and charges that it con- tained a deleterious ingredient, injurious to health. The other information, No. 7630, contains three counts. Only the first and third counts are insisted on by the Government. The sec- ond is with reference to drugs, and the United States, upon informa- tion, concedes now that this is not a drug, it is a food, and conse- otuently they admit that the act applying to drugs is not applicable here, and only the first and third are insisted upon by the Govern- ment. The first charges the defendant with the shipping of a pack- 214 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. age of Koca Nola syrup from Atlanta, Georgia, to Anacostia, in the District of Columbia, and the same charges are made with reference to that as in the first count of the other information, that is to say, it was not properly labeled. The third count charges the shipment of the same package from Atlanta, Georgia, to Anacostia, in the District of Columbia, and that it was adulterated and contained an added deleterious ingredient, namely cocaine, which may and does render the syrup injurious to health. So you see you have really four counts, two in the first information and two, the first and third, which are insisted upon, in the second information. You will express by your verdict which are the counts on which you find the defendant guilty, if you find it guilty at all. The first count in each of the informations is under that provision of the act of Congress referred to which relates to misbranding of foods. The eighth section of the act provides that " for the purposes of this act an article shall be deemed to be misbranded," so far as material here, and leaving out immaterial language and articles men- tioned, " if it fail to bear a statement on the label of the quantity or proportion of any * * * cocaine * * * or any derivative or preparation " of cocaine or any derivative of the same. To state it again " For the purposes of this act an article shall be deemed to be misbranded if it fail to bear a statement on the label of the quantity or proportion of any cocaine or any derivative of the same," You will see from the act that a package containing any article of food, if it contain cocaine or any derivative or preparation of the same, must be so branded. In the opinion of the court, notwith- standing the fact that you may believe from the testimony that so far as cocaine was contained in this Koca Nola syrup shipped by the defendant it was in what are called " derivatives " of the same, still, if you believe that cocaine, in any appreciable quantity, was in the syrup, it should have been so stated on the label. The object of the law is apparent, that is that the public shall be put distinctly on notice, and cocaine, among other things mentioned in the act, if it be in any preparation of food or drink, it must be so stated on the label. And it is immaterial also, in the opinion of the court, if it is a small quantity, if it is an appreciable quantity. This act says " any co- caine " and if it contained any appreciable quantity of cocaine, it should have been, in the opinion of the court, shown by the label. The testimony of all of the witnesses for the Government, as I understand it, is to the effect that there was cocaine in both of these packages, the one shipped to New Orleans and the one shipped to Anacostia, and it is for you to say whether there would have been any difficulty about their stating exactly or approximately the pro- portion or quantity of cocaine contained in the syrup. Some of these witnesses, three I believe, have stated that they could have stated on the label the quantity contained, and while it was small, the fact that it was a small quantity would not render it, in the opinion of the court, any the less a violation of the law. It would be a matter of degree only. [4] The second count in the first information and the third count in the second information are based on the provision of the law that DECISIONS OF COURTS. 215 for the purposes of the act an article shall be deemed to be adulter- ated, leaving out immaterial language, "if it contain any poisonous or other added deleterious ingredient which shall render such article injurious to health." You will inquire, in the first place, whether there was any cocaine or cocaine derivatives in this syrup and if so, if you believe that to be a deleterious ingredient, injurious to health. There has been testi- mony about that, and you will determine, in the first place, whether there was any cocaine contained in the syrup shipped to New Orleans and to Anacostia, and if it was labeled, as in the first counts in the informations, and if you believe it contained cocaine, was the same an article injurious to health, under the second counts in these in- formations. Mr. Austin, who states that he is the president of the Koca Nola Company, Dr. Everhart and Dr. Heath have testified as you have heard on the stand. I understand their testimony was — first, Mr. Austin testified generally to the facts and his testimony you have heard. He claimed to be under the impression that it had no cocaine in it at all. And Dr. Everhart says he used these bottles, which were gotten here, offered for sale in the market, that the same had water all ready in it, and that it contained, so far as he could ascertain, no cocaine. Dr. Heath, I believe, said that he got the bottles for Dr. Everhart. If you believe that the syrup shipped to New Orleans was mis- branded and did not contain on the label on it that which it should have had, find the defendant guilty on the first count in the first in- formation, No. 7594. If you believe that the same contained a deleter- ious ingredient, injurious to health, to wit: cocaine, find the de- fendant guilty on the second count in the first information. If you believe that the package of syrup shipped to Anacostia in the District of Columbia, was misbranded, as I have stated to you, and that it contained cocaine and the same did not appear on the label, find the defendant guilty under the first count of the second in- formation, No. 7630. If you find that this package shipped to Ana- costia contained a deleterious ingredient, injurious to health, find the defendant guilty on the third count in that information, that is cocaine, as I have stated. As to the other, of course, it will be apparent that it shall not, in the second count in this second information. Now, gentlemen, the evidence is before you and it is a matter en- tirely for you to determine. You understand the purpose of this act so far as branding and labeling articles of food is concerned and that is to put the public on notice that it contains in it certain ingredients which the law-makers have believed the public should know before purchasing. As to the other, of course, it will be apparent that it shall not, in any event, whether branded or not, contain deleterious ingredients, injurious to health. * If you believe the defendant not guilty under any or all of the counts in the informations, you will find the defendant not guilty as to that or those. Consider all of the testimony and determine whether these two particular packages, those are the ones with reference to which the charges here are made, whether they contain cocaine or not. 216 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. You will see without difficulty, and I state again, that there are only four counts, two in the first and two in the second, leaving out the second count in the second information or that of the highest number. The first information refers to the package shipped to New Orleans and the first count to misbranding and the second to adulteration. The second information related to the package shipped to Anacostia, and the first count relates to misbranding and the second to adul- teration. Take the case, gentlemen ; and express by your findings if you find the defendant guilty or not guilty, arid if you believe it guilty express by your verdict under which counts you believe it to be guilty, whether under any or all of the counts. UNITED STATES v. 68 CASES OF SYRUP. (District Court, E. D. Illinois, October 1, 1909.) 172 Fed. 781; N. J. No. 2S3. An article composed of cane syrup and extract of maple wood labeled, on the shipping cases, " Western Reserve Ohio Blended Maple Syrup * * * " and on the bottles, " Western ReserATe Ohio Blended Syrup, * * *," held not misbranded. On demurrer to libel. Sustained. Libel dismissed. [782] 1 Weight, District Judge. This is a libel presented by the United States against Sixty-Eight Cases of Syrup under the provi- sions of Food and Drugs Act, June 30, 1906, c. 3915, 34 Stat, 768 (U. S. Comp. St. Supp. 1907, p. 928). The libel charges that the cases of syrup were shipped from Cleveland, Ohio, to Danville, 111., and that 48 of them contained each one dozen bottles, and 20 of them contained each two dozen bottles, of syrup; that the cases were branded and labeled " Western Reserve Ohio Blended Maple Syrup, guaranteed absolutely pure, shipped by Western Reserve Syrup Com- pany, Cleveland, Ohio ; " and that the bottles were labeled and branded " Western Reserve Ohio Blended Syrup, Western Reserve Syrup Company, Cleveland, Ohio, Blenders of Fancy Maple Syrup and Maple Sugar." It is further charged in the libel that the cases and bottles were misbranded in violation of the act of Congress to which reference has been made, subjecting the property to condemna- tion as provided in said act, for the reason that the cases and bot- tles do not contain maple syrup, or a blend of maple syrup, but do contain a mixture or compound largely of refined cane sugar flavored with an extract of maple wood, and that the labeling before men- tioned is misleading and false, so as to mislead the purchaser, and so as to offer the contents for sale under the distinctive name of another article. The goods were shipped to the Webster Grocery Company, doing business in Danville, 111., and by this proceeding seized, and are now in the custody of the marshal. The Western Reserve Syrup Company, of Cleveland, Ohio, the manufacturer, shipper, and seller of the goods, has appeared by its attorney in this proceeding and filed its demurrer to the libel ; and the court, having heard the argu- 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 217 ment of counsel, thereupon took the case under advisement and for future determination. In the argument at bar of the case it was contended for the re- spondent that there is a distinct and substantial difference in the labeling upon the cases and that upon the boxes ; that in the former the word Maple " is used, and in the latter, the case of the bottles^ that word is omitted, as a qualifying word in the description of the syrup. Without again quoting the words of the labeling, but refer- ring again to them as above set out in this opinion, it will be seen that, while the word " Maple " is not used as a qualifying word to syrup, yet further on in the words of the label it is found that re- spondent describes itself as blenders of " Fancy Maple Syrup and Maple Sugar," so that, when all the words of the label put upon the bottles are seen, and its full meaning comprehended, I think the same meaning was intended in the use of both labels, and from either of them, that upon the cases and that upon the bottles, a person of ordi- nary intelligence, after reading them or either of them, would infer the same meaning that the bottles [783], as well as the boxes, con- tained blended maple syrup. So it seems to me that the contention of the respondent that the label upon the boxes, which alone was intended to induce the purchasers, even conceding this, is without force. It then being determined that the labeling upon the cases and upon the bottles mean the same thing, namely, that each contained blended maple syrup, it only remains to decide whether, in view of the other averments of the libel, a violation of the statute is shown. If the brands or labels correctly or truthfully disclose the contents of the cases and bottles, and no poisonous or deleterious ingredients are apparent, there can, I am persuaded, be no violation of the law? and this action could not be supported. There is no claim that poi- sonous or deleterious ingredients entered into the compound. The libel avers it was not maple syrup. The labels do not purport to state that the contents of the boxes and bottles was maple syrup; but, as said before, both labels represent the same fact — that the con- tents of the boxes and bottles was blended maple syrup. The libel avers that the cases and bottles do not contain a blend of maple syrupr and then specifically states they do contain a mixture or compound largely of refined cane sugar flavored with an extract of maple wood. The demurrer of the respondent to the libel admits all the facts well pleaded in the libel, and, while it is stated by the libel that the boxes and bottles do not contain a blend of maple syrup, the following statement in the libel, that the contents consisted of a mixture or compound largely of refined cane sugar flavored with an extract of maple wood, renders the previous negation of a blend of maple syrup nugatory as a fact stated, but leaves it as a mere conclusion of the pleader, that is not admitted by the demurrer. So it seems to me the case resolves itself to the single question whether a mixture or compound largely of refined cane sugar flavored with an extract of maple wood is blended maple syrup. The plain and manifest object of the statute under consideration is to protect the purchasers and consumers of drugs and foodstuffs from fraud and imposition in the purchase or consumption of such articles under false representations, and to insure that the commodi- ties are such as they are represented to be. If the brands or labels upon the goods in question were truthful, and such as the law per- 218 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. mitted upon such goods as they actually were, then there was no violation of the law, and the goods were wrongfully seized, and should be returned to the person or persons from whom they were taken. The proviso to section 8 of the statute under which this libel is being prosecuted provides in legal effect, amongst other things, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word " compound," " imitation," or " blend," as the case may be, is plainly stated on the package in which it is offered for sale; and the term " blend " so used, shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring in- gredients used for the purpose of coloring and flavoring only. [784] I have already said that the brands or labels in question plainly indicate that the article of food, the syrup in this case, was a blend of maple syrup, and the statute itself declares that the term " blend " shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients, used* for the purpose of coloring and flavoring only. I think I may take judicial notice of all that an ordinarily intelligent person knows, and in doing this I know that food syrup is a saccharine solution of a superior quality, frequently called molasses, and it may be made of any of the various sugars of commerce, such as cane, beet, or maple. These sugars are alike, in that they are saccharine. The statute defines a blend of anything to be the mixture of like substances not excluding the flavoring. In the case presented the mixture is cane sugar flavored with extract of maple wood. It seems to me no argument is neces- sary to prove that all food sugars are of like substances, and to them or any of them add the flavoring extract of maple wood and thereby is produced the very blend contemplated by the exception of the statute I have endeavored to point out. Even without this plain exception provided for by the law itself, no ordinarily intelligent person could be deceived by the labels in question into buying the articles so labeled for real maple syrup. The word " blend " is clearly used, both as to the articles and their manufacture, and of its own clear import indicates a mixture and imi- tation. Entertaining the views I have expressed, it follows that I am of the opinion the libel is insufficient in law, and the demurrer will therefore be sustained. Let an order be prepared sustaining the demurrer, dismissing the libel, and awarding a return of the property, without costs. UNITED STATES v. 779 CASES OF MOLASSES. (Two cases.) (Circuit Court of Appeals, Eighth Circuit, November 5, 1909.) 174 Fed. 325 ; N. J. No. 270. Au article of food labeled as molasses of a particular brand, with statements elsewhere on the labels setting forth that it was a compound of molasses and corn syrup, held not adulterated or misbranded. In Error to and Appeal from the District Court of the United States for the Eastern District of Arkansas. Libel under section 10 of the Food and Drugs Act. DECISIONS OF COURTS. 219 Judgment for claimant on directed verdict, and the United States brought error in one case and appeal in the other. The judgment of the lower cour^ was affirmed in the case brought on error and the appeal in the other case was not granted. [326] x Before Van Devanter, Circuit Judge, and Carland and Pollock, District Judges. Pollock, District Judge. This is a libel of condemnation arising under the provisions of the pure food and drug law enacted by Con- gress June 30, 1906 (34 Stat. 768, c. 3915 [U. S. Comp. St. Supp. 1909, p. 1188]), and the regulations of the Secretaries promulgated Octo- ber 20, 1906, in pursuance of power conferred on them by section 3 of the act. The facts are : One C. E. Coe, a merchant of the city of Memphis, Tenn., at various dates between March 18 and August 1, 1908, sold and shipped the seven hundred and seventy-nine cases of molasses in controversy to certain wholesale jobbing houses in the city of Little Rock, Ark. Thereafter, on August 19, the district attorney for the District of Arkansas filed his libel of condemnation, in which it was charged the molasses was both adulterated and misbranded in violation of the provisions of the act. A writ of seizure was issued and executed by the marshal, seizing, as shown by his return, six hundred and eighty-five cases of the molasses in question. Of the cases seized, as shown by his return, four hundred and sixty-four were what is labeled " sugar glen " molasses, and two hundred and twenty-one cases as " burro " molasses. Thereafter, on September 21, 1908, by leave of court, an amended libel of condemnation was filed in which it was charged the molasses contained in the cases was adulterated by the use of commercial glucose, mixed and packed with the molasses to such extent as to injuriously affect the quality and strength in violation of the law. And it was further charged, in substance, the cases were so labeled and misbranded as to convey the impression the contents of the cases were pure sugar house molasses, whereas, in truth, they were a com- pound of sugar molasses and corn syrup. Thereafter, Coe filed his [327] affidavit as claimant of the molasses and answered, setting up his guarantee *to the purchasers under thb terms of the act, denied the charges of adulteration and misbranding, attached as exhibit to his answer a copy of the label of each brand of molasses sold and delivered by him, and demanded a trial by jury, as provided by section 10 of the act, and gave a bond as provided in the act to secure possession of the molasses. A trial by jury was had, at which, by direction of the court, the jury returned a verdict in favor of the claimant, on which a judg- ment was entered in his favor. From this judgment the Government, being uncertain as to its rights, prosecutes its appeal in case No. 3024 and also prosecutes error in case No. 3030. From the statement made it would seem quite plain the proceed- ings on the trial cannot be reexamined by this court on the appeal taken. Section 10 of the act, among other matters, provides, as follows : That any article of food, drug or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one State, Terri- 1 Numbers in brackets refer to pages of Federal Reporter. 220 FEDEEAL FOOD AND DRUGS ACT AND DECISIONS. lory, district or insular possession to another for sale, or having been trans- ported, remains unloaded, unsold or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia or the Territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. * * * The proeeediDgs of such libel shall conform, as near as may be, to the proceedings in admiralty, except that either party may de- mand trial by jury of any issue of fact joined in any such case, and all such proceedings shall be at the suit of and in the name of the United States. The right to trial by jury granted by this act on demand of either party is absolute, and means a trial by jury according to the estab- lished practice in courts of common law. Elliott v. Toeppner, 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200; Insurance Company v. Comstock, 16 Wall. 258, 21 L. Ed. 493 ; Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732; Bower v. Holzworth et al., 138 Fed. 28, 70 C, C. A. 396 ; Duncan v. Landis, 106 Fed. 839, 45 C. C. A 666. By Article VII of the Constitution it is provided : No fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. Mr. Justice Clifford, delivering the opinion of the court in Insur- ance Company v. Comstock, supra, in commenting on this provision of the Constitution, said : Two modes only were known to the common law to re-examine such facts, to wit: the granting of a new trial by the court where the issue was tried, or to which the record was returnable, or secondly by the award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings. All suits which are not of equity or admiralty jurisdiction, what- ever may be the peculiar form which they may assume to settle legal rights, are embraced in that provision. It means not merely suits which the common law recognized among its settled proceedings, but all suits in which legal rights are to be determined in that mode, in contradistinction to equitable rights and to cases of admiralty and maritime jurisdiction, and it does not refer to the particular form of procedure which may be adopted. As a jury trial was demanded by the claimant in this case, and as such trial was had, the appeal taken in case No. 3024 must be [328] dismissed because such method is inappropriate to review the pro- ceedings had. It is so ordered. At the trial the charge of adulteration was abandoned by the Gov- ernment, and it relied solely and alone on the charge of misbranding. As has been seen, at the conclusion of the evidence the court charged the jury neither of the labels under which the cases of molasses were sold and shipped from Memphis to Little Rock was misleading, nor constituted a misbranding, as that term is employed in the act, nor in regulation 17 promulgated by the Secretaries under authority of the act. This action of the court constitutes the sole ground of error relied upon to work a reversal of the judgment rendered in the case. The only evidence adduced on the trial was that of the marshal who executed the writ of seizure and that of Geo. B. Spencer, a Govern- ment chemist from the Department of Agriculture. The marshal testified the cases of molasses seized by him bore labels identical with those attached to and made part of the answer of claimant, which labels were offered and received in evidence at the trial, as Exhibits A and B. The witness Spencer testified he made a chemical analysis of the brands of molasses seized in this case; that the sugar glen brand con- DECISIONS OF COURTS. 221 tained 30 per cent and the burro brand 40 per cent of commercial glucose ; that pure molasses contains no commercial glucose, but does contain natural glucose ; that neither natural nor commercial glucose is injurious or deleterious to health; that a large number of syrups on the market contain as high as 80 per cent or 90 per cent com- mercial glucose; that according to the practice and rulings of the Bureau of Chemistry of the Department of Agriculture the labeling or branding of commercial glucose, as " made from corn syrup " is permissible. The provisions of the act prescribing what shall constitute a mis- branding, within its meaning as applied to food products, are as follows : If it be labeled or branded so as to deceive or mislead the purchaser * * * If the package containing it or its label shall bear any statement, design or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any par- ticular; provided that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale 'under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded or tagged so as to plainly in- dicate that they are compounds, imitations or blends, and the word " com- pound," " imitation " or " blend," as the case may be, is plainly stated on the package in which it is offered for sale. Kegulation 17 of the Secretaries, (which has the effect of law) on the subject of misbranding, in so far as here thought applicable, provides : [329] (a) The term " label " applies to any printed, pictorial, or other matter upon or attached to any package of food or drug product, or any container thereof subject to the provisions of this act. (b) The principal label shall consist, first, of all information which the Food and Drugs Act, June 30, 1906, specifically requires, to wit, the name of the place of manufacture in the case of food compounds or mixtures sold under a dis- tinctive name ; statements which show that the articles are compounds, mix- tures, or blends ; the words " compound," " mixture," or " blend," and words designating substances or their derivatives and proportions required to be named in the case of foods and drugs. All this information shall appear upon the principal label, and should have no intervening descriptive or explanatory reading matter. Second, if the name of the manufacturer and place of manu- facture are given, they should also appear upon the principal label. Third, preferably upon the principal label,, in conjunction with the name of the sub- stance, such phrases as " artificially colored," " colored with sulphate of copper," or any other such descriptive phrases necessary to be announced should be conspicuously displayed. Fourth, elsewhere upon the principal label other matter may appear in the discretion of the manufacturer. If the contents are stated in terms of weight or measure, such statements should appear upon the principal label and must be couched in plain terms, as required by regulation 29. (c) If the principal label is in a foreign language, all information required by law and such other information as indicated above in (b) shall appear upon it in English. Besides the principal label in the language of the country of production, there may be also one or more other labels, if desired, in other languages, but none of them more prominent than the principal label, and these other labels must bear the information required by law, but not necessarily in English. The size of the type used to declare the information required by the act shall not be smaller than S-point (brevier) capitals: Provided, That in case the size of the package will not permit the use of 8-point type, the size of the type may be reduced proportionately. (d) Descriptive matter upon the label shall be free from any statement, design, or device regarding the article or the ingredients or substances contained 222 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. therein, or quality thereof, or place of origin, which is false or misleading in any particular. The term "design" or "device" applies to pictorial matter of every description, and to abbreviations, characters, or signs for weights, measures, or names of substances." If the labels in question be now compared with the provisions of the law above quoted, we find the first panel of each, and that contended by the claimant to be the principal label, to contain, first, the name of the substance or product; second, the place where manufactured or canned ; third, words showing the article to be a compound ; fourth, the words " compound and ingredients ; " fifth, the name of the manu- facturer or canner of the product; sixth, that it contains sulphur dioxide; seventh, that it is guaranteed under the pure food act, serial No. 13,905, all as required by clause " b " of regulation 17 above quoted. From a further examination of the labels, it is found each in three places distinctly states the product to be a compound of molasses and corn syrup. As shown from the evidence, this compound contains no substance deleterious or injurious to the health; and, as it further appears from the evidence, under the practice of the department, commercial glucose may be properly labeled and sold under the name of " corn syrup," we are of the opinion there is nothing in the manner in which the cases of molasses involved in this controversy were labeled that is false or untrue, or which would tend to mislead or deceive a purchaser of [330] ordinary prudence, and there is no evidence found in the record tending to show any one was so deceived or mis- led by the labels employed. The authorities relied upon by the government to make out the charge of false branding, as shown by an examination, are cases in which it was determined the labels contained false statements as to the contents of the receptacle labeled. Such cases, for the reasons given, are not applicable to the facts in the case at bar. The direction of the court to return a verdict in favor of the claim- ant was right and must be affirmed. UNITED STATES v. EDWARD WESTEN TEA & SPICE CO. (District Court, E. D. Missouri, November 30, 1909.) N. J. No. 194. " Lemon Flavor " is synonymous with lemon extract, and an article labeled " lemon flavor " is adulterated and misbranded if it fails to comply with the standard for lemon extract as that product is known and understood by the trade and public.1 Informations alleging violations of section 2 of the Food and Drugs Act, Jury trial. Verdict of guilty. [2] Dyer, District Judge (charge to the jury). The act of Con- gress under which these informations have been filed, went into effect on the 1st day of January, 1907. It is, therefore, quite a recent statute. The States in their separate capacities, may have undertaken to regulate the sale of food products, but until this act was passed Con- 1 Contra, United States ». St. Louis Coffee & Spice Mills, p. 196, ante. DECISIONS OF COURTS. 223 gress had taken no effective action to prevent the adulteration and misbranding of articles of drugs, food, etc. Here we have only to deal with congressional acts. The court has nothing to do with State statutes applying to the same thing. This court gets jurisdiction only by virtue of an act of Congress conferring upon the court the jurisdiction to try such offenses as these. Congress has the power to legislate for the Territories, including the District of Columbia. The laws passed by Congress with ref- erence to the manufacture and sale of articles in the Territories and the District of Columbia, is exclusively with Congress. Under the interstate commerce laws, Congress has undertaken to say what shall and what shall not be proper shipments in interstate commerce beetween States. It has undertaken to say in the act to which I have referred, what is an adulteration [3] and what is a misbranding of articles manufactured and sent to other places within the State proper. Under the Constitution Congress had full and complete authority to do that. The first section of this act refers to the District of Columbia and the Territories. The second section prohibits the sending in interstate commerce, from one State to another, articles of food that are adulterated or articles of food that are misbranded, and they have announced a penalty in the statute against those things. In view of what has been said by counsel in reference to this recent act of Congress, it will probably not be unprofitable for the court to say something in referece to the matter. The second section of the statute, to which I call your attention^ provides : That the introduction in any State or Territory, or the District of Columbia, from any other State or Territory, or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited. And any person who shall ship, or deliver for shipment, from any State or Territory or the District of Columbia, or to any other State or Territory, or the District of Columbia, or to a foreign country ; or who shall receive in any State or Territory or the District of Columbia, from any other State or Territory or the District of Columbia, or foreign country, and having so received shall deliver in original, unbroken packages, for pay or otherwise, or offer to deliver to any other person any such article so adulterated or mis- branded, within the meaning of this act; or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs; or. export or offer to export the same to any foreign country, shall be guilty of a misdemeanor and for such offense be fined not exceeding two hundred dollars ($200) for the first offense; and upon conviction, for each subsequent offense not exceeding three hundred dollars ($300), or by imprisonment not exceeding one year, or both, in the dis- cretion of the court. So as to acquaint you, as the court has tried to acquaint himself, with the modus operandi provided by this statute for finding out and ascertaining whether or not this law has been violated, the third sec- tion provides that the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor, shall make uniform rules and regulations for carrying out the provisions of this act, including the collection and examinations of specimens of food and drugs manufactured or offered for sale in the District of Colum- 224 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. bia, or any of the Territories of the United States; or which shall be received from any foreign country, or intended for shipment to any foreign country; or which shall be submitted for examination, or at any domestic or foreign port through which said product is offered for interstate commerce. There is the authority conferred upon these members of the dif- ferent departments, to make regulations for the gathering of testi- mony or evidence, so to speak, of any violation of these laws. Then it was provided, and was read here in this stipulation : That the examination of specimens of food and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, under the direction and supervision of said bureau, for the purpose of determining from such examina- tion whether such articles are adulterated or misbranded, within the meaning of this act. You will see by the testimony in this case, that in each of these cases a Government officer went to the place of business of the parties named and bought from them the bottles containing this mixture, and he sent them to the laboratory — one to the Boston and the other to the Chicago laboratory, all passed upon by the Government author- ities and by them found to be adulterated. [4] Then what follows ? The Government does not put a defendant to trial because of that inquiry alone, but it goes further and says: If that be found to be so from the examinations made of this product (and you will remember that the officers of the Government, who bought these articles, testified here that they sent two bottles to one place, two bottles to another place, and the remaining two bottles were left with the person from whom they were taken) , as shown in those bottles, that they had been adulterated, and that they had been misbranded, then they were required to go further, after that was ascertained. Finding that they were adulterated or misbranded, within the meaning of the act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such samples were obtained. So this defendant was notified by the Secretary of Agriculture that these articles had been bought and that they had been found to be adulterated; but before authorizing any action to be taken by the district attorney, a hearing was had, at which the defendant was authorized to appear; and after that hearing (the department being still satisfied, from the hearing, that the articles had been adulterated or misbranded), it became the duty of the Secretary under this act of Congress, to transmit to the district attorney instructions to begin the proceedings, together with a copy of the analysis made at the time of the examination. From the evidence in these cases, and from the stipulation filed, it appears all of that was done, and these proceedings commenced. This act provides that : For the purpose of this act an article shall be deemed to be adulterated in case of food, first, if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength; second, if any substance has been substituted wholly or in part for the article; third, if any valuable con- stituent of the article has been wholly or in part abstracted; fourth, if mixed, colored or powdered in a manner whereby damage or inferiority is concealed. DECISIONS OP COURTS. 225 That is in reference to the article itself. Then in the same article, section 8, it says : That the term " misbranded " as used herein shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design or device regarding such articles or the ingredients or substances contained therein, which shall be false or misleading in any particular and to any food or drug product which is falsely branded, of. such territory or country in which it is manufactured or produced. So you will see what the purpose of Congress was, that no one who is desirous of knowing what the law is in that regard may make any mistake about it. The law requires the manufacturer to be honest in his statement of the contents of the package; it requires him to be honest in stating the truth upon the labels put upon it. That is all there is to the act. That is what the act is intended to accomplish, and which, if properly enforced, in my judgment, will accomplish. It is the dut}^ of you and of this court to obey the law and to enforce it; to enforce this statute as you would enforce every other statute. But it is not out of place for me to say here, that in the judgment of the Court, no act of Congress has been passed in recent years of more importance than this one. In dealing in foodstuffs, the seller should, and ought to know, what he is selling, and, on the other hand, the buyer should know what he is buying. This statute is not to be evaded by a mere subterfuge. It is to be enforced according to its letter and its spirit, and when that is done no one suffers by it. Now I have said that much in reference to this statute because, as it has been said, it is a recent statute and it may be proper that the statute should be given a fair interpretation, and I repeat that the statute is so plain as to the purpose and intent of Congress that there is no excuse for its violation. [5] There were three separate informations filed against this de- fendant in this court. They are numbered respectively 5394, 5427 and 5400. You are to consider only the two, 5427 and 5394. 5400, as I will direct you, is not supported by the testimony in this case, because the witness that was here from Oklahoma was not sufficiently able to state with positiveness that the article that the inspector found in his store was in the shipment made in 1907 or in 1906 ; and upon that information (the only count of which is for misbranding) , you will be directed to find a verdict of not guilty. Let us see what, in effect, the remaining two are : If they had been filed at the same time it would have been per- fectly proper for the United States attorney to have included in one information each of the counts that are embraced in these two ; but they were filed at different timefe, and hence, when the cases were called they were consolidated for the purpose of trial. There is no question about the shipments; no question about them having been, sent from here to the places mentioned; that is all supported and agreed upon. The first count, No. 5427, charges that shipment was made by this defendant from the City of St. Louis, of articles for sale in interstate commerce then and there labeled " Puritan Brand Flavor of Lemon for flavoring ice cream, pastry, etc. Edw. Westen Tea & Spice Co. of St. Louis" (band 'around the 40066—14 15 226 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. neck labeled "Strictly Pure"), which bottle was part of a larger consignment consisting of one box of bottled extracts shipped by Westen & Company, from St. Louis, to M. M. Smith, Holdenville, Indian Territory ; that the contents of said bottle were adulterated, in violation of the act of Congress of June 30th, 1906 ; that said bottle contained a liquid which was not flavor of lemon ; that true and genuine flavor of lemon, or lemon extract, is a solution of not less than 5 per cent by volume of oil of lemon in grain alcobol; and that the liquid con tained in said bottle contained no oil of lemon; that another substance, to-wit: a highly diluted alcoholic solution of citral had been substituted wholly for the article, all of which was to the defendant well known. That is the first charge in the first count of this information, and the second count charges that the article was misbranded. You have in the first count the allegation and charge that this was an adultera- tion within the meaning of the statute. The second count charges that it was misbranded. The other information charges substantially the same thing, only that it was shipped to a different person, in Kansas, instead of the Indian Territory, and the charge in the first count of this informa- tion is as to the same article — That the contents of said bottle were adulterated in violation of the act of Congress of June 30th, 1006, in this, that the said bottle contained a liquid which was not pure lemon flavor ; that true and genuine lemon flavor, or lemon extract, is a solution of not less than five per cent (5%) by volume of oil of lemon in grain alcohol and that the liquid contained in said botlle contained about two-tenths of one per cent by volume of oil of lemon, and that another substance, to-wit : a two-tenths of one per cent solution of oil of lemon has been substituted wholly for the article and that other substances had been mixed and packed with the liquid contained in said bottle, so as to reduce and lower and injuriously affect its quality and strength. That is the first count of that. The second count is for misbrand- ing, charging that this article so sent was misbranded by calling it a " Superior Quality of Wyandotte Pure Lemon Flavor for flavoring ice cream, pastry," etc. These are the four counts with which you have to deal. A great deal of testimony has been offered here as to whether the words " lemon extract " and " lemon flavor " are used in the trade as synony- mous terms. It is not my purpose to comment upon that testimony, although I have a right to do so. I prefer not to do so. I propose to submit these questions to you as business men and as intelligent men, able to judge well as the court, the value of the testimony that Las been given here before you. It is for you to determine from the evidence whether or not the terms " lemon flavor " and " lemon ex- tract " are synonymous and mean one and the same thing. [6] The contention of the Government is that " lemon extract " and " lemon flavor " both mean the same article, while the defendant contends that they do not. It is for you to determine whether by " lemon extract " and by " lemon flavor " is meant the same thing in the business world — in the trade, and whether or not the brand upon this bottle of " lemon flavor " would indicate to the purchaser that it was an article like or equivalent to " lemon extract." This statute imposes a penalty for its violation and to that extent is what we call a criminal proceeding against this defendant. In this case, as in all cases of a criminal character, the defendant is entitled to the benefit of any reasonable doubt arising in the minds of the jurors touching the inquiry that they have in hand. By a reasonable doubt is meant not a mere suspicion, but a doubt, arising from the DECISIONS OF COURTS. 227 evidence in the case, that would lead you to have a doubt as to whether or not the party is guilty of the offense as charged, and I may give in that connection an instruction that is asked by the defendant, to- wit : The court instructs the jury that rt is the duly of the Government to satisfy them beyond a reasonable doubt, of ail the facts necessary to convict the defendant, on each and every count, of each and every information ; and if, in respect to any of said counts the jury entertain a reasonable doubt, it will be their dutjr on such count to return a verdict in favor of the defendant. The court does not mean, however, that such doubt may be a mere suspicion of doubt or a mere conjecture, but if the evidence fairly leaves the jury in a state of uncertainty as to the guilt of the defendant on any of the counts, they should return a verdict thereon of not guilty. You have heard the testimony of various witnesses as to what the rule was that obtained prior to the passage of the pure food law. Some witnesses have said that before the passage of that act there was no difference, to the trade, between the words " extract " and " flavor " — that they were used synonymously ; that since the pure food act was passed there has arisen some question as to whether & diluted extract of lemon may be considered a flavor — whether a per cent less than five would still make a lemon flavor. All of these matters I submit to you. You have seen the witnesses on the stand and you have observed their manner and demeanor. If you think any one has sworn falsely, }^ou are at liberty to discredit the entire testimony of such a witness. The marshal will have a form of formal verdict prepared by the clerk, for your consideration. I may also say, and I should have said at the time, that the hearing had before the Secretary of Agriculture, or before the officer of the Department of Agriculture as to whether there was any adulteration of this product, or misbranding, is not to be considered as any evidence whatever against this defendant. I have only mentioned the law as providing certain things to be done, and certain things that the Secretary must do, after he in his own mind is satisfied, but none of those things has any binding effect upon you or the defendant here in this trial. I may also say that no regu- lation (if there be such a regulation) made by any officer of the Gov- ernment, is binding upon the defendant. You are to determine this case from the facts as charged in the information, as to what was understood in the trade and commerce of the meaning of these two terms. UNITED STATES v. 50 CANS OF PRESEEVED WHOLE EGGS. (District Court, S. D. Illinois, December 10, 1909.) N. J. No. 508. Preserved whole eggs containing approximately 2 per cent of boric acid held adulterated within the meaning of paragraph 5 of section 7 of the Food and Drugs Act, in the case of food, in that they contained an added deleteri- ous ingredient which might render such article injurious to health.1 Libel under section 10 of the Food and Drugs Act. Jury trial waived. Decree of condemnation and forfeiture. 1 Affirmed, Hipolite Egg Co. v. United States, p. 378, post. 228 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. DECREE OF THE COURT. Humphrey, District Judge. This cause having regularly come on to be heard on the 10th day of December, A. D. 1909, at the city of Peoria, and it appearing to the court that in accordance with the prayer of the libel filed herein, the United States marshal for the Southern District of Illinois, under the authority of a writ of moni- tion duly issued, seized upon the premises of Thomas and Clarke, a cor- poration, [2] doing business in the city of Peoria, State of Illinois, 52 cans of preserved whole egg, prepared by the Hipolite Egg Company of St. Louis, Mo., and thereupon gave due notice of said seizure and publicly advertised the same as required by law in such cases, and has since held in his custody said preserved egg so seized, and the said Thomas and Clarke having entered its appearance specially and hav- ing waived all right and title to said seized egg, and having consented that the Hipolite Egg Company might appear as the claimant and defend both in its own right as well as in behalf of the said Thomas and Clarke, and the said claimant having filed its answer and issue having been joined, and the libelant appearing by W. A. Northcott, United States attorney, and Henry A. Converse, assistant United States attorney, and the claimant appearing by Thomas E. Lannen, esq., and all parties interested having first stipulated in writing that the cause might be tried by the court without the intervention of a jury, and the evidence having been presented and the argument of counsel heard, the court finds : That said preserved whole egg is a food product intended for the consumption of human beings. That said food product was shipped from the city of St. Louis, in the State of Missouri, to the city of Peoria, in the State of Illinois, and remained within this jurisdiction unsold, and in the original and unbroken package. That said food product is adulterated within the meaning of the act of June 30, 1906 (34 Statutes at Large, 771), in that it contains 2 per cent of boric acid added as a preservative. That said boric acid is a deleterious ingredient which may render said article of food injurious to health. That said food product is illegally held within the jurisdiction of this court and is confiscable and liable to condemnation as provided by said act of June 30, 1906. Now, therefore, it is ordered, adjudged and decreed, that 30 days after the filing of this decree, the United States marshal shall take said 52 cans of preserved whole egg and totally destroy the same and that judgment be entered against the claimant for the costs in said case and execution issue therefor, and that the United States marshal shall make due report of how he has executed this order of this court, and shall report his bill of costs for said seizure, drayage, storage, advertising, destruction and all other necessary ex- penses incurred by him in and about said seizure, which said costs of the United States marshal shall be included in the court costs of this case. The court also made the following special finding as to the facts in the case: Now on this day come again the parties hereto by their respective attorneys and this cause now being submitted to the court upon the DECISIONS OF COURTS. 229 pleadings and proof adduced the court finds the facts in this cause as follows : SPECIAL FINDING OF FACTS. The court finds the facts to be : 1. This libel is filed by the United 'States of America in its own right and prays seizure for condemnation of certain articles of food contained in 50 cans, more or less, purported and represented to be " Preserved Whole Egg " as hereinafter particularly set forth, in ac- cordance with the act of Congress [3] approved June 30, 1906, and more commonly known as the Food and Drugs Act. This proceeding is brought under section 10 of said act. 2. The court finds that on or about May 14, 1908, Thomas & Clarke, an Illinois corporation, with its place of business in the city of Peoria in this district and engaged in the business of conducting a so-called crackers bakery in said city, entered into a written contract with the Hipolite Egg Company, a Missouri corporation, doing business in St. Louis, Mo. ; by the terms of which contract the Hipolite Egg Com- pany was to put up and preserve a certain quantity of preserved whole egg. 3. Under the terms of this contract the Hipolite Egg Company prepared the eggs in question in this suit and on or about the 21st day of May, 1908, placed said eggs in a cold storage warehouse at St. Louis, Mo., in the name of Thomas & Clarke, and a warehouse receipt covering said eggs was issued to Thomas & Clarke and forwarded to them by the Hipolite Egg Company, together with an invoice for the contract price of said eggs. Thereafter, on or about June 1, 1908, Thomas & Clarke paid said invoice to the Hipolite Egg Company. 4. In the early part of November, 1908, Thomas & Clarke sent a written order on the warehouse where said eggs were stored to the Hipolite Egg Company for the eggs in question to be delivered to Hipolite Egg Company for shipment to Thomas & Clarke. Hipolite Egg Company thereupon presented said order to the warehouse and obtained said eggs and delivered same to a common carrier for ship- ment to Thomas & Clarke, at Peoria, 111. 5. Thomas & Clarke paid all storage charges on said eggs while in storage at St. Louis as aforesaid. Thomas & Clarke also took out insurance in its own name on said eggs while in storage at St. Louis as aforesaid, and paid all premiums thereon. Thomas & Clarke also paid the freight on said eggs from St. Louis to Peoria. Hipolite Egg Company received no extra compensation for taking said eggs from the warehouse and delivering same to the common carrier. 6. The court finds that said eggs were transported from St. Louis, State of Missouri, to Peoria, in the State of Illinois, as aforesaid and were received by Thomas & Clarke at Peoria on or about November 16, 1908. 7. The said shipment consisted of 130 cans, each can containing about 42 pounds of eggs. Each can was a separate sealed package. The eggs in the cans were whole eggs, minus the shells, that had been broken out of the shells into these cans. 8. The court finds that the said eggs were an article of food and contained added to it a deleterious ingredient known as boric acid which may render such article injurious to health, and that the said 230 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. eggs were in fact injurious to health, and the court further finds that the amount of boric acid contained in said eggs was approximately 2 per cent. And the court finds that said eggs were adulterated within the meaning of the act of June 30, 1906. 9. Thomas & Clarke did not know at the time of shipment that said eggs contained boric acid. At the time of making said contract Thomas & Clarke did not know by what process Hipolite Egg Com- pany would preserve said eggs, but did know that the eggs were to be preserved by having added thereto some kind of a preservative, in addition to being sealed in air-tight cans. 10. At the time of the seizure of said eggs they were stored in the storeroom of Thomas & Clarke in their bakery factory at Peoria, along with their bakery supplies. About 80 cans of said shipment had been used I137 opening said cans and pouring said eggs into a mixture of flour and other ingredients and thereby making a dough. This dough was baked into pastry, such as vanilla wafers, and this pastry was sold to the public. The 50 cans of eggs more or less, seized by the marshal were intended and about to be used for baking purposes as aforesaid at the time of seizure, and said eggs were not intended to be sold as eggs in the original unbroken packages, or otherwise, but were to be used only as above set forth and were transported as aforesaid only for such purpose, but at the time of seizure said eggs were in unbroken original packages, as originally shipped and were then on the premises of Thomas and Clarke unsold. The Hipolite Egg Company, claimant, sued out a writ of error and also appealed from the aforesaid decree to the Supreme Court of the United States on the ground that the trial court was without jurisdiction in the case. The jurisdictional questions involved are set forth in the triaL court's certificate, which is as follows: CERTIFICATE OF JURISDICTIONAL QUESTIONS. The District Court of the United States for the Southern District of Illinois hereby certifies to the Supreme Court of the United States that on the 18th day of December, A. D. 1909, a decree was entered in the above entitled cause confiscating said 50 cans more or less of preserved whole eggs and assessing the costs of said case against Hipolite Egg Company, claimant in the above entitled cause. And this court further certifies that in said cause the jurisdiction of this court is in issue; and that said question of jurisdiction was raised in the folloAving manner : 1. The libel in this case was a proceeding in rem under section 10 of the act of June 30, 1906 (34 Stat. 771), against 50 cans more or less of preserved whole egg, the libel alleging that said eggs were transported in interstate commerce from St. Louis, Mo., to Peoria, 111., and were adulterated within the meaning of said act. 2. It appeared from the evidence on the part of the libelant on the trial of this cause that said eggs before the shipment. alleged in the libel had been stored in a warehouse in St, Louis, Mo., for about five months, during all of which time the said eggs were the property of and owned by Thomas & Clarke, an Illinois corporation engaged in the bakery business at Peoria, 111., in this district. DECISIONS OF COURTS. 231 3. On or about November 1, 1909, Thomas & Clarke procured the shipment of these eggs from St. Louis, Mo., to themselves at Peoria, 111. ; and upon receipt of said eggs Thomas & Clarke placed the ship- ment in their store room in their bakery factory at Peoria along with their other bakery supplies. 1. These eggs were intended for use by Thomas & Clarke for bak- ing purposes, and were not intended for sale by them in the original unbroken packages or otherwise, and were not so sold. 5. Hipolite Egg Company, a corporation of Missouri, appeared as claimant of said eggs and intervened and filed an answer to said libel and defended this case, but did not enter into any stipulation to pay the costs of this case. 6. Upon the close of libelant's evidence and again at the close of all the evidence counsel for claimant moved the court to dismiss said libel on the ground that it appeared from the evidence that this court as a Federal court had no jurisdiction to proceed against or confiscate said eggs, because said eggs were not shipped in interstate commerce for sale within the meaning of section 10 of said Food and Drugs Act, and for the further reason that the evidence showed that said ship- ment of eggs had passed out of interstate commerce before the seizure of said eggs in this case, because it appeared that said eggs had been delivered to Thomas & Clarke and were not intended to be sold by them in the original unbroken packages or otherwise. 7. This court overruled said motions, to which rulings counsel for claimant then and there duly excepted, and this court then proceeded to hear and determine said cause and entered a decree finding said eggs adulterated and confiscating the same and assessing the costs of this case against the claimant, Hipolite Egg Company. 8. Counsel for claimant excepted to the rendition and entry of said decree on the ground that this court is without jurisdiction in rem over the subject matter and on the further ground that this court is without jurisdiction to enter a judgment in personam against said claimant Hipolite Egg Company for costs of said case as aforesaid. And this court therefore certifies to the Supreme Court of the United States the following questions of jurisdiction raised as afore- said : First : The question of whether this court had jurisdiction in rem over said eggs transported as aforesaid. • Second: The question of whether this court had jurisdiction to render and enter a decree for costs against the claimant, Hipolite Egg Company, in personam. UNITED STATES v. JOHN A. TOLMAN & CO. (District Court, N. D. Illinois, December 23, 1909.) N. J. No. 271. An article of food labeled " Topmost Cane and Maple Syrup. This syrup is composed of the following: ingredients and none other : Cane Syrup 60%, Maple Syrup 40%," held misbranded because such article contained little, if any, maple syrup. Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. Motion for new trial and in arrest of judgment. Overruled. 232 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. [1] Landis, District Judge (charge to the jury). This is a case which is governed by the rules of the criminal law. The paper filed by the United States formally charging the offense against the de- fendant is not an indictment; it is called an information. But the rule which guides you, which you must observe, is the same rule that would be in force if, instead of an information, it were a grand jury indictment. Now, in this case, it is by this rule of the criminal law that it devolves upon the United States to establish this charge against the defendant [2] beyond all reasonable doubt as distin- guished from establishing the charge by the preponderance of the evidence, as has been the rule in some civil cases which you gentle- men have served in. You will recall that in a civil case the court instructed you as to the rule governing in that case, namely, that that side in the litigation which had the greater weight of the evi- dence was entitled to your verdict. Not so here. Now, by this expression of reasonable doubt is meant such a state of mind on the part of the jurors, and each juror, where that juror may say that he has an abiding conviction of the guilt of the defendant of the offense charged, that is to say, there is no hypothesis consistent with the defendant's innocence that you can reasonably arrive at. If you are in that frame of mind, the guilt of this defendant of this charge has been established beyond a reasonable doubt. It does not mean such a state of mind as a man may work himself up into in an endeavor to find a way out for somebody accused of crime. That is not a reasonable doubt. Now, at the outset of this proceeding this defendant is presumed to be innocent, just as in the case of an indictment. It is presumed to be innocent of this offense. The making of the charge, the conduct- ing of the inquiry, the analyses made by all of these witnesses prior to this hearing, the filing of the papers in the court, the issuance of the summons — all that counts for nothing as far as the matter of the guilt of the defendant is concerned, the point being that when you take your oaths here as jurors the defendant stands before you as innocent of this charge as you are ; that is what the presumption of in- nocence means. It is not a form nor a conventional expression which has no color nor meaning. It is a real substantial right, a right of such substance that it has to be torn down and destroyed by evidence — evi- dence of such a character as to put your mind in that state where you may say, as I said before, you have an abiding conviction of the de- fendant's guilt. Now, it has been said that it is an important case for the United States. It has been said that it is an important case for this defendant — because it has been said there are people away from this court room interested in the outcome of this litigation. You have not anything to do with that — not a thing — with that pro- cession on the sidewalk moving by this building, you have no concern whatever, save only that it may hear that you have answered your obligation under your oaths in this lawsuit between the parties liti- gant here in this court room. Now, there is the important thing in this situation, and if you discharge that obligation you have dis- charged your duty, regardless of what the consquences of your verdict may be. Now, the charge in this case is that this defendant, the John A. Tolman & Company, on the third day of October, nineteen hundred DECISIONS OF COURTS. 233 seven, delivered to the Chicago, Milwaukee and St. Paul Railway Company two packages for transportation over the rails of that company from Chicago, the place of delivery, to Algona, in the State of Iowa; that these packages contained four dozen one-quart oblong tin receptacles filled with a preparation called " Topmost cane and maple syrup," and that to each one of these quart oblong tin recep- tacles— in plain language, a tin can; you have seen it here — were then and there attached, one upon the front, the other upon the back, labels; which said labels did then and there contain various printed matter ; that these labels, that is to say, the one attached to the back of each of these tin receptacles, containing this commodity referred to as " Topmost cane and maple syrup," contained the following state- ment: "This syrup is composed of the following ingredients, and none other: Cane syrup 60%; maple syrup, 40%. John A. Tolman and Company, Chicago." Then, the charge is in the information that that statement in the label is false and misleading in that the article contained in the tin receptacle contained little, if any, maple syrup. Those portions of the law for an infraction of which the defendant is sued in this case provide that the delivery for shipment of an article of food misbranded for transportation to another State than the point of delivery is prohibited and punishable. The term " misbranded " as related to food means, if the package containing the food product or the label on the package containing the [3] food product, bears any statement, design, or device regarding the ingre- dients, or the substances therein contained, which statement, design or device shall be false or misleading in any particular, then, in the case of a charge that — a charge involving the food section, there is a misbranding. So, the charge in this case is in substance that the defendant company, on the elate named in the information delivered to the St. Paul road for transportation by that company over its road to Algona, to the addresses named in the information, the con- signees named in the information, two boxes containing four dozen of these tin receptacles, each of which tin receptacles was misbranded in the respect indicated, namely, that the brands stated 40% maple syrup when, in truth and in fact, the commodity contained little, if any, maple syrup. The defendant pleads not guilty to this charge. And the charge with the plea, raise the issue, as I have stated, that you are to determine and express by your verdict : Did the defendant deliver to the St. Paul road at the time indicated, four dozen of these receptacles contained in these two boxes, consigned as the information states. Now, as to that phase of the inquiry, dealing w7ith the ques- tion of the contents of those other receptacles in the two boxes, other than was examined by the chemists, these which it is admitted by the stipulation were found on the shelves of the Algona merchant ; I have this to say: You are authorized, if in your judgment the proof jus- tifies it, having in mind the rule of presumption of innocence and reasonable doubt, as I have defined those expressions to you, you are authorized, if you believe the testimony shows a misbranding as to those receptacles referred to specifically in the evidence as having been analyzed, you have a right to infer, and the law authorizes you to infer from that proof as to the contents of the specific receptacles examined and analyzed, that all of the receptacles contained in that two boxes contained the same ingredients and were the same com- modity. I say you are authorized to infer that, considering the tes- 234 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. timony of the witnesses as to what was contained in this, and all the other evidence in the case, even with no evidence of a specific exam- ination of the other receptacles that went with this receptacle in the box, if you say, if you can say, I have an abiding conviction that the other receptacles in those boxes other than the ones examined con- tained this same thing, then, on that phase of the case, you have no reasonable doubt, and in determining the question of what is proved here in that regard, as well as in all others, the rule is that in a crimi- nal case, as in a civil case, you bring into the jury box with you your common sense judgment. You take the testimony of the witnesses here and the evidence in this stipulation of facts which the counsel in the case representing the two litigants have agreed to, and subject that testimony to the same kind of judgment that you would subject your important matters away from here to, at your home or in your business, with no purpose save only to answer the question, guilty, or not guilty, as charged here, and, as I said a while ago, without any possible or remote regard to the fact that the United States of America or the defendant considers this a very important lawsuit. This is no more important than any other. Subject the testimony of these witnesses, the testimony of this stipulation, all of it together, to your common sense judgment, to determine you in answering the question whether or not the contents of the recptacle is as charged in the government's information, namely, does it contain little or no maple syrup ? The facts in this case are for you and not for me. I have no inclination nor authority to control your determination of a matter of fact. Were I to do that, it would be an invasion of your rights and authority. You can not shift that burden to me, if you want to. It is on your shoulders, and not mine. The law of this case is on me, and it is the law that you must take my word for the law, even though you disagree from me as to the law, even though you may think it is not a good law, that you could write a better law, or there should be no law on this subject. It is this thing here that binds yon and me in this lawsuit, and this thing here that must be enforced in this case, if the facts of this case fit this law, no matter what your private view may be. [4] Now, coming to the question — and there does not seem to be much dispute in this- case as far as you are concerned; — matters for you to determine. There does not seem to be much dispute in this case to bother your minds, that is to say, dispute between witnesses. The difficulty here, if any there be, is in coming to a conclusion of the evidence of the Avitnesses introduced on one side, as to whether or not that testimony reads within the meaning of this law, the de- livery of a thing containing something that was enclosed in a thing misbranded. bearing a false and misleading brand. In other words, it is difficult, if any there be, in construing or interpreting, or analyzing and concluding whether or not these things come within this law — no dispute between the witnesses. The label, as I stated a while ago, and as you know, contains a statement that the contents, in substance the contents of this parcel contain 40 per cent maple syrup, and, as I said a while ago, this law forbids the placing upon the parcel of a label containing that statement, if it is substantially untrue, or substantially misleading. So, the question for you to decide is whether or not this parcel contained a substance, one of the DECISIONS OF COURTS. 235 ingredients of which was maple syrup, and if so whether that in- gredient, maple syrup, constitutes 40 per cent of the commodity. That is the question for you to determine. And on that question you have had here the testimony of chemists, and I say to you in this kind of a case I suppose that that is about the best testimony we can get. I suppose you probably cannot take that can and determine the contents, the ingredients of the contents. That is a matter for chemical analysis; and yet you have a right, when you go to your jury room, to open that can and determine by your taste, if under your oaths in accordance with the rules I have laid down, you can do it and are satisfied to do it, you may open that can and by your taste determine this defendant to be not guiltj^. You have that power under the law, and three experts, nor a hundred experts, can take that power away from you, a power, however, to be exercised having regard to the nature of a function which under our system you here exercise, exercising it with no purpose in the world save only to arrive at the truth of the matter, always bearing that in mind. Now, the dispute is between this prosecution and this defense as to whether or not there is any way of determining what is meant by the expression, " maple syrup," or " pure maple syrup," or " genuine maple s}Trup." For Ihe United States the position is that the phrase " maple syrup " used on this label of this defendant is to be under- stood as meaning to him who put it there, and as having been in- tended by him to be read by him who saw it there, as meaning the result of boiling down the sap of the hard maple tree to a degree or state of consistency Avhere it would be regarded and called maple syrup, excluding the addition to it of any outside substances, ex- cluding putting into it anything in the way of an adulterate — the product solely of boiling down the sap of the hard maple tree. Now, my own judgment is that it is not a serious question, as you might suppose, having in mind that that is what it means — the product solely of boiling down the hard maple sap. It is my judgment that it isn't very important whether it was boiled down to a point where there was within the resultant product 34 per cent of water or 36 per cent of water, or 40 per cent of water. It might very rationally and reasonably still be called maple syrup. The tests which these witnesses have gone by have been explained to you. One has been called the lead test. What that means the witnesses have told you. I will not undertake to repeat to you what they said to you they had in mind when they talked about that test. The ash test is an- other way which they explained to you, and that test is as familiar to you as to me. Now, their testimony is that, subjecting the contents of the can to those two tests, certain facts appeared, which facts have been de- tailed to you by the several witnesses as to the presence of ash and the condition shown by the lead test, and the witnesses have testified as to the amount of ash necessarily and essentially present in pure maple syrup, and you are dealing here, when you talk about maple syrup, you are dealing with pure maple syrup, as I have defined to you the meaning of maple syrup heretofore [5] in these instructions ; and by those tests the reasoning of the witnesses is that the contents of this tin receptacle contain the percentage (and it is a percentage per volume of contents) — the percentage of maple syrup within the can. 236 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. I do not know how I can any better explain to you the nature of this charge. It is a new field. There are questions involved which would be more satisfactorily disposed of by the court, after a better opportunity for consideration and reflection than is afforded in the trial of a case, the day after day trial of the case with sessions of the court separated by periods which are largely clogged with other business than the business which calls you here. I have done the best I can in defining to you what the issue is in this case. It is your duty to answer this question : guilty or not guilty, to the best of your ability. If you find for the United States, the form of your verdict will be: we, the jury, find the defendant guilty; if you find for the defendant, the form of your verdict will be : we, the jury, find the defendant not guilty. UNITED STATES v. CHAELES L. HEINLE SPECIALTY CO. (District Court, E. D. Pennsylvania, January 4, 1910.) N. J. No. 3S9; Circular No. 29, Office of the Solicitor. Section 9 of the Food and Drugs Act, held constitutional. Information filed by the United States against the Charles L. Heinle Specialty Co., charging violation of section 9 of the Food and Drugs Act, in the making and giving by the defendant of a false guaranty relating to a food product which was alleged to be adul- terated and misbranded within the meaning of the act, and which product was shipped in interstate commerce by the dealer to whom the guaranty was given. On demurrer to the information. Over- ruled. Plea of guilty. [2]1 Holland, District Judge (overruling demurrer). This is a demurrer filed by the defendant to an information lodged against it by the district attorney for the Eastern District of Pennsylvania for having sold an adulterated and misbranded article of food manu- factured by it and in violation of the ninth section of the Pure Food Act of June 30, 1906, executed and delivered a false guaranty to the effect that the merchandise sold was not adulterated or mis- branded within the meaning of the act. The dealer to whom [3] this adulterated and misbranded food was sold by the defendant and to whom the false guaranty was given, sold the same in interstate commerce, and upon the discovery by the Government officials that the article was misbranded, it is alleged the dealer who sold the same in interstate commerce established the guaranty of the defendant; whereupon this information was filed. The defendant's demurrer alleges that the information sets forth no charge or offence for which the defendant can be convicted and punished under the act of Congress, approved June 30, 1906, because the ninth section, upon which the information is based, is unconsti- tutional. Under the second section of this act the introduction into interstate commerce of adulterated or misbranded foods is prohibited, and any person violating this provision is guilty of a misdemeanor; subject to certain fines and penalties. 1 Numbers in brackets refer to pages of Notice of Judgment. DECISIONS OF COURTS. 237 The ninth section is as follows : That no dealer shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, flues and other penalties which would attach, in due course, to the dealer under the provisions of this act. The defendant in this case is charged in the information with hav- ing executed and delivered to the dealer who sold the adulterated and misbranded food in interstate commerce the following guaranty, which is alleged to be false: We, the vendors of the articles mentioned in the foregoing invoice, hereby guarantee and warrant the same to be in full conformity with the Federal act of June 30th, 1906, known as the " Food and Drugs Act," * * * in that the said articles are not adulterated or misbranded within the meaning of * * * the aforesaid act of Congress. It is not contended by the defendant that Congress has no con- stitutional right to prohibit the introduction of adulterated and mis- branded foods in interstate commerce, but the claim is that so far as the defendant's connection with the adulterated and misbranded goods was concerned, the entire transaction of manufacturing, selling and delivering by it was consummated within the State, as was the issuance of the false certificate, and as the defendant's connection with the article was entirely within the State, the fact that the cer- tificate indicates that the adulterated and misbranded commodity was intended for interstate commerce can make no difference, because the Federal Courts could have no jurisdiction, whatever the intention of the manufacturer might be, until such goods had been shipped or entered with a common carrier for transportation to another State, or had been started upon such transportation in a continuous route or journey; and cites Kidd v. Pierson, 128 U. S. 1. There is nothing in the act to indicate that there is an effort on the part of Congress to regulate the manufacturing, selling or deliv- ering of any articles of food within the States. The act is intended to prevent adulterated and misbranded foods from being sold in interstate commerce; nothing more, and in order that this may be accomplished it prohibits the party who makes or manufactures the food and who knows what it contains from falsely assuring an in- nocent purchaser that its quality and dress lawfully entitles him to sell the commodity in interstate commerce. Such a certificate, made by a defendant, expressly under the provisions of the act, if false, could have been made with no purpose other than to defeat the object of the act. This prohibition is [4] obviously essential to the enforce- ment of one of the important powers with which Congress is in- trusted, to wit : the regulation of interstate commerce. To punish the dealer who sells the article in another State will not in all cases reach the evil sought to be remedied. He may be entirely innocent of any intention of selling an adulterated or misbranded food, because he may be unable to tell the difference between a pure article and one adulterated, and dealers cannot be expected to employ expert chemists to examine the great variety of commodities which enter into commerce and are dealt in by them ; but the evil can soon 238 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. be cured if the innocent dealer may shift the responsibility for the purity of the commodity to the manufacturer by requiring him to certify to the effect that the article is not adulterated or misbranded, when the manufacturer knows he will be subjected to punishment in case he gives a false certificate prohibited by the act. In the case of United States v. Fox, 95 U. S. 670, 24 L. Ed. 538, in passing upon the provision in the bankrupt law which made it a misden eanor, punishable by imprisonment, for obtaining goods un- der false pretence with intent to defraud, within three months of the commencement of bankruptcy proceedings, the court held that as this would be no offence under the act of Congress at the time of the commission of the false pretence, that any subsequent independent act by the party himself or a third party in instituting bankruptcy proceedings, could not make it a crime punishable in the Federal Courts. In the discussion of the question, it was said by Justice Field, that " the criminal intent essential to the commission of a public offence must exist when the act complained of is done; it cannot be imputed to a party from a subsequent independent trans- action. There are cases, it is true, where a series of acts are neces- sary to constitute an offence, one act auxiliary to another in carrying out the criminal design." In this case, the criminal intent essential to the commission of the offence existed at the time defendant gave the certificate specifying that it was under the pure food act of Congress of June 30, 1906. With what purpose and intent was the certificate given other than for the purpose of evading the provisions of this act of Congress? It is averred defendant made and knew the goods were both adul- terated and misbranded, and with this knowledge gave a certificate that they were not adulterated or misbranded in order that an inno- cent purchaser might sell them in interstate commerce, and, in this case, the purpose of the certificate was accomplished. The dealer did just what the defendant intended he should do, that is, the dealer relying on the certificate sold the articles in another State. "Any act committed with a view of evading the legislation of Congress, passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offence against the United States." U. S. v. Fox, supra. Demurrer overruled. UNITED STATES v. JOHNSON. (District Court, W. D. Missouri, W. D., January 8, 1910.) 177 Fed. 313; N. J. No. 266. A drug represented as a remedy for cancer held not misbranded within the meaning of the Food and Drugs Act by reason of alleged false and mis- leading statements on the label relative to the therapeutic value of such drug.1 Indictment charging misbranding in violation of section 2 of the Food and Drugs Act. On motion to quash indictment. Motion sus- tained. 1 Affirmed, United States v. Johnson, p. 427, post. DECISIONS OF COURTS. 239 [314] 1 Philips, District Judge. The defendant has filed motion to quash the indictment, for the principal reason that it does not disclose an indictable offense. It is predicated of what is known as the " Pure Food and Drug Act," entitled "An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes." Approved June 30, 1906. Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187). It contains six counts. The first count, in substance, charges that the defendant shipped from one State to another cer- tain articles designated as " Cancerine Tablets," "Antiseptic Tablets," " Blood Purifier^" " Special No. 4," " Cancerine No. 17," " Cancerine No. 1," which constituted " Dr. Johnson's Mild Combination Treat- ment for Cancer." It charges that they were misbranded within the meaning of the act aforesaid, in that the broken packages, etc., of " Cancerine Tablets " were labeled and branded as follows, to wit : " Complies with the Food and Drug Act, June 30, 1906. Cancerine Tablets. Take two tablets in water every three hours during the day. Do not take more than four doses in twenty-four hours. Prepared for and distributed by Dr. O. A. Johnson, 1233 Grand Ave, Kansas City, Mo." — which said label or brand is alleged to be false and misleading in that it bears the name " Cancerine Tablets," which statement, regarding such articles and substances contained therein, is false and misleading, in that it implies that said tablets will cure, and are effective in bringing about the cure of, cancer, which was untrue, and that they were worthless and ineffective for such purpose. The second count is predicated of packages containing " Blood Purifier," which were misbranded within the meaning of said act, in that they were labeled : " Guaranteed under the Pure Food and Drug Act, June 30, 1906, Serial No. 18131. Contains not more than 20 per cent. Alcohol. Dr. Johnson's Mild Combination Treatment for Cancer. Blood Purifier. This is an effective Tonic and Alterative. It enters the circulation at once, utterly destroying and removing impurities frcm the blood and entire system. Acts on the Bowels, Kidneys and Skin, eliminating poisons from the system, and when taken in connection with the Mild Combination Treatment gives splendid results in the treatment of cancer and other malignant dis- eases." This was followed with directions how to take the remedy. The charge is then made that said label was false and misleading in that it bears false statement that said drug is a part of the treat- ment for [315] cancer, etc., whereby it held out and falsely claimed that said drug is efficacious in the treatment of cancer, etc., when in truth and fact the drug contained in said packages is worthless and ineffective for such purpose. The third count is predicated of packages under the name of " Blood Purifier," and is in effect the same as the preceding ship- ment, only to a different party. The fourth count is predicated of packages and bottles under the name of " Special No. 4 " with the label " Dr. Johnson's Mild Com- bination Treatment for Cancer. Special No. 4," with directions as to how it was to be applied and used, and its effect. This label is charged to be false and misleading in that it would not accomplish the results stated. 1 Numbers in brackets refer to pages of Federal Reporter. 240 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The fifth count is predicated of shipments of boxes, etc., containing " Cancerine No. 17," with directions as to how the same should be applied and used. The indictment charges that these were false and misleading in that said drug was offered as part of the treatment for cancer, holding out and representing that said drug will cure, and is effective in bringing about the cure of, cancer, when, in fact and in truth, it was not effective for such purpose. The sixth count is predicated of a shipment of box or carton called " Cancerine No. 1," which is alleged to be misbranded within the meaning of the act, in that the label contained the following : " Dr. Johnson's Mild Combination Treatment for Cancer, Tumor and Other Chronic Diseases. Cancerine No. 1 " — with directions as to how the same should be applied and used. Said label or brand is alleged to be false and misleading, in that it bears thereon the name " Can- cerine No. 1," statements regarding such articles and substances con- tained therein which are false and misleading, in that said drug was represented as part of the treatment for cancer, and that it would cure, and is effective in bringing about the cure of, cancer, etc., when, in truth and fact, it is wholly worthless and ineffective for the pur- poses recommended. From which it is apparent that no charge is preferred by the in- dictment that the drug or medicine was adulterated, or that it con- tained anything that was poisonous or deleterious, or that it con- tained less than what was represented, or that in any respect there was any misbranding as to the contents and composition thereof. The substantive charge is that the articles manufactured and shipped by the defendant are and were inefficacious in producing the cures and "remedies indicated by the label. The question, therefore, to be decided is whether this presents an indictable offense within the provisons of the pure food and drug act. The very title of the act indicates its scope and purport. Its underly- ing purpose was to protect the public health against imposition upon the users of food, drugs, and medicines which were adulterated, misbranded, poisonous, or deleterious. To this end, the first sec- tion of the act makes it unlawful and an indictable offense " for any person to manufacture * * * any article of food or drug which is adulterated or misbranded, within the meaning of the act." The second section forbids the introduction into any State, etc., or from any [316] foreign country, or shipment to any foreign country, of any article of food or drug which is adulterated or mis- branded within the meaning of the act, etc. The third section directs that the Secretary of the Treasury, of Agriculture, and of Commerce and Labor, shall make uniform rules and regulations for carrying out the provisions of the act. The fourth section declares that the examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such bureau, " for the purpose of determining from such exami- nations whether such articles are adulterated or misbranded within the meaning of this act." Section 5 declares the duty of district attorneys, to whom the Secretary of Agriculture shall report any violation of this act. Section 6 declares that the term " drug," as used in the act, shall include all medicines and preparations recognized in the United DECISIONS OF COURTS. 241 States Pharmacopoeia or National Formulary for internal or ex- ternal use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or animal. Section 7 then specifies when an article shall be deemed to be adul- terated. In case of drugs, if it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopoeia or National Formulary : " Provided, that no drug defined in the United States Pharmacopoeia or National Formulary shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or National Formulary," or if its strength or purity fall below the standard under which it is sold, or any sub- stance has been substituted wholly or in part for the article, or any valuable constituent of the article has been wholly or in part ab- stracted, or if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed, or if it con- tain any added poisonous or other added deleterious ingredient which may render such articles injurious to health (with a certain pro- vision) , or if it consist in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, etc. Section 8 is as follows : That tlie term " ruisbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the pack- age or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it Is manufactured or produced. It is conceded that the indictment is predicated of the words con- tained in the foregoing section 8, " the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular." In other words, the contention is that the label on the bottle or container, as to the curative or reme- dial effect of the contents, is a [317] misbranding within the meaning of the statute, if, in fact, the prescription be ineffectual for the pur- pose indicated. This, it seems to me, is an entire misconception of the term " misbranding " as used in the act. The language, " the package or label of which shall bear any statement, design, or de- vice regarding such article, or the ingredients or substances con- tained therein which shall be false or misleading in any particular," must be read and interpreted so as to have regard to its context, and is to be restrained by the subject-matter of the act. Having regard to the intendment of the whole act, which is to pro- tect the public health against adulterated, poisonous, and deleterious foods, drugs, etc., the labeling or branding of the bottle or container, as to the quantity or composition of " the ingredients or substances contained therein which shall be false or misleading," by no possible construction can be extended to an inquiry as to whether or not the prescription be efficacious or worthless to effect the remedy claimed 40066—14 16 242 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. for it. Pretermitting any expression of opinion as to how far Con- gress may go in the direction claimed under this indictment, it is suffi- cient to say that this legislation, predicated of the commerce clause of the Federal Constitution, it must be conceded, presses the power of the general government close to the confines of limitation. In the debates in Congress, when this measure was under consid- eration, it was never sought to be justified except on the ground of protecting the public health, as it might be affected by interstate shipments of food, drugs, etc. At no time was it asserted or pre- tended that it was proposed to reach the matter of holding the manufacturers and vendors of prescriptive or patented medicines, multitudinous and multiform as they are, to criminal liability for mis-statements as to the curative or remedial effects of the prescrip- tion, which would necessarily depend upon the opinions of contend- ing experts and the users of the nostrums. As this is a criminal statute, creating a new offense, it must be strictly construed and applied. It must be restrained to its ex- pressed, reasonable intendment; otherwise, the courts, by mere con- struction, may extend its operation far beyond the legislative intent. If it had been the mind of Congress to make it an indictable offense for such manufacturers and vendors by their labels or brandings on bottles and packages to mislead the buyers as to the curative or heal- ing properties of the drugs, as to the mere matter of commendation, apt words, both in the title and body of the act, could and should have been easily employed to indicate such purpose, and not leave it to the courts by strained construction to read it into the statute. The motion to quash is sustained. UNITED STATES v. BOECKMANN. (Circuit Court, E. D. New York. January 15, 1910.) 176 Fed. 3S2; N. J. No. 269. A food product labeled " Compound : Pure Comb and Strained Honey and Corn Syrup," held not misbranded merely because the percentage of corn syrup in the compound largely exceeded that of honey. Indictment charging violation of section 2 of the Food and Drugs Act. On demurrer to indictment. Demurrer sustained. Chatfield, District Judge. A demurrer has been interposed to an indictment charging the defendant with having shipped from the State of New York to the State of New Jersey, a certain article of food for man, labeled " Compound: Pure Comb and Strained Honey and Corn Syrup ; " that the label was false and misleading, and the contents of the jar misbranded, in that "the said label represented the principal ingredient of the said contents of said glass jar to be pure comb honey " when in fact the contents were " almost wholly glucose and starch sugar, and the said contents of the said glass jar in truth and in fact consisted of a very small percentage of pure comb honey." It has been called to the attention of the court that under the au- thority of the statute of June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]), certain regu- DECISIONS OF COUKTS. 243 lations for the guidance of the public, and for carrying out the provisions of the law, have been made by the Secretary of Agricul- ture, and certain rulings or decisions by the Secretary of Agriculture have construed the language of the Statute. For instance, Food Inspection Decision No. 75 provides that, "When both maple and cane sugars are used in the production of syrup, the label should be varied according to the relative proportion of the ingredients, [383] 1 the name of the sugar present in excess of fifty per cent of the total sugar content, should be given the greater prominence on the label, that is, it should be given first." Also, Food Inspection Decision No. 87 provides that, " Viscous syrup obtained by the incomplete hydrotysis of the starch of sugar " should be labeled " corn syrup with cane flavor," if a small percentage of the product of the cane is added thereto. There is no charge of any violation of regulations, or refusal to comply with the rulings of the Commissioner of Agriculture, but the case presents an entirely distinct question, depending upon the pro- visions of the Statute itself. In the present indictment we have an allegation that the defendant has put upon the market, for interstate commerce, an article which is misbranded, in that the label is misleading, solely because the princi- pal ingredient is alleged to be held out to the public as "pure comb honey," when in reality " glucose and starch sugar " made up almost wholly the actual " principal ingredient." Under the decision In re Wilson (C. C.) 168 Fed. 566, such a label as is recited would not be contrary to fact, and this court agrees in the opinion that it is impossible to say what portion of the label as printed would signify greater percentage of the product. The demurrer will be sustained. UNITED STATES v. KNOWLTON DANDERINE COMPANY. (Circuit Court of Appeals, Fourth Circuit, February 1, 1910.) 175 Fed. 1022; N. J. No. 284. Certain casks of liquid extracts, shipped from the manufacturing agent in one State to the owner in another Stnte to be prepared for the market, and not for sale in the casks, held not subject to seizure under the Food and Drugs Act. Appeal from the District Court of the United States for the North- ern District of West Virginia. Affirmed.2 Before Goff and Pritchard, Circuit Judges, and Connor, District Judge. Gorr, Circvit Judge. The opinion of the court below, which con- tains a full statement of the facts, is found in 170 Fed. 449. Ap- pellant assigns as error, in substance, that the court below erred in holding that the 65 casks of liquid extracts were not prepared, used or shipped in any manner contrary to the laws of the United States, and that the United States had no right through its officers to seize the said casks or any of them. 1 Numbers in brackets refer to pages of Federal Reporter. - 2 For statement of facts and opinions of lower court see United States v. 65 Casks Liquid Extracts, p. 199, ante. 244 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Under the facts disclosed by the record, we conclude that the court below properly found that, even if there was probable cause for mak- ing the seizure and filing the libel, the evidence made it plainly ap- pear that the appellee shipped the said casks as its own product, made by its own agent, from the laboratory of said agent at Detroit, Mich., to the warehouse of the appellees at Wheeling, W. Va. ; that said casks of extracts were not intended for sale as shipped, but were to be, at the warehouse mentioned, bottled and labeled as the law requires before being offered for sale. No attempt to evade the law, either directly, indirectly, or by subterfuge, has been shown ; it appearing that the manufacturer had simply transferred from one point to another the product he was manufacturing, for the purpose of completing the preparation of the same for the market. Under the circumstances disclosed in this case, having in mind the object of the Congress in enacting the law involved, we do not think the liquid extracts proceeded against should be forfeited. Reaching this conclusion, we do not find it necessary to consider other questions discussed by counsel, and referred to in the opinion of the court below. We find no error. Affirmed. UNITED STATES v. MAYFIELD et al. (District Court, N. D. Alabama, S. D., March 11, 1910.) 177 Fed. 765; N. J. No. 320. A beverage labeled " Celery Cola " held adulterated because it contained cocaine and caffein, added deleterious ingredients which might render the article injurious to hen lth; and misbranded because the quantity or proportion of cocaine present was not stated on the label. Information charging violation of section 2 of the Food and Drugs Act. As no service of process was had on J. C. Mayfield, the case against him was not prosecuted. To the information the defendants J. P. Bradley, J. W. Altman, and J. F. Hawkins pleaded not guilty. Jury trial. Verdict of guilty as to J. F. Hawkins and J. W. Altman, and a verdict of not guilty as to J. P. Bradley. [766] 1 Grubb, District Judge (charging jury). The defendants in this case are charged with having violated certain provisions of what is known as the "Food and Drugs Act," an act passed by Congress in 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U.-S. Comp. St. Supp. 1909, p. 1187] ) , the purpose of which was to protect consumers against impure and adulterated foods and drugs and also against the use of foods or drugs which do not show what they contain by the brands on the package. Congress did not have any power to make this law concerning matters relating to commerce entirely within one State, but only as to commerce between one State and another State. The States themselves have the exclusive power to regulate their own internal commerce. So the prohibition of this act is directed only against the introduction into interstate commerce of any article of food or drink, or of any drug, either adulterated or mis- branded. These two acts — adulteration and misbranding — are made 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OP COURTS. 245 offenses when they occur in an article which is introduced into inter- state commerce. Now, you will see that the first proposition in this case will be whether or not this shipment was one of an interstate character. This proposition is simplified for your consideration, however, by the admission that this particular jug, which is made the subject of this prosecution, was shipped from Birmingham, Ala., to New Orleans, La. Therefore it is conceded that it was introduced into interstate commerce by some one. Now. as I say, the prohibition is against the introduction into inter- state commerce of any article of food which is either misbranded or adulterated. I charge you that the shipment in this case was a food product within the meaning of the act of Congress. In order to make out a case under the first count of the information, which charges misbranding, three things would be necessary for you to believe from the evidence, and beyond a reasonable doubt. The first is that there was in the shipment some constituent which should have been, and was not. shown by the brand. The act itself defines what constitutes misbranding in some respects. If the article shipped contains cocaine, and that fact is not indicated by the brand, then the failure to so indicate its presence by the brand is defined to be mis- branding. In order to convict on this count, you would have to find that there was cocaine in the jug which went to New Orleans, and that there was nothing on the jug which indicated that it contained cocaine, and that the defendants or some one or more of them were responsible for the introduction of that jug into interstate commerce. These three things you would have to be convinced of beyond a rea- sonable doubt to convict under the first count of this information. Now as to the presence of cocaine in this liquid there seems to be iittle dispute. The Government experts testified that it was there, and there is no contradiction of this fact by the defendants. There- fore, if the testimony of the Government experts convinces you be- yond a reasonable doubt of the |~767"] presence of cocaine in this liquid — and you have no right to reject their testimony capriciously and without good cause — this fact is sufficiently established. It is conceded that this jug had no brand upon it indicating the presence of cocaine in the liquid in the jug. Then, the next proposition for you to consider is whether or not these defendants were responsible for the introduction of this ship- ment into interstate commerce. It is admitted that this jug was in- troduced into interstate commerce by some one. The evidence shows that the order on which the jug was shipped was received by the Birmingham Celery Cola Company, and by it filled by shipping the jug from Birmingham to New Orleans. Clearly the Birmingham Cel- ery Cola Company primarily introduced this shipment into interstate commerce. The corporation, however, is not informed against in this prosecution. A corporation acts only by agents. The law is that, if any agent does an illegal act on behalf of his principal, he makes not only the principal liable for his act, but himself as well. An agent cannot shift the responsibility for wrongdoing altogether from his own shoulders onto those of his principal. If the act was illegal, the manager who filled the order and shipped the stuff would be respon- sible, even though his responsibility was shared by his principal. The manager is not informed against in this prosecution, however. The men who are informed against are stockholders and officers of 246 FEDERAL POOD AND DRUGS ACT AND DECISIONS. the company. So far as the mere fact of their being officers and stockholders in the corporation is concerned, I charge you that it does not make them responsible in this prosecution ; but their responsi- bility depends altogether upon whether or not they conferred on the manager the authority to ship Celery Cola from one State into an- other ; and whether the shipment upon which this prosecution is based was made by the manager pursuant to the authority so conferred. The question for you to inquire into is whether or not the defend- ants are shown by the evidence, to your satisfaction, to have given the manager the authority to do what he did in shipping this Celery Cola out of Birmingham to New Orleans. If, from the evidence, you are satisfied beyond a reasonable doubt that this authority was conferred upon him by the defendants, then they would be just as responsible as the manager or the Birmingham Celery Cola Company. The evidence tends to show that Celery Cola had been shipped during the time from January 1, 1908, until the date of the shipment on which was based this prosecution, which was some time in October of that year. It also tends to show that, when this company began to get into financial difficulty, the defendants secured the manager to take charge of the plant, operate it and sell its product. That much is conceded by both sides. There is also evidence tending to show that they told the manager expressly to sell the Celery Cola on hand. And I take it that the operation of the plant and the conduct of the business would imply the authority in the manager to sell its product of whatsoever kind. I think that it is to be fairly inferred that the authority conferred on the manager by the defendants was that he carry on the business and dispose of the product as it had been done according to the previous course of business. If the authority of the manager, so conferred, was not expressly restricted to sales made in Alabama, and [T68] according to the previous course of business sales had been made to other States, a fair inference would be that the manager was authorized by defendants to conduct an interstate traffic in Celery Cola. So, if the previous course of business had been to sell without branding the packages as containing cocaine, a fair infer- ence would be that the manager was authorized by these defendants to conduct the business without such branding. The fact that the defendants in their testimony denied knowledge that Celery Cola contained cocaine is evidence that the previous course of business of the company had been to sell it without branding it as containing cocaine. If general authority was conferred on the manager by the defendants to sell Celery Cola, when he took charge, it would not be necessary that express authority be given him to fill each order. Until the authority was revoked, it would cover all shipments without renewal on the occasion of each shipment. The Celery Cola extract was manufactured in St. Louis and shipped by the manufacturers to the company of which defendants were officers at Birmingham. The extract was shipped in barrels; each barrel stamped with the guaranty, signed by the manufacturer, that the extract was neither misbranded nor adulterated within the meaning of the Food and Drug Act. The Birmingham company mixed the extract with a boiling syrup, composed of sugar and water, in the proportion of one part of the extract to ten parts of the syrup, and it was the syrup, so compounded, that was shipped by the Bir- mingham company in the conduct of its business. The defendants DECISIONS OF COURTS. 247 testified that they had no ^knowledge, during the time the Birming- ham company handled the extract, that it contained either cocaine or caffein, in any quantities, and rely on the ninth section of the act, which excuses the dealer, who buys the article from a manufacturer with the guaranty from him that the article is neither misbranded nor adulterated within the meaning of the Food and Drug Act. Proof of the absence of knowledge on the dealer's part that the article is obnoxious to some of the provisions of the act is only a de- fense when the article is purchased from a manufacturer, and a guaranty taken from the manufacturer that it complies with the requirements of the act. The second section of the act prohibits the introduction into interstate commerce of any article of food, or drugs, which is adulterated or misbranded. The ninth section provides that no dealer shall be prosecuted under the provisions of the act, when he can establish a guaranty, signed by the manufacturer from whom he purchased such articles, to the effect that the same article is not adulterated or misbranded within the meaning of the act; in which case, the manufacturer shall be amenable to the prosecutions, fines, and other penalties, which would otherwise attach to the dealer. The purpose of Congress was to place liability for the violation of the law upon some one in each instance. Primarily the liability is on the dealer who introduces the article into interstate commerce. The liability can be shifted from the dealer only by imposing the same liability upon the manufacturer. This can be done only by virtue of the manufacturer's guaranty to the dealer. If, for any reason, the guaranty is insufficient to impose liability upon the manufacturer, it remains where it primarily rested — upon the dealer. To have the effect of releasing the dealer from liability for the violation of the act, complained of in this [769] prosecution, the guaranty must be of a character to impose liability for the same violation upon the manu- facturer, if he were substituted for these defendants in this case; otherwise, both parties would escape liability, and the purpose ex- pressed by Congress be defeated. The act says that the manufac- turer who signs the guaranty shall be subject to the same prosecution and penalties as the dealer. If a conviction could not be sustained against the manufacturer upon its guaranty, if substituted for the defendants in this case, then the taking of the guaranty by defendants would be no defense to their violation of the law in reference to the shipment in question, though they had no knowledge that it was adulterated or misbranded. In order for the manufacturer's guar- anty to be effective to impose any liability upon him for any viola- tion of law as to the article, which is the basis of this prosecution, the guaranty must relate to the identical article introduced into interstate commerce by the defendants as dealers. Otherwise the answer of the manufacturer to the prosecution would be that he had never guaranteed the article shipped by the dealer, and the answer would be complete. Change of the original package might not constitute a change of identity. In this case there was more. The manufac- turer furnished the dealer with the extract, and the dealer shipped the syrup. Commercially, if not chemically, the two were different. The extract was a mere constituent of the syrup, and not the syrup itself. The manufacturer did not guarantee the article shipped by the dealer and on which this prosecution is based ; could not be con- victed for the violation of the act, charged against the defendants in 248 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. relation to it, by reason of the guaranty, ahd for that reason the tak- ing of the guaranty was not a protection to the defendants. When they changed the identity of the extract, they elected to abandon the protection of the manufacturer's guaranty, and were responsible for the character of the new article, the syrup, made and shipped by them, or under their authority. Neither the defendants' want of knowledge of the presence of cocaine in the extract, nor the guaranty taken by them from the manufacturer, would excuse their failure to properly brand the jug, under this count of the information. The second count of the information charges the defendants with having introduced into interstate commerce an article containing a deleterious ingredient, injurious to health, viz, cocaine; and the third count relies in the same way upon an article alleged to contain caffein. These counts are based upon adulteration, the statutory defi- nition of which is the adding to a food product of a deleterious in- gredient, injurious to health.. The same principles as to the responsi- bility of these defendants for the acts of their manager, and with reference to the effect of the guaranty taken by them from the manu- facturer, stated as relating to the first count, apply as well to the second and third counts. In order to convict on these counts, the jury must find further from the evidence, with the degree of certainty re- quired in criminal cases, in the first place, that the Celery Cola shipped to New Orleans contained cocaine or caffein, under the re- spective counts, and then that either or both was deleterious and in- jurious to health. The presence of each of these substances in ap- preciable quantities in the jug of Celery Cola in question, is testified to by the [770] Government chemists, and is not disputed by any evidence offered by the defendants. You are the exclusive judges of the credibility of witnesses, but it would not be proper for you to capriciously reject testimony which is uncontradicted in the case. If you determine the presence of either or both of these substances in the shipment in question, it would then become your duty to deter- mine from the evidence whether either or both, as used in Celery Cola, were injurious to health. As Celery Cola is intended for a beverage and not a drug, you would have the right in determining this ques- tion to consider the injury from the probable frequent and repeated use of the article as a beverage, rather than its rare and occasional use as a drug. You have heard the evidence of the Government wit- nesses, who are physicians, as to their opinion concerning the injuri- ous qualities of both of these substances, in the quantities found in Celery Cola, when used as frequently as beverages are likely to be used. The defendants introduced no evidence to contradict that offered by the Government. You are also the exclusive judges of its credibility, but should not, without good reason, disregard evidence not contradicted. It is your duty to take the law of the case from the court, as it has been given to you in this charge. Though your opinion might be that the law imposes a hardship upon these defendants in holding them responsible for the contents of an extract of which they were ig- norant, and which they had purchased with a guaranty from the manufacturer; this opinion, if you entertain it, should not operate to prevent a conviction in this case, if you are satisfied beyond a reason- able doubt of the facts necessary to constitute the offense, as I have defined it. If not so satisfied, it would be your duty to acquit the DECISIONS OF COUETS. 249 defendants, and the importance of the enforcement of the law should have no weight as against such a conclusion. The enforcement of no law is of sufficient importance to justify a conviction, except upon such evidence. If you are satisfied to the degree required that the defendants are guilty of misbranding the jug of Celery Cola, exhibited to you, it would be your duty to find them guilty, under the first count of the information. If you are satisfied that they are guilty of adulterat- ing it with cocaine or caffein, then it would be your duty to find them guilty under the second or third counts respectively, or both. If you are not so satisfied of their guilt in misbranding or adulterating the Celery Cola, which is the basis of the prosecution, then you should acquit them. UNITED STATES v. SCHURMAN et al. (District Court, W. D. Michigan. S. D.. March 24. 1910.) 177 Fed. 581. A food. product contained in packages labeled " Genuine Dutch Tea Rusk, made in Holland, Mich., by the Michigan Tea Rusk Company, Holland, Mich.," held to present a doubtful case of misbranding as purporting the article to be of foreign manufacture. Application by the United States District Attorney for leave to file an information against George Schurman and others for alleged violations of the Food and Drugs Act. Denied. Denison, District Judge. The district attorney presents a sworn information, accompanied by affidavits, supposed to show a violation of the pure food act of June 30, 1906. It appears that the respondents are engaged in business at the city of Holland, in this district, manufacturing and shipping to different States an article of food called " Dutch Tea Rusk." The point of the complaint must be that the article is misbranded, because so " labeled or branded as to de- ceive or mislead the purchaser, or purport to be a foreign product when not so " (section 8, foods, second) ; and this conclusion is based on the fact that respondents mark their packages as containing " Genuine Dutch Tea Rusk," and say that it is " made in Holland, Mich., by the Michigan Tea Rusk Company, Holland, Mich.," having the word " Holland," where it first occurs, in type so large and prominent as to hold the attention and thus mislead purchasers into supposing that the article is a genuine importation from the country of Holland. Obviously, a jury could not be affirmatively instructed that these [582] markings did constitute a violation of the statute. Such tea rusk are largely used in the Netherlands, are popular among Hol- landers, are manufactured in this State in a community that is largely made up of Netherlanders, and doubtless find their chief market in different parts of this country among people of the same nationality. The respondents have a perfect right to call their product " Dutch Tea Rusk." This is no more misleading than to speak of English muffins, or French rolls, or German fried potatoes. If the article, in composition and manufacture, is identical with a similar article made 250 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. in the Netherlands, it is, in one sense, " genuine." Whether the word " genuine " is here used in a true or in a misleading sense depends on the inferences to be drawn from all the circumstances. The undue prominence given to the name " Holland " would tend to strengthen the inference that a misleading was intended; but this inference would be only argumentative, and the most that can be said for the case made against the respondents is that it probably would require a submission to the jury, and that the jury would be quite at liberty to find that the article did not " purport to be a foreign product." The motion papers also show that, at a hearing held under the rules of the Department of Agriculture, the respondents made a full statement of the circumstances, insisting that these markings were not misleading, but offering, if the department should think other- wise, immediately to change the labels as might be directed by the department. So far as the motion papers show, the conclusion of the department that the label was improper has been in no way communicated to the respondents, nor have they been informed what changes, if any, the department would require. In case of a clear violation of the statute, there is no occasion for such notice or op- portunity to make a change in the label; but in a case like this, where the violation is doubtful, and where the respondents seem to have acted in good faith in being willing to comply with the law and the rules, if they could find out what the law and the rules were, it is extremely improbable that any jury would find, beyond a reason- able doubt, the existence of the essential misleading, and, upon the same principle which requires a grand jury not to indict unless it is reasonably probable that a conviction might follow, this informa- tion should not be filed. The application will be denied, with leave to renew the same at any time upon a further showing that after notice from the depart- ment of its conclusion, or after knowledge of this disposition of this motion, the respondents did continue or shall continue to use the word " genuine " upon their labels or to give undue prominence to the word " Holland." UNITED STATES v. 420 SACKS OF FLOUR. (District Court. E. D. Louisiana, March 29, 1910.) ISO Fed., 518; N. J. No. 382. Flour bleached by the "Alsop Process" held adulterated rs a result of such bleaching; and misbranded because it was labeled "High Patent Flour" when it was not of such grr.de. Libel under section 10 of the Food and Drugs Act. On exceptions to the libel. Exceptions overruled. Cause heard ex parte. Decree of condemnation and forfeiture. Foster, District Judge (overruling exception to libel). In this case a libel was filed by the United States against 420 sacks of flour alleged to have been brought into Louisiana by interstate shipment from Kansas, in violation of the pure food and drugs act. (Act June 30, 1906, c. 3915, 34 Stat., 768 [U. S. Comp. St. Supp. 1909, p. 1187]). DECISIONS OF COURTS. 251 The Aetna Mill and Elevator Company has claimed the flour and filed exceptions to the libel on the following grounds : First. That the Food ;md Drugs Act, June 30, 1906, under the authority of which the libelant herein instituted these proceedings, is wholly invalid, uncon- stitutional, and void, in that s; id act in terms and by intendment is in violation of Artcle 1, Section 8, Paragraph 3, of the Constitution of the United States, and is in further violation of so much of Article 5 of the amendments to the Constitution of the United States as prescribes that no person shall be deprived of life, liberty or property without due process of law ; and is further in viola- tion of Article 10 of the amendments to the Constitution of the United States. Second. That the said act, known as the Food and Drugs Act, June 30, 1906, is wholly illegal and void by reason of the fact that it is uncertain and indefinite, and that said uncertainty and indefiniteness apply to the whole of said law, and particularly in this: That the law itself does not define any standard of grade, quality, or purity, and in this regard delegates legislative functions to the court clothed with jurisdiction of cases of a civil or criminal nature brought under this law. It is urged by claimant that Congress intended to enact, and in fact has enacted, a police regulation, and that, having such intention, the power vested in Congress to regulate interstate commerce is [519] 1 insufficient to validate the act. I can not agree with this contention. To my mind it is immaterial what the intention of Congress was, if it had the power to enact the legislation. That it did so have, I consider well settled. In the Lottery case, 23 Sup. Ct. 321, 47 L. Ed. 492, 188 U. S. 321, the Supreme Court upheld the validity of the law prohibiting the send- ing of lottery tickets from one State to another, and reasoning by analogy, it seems perfectly clear that Congress can prohibit the shipment in interstate commerce of food that has been adulterated, or labeled so as to defraud or mislead the public. The second contention I consider equally without merit. While the act is necessarily broad in its terms, the courts can well protect the rights of parties in each particular case by requiring specific and properly drawn pleadings. The exceptions must therefore be overruled. The claimant thereupon asserted its intention to take appeal from the ruling of the court and declared in open court by its proctors no answer would be made by it to the libel. • Thereupon, after the delays allowed by law had elapsed, the court pronounced the claimant in con- tumacy and default, adjudged the libel to be taken pro confesso, and proceeded to hear the cause ex parte. A commissioner was duly ap- pointed, before whom the United States of America, libelant, pre- sented its testimony. After the testimony was duly reported, the court rendered its decree of condemnation and forfeiture in form and substance as follows: United States District Court, Eastern District of Louisiana. United States of America, Libelant, v. No. 14173. 420 Sacks, et al. of Flour. This cause came on before me for hearing on the 19th day of Feb- ruary, 1910. Messrs. Pierce Butler, Assistant Attorney General of the United States, and Charlton R. Beattie, United States district attorney, appeared for libelant. 1 Numbers in brackets refer to pages of Federal Reporter. 252 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. There was no appearance on said day for the Aetna Mill & Eleva- tor Company, owner of said flour, and the claimant herein. And it appearing from the files, records and proceeding herein that a libel for the seizure and condemnation of a car load of flour con- sisting of 16 bales of 24-pound sacks, 1G bales of 12-pound sacks, 420 98-pound sacks and 20 barrels of flour shipped from Wellington, Kans., to, and into the State of Louisiana, was filed July 31, 1909; that a warrant of seizure was duly issued and said flour was pursuant thereto duly seized by the marshal while the same was within the jurisdiction of this court and being transported from Wellington in Kansas to New Orleans in Louisiana, for sale, and while it remained unloaded, unmoved and in original unbroken packages ; that the Aetna Mill and Elevator Company of Wellington, Kans., duly appeared in said cause on August 11, i909, and thereafter, on October 1, 1909, duly filed its answer to the libel herein, which answer, on the appli- cation of claimant, was pursuant to order of court duly withdrawn and claimant thereafter filed exceptions to said libel — which excep- tions were after argument and due consideration overruled, and thereafter the court fixed a time within which the said claimant might make and interpose its answer to said libel ; that said claimant refused and omitted to make or interpose any answer to the libel herein within the time so fixed and allowed by the court, or at all, and claimant having, by its proctors, in open court, declared that no an- swer would be made by it to the libel herein and all delays allowed by law having elapsed, and no other person having appeared to claim the property seized herein, or any part thereof, this court duly ordered, adjudged and decreed that said Aetna Mill and Elevator Company and all other persons interested in the flour so seized, be, and it — the said Aetna Mill and Elevator Company was — and they were duly pronounced to be in contumacy and default, and the said libel was duly adjudged to be taken pro confesso against the said Aetna Mill and Elevator Company and all persons interested in said flour seized herein, and that the court proceed to hear the cause ex parte. And it was duly ordered that the cause be referred to Frank H. Mortimer, commissioner, to take testimony herein and report the same to the court; that said commissioner has duly taken the testimony offered in behalf of said libelant, the United States of America, and has duly reported the same to the court. Now, after due consideration and upon all of the testimony, rec- ords, files and proceedings herein, — The court finds; that there is testimony and evidence tending to prove the allegations of the libel, and accordingly, That all of the flour described in said libel was and is liable to be proceeded against in this court and seized, condemned, confiscated and destroyed as adulterated and misbranded and deleterious food within the meaning of the Food and Drugs Act, approved June 30, 1906, in this, to wit : that all of said flour was, by the claimant herein, the Aetna Mill and Elevator Company, before shipping the same from Kansas into Louisiana, bleached and whitened by treating all of the same by a process known as the " Alsop Process " whereby and by means and reason thereof (a) A substance known as "nitrites" has been and is mixed and packed with said flour so as to reduce and lower and injuriously af- fect its quality and strength ; DECISIONS OF COURTS. 253 (b) That said flour was and is mixed, colored and stained in a manner whereby damage and inferiority is concealed; (c) That said flour contains added poisonous and added deleterious ingredients, to wit: nitrites, which renders the same injurious to health. And that said flour was and is misbrandecl within the meaning of said act, in this, to wit: (a) That it was offered for sale under the distinctive name of an- other article, — that is to say, the said flour was offered for sale as " High Patent Flour," whereas, in truth and in fact, it was inferior to " Patent Flour " and was a mixed flour consisting of " Straight Flour " mixed with " Clear Flour." (b) That it was labeled and branded so as to deceive and mislead the purchaser, that is to say, each of said sacks and other packages containing said flour was labeled and branded in substance as fol- lows: "Aetna Mills— Aetna Silk — High Patent— Aetna Mills and Elevator Company, Wellington, Kansas," whereas in truth and in fact none of said flour was " Patent Flour," but, on the contrary, all thereof was and is a mixture of straight jlour made in July, 1909, out of a mixture of hard and soft new winter wheat, to which " Straight Flour " there was added and mixed a quantity of " Clear " old wheat flour, amounting to 15 or 20 per cent of said mixture. It is therefore, ordered, adjudged and decreed that said flour (ex- cept that which has been released by order of court) , be, and all of same is hereby, condemned and confiscated to the United States of America, as being a food adulterated, misbranded and of a poisonous and deleterious character, and that all of the same be destroyed by the marshal, and that the said libelant, the United States of America, have and recover of and from the Aetna Mill and Elevator Company, the owner and claimant herein, the costs and charges allowed by law. Rtjfus E. Foster, Judge. New Orleans, La., March, 15, 1910. UNITED STATES v. ONE BARREL DESICCATED EGG PRODUCT. (District Court, E. D. Pennsylvania. April 1, 1910.) N. J. No. 544. Desiccated egg product held adulterated in that it consisted in whole or in part of a filthy, decomposed and putrid animal substance. Libel under section 10 of the Food and Drugs Act. Jury trial. Verdict for libelant. Decree of condemnation and forfeiture. J. B. McPherson, District Judge (charge to the jury). [1] I dare say you all have some general idea, at all events, about the pure food act, although you may not have come into contact with it quite as closely as you have the last day. This proceeding is somewhat unusual. It is not [2] a suit against any particular person, although, in substance, in one of its aspects, it amounts to that; but it is di- rectly a proceeding against a particular article of goods for the pur- pose of forfeiting it — for the purpose of condemning it. The United 254 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. States declares that it is a kind of article which is forbidden to be transported in commerce between the States by the pure food act, and therefore, it may be forfeited, condemned and destroyed; and the pure food act, in one of its sections, confers such power upon the courts of the United States ; but, of course, before a remedy like that can be enforced — a very drastic remedy — you see it is taking a man's property from him, and destroying it, even although he has a trial to justify his right to it — his right to retain it — I say, a remedy like that, of course, calls for clear and satisfactory proof on the part of the United States. This is not a criminal trial, strictly speaking, be- cause there is nobody charged with crime, but it is a suit to enforce a penahVy, and a severe penalty, as I just said, and, therefore, while the burden of proof is upon the United States, it is not the ordinary burden of proof such as exists in a civil suit between two individuals. In that case, as you no doubt know from your previous service upon juries, all that is necessary is that there shall be a fair balance of evidence in favor of one party or the other. It is not required that there should be, for example, as in a criminal case, proof beyond reasonable doubt, and that degree of proof is not required in this case, either — proof beyond a reasonable doubt; but a higher degree of proof than a mere preponderance, a mere balance of evidence in favor of the Government, is required. It is necessary, in a case like this, that the Government should establish, by clear and satisfactory evidence, that its case has been made out. These terms are neces- sarily somewhat indefinite, but I can not do any better with them. Now, has the Government laid before you evidence of that kind and quality? That is the question for your determination. The only part of the act to which your attention need be directed is contained in this language : " If the article complained of " — in this case it is a barrel of egg product — dried egg — " consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, then it may be condemned." Now, of course, this is an animal substance. It is made from eggs. It is composed wholly of that substance, as I understand. There is no evidence that there is any admixture ; so that we may assume that it is wholly composed of animal substance. Now, is it, therefore, filthy, decomposed or putrid. Either one of these adjectives, if applied to this substance, and established by proof, would be sufficient to justify the jury in condemning it. Now, of course, there is a certain difficulty in dealing with language always ; namely, the difficulty of getting at the exact meaning which it. is intended to convey ; and some words— indeed, a great many words, are incapable of precise definition. Words, as you know, very often mean what we choose to have them mean. They bear the meaning that we put into them, and that meaning varies from time to time, and varies under different circumstances, and that is true about a great many words. Without troubling you longer with general remarks, it is certainly true with regard to these particular words, filthy, decomposed or putrid. Now, if any one attempts to make a scientific definition of these words, so as to give a precise and accurate meaning to each of them, I think he will find that he has undertaken a very difficult task. "Filthy," for example, might be said to be in the superlative degree of a word like soil. You speak DECISIONS OF COURTS. 255 of an article soiled. It conveys to our minds a sufficiently accurate meaning. Then if you say it is dirty, you go a step further, of course. It is pretty hard to say just what the limits are which shall describe an article as dirty, within which it may be properly de- scribed as dirty. Then when you say it is filthy, you are at once conscious that jou have gone a step further; but just how far, I think it will be very difficult to say — I mean to know accurately and precisely, s o that there should be no doubt at all about the limits you have. [3] And take the two words, that I will speak of together, decom- posed and putrid; I think it is fair to say that they represent steps in the same direction. If we take the word rotten as expressing the general idea to which these two words may be referred, decomposed would probably represent a less advanced stage than putrid. I think there could not be any doubt about the word putrid, and yet there certainly would be some doubt as to where you would properly apply the word decomposed. It was said by one of the witnesses yesterday, and I thought very accurately said, that through our common experi- ence there are certain kinds of cheeses, for example, which are eaten, and eaten extensively ; but to which, certainly, the word decomposed, in some of its meanings, ma}'' properly be applied ; and no doubt it is true with regard to certain other products, which I need not speak of, animal and vegetable. The process of fermentation is a process of decomposition. If fermentation goes on long enough, the article falls to pieces. Sugar, when it is fermented, begins to break up; and de- composition means, of course, to break up ; to decompose, to resolve into its elements. So that when fermentation has proceeded far enough, it becomes decomposed, and to say just precisely where fer- mentation ceases and decomposition begins would be a very difficult task. I have been speaking to 3^011 in a very general way about the effort to assign a precise meaning to such words as these, but it is not necessary for you to trouble yourself, I think, about that matter. It is a general rule, with regard to all statutes passed by the legislature, or by Congress, that the meaning which the words bear is the usual and ordinary and everyday meaning which language is given in its common use among men. Laws are addressed to the community, and, there- fore, they properly are construed in accordance with the sense which their language bears among the people that compose the communhvy. Therefore I say, as I have just said, I think you will have very little trouble in assigning a sufficiently accurate meaning to these words. Filthy and decomposed and putrid, I think you will agree, convey a sufficiently definite meaning to the ordinary mind, and particularly — ■ and this is what concerns us now — in relation to the subject matter about which they are applied, namely, food. It is an act with regard to food. It is an act with regard to pure food, and that is the effort of the statute, to see that the people get pure food; and, therefore, when a substance which professes to be food is to be condemned be- cause it is filthy, decomposed or putrid, necessarily those words are to be applied to the subject matter of the act, the substances that are offered for food ; and, therefore, as I say, when you come to deal with that subject, as you are dealing with it, and attempt to apply these words to it, it requires the jury to say what is the condition of this substance, considered as food, offered for that purpose. Would it 256 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. properly, in the ordinary use of these words, be condemned as filthy, or would it properly be condemned as decomposed or putrid ? Now, I have no doubt — or, at least, I trust — you get my meaning with regard to that. You are not required to assign scientific definitions to these words at all. You are simply required to give them their ordi- nal and usual meaning, and then apply that to the evidence in this case, and determine whether, in either respect, this substance can be said to offend against the statute. The Government's case, as I under- stand it, depends solely upon the presence of these minute vegetable existences in the product. I am right about that, am I not? Mr. Douglas. No, animal existences. The Court. They are not always animal. Some of them are and some of them are not. Most of them are vegetable. Mr. Sheen. Organisms. The Court. They are organisms, but the vast majority of them are vegetable. There are a few that are animal, but only a few. But, at all events, it is the presence of these organisms on which the Govern- ment relies. Mr. Douglas. Yes, sir. [4] The Court. Now, you have heard a good deal of testimony with regard to the presence of these bacteria or bacilli, I do not know exactly which word is the precise and proper word to apply, but, at all events, these very minute microscopic creatures, which, within a com- paratively few years, have become of great importance. Now, you have a great deal of testimony about it from these gentlemen who have made the subject a study, and I commend their testimony to you for your careful consideration. We are, necessarily, in a subject like this, obliged to rely upon the testimony of expert witnesses, and their testimony is to be given a great deal of attention, and it is for the jury to say what its value is, and how far it may safely be relied upon. It may, perhaps, be difficult for the jury to come to a conclusion upon that matter, and yet there is not any other tribunal to whom that subject can be left, and especially is that the case where, as here, there is a difference of opinion among the experts with regard to the con- clusion that ought to be drawn. That is not at all an uncommon situ- ation, and it is not at all a situation — or, at least, it is not a situation that need be dwelt upon with any degree of reprobation. It is com- paratively common, I may say, to speak of expert testimony with a subdued sneer, at all events, and sometimes with an open sneer. I do not think it is justified in a great majority of the cases. These gentle- men are — there is no possible reason to doubt — I am not speaking especially about the witnesses in this case, but expert witnesses gen- erally— they are almost always entirely honest, and desirous, to the last degree, to give the best evidence they can upon the subjects con- cerning which they are asked questions, but they are human, like other people. They have their own theories. They sometimes- have their oAvn biases and prejudices, which color their views, and in that subject, like the one that is before us, you can see there is a great deal of room for difference of opinion. The subject matter is one that is difficult to have accurate information on, although you may have approximate information that is substantially sufficient; and then be- sides, in an examination of these substances, if a sample were taken DECISIONS OF COURTS. 257 from one part of this large package, it might be of one quality, and then beside that there may be a sample that would be of a very dif- ferent quality. So that one witness examining one sample and one examining another — they might come to what seemed to be widely different conclusions, and are, if you regard the two samples as of the same quality ; yet, if they are of different quality, of course the differences in their testimony is accounted for. I do not think it would be either necessary or desirable for me to comment upon their teutimony. Counsel have already done that sufficiently, and besides their testimony was not difficult to understand, and I have no doubt you all understand it sufficiently for all purposes. From their testimony, I repeat, the question for you is whether this substance was, at the time it was seized, either filthy, decomposed or putrid, with special reference to the fact that it was offered and in- tended as food, not whether it was going to be in the future, or whether it might be in the future, owing to the presence of these creatures — these organisms in it, but whether it was at that time of that description ; because it is to that time that the Government neces- sarily is confined. Now, that is the case, and I do not believe I can assist you any further in the matter. I have endeavored to give you what I think is the proper method of the construction of this statute, and, as you will see, the question is a very narrow one, it is one for you to determine very largely, or in large part, by the aid of your common sense and common knowledge with regard to the meaning of these words. I cannot say to you definitely what they mean. It is for you to say what they mean, the kind of words I have given you. Of course, you have not any arbitrary right on that subject, but what their meaning is is what they mean to the ordinary citizen to whom they are ad- dressed. They have not, as I conceive in this statute, a precise and scientific definition. Their meaning must be determined by a con- sideration of the subject matter about which they are dealing, namely, pure food — as pure food as possible, [5] and in that light, the jury, with the instructions I have given them, must determine the question. Your verdict in the case would simply be in favor of the United States, if you find that this substance should be condemned, or in favor of the claimant, if you find that the Government has not made out its case, tested by the rule with regard to the burden of proof to which I have referred. UNITED STATES v. BUFFALO COLD STORAGE COMPANY. (District Court, W. D. New York. April 30, 1910.) 179 Fed. S65; N. J. No. 482. Held that the Food and Drugs Act, providing that any person who shall ship or deliver for shipment any adulter;! tad or misbranded foods or drugs shall be guilty of a misdemeanor, is not limited to a manufacturer or dealer, but applies as well to a warehouseman shipping adulterated or misbranded goods from one State to nnothei". On demurrer to indictment for violating section 2 of the Food and Drugs Act. Demurrer overruled. Jury trial. Verdict of guilty. 40086—14 17 258 FEDERAL POOD AND DEUGS ACT AND DECISIONS. [866] 1 Hazel, District Judge (overruling the demurrer). The de- murrer of the defendant, Buffalo Cold Storage Company, to the in- dictment is predicated upon the claim that the statute (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. Supp. 1909, p. 1187]) entitled: "An act for preventing the manufacture, sale, or transportation of adulterated, misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes," was intended solely to apply to a manufacturer or dealer, and, as it is not charged in the indictment that said defendant was either a manufacturer, owner, or dealer in the commodity, the indict- ment is fatally defective and must be dismissed. With this conten- tion I do not agree. The statute forbidding the act provides that: uAny person who shall ship or deliver for shipment from any State or Territory, etc., to any other State or Territory any such article so adulterated or misbranded shall be guilty of a misdemeanor." Con- cededly the shipment and delivery of the commodity for transporta- tion from Buifalo to Pittsburg in adulterated or impure condition is within the letter of the statute. It is unquestionably true that the inhibition of an act may be so plainly expressed by a statute that he who runs and thinks may comprehend its complete import and still not be within the contemplation of the law makers, but the provision under consideration does not fall within this class. Congress by its enactment intended to promote honesty and fair dealing in trade and secure to the public pure and wholesome food and drugs, and mani- festly there must be a reasonable construction of the act to carry out the intention of Congress in this regard. There is nothing in the act which will result in any absurdity or lead to injustice or oppression, as was the case in Church of the Holy Trinity vs. United States (143 U. S., 457, 12 Sup. Ct. 511, 36 L. Ed. 226), and other cases of similar description cited in defendant's brief. I have carefully read the excerpts of the debates in Congress on the subject prior to the passage of the act, and I think from what was said by Senators Heyburn and Money that the prohibition was ex- pressly couched in broad language to include those who ship or de- liver for transportation commodities of the character forbidden by the statute. It is quite true that warehousemen who deliver such commodities for transportation may not have knowledge of the delete- rious character of the food and may be wholly innocent of [867] criminal intent ; but this is a question which may be safely left to the trial jury. The indictment charges the offense in the language of the statute and particularizes the nature of the offense in such a way as to apprise the defendant as to what he will be required to meet on the trial, and under the authorities this is sufficient. Ledbetter v, United States, 170 U. S., 606, 18 Sup. Ct. 774, 4 L. Ed. 1162; Armour Packing Co. v. United States, 209 U. S., 56, 28 Sup. Ct, 428, 52 L. Ed. 681; Burton v. United States, 202 U. S., 344, 26 Sup. Ct. 688, 50 L. Ed. 1057. The demurrer is overruled. 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 259 BRINA v. UNITED STATES. (Circuit Court of Appeals, Second Circuit, May 2, 1910.) 179 Fed. 373 ; N. J. No. 473. An article labeled " Olio per Insalata, Sopraffiuo Viva! Brand, Cotton Salad Oil extra quality," held niisbranded in that such label was calculated to mislead the purchaser into the belief that the article was olive oil. In Error to the Circuit Court of the United States for the South- ern District of New York. Guido Brina was convicted of a violation of section 2 of the Food and Drugs Act, and brought error. Affirmed.1 STATEMENT OE FACTS. This cause comes here on writ of error from a judgment of the Circuit Court, Southern District of New York, imposing a fine of $100, entered on a verdict of a jury finding defendant guilty of a violation of the Food and Drugs Act of June 30, 1906. The offense charged was the shipment from New York City to Newark, New Jersey, of cotton seed oil contained in cans labeled (the Italian words in large type and the English words in small type) as follows: " Olio per Insalata, Sopraffino Vival Brand, Cotton Salad Oil extra quality." It was charged that the oil was misbranded in that the label failed to disclose to Italian purchasers ignorant of the English language that the oil was a cotton seed oil, and that it was calculated to mis- lead the purchaser and induce him to believe the cans contained Italian olive oil. Before Lacombe, Coxe, and Ward, Circuit Judges. Lacombe, Circuit Judge, (after stating facts as above). The section declared on (section 2) imposes a penalty on " any person who shall ship or deliver for shipment from any State * * * to any other State * * * any article of food or drugs so * * * mis- branded." It was proved that the words " Olio per Insalata " mean " oil for salad " or " salad oil " and the trial judge held, and so charged the jury, that " as a notorious fact salad oil prima facie means olive oil," but allowed the defendant to show if he could that " it means something else because of recent events which have per- haps rendered olive oil more difficult to obtain, or that other food elements have come to be known as salad oil." No such proof was introduced [374] 2 and the ruling is assigned as error. The Century Dictionary, Worcester's, Stormonth's, Imperial, and the Encyclopedia all define " salad oil " as " olive oil ; " Webster's does not give any definition. We are satisfied that the trial judge quite properly charged, in the absence of any testimony of the sort suggested, that " salad oil prima facie imports olive oil ; that is what the world has been accustomed to regard as salad oil." The evidence showed that the articles complained of were sold and shipped by the " Standard Trading Co." of which defendant was an 1 For case cf United States v. Brina, see N. J. No. 80. 2 Numbers in brackets refer to pages of Federal Reporter. 260 FEDERAL POOD AND DRUGS ACT AND DECISIONS. employee — its " manager." He negotiated the sale. It did not ap- pear whether the concern was a corporation, or a firm, or an indi- vidual trading under this corporate name; nor whether the defend- ant had any interest in the concern other than as employee. It is contended that the circuit court should have directed a verdict of not guilty at the close of the case on the ground that there was not suffi- cient proof to sustain a finding that he personally shipped the goods or caused them to be shipped. The plaintiff in error is in no posi- tion to make such contention in this court. At the close of the Gov- ernment's case motion was made to dismiss the information upon several grounds ; one of which Avas " that it has not been shown that the defendant Brina shipped these goods to any place out of the State." The motion was denied and exception reserved. Testimony was thereafter introduced by the defendant on the various issues in the case, part of it being directed to the matter of shipment. At the close of the case defendant renewed his motion to dismiss the infor- mation, but only " on the ground that it has not been shown by any evidence that the can which was used in this case deceived any of the public." This motion was denied, the court stating that it was "the only question for the jury." No objection was taken on the ground that shipment w.as not proved, nor was there any request to go to the jury on that question. There is, therefore, no exception in the case which raises the point now relied upon. The judgment is affirmed. SHAWNEE MILLING CO. v TEMPLE, U. S. Dist. Atty., et al., and UPDIKE MILLING CO. v. SAME. (Circuit Court, S. D. Iowa, C. D., May 10, 1910.) 179 Fed. 517 ; N. J. No. 497. Injunction to restrain officials of the United States from seizing bleached flour under section 10 of the Food and Drugs Act, for alleged adulteration, not granted. In Equity, Bills by the Shawnee Milling Company and the Up- dike Milling Company against Marcellus L. Temple, United States district attorney, and Frank B. Clark, United States marshal, and others, to restrain them from seizing complainants' flour in inter- state shipments under the Food and Drugs Act. Bills dismissed. [518] 1 Smith McPheeson, District Judge. Each of these two cases is by a bill in equity, practically the same. One of complain- ants, Updike Milling Company, is a corporation under the laws of Nebraska, there engaged in the business of manufacturing wheat into flour both for domestic use and for shipments into Iowa and other States for sale and consumption. The other complainant, Shawnee Milling Company, is a corporation under the laws of Kansas, there engaged in a like business, sales, and shipments. The defendants are the United States attorney and marshal for this district, and the relief sought is to enjoin the respondent officers from having issued, or serving process for seizing complainants' 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 261 flour in interstate shipments under the national pure food statute of June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]). The allegations are that complainants' flour is whitened and aged by a process, and that the same is not harmful, but is more nutritious, wholesome and attractive for making bread. It is not alleged in the bill of complaint in terms that the flour is bleached by the Alsop [519] process as covered by certain English and American patents, as set forth by the Circuit Court of Appeals for this circuit in the case of Naylor v. Alsop Process Company, 168 Fed. 911, 94 C. C. A. 315 ; but all the arguments, both by briefs and orally, were on that state of facts. Counsel for the United States have appeared for the defendants, thereby in effect making* the cases controversies between the United States Government, on the one side, and western flour mill owners, on the other, who bleach their flour by the agency of nitrogen peroxide gas under the Alsop patent process. A literal reading of the bills of complaint will show that they are fairly subject to criticism; that the allegations as to the aging, Avhitening, and improving the flour are largely by the use of adjec- tives and adverbs, instead of reciting just what is done, how the flour is aged, how whitened, how made more nutritious, why not harmful, and why better by the use of some agency not named nor described. But this criticism need not be elaborated. The cases are now for deternination on demurrers to the bills of complaint, and sufficient allegations appear to cover the rulings now to be made. A bill in equity in which the writ of injunction can issue to enjoin the enforcement of a criminal or penal statute is allowable only when : ( 1 ) Such statute is unconstitutional or otherwise invalid ; (2) In the attempt to enforce such invalid statute, rights of prop- erty are invaded and trampled on; or, (3) The often repeated attempts to enforce such invalid statute creates a multiplicity of actions which are of themselves oppressive. The important and recent case of Ex parte Young, 209 IT. S. 123, 28_ Sup. Ct. 441, 52 L. Ed. 714, 13 L. E, A. (N. S.) 932, illustrates this, in which case it was held that a bill in equity would confer jurisdiction because of the oppressive penalties if an effort should be made to protect the rights of propertv. In City of Hutchinson v. Beckham, 118 Fed. Rep. 399, 55 C. C. A. 333, the Circuit Court of Appeals for this circuit held that an injunction should issue against the prosecution of cases under an invalid ordinance requiring an illegal license, which would be followed bv many criminal prosecu- tions. In Dobbins v. Los Angeles, 195 II. S. 223, 241, 25 Sup. Ct. 18, 22 (49 L. Ed. 16), the holding was clearly and tersely stated: It is well settled th; t, where property rights will be destroyed, lawful inter- ference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity. But if property rights are not invaded, then a court of equity ordinarily will not interfere, because the defense as to the invalidity of the statute can be urged in the criminal or penal action or special proceeding. Thus, in the case of In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402, it was held that proceedings for the ouster of a city officer could not be enjoined for the alleged invalidity of the 262 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. law under which the proceedings were being conducted. And of like holdings are the cases of Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, and Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535. And if the proceedings for seizure are to be regarded as civil, then section 723, R. S. (U. S. Comp. St. 1901, p. 583), [520] will prohibit the filing of a bill in equity to enjoin the enforcement of a valid statute. In the one case now before the court, the bill of complaint recites that several seizures of flour were made in this judicial district, and, after a number of efforts by the complainant to have the cases sub- mitted to the court with or without a jury for a hearing on the merits, the Government dismissed the cases, after the flour thus seized had deteriorated in quality and value. In the cases now before the court, as property rights are involved, bills in equity will be entertained, provided the statute under which the Government claims the rights to proceed is not a valid one. Herein is the question in the case. That is to say, Is the pure food statute of June 30, 1906, a valid enactment? Did Congress have the power to enact it? Is it within the commerce clause of the Consti- tution, or is it a mere police regulation, garbed and cloaked as a regulation of commerce ? Good, sound wheat of the best variety, properly and timely har- vested, put through the " sweat " in the stack, well ground and bolted, makes nutritious, wholesome, and white flour. This fact is so gen- erally known that courts will take judicial notice of the fact. It is said that flour made from new and poorer wheat, not " sweated," and made by the process covered by the English patent of Andrews, or the American patent of Alsop as illustrated in the patent decision hereinbefore referred to (168 Fed. 911, 94 C. C. A. 315), will also be equally white. This is quite likely true. But is it equally pure, equally nutritious, or is it adulterated and poisoned? This court in these cases is not to decide those questions. Nitrogen peroxide gas under the Andrews patent is produced by combining nitric acid with a metallic compound. Under the Alsop patent it is produced by subjecting atmospheric air to a flaming electric arc. It is claimed by some that nitrogen peroxide is the agent for bleaching flour under both patents, while others claim that it is the ozone that does the effective work, while the nitrogen peroxide is a by-product when the ozone is thereby created. Whatever the truth is as to what does the bleaching, it is both claimed, and denied, by chemists who ought to be able to agree, that the flour is poisoned by such process. But it is known that, after the air is thus subjected to continuous flaming electrical discharges, that the resultant gas is conveyed by means of pipes to a compartment, and there is commingled with the flour agitated or in a cloud, and thus subjected to said treatment it becomes dry and white. The result of it all is that new wheat and of an inferior quality is con- verted into flour with the appearance of flour from a better wheat that has been aged by time. The Government contends that flour thus bleached is flour in the language of the statute " whereby inferiority is concealed," and that " it contains added poisonous ingredients which may render such DECISIONS OF COUETS. 263 article (flour) injurious to health." The patentees and the millers deny this. Here is a question for determination by a jury, or by the court if a jury is waived, and not to be determined in this case if the statute is valid. [521] Several of the States within the past few years have enacted pure food statutes. Congress, June 30, 1906, enacted the statute in question. All these statutes were enacted to cure evils well nigh in- tolerable that had grown up during this age of greed and avarice and commercialism that has made money getting the prime object of life with so many. The evils were such that much of. the focds we ate, whether meats of any kind, including fish and poultry, or fruits in all forms, and breadstuffs, were so adulterated and " leaded " or " doctored " as to deceive the consumer. And the same was true of flavors and condiments. The evil as to confectionery and extracts was as great. Still greater was the evil as to drugs and medicines. In fact, the evils were everywhere present, as to food and medicine, and other things. And to eliminate some of these evils, and to enable the purchasers to receive what they ordered and paid for, many States passed statutes aimed at those frauds. But it was soon found that the States in some instances were disposed to condone as to some articles of local manufacture, and jn many other instances the States were powerless to work out a remedy. Thereupon Con- gress, acting upon the theory that the evil was of national concern, enacted the statute in question. The debates in Congress show that the measure was earnestly fought as being one of paternalism, and a police regulation with which the States only could act. The Secretary of Agriculture, Mr. Wilson, performed his duty both in letter and spirit when*he submitted the question as to flour bleached by nitrogen peroxide to the Board of Food and Drug Inspection; and that board, the Secretary concurring, after a hearing given to all parties in interest, found that such flour is in contravention of the statute. Such finding is not binding as against the parties thus bleaching flour. But it is conclusive as against all criticism for mak- ing the seizures and bringing the question before the courts for deter- mination. Congress is given the power to provide for the general welfare of the United States. But without doubt, if this legislation is sustained, it is because of that provision of the Constitution that provides that the Congress shall have the power to regulate commerce among the several States.. That provision is the life of the nation, and to adopt which was the great concern of the convention of 1787. Important as it is, it is ever before the courts. It gives great comfort to all who believe in one common country, and yet is antagonized oftener than any other provision of the Constitution, by those whose shield of de- fense is articles 9 and 10 of the amendments, as to the reserved power of the States. No one claims that Congress can be the sole judge of its powers. All thoughtful persons concede that any court having jurisdiction in the first instance must pass upon the question of the powers of Con- gress, and that it is for the Supreme Court in the end to finally set the matters at rest. But so careful have our Congresses and Presi- dents been, that for the first hundred years of our Government, the 264 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Supreme Court found it necessary to hold that Congress had ex- ceeded its powers in only twenty instances. See Appendix to 131 U. S. ccxxxv. And of those twenty statutes thus held void not one related to commerce. Since then, the Supreme Court has held three congressional [522] enactments void. One was a statute making a judgment of conviction conclusive evidence against a party in another case. Kirby v. United States, 174 U. S. 47, 19 Sup. Ct. 574, 43 L. Ed. 809. Another was the income tax case. Pollock v. Farmers' Loan Co., 157 U. S. 429, 15 Sup. Ct. 673, 39 L. Ed. 759, and 158 U. S. 601, 15 Sup. Ct. 912, 39 L. Ed. 1108. The other, and only one from the organization of our Government to date as to commerce, is that of the employer's liability statute, enacted under the claim that the commerce clause would sustain it. Employer's Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297. If other enactments of Congress have been held void by the Supreme Court, such cases have been overlooked, and it is believed there are none other. There are almost innumerable decisions touching the power of the States with reference to commerce. It would be to no purpose to discuss many of these authorities. And it would be a needless waste of energy to discuss the many decisions relating to the use of the mails, for the obvious reason that a distinct clause of the Constitution empowers Congress to control our postal system, and there is not the slightest difference whether the mails thus carried are State or interstate. Neither the court nor the parties are aided by a review of those mat- ters. It must be and is conceded that police regulations alone are for the State, and not for Congress, to deal with. But it does not follow that, if the subject-matter to be regulated is one of commerce, it is for the State alone to deal with, because such subject matter is also one that pertains to the morals, health, or good order of the community. Thus, when the question arose as to the inspection of meats for food, legislatures claiming that they alone could determine when and to what extent police regulations should be carried, the Supreme Court decided that such inspections also impinged upon the rights of commerce and were therefore void. Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455 ; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862. It wilj serve no purpose to discuss the principle upheld in Wilson v. Blackbird Creek Company, 2 Pet. 245, 7 L. Ed. 412, that the State can regulate certain interstate commerce of a local character, if Con- gress has not acted, nor of that other principle upheld by Congress that the State can legislate with reference to liability of a party when doing an interstate business when Congress has not acted. Sherlock v. Ailing, 93 U. S. 99, 23% L. Ed. 819. The complete answer to those suggestions is that in the matter now before the court Congress has acted. The question now for consideration is not as to the power of the States relating to commerce, as held in Smith v. Alabama, 124 U. S. 465, 18 Sup. Ct. 564, 31 L. Ed. 508, upholding a State statute requiring a locomotive engineer even though operating an interstate train to submit to tests for color blindness. The question here is as to the power of Congress over articles of interstate commerce, even though such articles in the end become subject to State statutes. No one doubts but that wheat and flour, as DECISIONS OF COURTS. 265 well as all articles of food, are subjects of commerce, and, when car- ried over and across State lines, are subject to be regulated by Con- gress. [523] And it is no answer to say that when adulterated, or wrongly labeled, because in the end they will fall under a State statute, they when being shipped can not be covered by a congres- sional enactment. The liquor cases illustrate this, because of all the subjects of commerce there is no one thing more peculiarly and dis- tinctly and appropriately subject to regulation by the State, even to the extent of prohibition, than are intoxicating liquors. And yet Congress legislates with reference to liquors. The Wilson act of 1890 (Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177] ) provided that when liquors arrived in a State they should be subject to State laws. This statute was upheld in the case In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. -572, thereby modi- fying the practical effect of the holding in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, that the State could not interfere by legislation as to liquors shipped interstate as long as the liquors were in the original packages; while in Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, it was held that the liquors must be in fact and actually delivered to the purchaser before the State laws became effective as to such interstate shipment. No one should doubt but that legislation b}^ Congress can control the interstate subject of commerce for a time at least, and then the State by a police regulation can control. If liquors do not sufficiently illustrate the question, lottery tickets will. The Louisiana lottery was conducted by men of high repute and much renown. But it became a national scandal. It was struck at by denying it the use of the mails. The legislature of the State gave it encouragement, even its life. But Congress provided in addi- tion that it should be a crime to carry lottery tickets from one State to another by means other than through the mails. Can any person doubt but that the Louisiana lottery was or could have been made subject to the laws of Louisiana? And yet this congressional enact- ment was upheld in the Lottery case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. But little need be said of that case. It was argued by counsel of great eminence. It was argued upon two separate occasions. It received the fullest consideration by the Supreme Court. Apparently no other case that was ever before that court received more attention and fuller consideration. Counsel for com- plaints herein concede all these things. And the only answer that has been made, or that can be made to that case, is in the statement that the case was decided by a divided court, four justices dissenting. It may be, or it may not be, that that weakens the case as an authority. It is barely possible that later on, that court changing as to its per- sonnel, the decision may be overruled. But such reasoning is a mere speculation. On the other hand, the fact that the court was so divided emphasizes the fact that the court gave great consideration to the question. But be these things as they may, it is not for this court to usurp the prerogative by blindly declining to follow that decision. That decision stands, and as long as it stands, it is the law of the country, and this court not only must, but does, cheerfully observe it in all its phases. Much more could be said. Cases commencing with Gibbons v. Og- den, and then to date, could be reviewed. The question could be 266 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. [524] illustrated in many ways. But all that would be to no pur- pose; it would be academic. Congress has enacted a safety appliance law for the preservation of life and limb. Congress has enacted the anti-trust statute to prevent immorality in contracts and business affairs. Congress has enacted the live stock sanitation act to prevent cru- elty to animals. Congress has enacted the cattle contagious disease act to more effectively suppress and prevent the spread of contagious and infec- tious diseases of live stock. Congress has enacted a statute to enable the Secretary of Agricul- ture to establish and maintain quarantine districts. Congress has enacted the meat inspection act. Congress has enacted a second employer's liability act. Congress has enacted the obscene literature act. Congress has enacted the lottery statute above referred to. Congress has enacted (but a year ago) statutes prohibiting the sending of liquors by interstate shipment with the privilege of the vendor to have the liquors delivered c. o. d., and to prohibit shipments of liquors except when the name and address of the consignee and the quantity and kind of liquor is plainly labeled on the package. These statutes, police regulations in many respects, are alike in principle to the act of June 30, 1906, under consideration. Can it be possible they are all void ? This statute bty its title, and by its every provision, plainly shows that it is with reference to commerce, and that it is not with refer- ence to local police regulations. It is also contended that so much of section 7 of the statute as relates to food is void because no standard has been fixed. That argument is made because drugs are fixed by a standard recognized by the United States Pharmacopoeia or National For- mulary, and as to confectionery a standard is fixed by declaring what confectionery "shall not" contain. Whereas, as to foods no standard has been fixed. It is a fact most obvious that no standard could be fixed other than was done by Congress. The one provision as to food is that it shall not be mixed so as to reduce or lower or injuriously affect its quality or strength. Another provision is that some sub- stance shall not be substituted wholly or in part for the article. Another provision is that no valuable constituent of the article shall be abstracted. Another provision is that it shall not be mixed, col- ored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Another provision is that poisonous or other deleterious ingredients shall not be added. Still another pro- vision is that filthy, decomposed, or putrid substances shall not be added. And so on more in detail than herein enumerated. These provisions present questions of fact as to every alleged contraband article. This objection is without merit. This case was argued upon both sides with most signal ability, displaying much learning, and was argued at great length. The case has received from this court the fullest consideration, and the con- clusions are that these bills in equity can not he maintained, and therefore will be dismissed. DECISIONS OF COURTS. 267 UNITED STATES v. 1,950 BOXES OF MACARONI et al. (District Court, N. 1). Illinois, E. 1)., May 16, 1910.) 181 Fed. 427; N. J. No. 658. Macaroni, to which a coal tar dye known as " Martins Yellow " had been added, held adulterated in that it contained an " added poisonous * * * in- gredient which may render it injurious to health." Libel under section 10 of the Food and Drugs Act, against 1,950 Boxes of Macaroni, and four other cases; V. Viviano & Bros, and S. Viviano & Bros., claimants. The cases were consolidated and tried as one case. Decree of condemnation and forfeiture and product ordered destroyed. Landis, District Judge. These libels seek the destruction of five interstate shipments of macaroni charged to have been adulterated by the addition of a coal tar dye known as " Martius Yellow," alleged to be a poison rendering the food product injurious to health. Food and Drugs Act (Act June 30, 1906, c. 3915, section 7, para- graph 5, 31 Stat. 769 [U. S. Comp. St. Supp. 1909, p. 1191]). The question is whether the article proceeded against '" contains any added Doisonous * * * ingredient which may render it injurious to health." The proof shows macaroni to be composed of wheat flour and water; that to change its natural color, and make its appearance more inviting, Martius Yellow was added; that this coloring matter is not an ingredient of macaroni, serves no purpose other than to change its color, and is a poison which will kill. It is the duty of the court to give the act a fair and reasonable construction for the accomplishment of its object. That object is the exclusion from interstate commerce of food products so adul- terated as to endanger health. And where, as here, it clearly ap- pears that a poisonous substance wholly foreign to the food product has been added to it solely to mislead and deceive, the court is under no duty to endeavor to protect the offender against loss from de- struction of the adulterated article by indulging in hair-splitting speculation as to whether the amount of poison used may possibly have been so nicely calculated as not to kill or be of immediate serious injury. With a [428] 1 portion of our population macaroni is a staple article of food, and under the evidence here the cumulative effect of the poison in the substance under examination would be injurious to health. Let there be a decree of condemnation and destruction. UNITED STATES v. BAUMERT et al. (District Court. N. D. New York. May 23, 1910.) 179 Fed. 735. Process on an information charging violation of the Food and Drugs Act refused by the court on the ground that the information was not properly sup- ported by affidavits showing probable cause. Information charging violation of the Food and Drugs Act. On motion for process. Denied. 1 Numbers in brackets refer to pages of Federal Reporter. 268 FEDERAL POOD AND DRUGS ACT AND DECISIONS. [736] Ray, District Judge. The information, as to all material allegations, is made on information and belief, and charges the ship- ping, etc., in interstate commerce between Antwerp, N. Y., and points in the State of Pennsylvania, of misbranded cheese, in violation of the so-called " pure food and drug law." (Act June 30, 1906, c. 3915, 34 Stat. 768 [IT. S.Comp. St. Supp. 1909, p._1187].) Annexed to the information which is verified by the oath of Geo. B. Curtiss, United States attorney for the Northern District of New York, to the effect that the allegations are true except as to the mat- ters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true, are : (1) Letter of Wade H. Ellis, Acting Attorney General of the United States, inclosing '" copy of report and other documents transmitted to this department by the Secretary of Agriculture relative to the apparent violation of the Food and Drug Act by F. X. Baumert & Co., New York, in the shipment of misbranded cheese from Antwerp, N. Y., to Detroit, Mich.," and directing that " immediate and proper action " be taken in the matter. Also, what purports to be a letter from F. Baumert & Co., under date of August 3, 1909, to the chief of the Food and Drug Inspection Laboratory, New York City, stating that the firm has been charged with making and selling a misbranded " Neufchatel cheese," but taking issue with and denying the charge as to misbrand- ing, while admitting the firm made and sold the cheese of which the sample referred to was a part. There is no proof that the defendants, or the firm of which they are members, wrote or authorized this let- ter. Also, a statement signed by J. G. Riley, analyst, United States Department of Agriculture, in which he says he has examined a sam- ple of cheese labeled : " Crown Brand Neufchatel Cheese. Made in the State of New York from partly skimmed milk " — and which he believes to be the sample purchased from McCann & Co. at Pitts- burgh, Pa., on or about June 25, 1909, by Inspector C. A. Meserve of the United States Department of [737] Agriculture and designated by him as " I. S. No. 26086-a " ; and that he has made a careful analysis of same and found that " it is not Neufchatel cheese." This statement is not in the form of an affidavit, has no venue, but, after the signature of J. G. Riley, contains the following certificate, " Sub- scribed and sworn to before me at Washington, D. C, this 5th day of November, 1909." Signed: J. G. Shibley, Notary Public. The seal of the notary, bearing the words " J. G. Shibley, Notary Public," is attached. There is nothing to show that Shibley was a notary when he certified the paper, or that he was authorized to take affidavits or administer oaths in Washington, D. C. There is also attached a statement purporting to be that of McCann & Co. showing where that firm purchased the cheese, and what purports to be a letter of F. X. Baumert & Co., dated July 31, 1909, addressed to the chief of the United States Food and Drug Inspection Laboratory, Pittsburgh, Pa., referring to the specimen " I. S. No. 26086-a," and admitting the making of the cheese from which that specimen came and the selling of same to McCann & Co., but asserting that such firm would present proof that the finding of the analyst of the department was an error. There is no proof or even affidavit that the letter was writen by the firm or authorized by it. The information expressly states that these letters are the sole basis of the information and belief of the United States attorney. DECISIONS OF COURTS. 269 But assuming that the letters show they were written by the de- fendants' firm, they do not admit any offense against the law, but deny. At most they admit the making and sale in interstate com- merce of the cheese while denying that same offends against the law. They assert it was and is just what the brand says, domestic made Neufchatel cheese; that is "Crown Brand Domestic Neufchatel Cheese. Made in the State of New York from partly skimmed milk.'' We have, then, as the only evidence (if it be evidence) of the com- mission of the offense charged in the information on information and belief, this statement of Analyst Riley verified as stated, who says the cheese " is not a Neufchatel cheese." This paper is filed with and attached to the information. On this information, supported by these papers and others, now referred to, can this court issue process and cause the arrest of the defendants accused ? A supplemental information on information and belief has an- nexed the affidavits of James W. Chesewright, made at Pittsburgh, Pa., and that of Charles A. Meserve, made at the same place, the last being taken before a United States commissioner, showing the sale and purchase of the sample of cheese referred to. It raises the plain question whether an information made solely on information and belief and giving as the sources of such information certain letters and affidavits taken out of court and outside the jurisdiction of the court which are attached to and filed with the information, such affidavits tending to support the charge, is sufficient. There is no substantial doubt that offenses against this act may be prosecuted by information duly filed. [738] It is clear that the court has no jurisdiction to direct the issuance of a warrant on an information filed, made on the informa- tion and belief of the United States attorney alone. It must be sup- ported by proof establishing probable cause; that is, by legal evi- dence that a crime has been committed and that there is probable cause to believe the accused guilty of the commission thereof. The Constitution of the United States (Amend. 4) has wisely pro- vided that: No warrant shall issue but upon probable cause supported by oath or affirma- tion. However convenient and inexpensive it might be to ignore this provision of the Constitution, a due regard for the rights of the citizen and the danger of gross abuses of the old system which had its basis in the now exploded idea that the king — that is the govern- ment— can do no wrong, led to the adoption of this amendment to the Constitution. But it may 'be and is contended that this provision is complied with when an information setting forth on information and belief the facts claimed to exist is filed accompanied by the mere affidavits of third persons cognizant of the facts, taken out of court by any officer authorized by law to take and certify affidavits ; that in such case the information is supported " by oath or affirmation " ; and that it is not necessary that the evidence be given in court or before the officer issuing or directing the issuance of the warrant. In short, the contention is that affidavits taken in various States, judi- cial districts, and jurisdictions before United States commissioners, notary publics, and judges, may be filed with the information made 270 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. solely on information and belief, and that the charge made in the information is then supported "by oath or affirmation/' If this con- struction is to prevail, this information is sufficient, provided a mere signed statement with a certificate attached signed by some commis- sioner, notary, or judge, that it was sworn to on a certain day at a certain place, constitutes a legal affidavit. Hughes, Federal Procedure, p. 43, says : A complaint to justify an information must show personal knowledge and probable cause. On this point the author cites Johnston v. United States, 87 Fed. 187, 30 C. C. A. 612; United States v. Tureaud (C. C.) 20 Fed. 621. The Johnston Case is not in point here, as there the affidavit of Dudley in support of the information, which was signed but not verified by the United States attorney, so far as appears, was taken before the judge of the District Court who issued the warrant. The affidavit stated conclusions merely and not facts. The court said : The affidavit on which the information was based was wholly insufficient to warrant the arrest and trial of the plaintiff in error, and is altogether too gen- eral in terms as to the offense against the United States said to have been com- mitted, and it shows no knowledge, information, or even belief on the part of the affiant as to the guilt of the party charged beyond the bare statement that " there is probable cause to believe that the said offense has been committed by P. T. Johnston." However false the affidavit may be, it would be next to im- possible to assign and prove perjury on it. [739] While the case speaks of affidavits as the foundation of an information, it is silent on the question whether they must be taken before the court or judge issuing the warrant. United States v. Tureaud (C. C.) 20 Fed. 621, is in point on the question that an in- formation on information and belief and supported by an affidavit or affidavits made on information and belief is sufficient, but is not in point on the question whether or not the affidavits must be taken before the judge or court granting the warrant, except as we might infer that an affidavit taken before a United States commissioner will be deemed sufficient. In that case the affidavit in support of the information was taken before a United States commissioner and not the judge; but the point was not raised, so far as appears, that it should have been taken by the judge holding the court, or directing the issuance of the warrant. In that case the court said : The procedure by information, therefore, after it was acted upon by this amendment, lost its prerogative function or quality. It could not thereafter be the vehicle of preferring any arbitrary accusation — not by the king, because we have in the department of criminal law no successor to him, so far as he repre- sented a right to institute, if it pleased him, unsupported incriminations; nor by the district attorney, nor by any other officer of the United States, for the Constitution has said, in effect, that in no way nor manner shall magistrates or courts issue warrants, except upon proofs, which are to be upon oath and make probable excuse. See State v. Mitchell, 1 Bay [S. C] 267, and 1 Op. Attys. Gen. 229. where Mr. Attorney General Wirt holds that even the President is controlled by this amendment. All arbitrary information, all informations which spring into existence simply because the king and his attorney elected to present them, indeed all informations, except those supported by proof upon oath, which constitute probable cause, by this constitutional provision were ex- punged from permissible procedures, and the learning about informations was left valuable only as showing what proofs were considered adequate in cases where proofs had to be presented in order to have them acted upon by the judicial discretion or mind. DECISIONS OF COURTS. 271 The master of the crown, whose duties with regard to informations to be sus- tained by proofs correspond with the district attorneys' of the United States in the courts of the Union, was required to produce to the court " such legal evi- dence of the offense having been committed by the defendant as would warrant a grand jury in finding a true bill against the defendant, otherwise he will be left to his ordinary remedy by action or indictment." Cole, Criin. Inf. marginal paging 15, 54 vol. Law Library. This is the measure of proof which is held to be requisite by the courts of the United States under the fourth amendment. See Ex parte Burford, 1 Crauch, C. C. 276 [Fed. Cas. No. 2,148]. Cranch, J., whose dissenting opinion was adopted by the Supreme Court, said: "It (the warrant) ought to have stated the names of the persons on whose testimony it was granted, and the nature of the testimony, so that this court may know what kind of ill fame it was, and whether the justices have exercised their discretion properly." When the case reached the Supreme Court (3 Cranch, 453 [2 L. Ed. 495]), " the judges of , that court were unanimously of opinion that the warrant of commitment was illegal for want of stating some good cause certain, sup- ported by affidavit." In the matter of a Rule, etc., as to Informations, 3 Woods, 503, Fed. Cas. No. 12,126, Bradley, C. J., held that informations on infor- mation and belief were insufficient to justify the issuance of a war- rant, and also said : It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause [740] referred to, and which must be supported by oath or affirmation, must be sub- mitted to the committing magistrate himself, and not merely to an official accuser, so that he (the magistrate) may exercise his own judgment on the sufficiency of the ground shown for believing the accused person guilty ; and this ground must amount to a probable cause of belief or suspicion of the party's guilt. In other words, the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit, or taken down by himself by personal examination, exhibiting the facts on which the charge is based and on which the belief or suspicion of guilt is founded. The magistrate can then judge for himself, and not trust to the judgment of another, whether sufficient and probable cause exists for issuing a warrant. This would justify the filing of an information supported by the affidavits, properly taken, of those knowing the facts taken out of court or before officers duly authorized to take affidavits, and not by the judge directing issuance of the warrant. Not much considera- tion seems to have been given to this point in either of these cases. Judge Bradley seemed to be of the opinion that the " probable cause " referred to is the sworn statement of the facts, and that the oath of the one knowing the facts and setting them forth is to be presented to the judge who is to issue the warrant, but that this may be done in the form of an affidavit taken before any person authorized to take oaths and affirmations, or by an oral examination before the judge who takes down the facts sworn to on such personal examination. On reading the opinion we would infer that the affidavits, if pre- sented to and filed by the judge in support of the information, may be taken before a.ny officer authorized to take and certify oaths and affidavits. In United States v. Polite et al. (D. C.) 35 Fed. 58, information was filed by the United States attorney; but same was not sworn to. It was based on and accompanied by the evidence taken before a United States commissioner who held a preliminary examination in the case. The evidence was not taken before the court or judge with which the information was filed and who directed the issuance of the warrant of arrest. The motion to quash was denied. 272 FEDEEAL FOOD AND DRUGS ACT AND DECISIONS. It seems to me that it would be a useless expense and formality to require witnesses, in eases where the charge may be prosecuted by information — all cases that may be punished by imprisonment in a penitentiary or state's prison are excluded — to travel long distances, and in many cases from one State to another, and it might be across the continent, for the simple purpose of signing and swearing to an affidavit before the judge holding court and who is to direct the issue of a warrant if the facts sworn to justify and require that it issue. I do not think that the Constitution requires that the oath or affirma- tion be taken in open court or before the judge holding the court and who is to be called upon to order its filing and the issuance of a war- rant. If the information itself states with precision and clearness the commission of a crime which may be prosecuted by information, and charges some person with the commission thereof, giving time and place, and it is supported by the affidavits of persons who know the facts and set them forth, and such facts sworn to justify the allegations of the information, I think it all-sufficient, and that such affidavits may be subscribed and sworn to before any officer in any [741] jurisdiction authorized to take and subscribe oaths and affirma- tions in criminal proceedings by the laws of the United States. I think the cases all indicate this. I find nothing in the statutes of the United States requiring that prosecution by information conform to the practice of the States respectively in preliminary examinations before committing magistrates. Section 148 of the Code of Criminal Procedure of the State of New York provides that : When an information is laid before a mngistrnte of the commission of a crime he must examine on oath the informant and prosecutor and any witness he may produce and take their depositions in writing and cause them to be subscribed by the parties making them. But this relates to examinations before committing magistrates preliminary to a trial before them or upon which to base a holding for the action of the grand jury, and applies to all crimes of every grade. The information upon which the courts of the United States proceed is now unknown to the law of the State of New York. People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 389, 79 N. E. 330. 332, 10 L. R. A. (NT S.) 159. The court says: Originally an information was a criminal proceeding at the suit of the king without a previous indictment or presentment to a grand jury. It could be pre- ferred only by a responsible public officer when duly supported by affidavit, was limited to misdemeanors, and was a substitute for an indictment. In this sense it is unknown to the law of this State (New York). In 22 Cyc, 271, 282, the question of verifying informations and supporting them by affidavit is quite extensively gone into; but I find no case holding that they or the affidavits filed in support thereof must be sworn to before the judge directing the issuance of the war- rant. It goes without saying that when the matter is regulated by statute, and a particular officer is named before whom the informa- tion or affidavit must be sworn to, the statute must be followed. But Congress has not specified any officer or class of officers before whom such affidavits must be taken. If in the district courts of the United States held in New York the practice prescribed by the Code of Civil Procedure is to be followed, the judge, before directing the issuance of a warrant, must examine on oath the informant and pros- DECISIONS OF COUETS. 273 ecutor and all witnesses produced and reduce this examination to writing and cause such deposition to be subscribed by such persons. This would be too cumbersome as well as an expensive proceeding in cases of misdemeanors, and I do not think it was contemplated by Congress when it authorized the prosecution by information of the minor offenses. In People v. Vasalo, 120 Cal. 168, 52 Pac. 305, the defendant was prosecuted by information in the superior court of Los Angeles County which was verified before the clerk of the police court of the city of Los Angeles. The point was raised that such clerk had no authority to administer oaths ; but it was held that he had such au- thority, and the information was held good. The statutes of Cali- fornia did not require that the depositions be taken before the magistrate issuing the warrant. This would indicate that, in the absence of a statute demanding that the oath to an information be taken before [742] the judge or court issuing the warrant, it may be taken before any officer authorized to administer such an oath. 1 Bishop on Criminal Procedure, p. 131, Sec. 604, etc., devotes a chapter to informations ; but it is not suggested that the same or the affidavits in support thereof must be sworn to before the judge or court issuing the warrant. See, also, Dig. Law of Cr. Proa, Stephen, 126 ; " Criminal Information," Wharton Law Dictionary. In Con- necticut nearly all crimes are prosecuted by information, and it is common in Indiana. 1 Bishop, Cr. Proc. 38, book 6. In Miller v. State, 122 Ind. 355, 24 N. E. 156, it was held that such an affidavit may be sworn to before a notary public ; but in that case the informa- tion was quashed for the reason the acts of the notary were void because he had not procured a seal as required by statute. People v. Nowak, 52 Hun, 613, 5 N. Y. Supp. 239, was a case arising before the committing magistrate, and was controlled by sec- tion 148, Code Cr. Proa, already quoted. I do not think section 1014 Rev. St. (U. S. Comp. St. 1901, p. 716), has anything to do with regulating prosecutions by informa- tion. That section relates to preliminary examinations before a justice, judge, or United States commissioner for the purpose of issuing a warrant and holding to bail for appearance at court to an- swer to an indictment presented by a grand jury or to an informa- tion filed by the United States attorney, and in such cases, conform- ing to the practice prescribed by the New York Code of Criminal Procedure, it would be necessary to file a complaint or so-called " in- formation," and for the judge or commissioner to examine the wit- nesses and reduce their statements to writing and cause them to be subscribed. But an indictment may be found and presented by a grand jury without any preliminary formal complaint or prior ar- rest, whereupon the arrest follows. So prosecutions for crimes of the nature before referred to may be instituted by the United States attorney who presents to and files with the court when in session an information which must be supported by oath or affirmation and show probable cause and which, in such cases, takes the place of an indictment and thereupon the warrant issues. Under the common law the information was not necessarily verified; but, as stated, thi? led to abuses and the adoption of the fourth amendment to the Con- 40066—14 18 274 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. stitution, which in legal effect demands that no warrant shall issue upon an information filed by the United States attorney, unless it states facts, a crime, etc., and is supported by the oath of the officer filing it, who must speak from personal knowledge, or by the oaths or affirmations of others who speak from personal knowledge. Congress might have provided, when it enacted section 1022, Rev. St. (U. S. Comp. St. 1901, p. 720), stating that certain crimes and offenses " may be prosecuted either by indictment or by information filed by a district attorney," that such information shall be sup- ported by the oaths or affirmations of witnesses taken in open court or before the judge issuing the warrant, or directing its issuance; but it did not, and I do not think the language of the Constitution, above quoted, can be construed to require this. The information is supported by oath or affirmation where it is accompanied by the evidence [743] of witnesses sworn before a United States com- missioner on a preliminary examination, if taken in due form and certified by him, or when accompanied by the affidavits made on oath of witnesses sworn before any officer authorized by law to take and subscribe such oaths or affirmations. In my judgment it would be a strained construction to hold that, after a preliminary examina- tion held in due form before a commissioner, where the facts are fully disclosed and the examinations are reduced to writing and sworn to, the United States attorney cannot file an information based on and supported by such evidence and prosecute by information, instead of indictment, without again producing the witnesses In open court on filing the information. I am of the opinion that on filing an information supported by the evidence taken before a com- missioner a new warrant would properly issue; that this is true even if such examination were held before a commissioner in an- other district. If this be true, the Constitution is satisfied when in- formation is filed supported by affidavits duly taken and subscribed before officials authorized to take oaths and affirmations. But the information presented in this case does not meet these requirements. Letters do not prove themselves. There must be an affidavit showing that the defendants wrote or authorized the letters annexed to the information. The affidavits must contain a venue and, if sworn to before a notary public, must have a certificate at- tached showing that the person certifying them was at the time a notary public and authorized by the laws of the State or district to take and certify oaths and affirmations, and that same is taken and subscribed as required by the laws of the State or district. If taken before a State judge or justice of the peace, there must be a like certificate, and so of commissioners outside the district where the affidavit is to be used. For these reasons, I must decline to direct the issuance of a war- rant on the information presented. DECISIONS OF COURTS. 275 DISTEICT OF COLUMBIA v. COBURN.1 (Court of Appeals, District of Columbia, May 20, 1910.) 35 App. D. C, 324. Section 7 of the Food and Drugs Act, June 30, 1906, which defines when an article of food shall be deemed to be adulterated within the meaning of the act, supersedes and repeals section 3 of the act of Congress, February IT, 1898, covering the same subject. The act of June 30, 1906, repeals the act of February 17, 1898, only to the extent that the earlier act is repug- nant to the later act.2 In Error to the Police Court of the District of Columbia. Judg- ment affirmed. Mr. Justice Robb delivered the opinion of the court. This is a writ of error to the Police Court of the District of Co- lumbia, involving the question whether the provision of the act of February 17th, 1898 (30 Stat, at L. 246, chap. 25), [325] relating to the sale of adulterated or process butter in the District of Columbia, is superseded by the act of June 30th, 1906 (34 Stat, at L. 768, chap. 3915, IT. S. Comp. Stat. Supp. 1909, p. 1187). On August 25th, 1909, an information against the defendant in error, Henry C. Coburn, w7as filed in behalf of the District of Colum- bia, charging the said Coburn with selling, and offering for sale, " a certain adulterated article of food, to wit, butter, contrary to and in violation of the act of Congress approved February-17th, 1898, and constituting a law of the District of Columbia." A motion was made to quash the information which was granted, whereupon a writ of error was allowed. Section 3 of said act of 1898 provides, inter alia, that an article of food shall be deemed to be adulterated within the meaning of that act, " if it is colored, coated, polished, or powdered, whereby damage is concealed ; or if it is made to appear better or of greater value than it really is" Section 7 of said act of 1906 pro- vides, inter alia, that an article of food shall be deemed to be adul- terated for the purposes of the act, " if it be mixed, colored, coated, or stained in a manner wmereby damage or inferiority is concealed." Process butter is produced from rancid or deteriorated butter, by melting such butter, removing the curd, brine, and scum, blowing air through the butter fat remaining, and then churning the melted fat with an admixture of milk. The mixture is then chilled, ripened, worked, and salted. While the act of 1898 is local in character, and the act of 1906 general, the later act prohibits the sale within the District of Columbia of any article of food mixed in a manner where- by damage or inferiority is concealed. Clearly this provision is suffi- ciently comprehensive to include the offense herein described; and this being the case, we are constrained to hold that it supersedes the provision of the earlier act covering the same subject. While repeals by implication are not favored, where thereis a clear repugnancy be- tween the later and the earlier statutes, they cannot subsist together, for that would amount, in a case like the present, to prescribing two rules to govern a single offense. [326] Weigand v. District of Co- 1 Not arising under Food and Drugs Act, June 30, 1906. 2 See also District of Columbia v. Burns, 32 App. D. C. 203, in which the same question was raised but not decided. 276 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. himbia, 22 App. D. G. 569. Under the act of 1898. this information was required to be brought in the name of the District of Columbia, and the conviction was punishable by a fine of not less than $5 or more than $100. The act of 1906 requires the prosecution to be brought by the United States attorney, and the penalty provided in that act is much more severe than the penalty provided in the earlier act. The repugnancy, therefore, of the provisions of the two acts relating to this subject is clearly apparent. It is not likely that the public in- terests will suffer by this ruling, since the later act apparently affords ample protection against the illegal sale of process butter. Our attention has been directed to the act of Congress approved May 18th, 1910, entitled "An act making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year," etc., in which an appropriation is made to enforce said act of February 17th, 1898. This appropriation, however, merely indicates that it was the intent of Congress to repeal said act of 1898 only in so far as its provisions were repugnant to the pro- visions of the later act. The decision must be affirmed, with costs. Affirmed. FRENCH SILVER DRAGEE CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit, June 14, 1910.) 179 Fed. 824 ; N. J. No. 543. Confectionery coated with metallic silver held not adulterated within the mean- ing of the Food and Drugs Act, section 7, in the case of confectionery.1 Error to the Circuit Court of the United States for the Southern District of New York. The French Silver Dragee Company was convicted of violating the Food and Drugs Act, and brings error. Reversed. Writ of error to review a judgment convicting the plaintiff in error (hereinafter called the defendant) of a violation of Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187) , known as the " Pure Food Act." The indictment alleged the interstate shipment of a quantity of confectionery claimed to be adulterated in that it contained " a cer- tain mineral substance, to wit, metallic silver." The confectionery in question is sold under the name of " Silver Dragee " and is a small article made of sugar and thinly coated with pure silver. It is used principally by confectioners for decorating boxes of candy. The object of the silver coating is to be conspicuous and the silver is not employed for any purpose of deception. So, for the purposes of this case, the silver coating must be considered as being in no way deleterious or detrimental to health. The trial judge ruled as follows : I assume that it has no effect on the result of this case if it were overwhelm ingly proved that the administration of pure silver into the human system in 1 Reversing United Stfft,^ v. French Silver Dragee Co., p. 194, ante. DECISIONS OF COURTS. 277 quantities such as are attached to these dragees was perfectly inoperative, and to that statement of what I conceive to be the effect of its action you can take .an exception. Section 7 of the act under which the indictment was framed — the section here in question — is printed in full in the margin x and the especially relevant portions thereof follow : That for the purposes of this act an article shall be deemed to be adulter- ated: * * * In the case of confectionery : If it contains terra alba, barytes, talc, chrome yellow, or other mineral sub- stance or poisonous color or flavor, or other ingredient deleterious or detri- mental to health, or any vinous, malt or spirituous liquor or compound or narcotic drug. * * * The rulings of the trial court were based upon the interpretation of the statute that all it was necessarj^ for the Government to estab- lish— interstate traffic being admitted — was that the confectionery in question contained silver, it being a mineral substance. [825] 2 Before Lacombe, Ward, and No yes, Circuit Judges. . No yes, Circuit Judge (after stating the facts as above). In in- terpreting the provisions of the act now in question — the pure food act — it is of importance to ascertain at the outset the objects which Congress sought to accomplish by its enactment and the evils in- tended to be remedied by it. If we go outside the act itself, and con- sider the circumstances surrounding its adoption, we find a congres- sional committee report urging that the objects of the bill were: (1) To protect the purchaser of food products from being de- ceived and cheated by having inferior and different articles passed off upon him in place of those which he desired to obtain. (2) To protect such purchaser from injury by prohibiting the addition to foods of foreign substances poisonous or deleterious to health. Or, briefly stated, " that which is forbidden is the sale of goods under false pretenses, or the sale of poisonous articles for food." Turning now to the act itself: An examination of the title indi- cates its purposes. It is entitled : "An act for preventing the manu- facture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors." [826] And, examining the particular section now in question, we find the purpose all through it to protect the public from deceit and in- jury. Drugs are declared to be adulterated if their strength or purity fall below certain standards. The intent to prevent both deceit and injury are here apparent. So food is deemed to be adul- terated : (1) If its quality or strength is reduced by the mixture of other substances ; (2) If one substance has been substituted for another; (3) If a valuable ingredient has been abstracted; (4) If it is mixed or colored so that damage or inferiority is con- cealed ; (5) If poisonous ingredients or ingredients making the article in- jurious to health are added; 1 See pp. 824-825, 179 Federal Reporter. 2 Numbers in brackets refer to pages of Federal Reporter. 278 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. (6) If the article consists of decomposed or putrid animal or vege- table substances. The obvious purpose of provisions (1), (2), (3) and (4) is to protect the public from deceit and false pretenses; of provisions (5) and (6), from injury to health. Other sections of the act also indicate the same object. The terms " false," " misleading," " deceive," " poisonous,'' " deleterious," ap- pear in many places. Indeed, a careful examination of the whole act clearly shows that its object is, as already indicated: (1) To prevent deceit and false pretenses in food and drugs; (2) To safeguard the public health. Bearing these objects in mind, we must now examine the sub-sec- tion of the Act especially relating to confectionery. If we find upon such examination a possible construction of the provision which would not afford protection to the public from deceit or injury, and would merely stop traffic in an article neither injurious nor capable of deceiving, we should seek to avoid it. General language should not be so construed as to ruin a legitimate business, and yet remedy none of the evils the statute was designed to remove. In the language of the Supreme Court of the United States in Holy Trinity Church v. United States, 143 U. S. 45T, 459, 12 Sup. Ct. 511, 512, 36 L. Ed. 226: It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the inten- tion of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surround- ing its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legis- lator intended to include the particular act. The interpretation given to the statute by the trial court was that the words " or other mineral substance," following the phrase " in the case of confectionery : If it contain terra alba, barytes, talc, chrome yellow " — broadly included every mineral substance including silver. [827] The defendant, on the other hand, contends that the different clauses of the subsection in question should be construed together and that, so construed, they embrace only those substances which are de- ceptive or are detrimental to health. Interpreting the provision as embracing in the phrase " or other mineral substances " all mineral substances whatsoever, it is appar- ent that the use of the mineral substances, salt, sulphur, and baking soda, in the manufacture of confectionery — and it appears that they are so used — would render the product adulterated within the mean- ing of the statute and its sale unlawful. Similarly, the use of silver to coat these dragees would violate the act. But the product in which the salt, sulphur, baking soda or silver was used would not be unhealthful, nor would there be any element of deceit present. The provision so construed would arbitrarily prohibit the use of all mineral substances in confectionery, would accomplish thereby none of the purposes of the act, and would apply a different standard in the case of confectionery than in the case of food or drugs. Un- less the language of the statute imperatively requires such construc- tion, it should not be adopted by the courts. DECISIONS OF COUETS. 279 The construction of the provision contended for by the defendant is in accordance with the ejusdem generis doctrine. The rule that, when general words follow the enumeration of particular things, such words will be held to include only such things as are of the same kind as those specifically enumerated is, of course, well settled. It is unnecessary to refer to more than one case to illustrate its application. Thus in Cundling v. City of Chicago, 176 111., 340, 52 N. E. 41, 48 L. R. A. 230, the court said : The articles, meats, poultry, fish, butter, anrl lard, which are expressly enu- merated in the above paragraph, and the power expressly given therein to regulate the sale thereof, are articles of food for man, and include by the express enumeration of articles only provisions to be used by man. The term "other provisions," by a familiar canon of construction, can extend only to articles of the same character as those especially enumerated. When general words follow an enumeration of particular things, such words must be held to include only " such things or subjects as are of the same kind as those specially enumerated." We think the ejusdem generis rule especially applicable in this case for the reason— as already pointed out — that any broad construction would arbitrarily interfere with legitimate business and in no way promote the accomplishment of the objects of the statute. Indeed, the Government in its brief in this court seems not to seriously con- trovert the proposition that the ejusdem generis rule should be ap- plied. It states at the outset : The only question is whether metallic silver is included in the class "other mineral substances." Is metallic silver ejusdem generis with the mineral sub- stances which precede it? Now, it appears that terra alba, barytes, and talc are used to mix with confectionery and cheapen it. There is nothing in the record to show that they are injurious to health. They are well-known adul- terants— using that term in its ordinary sense. They increase bulk and weight at the expense of quality. Confectionery containing them is [828] really sold under false pretenses. Chrome yellow is a cheap coloring matter, and is poisonous. Silver, as used in these dragees, and as considered in connection with this statute, is not the same kind of mineral substance as terra alba, barytes, or talc. It is used to at- tract attention, not to deceive. Of course, like those minerals it may be insoluble and inert ; but the comparisons to be made must have in view the objects of the statute. Thus similarity within the rule would not be established by showing that the substances were all of the same color. So the silver upon these dragees has no similarity to chrome yellow. Unlike that mineral substance it is not poisonous. In our opinion the clauses " or other mineral substance or poison- ous color or flavor, or other ingredient deleterious or detrimental to health," following the enumerated substances, should be taken and interpreted together and mean : (1) That the use in confectionery of terra alba, barytes, talc, or any other mineral substance, whether injurious to health or not, for pur- poses of deception, makes it unlawfully adulterated ; (2) That the use in confectionery of chrome yellow or other pois- onous mineral substance or poisonous color or flavor, makes it unlaw- fully adulterated; 280 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. (3) That the use in confectionery of any ingredient whatsoever which is deleterious or detrimental to health makes it unlawfully adulterated. It is true that under this construction the third class of cases would include the second. "Any ingredient detrimental to health " undoubtedly includes all poisonous substances. But the clauses do not conflict, and redundancy is not unusual in statutory provisions. Stated in another way, we think that the history of the act, the ob- jects to be accomplished by it, and the language of all its provisions require that it should be so interpreted that in the case of confection- ery, as in the cases of food and drugs, the Government should estab- lish, with respect to products not specifically named, that they either deceive, or are calculated to deceive, the public or are detrimental to health ; and, as no proof was was offered in this case tending to show that the confectionery in question was either deceptive or injurious, the defendant was improperly convicted. The judgment of the Circuit Court is reversed. UNITED STATES v. 10 BARRELS OF OLIVES. (District Court, E. D. Pennsylvania, June 21, 1910.) N. J. No. 649. Olives held, adulterated in that they consisted in whole or in part of a filthy anJ decomposed vegetable substance. Libel under section 10 of the Food and Drugs Act. Psaki Brothers, claimants. Jury trial. Verdict for libelant. Decree of condemna- tion, forfeiture and destruction. [1] J. B. McPherson, District Judge (charge to the jury). The attempt of the Government in this case is to forfeit this property, and the method of procedure is, for the Government, if it supposes it has sufficient grounds for believing the act to have been violated, to take possession of the property. Any person who has an interest in that property has a right to come forward and claim it, and claim that the Government's proceeding was not justified; and so we have a case such as is brought before us. While in form it is between the Government and this property, in substance it is between the Government and the man who claims it; so that your verdict in the present case will be for the Government, in case you find that this property should be forfeited, and for the claimant if you find that it ought not to be forfeited. You [2] will not have any money ver- dict to render, nor anything to do with the value of this property at all. The verdict will simply be, I repeat, in one case for the Gov- ernment or, in the other case, for the claimant. One section of this statute provides that articles intended for food may be condemned and forfeited " if, either in whole or in part, they shall be filthy, decomposed or putrid," and the Government claims that, in this particular case, the articles in question were both filthy and decomposed. We will leave the word " putrid " out of the case. There is no averment that they were putrid. If the Govern- DECISIONS OF COURTS. 281 ment has offered evidence which satisfies you that they were either filthy or decomposed, the case is made out. The Government is not bound to prove that they were both filthy and decomposed. Now you see that what you have to* do is, as a question of fact, to determine from the evidence laid before you whether these olives can fairly and properly be said to be filthy or decomposed. That re- quires you to consider what meaning we can properly apply to the words which I have emphasized, namely, filthy and decomposed, and then apply the meaning to the evidence as you have heard it. Right there we are confronted with the difficulty that so often confronts us, of determining just exactly what the meaning of a particular word is. You know, in the ordinary affairs of life, how difficult it often is to get at the precise meaning which a person who may be talking intends his words to bear, and he may have the same difficulty in getting at what your words may mean. It is a common difficulty that confronts the business man. Language, as you also know, very often means what we intend it to mean. There are very few words which have a precise, technical meaning, always the same. Sometimes they have one meaning and sometimes another. That is a common situation, and we simply have to do with our speech as best we can and endeavor to ascertain what it means in the particular situation in which the words are being used. Sometimes a word may mean one thing in a particular set of circumstances, and have an entirely different mean- ing, or, at all events, a somewhat different meaning, when applied to another subject. You must bear in mind that these two words, " filthy " and " de- composed " are used in this case before us with reference to food, with reference to articles that are offered for food and, therefore, you must view the evidence in the light of the subject-matter to which your attention has been directed; because it is quite clear that a situa- tion which might justify a jury in finding a food was decomposed might not justify them in finding that some other substance was either filthy or decomposed. Now the word " filthy " is capable of a variety of meanings. I suppose it is not unfair to say that it is the superlative degree of such a condition as we refer to as " soiled." When we speak of an article as soiled, that would be a sufficiently accurate statement, I suppose, in your minds and mine. Then if you say an article is " dirty," I think you go a step farther. Perhaps you might call that the comparative degree, for our purposes. It certainly goes a little farther, I think, than the word " soiled." Then, if you use the word " filthy, ' I think you are all conscious that we have gone a step far- ther than that. An article can hardly be said to be filthy unless it has gone somewhat further than the word " dirty." Now what have the witnesses said in regard to these articles? Were they filthy, regarded as articles of food? The point to which the Government directs your attention, and the only point to which the Government directs your attention, in that respect, is the alleged presence of worms and the excreta of worms, which are said to have been found in these barrels. What are the facts in that regard? I do not intend to go over the evidence at all, or to direct your attex.- tion [3] to what any particular witness may have said. You have 282 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. heard the evidence and you must determine what the facts were, «,o what extent worms, cr the excreta of worms, were found in these olives, and, when you have determined this fact, it may justify you in finding- that you can properly regard them as filthy. So in regard to the word " decomposed." That is a word with quite an extensive scope. Scientifically, it is quite clear that, the moment a chemical change takes place in any article, it begins to decompose. Take sugar, for example. The moment sugar begins to change its character — and it may change into a good many sub- stances— it begins that moment to decompose, to break down, to form other combinations, and that is scientifically called the process of decomposition. It does not follow, however, that the scientific meaning is to be applied to this case. It is quite clear to all of us that it is not intended in this statute to bear a strict scientific mean- ing; that it should mean simply a change of the chemical constitu- ents of a substance. It is allied, if I may use a general word, to the idea that is connoted by the word " rotten." " Putrid " goes a step farther; but, as I say, we are not concerned with the stage to which the word " putrid " may be properly applied. The sense in which " decomposed " is used in this act means that stage which, if carried somewhat farther, would bring you to the state of a par- ticular substance which would properly be called rotten. I do not think it goes as far as rotten. Now you can see at once that the word " decomposed," when ap- plied to food — and that is the subject, I call your attention again, to which you must apply these words — the word " decomposed,'" as applied to food, may have different meanings. What you would call a decomposed food product may have one meaning in one set of circumstances and a different one in another. Take certain cheeses which are used extensively as articles of food. I think on some of them — I shall not name any — there would be a general agreement that they could be properly spoken of as decomposed to some extent ; and certainly with regard to some kinds of game that are eaten — eaten, at all events, by epicures — they are undoubtedly decomposed. " High," as you know, is often used for game when it reaches a cer- tain stage. People sometimes do not like it, and sometimes go so far as to call it rotten. In that connection I may say that the act of Congress is not concerned with the question as to whether some people will eat foods that are decomposed or dirty. That is not the test that is applied to them. It is quite true that some people are willing to eat articles that to others would be disgusting, and there is no standard that can be applied generally. In a statute which has been passed by Congress, any word, speaking generally, is to have the ordinary and general meaning which is given to it in common speech. Statutes, speaking generally, you know, are ad- dressed to the people. They are commands to the people, telling them what they shall do or omit to do, and, therefore, it is the ordinary and natural, general, meaning which the words bear, that those words have. Those are the rules, or principles of construction, of the words with which we are concerned in this case. Their scope and mean- ing are to be determined as applied to the subject matter of this DECISIONS OJ? COURTS. 283 statute, namely, with reference to articles of food, and you must apply these rules to the evidence in the case and determine whether these olives, about which we have heard this evidence, are properly to be spoken of as filthy, or properly to be spoken of as decomposed. If they are either one of the two ; if either one of the two words is properly applicable to them; if they are filthy, or decomposed, then the Government has made out its case. [4] This is a proceeding which, as I have said to you, would forfeit this property, that is, take it away from the owner and transfer it to the United States, or authorize the United States to condemn and destroy it; at all events, to deprive the owner of the property. It is, therefore, a severe remedy. It is a penalty, strictly speaking, and, while these proceedings are not criminal proceedings, they are not very far removed in their nature from criminal proceedings. There- fore, a higher degree of proof is required from the United States in a proceeding such as this than would be required of it were it an ordinary money suit on an obligation to the United States. It is not only required that there should be a fair weight of the evidence in favor of the United States, but there is a requirement that the United States should make out its case by evidence that is of a higher quality ; evidence that may properly be described as clear, convincing and satisfactory. You now must determine whether, judged by that standard, the United States has made out its case in reference to the articles to which I have referred. I shall not say anything about the evidence in the case, as it has been given to you by the various witnesses, except to say a word about two of the witnesses who testified for the Government. I refer to the testimony of the two young women who were heard yesterday. Their testimony has been held up before you to ridicule, and I do not think it was justified. There is no reason why the testimony of any witness should not be attacked by any person opposed to it, and it is for the jury to determine what weight is to be given to the tes- timony of any witness — and the weight to be given to the testimony of these witnesses is entirely for the jury; but I am sure the jury will agree with me that their testimony was not ridiculous, or prop- erly capable of being held up to ridicule. They certainly were highly intelligent witnesses, they certainly were careful witnesses, and I am sure the jury will agree with the court that they were intending, at all events, to give you as much light and as much satisfactory light as was possible for them to do on this subject. Just how far their testimony is to have weight with you, is wholly for you. With that, in connection with all the other evidence in the case, I leave the case for your consideration. If the jury desire to have any of these samples for inspection, and will let us know, we will be glad to send them out. We will not trouble you with that just now, but if, when you come to consider the case, you would like to have any of these samples, please send us word and we will let you have anything you want. 284 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES v. NINE BARRELS OF OLIVES. (District Court, E. D. Pennsylvania, June 30, 1910.) 179 Fed. 933 ; N. J. No. 648. Olives consisting in wooie or m ;)art of a decomposed vegetable substance, held adulterated within the meaning of the Food and Drugs Act, section 7, paragraph 6, in the case of food. Libel under section 10 of the Food and Drugs Act. Jury waived. Judgment of condemnation and forfeiture. [984] x J. B. McPherson, District Judge. The food product under inquiry in this case is black olives imported from Greece. The ship- ment was seized under the authority of section 10 of the Food and Drugs Act of 1906. (Act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 1909, p. 1193].) The importer appeared and claimed the goods, and a trial was had before the court without a jury, in which witnesses were examined and other evidence was produced. The claimant objects to the jurisdiction of the court on the ground that no preliminary hearing was had by the Secretary of Agriculture in accordance with the provisions of section 4. To this it is enough to reply that section 10 of the act, under which the present seizure was made, is independent of section 4. This has already been decided by Judge Norris in United States v. 50 Barrels of Whiskey (D. C), 165 Fed. 966, and by Judge Dayton in United States v. 65 Casks, etc. (D. C.), 170 Fed. 449, and I agree with the result of these decisions. The precise scope of section 4 need not now be determined; it is enough to say for the present that it does not apply to a libel for for- feiture. Under section 10 provision is made for a hearing in court under the well-known process according to the practice of the district court in admiralty, and a preliminary hearing going over the same ground would be superfluous. Of course, if the act required such a hearing, the court would obey the statute; but in my opinion the procedure under section 10 is complete in itself, and is not a mere continuation of the proceeding referred to in section 4. [985] Another defense is that the claimant has given the bond re- quired by section 11, and that the acceptance of this bond by the Government is equivalent to an official declaration that the olives had been found to comply with the act. I do not so understand the section, which reads as follows : The Secretary of the Treasury shall deliver to the Secretary of Agriculture, upon his request from time to time, samples of foods and drugs which are being imported into the United States or offered for import, giving notice thereof to the owner or consignee, who may appear before the Secretary of Agriculture, and have the right to introduce testimony, and if it appear from the examination of such samples that any article of food or drug offered to be imported into the United States is adulterated or misbranded within the meaning of this act, or is otherwise dangerous to the health of the people of the United States, or is of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported, or is otherwise falsely labeled in any respect, the said article shall be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 285 consignee within three mouths from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter on execution of a penal bond for the amount of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of the bond : And provided further, That all charges for stor- age, cartage, and labor on goods which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall con- stitute a lien against any future importations made by such owner or consignee. In other words, if an examination is in progress before the Secre- tary of Agriculture, the importer may take the risk that the result will be what he desires, and may obtain possession of the goods by giving bond to return them in case the result should be adverse. This section does not appear to be so connected with section 10 as to present any obstacle to the remedy by forfeiture. It only remains to add that, having heard and considered the evidence and the arguments of counsel, I am of opinion, and so find, that the olives in question consist in whole or in part of a decomposed vegetable substance, and should therefore be condemned. An appropriate judgment may be entered in favor of the United States. UNITED STATES v. 625 SACKS OF FLOUR. (District Court, W. D. Missouri, July 6, 1910.) N. J. No. 722. Flour bleached by the Alsop process held adulterated as a result of such bleach- ing, and misbranded because of false and misleading statements on the label.1 Libel under section 10 of the Food and Drugs Act. Jury trial. Verdict for the libelant. Decree of condemnation and forfeiture. [6] Smith McPherson, District Judge (charge to the jury) . April 9, 1910, Arba S. Van Valkenburgh, the then United States attorney for this judicial district, in his official capacity as such officer filed with the clerk of this court a pleading designated by law as a libel. Later on, to wit, May 19, 1910, Mr. Van Valkenburgh as such officer as aforesaid filed an amended libel in the name of the United States of America, which in effect charged that the said claimant, the Lex- ington Mill and Elevator Company, April 1, 1910, sold and shipped from Lexington, in the State of Nebraska, to a grocer by the name of B. O. Terry at and of Castle, in Sullivan County, Missouri, a ship- ment of flour containing six hundred and twenty-five (625) [7] sacks of flour of forty-eight pounds of flour to the sack. The said libel charges the route of shipment, namely, over two or more connecting railroads between the two said points. The said Terry buying said flour and receiving said shipment for the purpose of retailing said flour to consumers at the said town of Castle and to his customers in the vicinity thereof, and for said purposes the said Lexington Mill and Elevator Company made said shipment. 1 Reversed, Lexington Mill and Elevator Co. v. United States, p. 604, post. See also United States v. Lexington Mill and Elevator Co., p. 701, post. 286 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. It is further charged in the said libel, that is to say, that the flour in question was treated by a process for bleaching flour known as the Alsop process, which process consists of the generation by means of electricity of nitrogen peroxide gas which is mixed with atmos- pheric air, and the mixture brought into contact with the flour in a state of agitation, and that the flour was thereby caused to be adulter- ated in certain particulars, namely : (a) In that substances known as nitrites or nitrite-reacting mate- rial has been mixed and packed with the flour so as to reduce and lower and injuriously affect its quality and strength in these respects among others, to wit, that the capacity of the said flour to change and improve as it would have changed and improved if aged by natural processes has been destroyed. That by direct action the elas- ticity of the gluten has been lessened and impaired so as to injuri- ously affect the bread-making qualities of the flour; that other con- stituents of the flour have been injuriously affected so as to reduce, lower, and impair its bread-making qualities. (b) In that by the treatment of the flour by the Alsop process it has been mixed, colored, and stained in a manner whereby damage and inferiority is concealed in these respects among others, to wit: That the inferiority of freshness or newness, an inferiority which is present in flour freshly milled and which manifests itself, among other things, in inferiorities of color, of elasticity, of gluten, and of the quality of other ingredients which affect its value for bread-mak- ing purposes, is thereby concealed ; that said flour has been caused to simulate the appearance of flour which has been properly aged and conditioned by natural processes after being milled; that this treat- ment by the Alsop process has concealed the inferiority of said flour and has given it the appearance of a better grade of flour than it really is, and further that the flour was when milled, when bleached, and now is, of a grade of flour inferior to the flour made from the first quality of hard wheat, and that by the Alsop bleaching process it has been caused to have the appearance of a patent flour and of a flour made from the first quality of hard wheat, and that thereby the infe- riority of said flour was and is concealed and that in other respects also the inferiority of said flour was and is concealed. (c) In that by the treatment as aforesaid the said flour has been caused to contain added poisonous or other added deleterious ingredi- ents, to wit, nitrites or nitrite-reacting material, which may render said flour injurious to health. The amended libel further charges that said flour is misbranded in substance as follows: (a) That the bags and sacks containing such flour were labeled as follows : " L. 48, Lexington Cream XXXXX Fancy Patent. This flour is made from the first quality hard wheat." That in truth and in fact a patent flour is, and is known and rec- ognized to be, the best grade of flour, and which consists only of that portion of the flour content of the wheat known as the " middlings." But that the flour contained in said sacks is not patent flour, but is a grade and quality of flour inferior to patent flour, being a mixture of middlings together with a commercially inferior grade of flour, and a flour which before bleaching was darker in color than a patent flour and inferior in grade, quality, and strength to patent flour, [8] DECISIONS OF COURTS. 287 and that this mixture was shipped into Missouri labeled under the dis- tinctive name of another article, and was labeled so as to deceive and mislead the purchaser, in the respect that it purported to be a patent -flour whereas in truth and in fact it is not a patent flour. (b) That the label on each sack contained a statement, " This flour is made of first quality hard wheat," whereas in truth and in fact the flour was not made of first quality hard wheat, but was milled in the whole or in part from a grade or grades of wheat inferior to first quality hard wheat, namely, " yellow berry," and other inferior wheat, and was sold under the distinctive name of another article than itself, and that the flour seized purported to be made from the first quality of hard wheat, whereas in truth and in fact it was made in whole or in part of wheat inferior to the first quality hard wheat, namely, " yellow berry " and other inferior wheat and therefore was sold under the distinctive name of another article than itself and was misbranded within the meaning of the act of Congress. To this amended libel which contains the Government's charge and a statement of the alleged cause of action, the Lexington Mill and Elevator Company, claimant, herein, has filed its answer which in substance and meaning states: That the Lexington Mill and Elevator Company is interested in the flour seized ; that the same was manufactured at its mill in Lex- ington, Nebraska, and sold to B. O. Terry of Castle, Missouri, and was shipped from Lexington, Nebraska, to Terry at Castle, Missouri, under a guaranty that the same was not adulterated ; that the claim- ant has not been paid for the flour, but that after the seizure was required to and did furnish Terry other flour in lieu of the flour seized; that if the flour seized be condemned, claimant will suffer loss to the extent of its value, namely, seven hundred arid fifty ($750) dollars; it admits the shipment of the flour by the route alleged in the libel, and that the flour was branded as indicated by an amend- ment to the amended libel. It admits that the flour was treated by a process known as the Alsop process, but denies that the same was adulterated within the meaning of the act of Congress, and denies that any substance known as nitrites or nitrite-reacting material has been mixed or packed with the flour or any part thereof so as to injuriously reduce or lower its quality or strength in any respect whatever, and denies that the flour has been mixed, colored, or stained in a manner whereby damage or inferiority is concealed in any respect whatsoever, and denies that the same has been treated in any manner whereby the grade or the quality of the flour has been concealed, and denies that the treatment of the flour has given it the appearance of a better grade of flour than it really is, and denies that an}^ of the flour is inferior to a pat- ent flour, and denies that any of the same was when milled or now is of a grade of flour inferior to a grade of flour made from the first quality of hard wheat, and denies that the quality of said flour or wheat from which it was made was in any manner concealed, and denies that the same or any portion thereof has been caused to con- tain any added poison or other added deleterious ingredient which may render said article injurious to health. It admits and alleges that the flour was labeled as the evidence shows it to have been labeled, but denies that so-called patent flour 288 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. is known or recognized to be a grade of flour consisting only of that portion of the content of the wheat known as " middlings," and says that it- is not true that the flour contained in said sacks is not a patent flour, or that it is of a grade or quality inferior to patent flour, or that it is a mixture of middling together with a commercially inferior grade of flour, or of a flour which was of a darker color than a patent flour, or inferior in grade, quality, or strength to a patent flour, and denies that the flour was mixed and shipped into Missouri and sold under the distinctive [9] name of another article than itself, or that the same was labeled in any manner so as to deceive or mislead the purchaser, or that it did deceive or mislead the purchaser in any respect whatever. It admits that the sacks were labeled as the evidence shows them to have been labeled, but denies that the flour was made in whole or in part from grade of soft wheat, or that it was sold under the name of an article different from what it really was, or that it was in any respect misbranded. It admits that the flour was treated by the Alsop process and in that connection alleges that the process consists of generating, in rapid succession, a flaming electric discharge in a current of air in proximity to such electric discharge, and in conducting the air, as modified by such discharge, into the presence of the flour as it is being continuously passed through a revolving reel or agitator, but denies that the flour was in any way adulterated, or that by the process any poisonous or other deleterious ingredient has in any manner been added thereto or imparted thereto, or that the flour is in any way injurious to health or contains any added deleterious ingredient, or that the same is adulterated in any manner, or that by such process any damage or inferiority is in any manner concealed, or that the quality or strength of the flour is in any manner reduced or lowered. To this answer the Government by its counsel has filed a reply. On the issues thus outlined as contained in the amended libel, and the answer and reply, this case is to be determined. By reason of the libel heretofore referred to a writ of seizure was issued by the order of this court commanding the United States mar- shal for this district to seize the said shipment of flour and the mar- shal still holds the same subject to the further orders of the court herein. The statute under which this proceeding was brought and the case now being tried is an enactment of the Congress of the United States approved by the then President June 30, 1906 (four years ago). This statute as to its validity is challenged by the claimant herein. But with that question you have no concern other than to observe it, because the court holds that the Congress of the United States with the approval of the President had the power under the Constitution of the United States to enact the statute that was enacted and under which we are proceeding, and the court holds and so directs you that the statute is a valid enactment, and to be enforced in any and all cases where the evidence and the facts come within the wording of the statute. The statute is named " The Food and Drugs Act," and is an act for preventing the manufacture, sale, or transportation of adult- erated or misbranded or poisonous or deleterious foods, drugs, medi- DECISIONS OF COURTS. 289 cines, and liquors, and for regulating traffic therein, and for other purposes. It will be observed that the statute deals with drugs, med- icines, liquors, and foods. A part of the statute is with reference to drugs, medicines, and liquors, and likewise confectionery, but with which in this case Ave are not concerned except as the same has a bear- ing with reference to foods. That part of the statute with reference to foods reads as follows: That for the purposes of this act an article shall be deemed to be adulterated in the case of food : First: If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. # :S * * * * ¥ Fourth : If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth: If it contain eny added poisonous or other added deleterious ingredi- ent which may render such article injurious to health * * *. [10] The statute further prohibits the misbranding of articles of food and provides in substance as follows: That the term " misbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular * * *. Any statement or expression of opinion by the court during the trial of this case with reference to any fact or alleged fact or any crit- icism by the court of any witness or party or counsel on either side, are each and all withdrawn, and you will treat and consider the case as if such statements or criticisms by the court were not made. And I charge you to give no consideration to the same or any part thereof. You are the sole judges of the facts in this case. Much testimony in this case was given by scientists and experts who testified before you. The testimony of the experts as to their opinion is not binding upon the jury and is merely advisory and may be given such weight by the jury as the jury may deem proper in view of all the facts and circumstances in evidence, or such expert testimony may be wholly disregarded by the jury in arriving at their verdict. While you are the judges of the facts and of the testimony, and what weight shall be given thereto regardless of expressions of opin- ion by me, it is my belief that I can be of substantial aid to you in stating some facts which in my opinion are so well established by the evidence as that you ought to have but little or no argument with reference thereto, and take the same as established facts. However, notwithstanding my statements or expressions of opinion with reference to any fact in the case, you are to remember that you are the sole judges of the facts in the case, and of all deductions to be made therefrom. It is an established fact and concerning which there is no conflict in the testimony that the flour in question in this case was trans- ported from Lexington, Nebraska, to Castle, Missouri, in interstate commerce and was subject to seizure for confiscation, if it is adulter- ated or misbranded in any respect or particular alleged in the amended libel. It is also an established fact in the opinion of the court that the flour seized and in question was made from wheat of a 1909 crop 40068—14 19 290 FEDERAL FOOD AND DRUGS ACT AND DECISION'S. grown in the State of Nebraska and known by the name of No. 2 Turkey wheat, and that the wheat was ground at the claimant's mill at Lexington, Nebraska, on the night of March 31st, 1910, and shipped the next day to the said Terry at Castle, Missouri, by whom it was received in about seven days. It is also an established fact in the opinion of the court that the wheat from which the flour was made contained a percentage of what is called yellow berry wheat. The witness, Mr. Tucker, the head miller of claimant, testified that the yellow berry was about or approximately ten to twenty-five per cent of the entire amount of the entire wheat used to make the flour in question that has been seized in this case, and the testimony of other millers in Nebraska and Kansas shows that the wheat called " yellow berry " is frequently indeed commonly found mixed with Turkey wheat as it is grown in those States, and that the percentage of such yellow berry varies, frequently running higher than fifty or seventy -five per cent of the Turkey wheat produced in various places and communities in said States. And there is evidence to the effect that but a small part, probably about one per cent of the Turkey wheat produced, in the various places in these States which are referred to in the testimony, that is wholly free from the yellow berry wheat. And it appears that it is the common practice of millers in Kansas and Nebraska to mill Turkey wheat mixed with this yellow berry. [11] It is admitted that the flour seized in this case was treated by the Alsop process for the purpose of bleaching and whitening the same ; that that process employs a gaseous substance referred to in the tes- timony as nitrogen-peroxide gas — NG2 or N204. It appears .that nitrogen-peroxide gas is — in concentration — a brownish or yellowish gas heavier than atmospheric air, of offensive odor, corrosive in character, and a poison and deleterious substance, and if taken by a human being in sufficient quantities will produce poisonous action and death. It appears that when nitrogen-peroxide gas is brought into con- tact with water or moisture, there is by chemical change produced nitrous acid and nitric acid in equal quantities, and it also appears that each of these acids so produced is a poisonous and deleterious substance which if taken by a human being in sufficient quantities will produce poisonous action and death. It appears that the water or moisture content of flour is equal to about ten or twelve per cent of the total weight of the flour, amount- ing to about five pounds of each of the sacks seized or about twenty pounds in a barrel of flour. It appears that nitrous acid readily combines chemically with other substances such as are contained in wheat flour and thereby forms nitrites of various kinds, depending upon the character of the sub- stances with which the acid chemically combines. It appears that such nitrites as may be formed by the introduction of nitrous acid into flour are poisonous and deleterious substances, and that if taken by a human being in sufficient quantities will pro- duct poisonous action and death. It appears that nitric acid readily combines chemically with other substances such as are contained in wheat flour, and thereby forms nitrates of various kinds depending upon the character of the sub- stances with which the acid combines. DECISIONS OF COUKTS. 291 To enable the Government to obtain a verdict at your hands in its favor, it is required to furnish such a measure of evidence as to sus- tain the allegations of the amended libel by a fair preponderance of the evidence. By a fair preponderance of the evidence is meant a greater weight of evidence and it is sufficient if it satisfies your mind that the allegations which it supports are true without regard to which side produces the evidence or the witnesses giving the same. It is not incumbent on the Government to show that the allegations of the amended libel in a case like this are true beyond a reasonable doubt. Proofs beyond a reasonable doubt are only exacted in a criminal case, and this is not a criminal case within the meaning of that rule, but it is an action in the nature of a civil action. You are the judges of the weight of the evidence, and of the credibility of the witnesses, and it is for you to say what the truth is. It is incumbent on the Government to prove that the flour seized was adulterated and misbranded in some respect or particular al- leged in the libel. But it need not prove that the flour was adulter- ated or misbranded in all of the respects and particulars alleged. If it appears from the evidence in this case that the flour was adul- terated in any respect or particular alleged, then you must find for the Government that the same was adulterated, and if it appears in the evidence that the same was misbranded in any respect or par- ticular alleged, then you must find for the Government that the same was misbranded. On the other hand, if you find that it was not adulterated in any respect or particular alleged, then you must find against the Government on that issue. And if you find that it was not misbranded in any respect or particular alleged, then you must find against the Government on that issue. One of the issues submitted to you is the alleged violation of the first subdivision relating to food in section 7 of the act, which in substance declares [12] an article of food to be adulterated if any sub- stance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. Upon this point the substance of the charges made by the Govern- ment is, (a) that the capacity of the flour to change and improve as it would have changed and improved if aged by natural processes., has been destroyed by the treatment of the flour by the Alsop process, whereby substances known as nitrites or nitrite-reacting material have been mixed and packed with the flour; and (b) that by direct action of such process the elasticity of the gluten has been lessened and impaired so as to injuriously affect the bread-making qualities of the flour; and, (c) that other constituents of the flour have been by such process injuriously affected so as to reduce, lower, and impair its bread-making quality. On the first branch of this particular issue it appears that wheat flour improves by lapse of time and processes of natural aging. I charge you that if the treatment of this flour by the Alsop process for the purpose of bleaching and whitening resulted in any injury to the capacity of the flour to change and improve as it would have changed and improved if aged by natural processes, that your finding must be for the Government that the flour is adulterated. On the second branch of this particular issue, I charge you that if you find from the evidence that by the direct action and as a result of the treatment of this flour by the Alsop process the elasticity of 292 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. the gluten has been lessened or impaired so as to injuriously affect the bread-making qualities of the flour, that your finding must be for the Government that this flour is adulterated. On the third point of this particular issue, the Government claims that the treatment of this flour by the Alsop process caused sub- stances known as nitrites or nitrite-reacting material to be mixed and packed with the flour so as to reduce, lower, and impair its bread- making qualities, and so as to render the same injurious to health. If you shall find from the evidence that the flour seized was by such treatment so injured, your finding must be for the Government that this flour was adulterated. The substance of the charges of the Government that this flour is adulterated in violation of the fourth subdivision relating to food of section 7 of the law in question, is that by the treatment of the same by the Alsop process the flour has been mixed, colored, and stained in a manner whereby damage or inferiority is concealed in these respects, namely, (a) that the said flour has been caused to simulate the appearance of flour that has been naturally aged and conditioned by natural processes after milling ; (b) that the treatment by the Alsop process has concealed inferiority in said flour, and has given it the appearance of a better grade of flour than it really is: (c) that the flour is of a grade inferior to patent flour and inferior to flour made from the first quality of hard wheat, and that treatment of the same by the Alsop process has caused it to have the appearance of a patent flour and of a flour made from the first quality of hard wheat. It appears from the evidence in this case that wheat flour when freshly made is inferior to what that same flour will become by the lapse of time and the processes of natural aging and conditioning; that the inferiorities of freshness or newness manifest themselves in inferiority of ' N. J. No. 832. An article consisting principally of a cottonseed oil, labeled " Olio Sopraffino Savoia Brand Salad Oil " in large type, and in very small type, at the bottom of the label, " A Compound winter pressed cotton salad oil flavored with pure Italian olive oil, packed in United States complying with Pure Food Law," held misbranded. Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. Hazel, District Judge (charge to the jury). [2] This is another case of so-called misbranding of things sent from New York State into another State. It is conceded by the defendant that the article in question is cottonseed oil ; that it contains five per cent of olive oil and 95 per cent of cottonseed oil, and the Government claims that the branding of the article, or branding on the container, the words >' Olio Sopraffino Savoia Brand Salad Oil," deceives the public and leads the ordinary purchaser to believe that he is getting olive oil of a foreign production when in fact he is getting a spurious article. Now, the witness Eginton, who gave testimony for the Govern- ment, substantially testified, if I recall his testimony, that salad oil is commonly known in the trade as olive oil, and other witnesses for the Government have testified that by the mere words " Olio So- praffino Savoia Brand Salad Oil," Italians or persons of Italian birth, believe that olive oil is meant by such designation. Now, the term olive oil has a dictionary definition, and Judge Lacombe not DECISIONS OF COURTS. 34 1 long since had occasion to examine into a similar question that was presented to him, and upon looking at the dictionaries as to its definitions, found that the Century Dictionary, Worcester's Diction- ary and the Encyclopedia all defined salad oil as olive oil. Webster1 does not give any definition. So that the dictionary definition ap<= parently defines salad oil as synonymous with olive oil. Now while that is conceded to be true by the defendant, it claims nevertheless that this term " salad oil " in connection with cottonseed oil has re- ceived a wide and distinctive designation; that the dictionary defini- tion is not universal in that the public generally, the buying public generally, understand by the term superimposed or branded uporl this can the real meaning, namely, a production of cottonseed oil and not of genuine olive oil ; that in fact the term in trade and commerce has come to mean other oils than salad oil. If you believe this to be the fact, that consumers, the public generally, or persons generally who use this commodity would not be misled by this inscription oil the container and that the defendant's commodity is not misbranded by the use of the words " Olio Soprafimo Savoia Brand Salad Oil," •and unless you believe the other words and that the style of the can misleads the user, your verdict should be one of acquittal. On the other hand, if you believe from the testimony of the Government and the manner in which this article is put upon the market that people who use this commodity or the public generally are led to be- lieve by reason of the phraseology to which I have already referred and the configuration of the can, that they were actually buying olive' oil whereas in truth and in fact they were only receiving cotton oil or a spurious oil, then your verdict should be in favor of the Gov- ernment. If, therefore, the term " salad oil " in connection with thtf other words on the can requires a distinctive trade designation, the defendant is not guilty of misbranding. Upon that subject the de- fendant has called a number of witnesses, one of them at least £ dealer in cotton oil, and he testifies that cotton oil is very largely used in this country, and that it is used as a substitute for olive oiL Perhaps this is some evidence that should be taken into consideration, and yet it would seem to have no particlar bearing on the question as to whether the public generally, the people who use this com-1 modity, are misled or not. As to whether [3] the public generally' is misled by the article must be taken by you from the evidence as to how the user and consumer of the article views the can and inscrip- tion, and upon that subject there is some contradictory testimony, and it is for you to determine it. This is a criminal case. The Government is required to substan^ tiate the charge contained in the information beyond a reasonable doubt, and likewise the defendant is presumed to be innocent until the contrary is established. Of course, you will bear in mind that Congress in enacting the Pure Food and Drugs Act had in mind the protection of the public, and in mind the punishment of persons who misbrand their merchantable or vendable articles. As I have already indicated, it is not claimed that cotton oil i& deleterious or harmful to the health of the user, but persons who go3 into the market to buy olive oil should not have foisted upon them cotton oil. So that these are matters you should have in mind. I don't think I need say anything further. I think you are thoroughly familiar with all the facts, and that you will take the matter and 342 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. return a verdict as your judgment dictates. Perhaps you should bear in mind that the can contains other words than those I have spe- cifically mentioned. On the lower corner is found the word " Com- pound " in parenthesis and the " Winter Pressed Cotton Salad Oil Flavored With Pure Italian Oil." Then with relation to, this in- scription, added to the one I have already spoken of, the Govern- ment claims it is not sufficient and is misleading, and is not a suffi- cient warning to the purchaser as to the character of the commodity that he is buying. UNITED STATES v. 2,000 CASES OF CANNED TOMATOES. (Circuit Court of Appeals, Fifth Circuit, December 6, 1910.) N. J. No. 875. Canned tomatoes held adulterated and misbranded in that they consisted in whole or in part of decomposed and putrid matter and contained salts of tin, an ingredient deleterious to health. Libel filed in the District Court of the United States for the North- ern District of Texas, under section 10 of the Food and Drugs Act. R. G. Charles, a resident of the State of Maryland, appeared and filed an answer to said libel, claiming to be the sole owner of the two thousand cases of tomatoes involved and excepting and objecting to said libel on the ground that he was not furnished one of the three samples of the product involved, which were taken by an inspector of the United States Department of Agriculture; that he was not furnished a. copy of the findings made in connection with the ex- amination and analysis of said samples; that by reason of the lack of a copy of said findings he was unable, when cited to a hearing, to submit intelligently oral or written evidence impugning such find- ings ; that only a small percentage, not over 4 per cent, of the cans in question were bad ; that the defective character of such bad cans was visible on superficial examination; and averring that the contention that the presence of such small number of bad cans rendered the entire shipment subject to condemnation and forfeiture was a taking of the defendant's property without due process of law, and therefore in violation of the fifth amendment of the Constitution of the United States, and praying the dismissal of the libel, that the property seized be returned to the claimant and that he be dismissed with all his costs. On exceptions to libel and answer by claimant. Exceptions over- ruled. Jury waived. Issues submitted to the court (Edward R. Meek, District Judge). Decree of condemnation and forfeiture. Costs assessed against claimant.1 Reviewed on writ of error by the Circuit Court of Appeals for the Fifth Circuit, Affirmed. [1] Before Pardee, McCormick, and Shelby, Circuit Judges. By the Court: In this case the lower court found and decreed on evidence supporting the same, as follows : On this day came on to be heard the above entitled and numbered cause, and R. G. Charles appeared as claimant to the property therein libeled, after hav- ing, given cost bond as required by the statute, and thereupon came the United 1 Decree of district court published in N. J. No. 555. DECISIONS OF COURTS. , 343 States of America, libelants, by their district attorney, William H. Atwell, and the claimant in person and by his attorneys, and each and all announced ready for trial. ' The matters of law, as well as of fact being submitted to the court without a jury, the court is of the opinion, after having heard the pleadings and testi- mony and being advised as to the law, and having heard the argument of counsel, that the allegations of the libel are true and that the tomatoes libeled are interstate commerce, from the State of Maryland to the State of Texas, intended for food, and that a portion of the two thousand cases of canned tomatoes is unfit for food, in that the same is decomposed and contains putrid matter, and further that the same contains salts of tin, an ingredient deleterious to health; and it further appearing to the court that there are [2] in said two thousand cases of canned tomatoes some good cans and some bad cans, as hereinbefore described; and it further appearing to the court that the said two thousand cases of canned tomatoes were seized by the United States Marshal under the said libel, and from the return of the said officer it appears that the same said two thousand cases of canned tomatoes are still in his possession: Now, therefore it is ordered, adjudged and decreed that the said United States marshal for the Northern District of Texas, shall separate the good cans from the bad cans, which said bad cans are herein and hereby condemned, and that after such separation the said marshal shall deliver to the claimant, R. G. Charles, such cans as are good, and shall destroy such cans as are bad. It is further ordered, adjudged and decreed that the costs of this proceeding shall be taxed against the claimant, the said R. G. Charles, and that the mar- shal shall be reimbursed for such expenses in carrying out this judgment as under the law he is entitled to, to be charged and taxed as other costs. This decree was executed by the marshal and acquiesced in by the claimant who received the good cans and paid the costs. Now whether we consider the case here to be on writ of error or in the nature of an appeal and all of the assignments of error to be well taken, the only actual relief lies in the matter of costs which, in the court below, have been voluntarily paid by plaintiff in error, and in no case can be adjudged against the United States, Stanley v. Schwalby, 162 IT. S. 255-272; and which in admiralty practice are within the discretion of the Court, from which no appeal lies. Du- bois v. Kirk, 158 U. S. 58-67, and cases cited, unless perhaps in case of gross abuse of discretion. We therefore decline to consider the questions argued as to the constitutionality of the Pure Food and Drugs Act of June 30, 1906, and as to the construction of that act in regard to whether manufac- turers can exempt their goods from seizure thereunder by contract and surety from consignees not to violate the act, and other questions that seem to be academic. The decree of the district court is affirmed. UNITED STATES v. F. E. EOSEBROCK & CO. (Circuit Court, S. D. New York, December 16, 1910.) N. J. No. 825. A frozen egg product, containing formaldehyde, and consisting in whole or in part of a filthy, decomposed, and putrid animal or vegetable substance, held adulterated. Information charging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. [2] Hough, District Judge (charge to the jury). The act of Congress under which this information is brought, and about which 344 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. so much is heard nowadays, not only in the court room but in the public print, is (in its application to this particular transaction,) as follows: The introduction into any State from another State of any article of food which is adulterated is prohibited, and the person who ships such article of food from one State to another, (and per- son means corporation also,) shall be guilty of a misdemeanor, Now the word " adulterated " is of course one of very wide, or rather uncertain meaning, and therefore for the purpose of this act it is defined with great particularity as meaning in the case of food, two things, which are relevant to this trial : An article of food is adulterated if it contains any added poisonous or other added dele- terious ingredient which may render such article injurious to health. It is also for the purpose of this act deemed adulterated (although the word cannot be used in that sense ordinarily,) if it consists in whole or in any part of a filthy, decomposed or putrid animal or vegetable substance. The act then continues, although the rest of this section does not I think relate to this case, but it shows the general scope of the act, " or if it consists of any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter." I have read that merely to show the general scope of the legislation in this regard. What is charged in this information and what is therefore on trial before you, is composed of two parts, that is, the charge is of two parts. The first is, that these eggs which are the subject of investiga- tion contained formaldehyde, and it is said that formaldehyde is a deleterious ingredient which may render an article injurious to health ; and it is also charged, irrespective of the formaldehyde, that the eggs themselves were filthy, decomposed or putrid. Now, prob- ably there is nothing so difficult in the world as a definition ; some time when you have an opportunity, try to make an accurate full complete definition of anything, say a coat, and you will find it very hard ; but from dictionaries and from the questions put to witnesses, and the study I have given the matter ; I charge you that the meaning of the word " putrid " is, that a putrid substance is in such a state of decay as to be fetid or stinking from rottenness ; an article which is decom- posed is an organic body, (as are eggs) reduced or being reduced to a state of dissolution by the processes of a natural decay, and an article which is filthy or dirty, noisome or nasty. Take up the last word first; after some consideration I have con- cluded and so instruct you that inasmuch as it is a matter of common knowledge that an egg is not of itself dirty, such an article, namely, an egg, may become putrid or decomposed by the simple process of decay and the resultant or natural causes, but it will not become filthy, unless something be added thereto which renders it dirty, noisome, or nasty. There is no evidence in this case that the eggs which are the sub- ject of this investigation, had become filthy in that sense; therefore you will divide your consideration of this case into two parts: The first inquiry is, was there formaldehyde added to these eggs, and if there was formaldehyde added to these eggs, what is the nature of formaldehyde, both of which are questions of fact. On the other hand, you have the statement of defendant's president, that he is the DECISIONS OF COURTS. 345 manager of the business, and that in that business, the defendant so far as he knew, never bought any formaldehyde since it was in opera- tion. On the other hand, you have the statement of the chemist who testified that formaldehyde by well-known scientific tests was found to be present in the product when it was examined in Washington, and that, just like every other question of fact, is for your considera- tion alone. [3] If you find there was formaldehyde in this substance, then it appears to me you would be justified in inferring from the evidence on both sides that formaldehyde is what is known as an irritant, that is, it produces such a condition of irritation of the soft linings of the digestive tracts that if taken in sufficient quantity, it is injurious to human health. If, therefore, on the first branch of the case, you should be of the opinion that these eggs, no matter how bad they were, or how good they were, did contain formaldehyde, and you should be sure of the opinion that formaldehyde has a discoverable odor and was an ingredient so deleterious, that it might render the eggs injurious to health, then the Government has maintained that branch of the proposition. But entirely irrespective, as I have said, of the presence or absence of formaldehyde, the Government's contention is that the eggs were putrid and decomposed. But there was no smell discernible, so you have to come to the formaldehyde proposition, because it is said that formaldehyde disguises smell. But you have further to determine (irrespective of formaldehyde, and irrespective of putridity,) whether the decomposition of these eggs had progressed so far that the eggs were in common parlance rotten. Now, to approach this question, as in an everyday business man- ner; it is perfectly fair to ascertain what is it, that you would have asked for, if you wanted to buy the article that Worischeck bought? The trade name by all the evidence appears to be frozen eggs. What are frozen eggs ? In the first place, they are broken. Naturally, the inquiry arises why are they broken ? In the next place, the contents of the egg shell are strained through a sieve-like article; and the in- quiry is perfectly natural ; why are they strained ? In the next place, the whites and yolks are mixed. Again the inquiry, why? When this product, strained and mixed, was collected, in the month of February, 1910, the trade price at which those articles were sold, was 18 cents per pound, which according to the witnesses who averaged nine eggs to the pound, makes 24 cents per dozen ; and tan- ners' eggs are worth four cents per pound. Why was all this done ; what is the effect of the freezing, and what is the effect of the pre- servative formaldehyde, if there was a necessity for a preservative, and if there was in fact formaldehyde present ? It appears to me, that by all the testimony, the action of both cold and preservative, if there was any, was to arrest decay; further, I think it is perfectly fair to assume by all the testimony, leaving however the question of fact to you, that eggs are frozen, and the commercial article of frozen eggs exists for the purpose of arresting decay in the eggs so frozen. Now, it is to be remembered that this is an article of food, and if an article of food be in such a state that it be deemed desirable to arrest decay by cold or preservatives or both, then it follows that in 346 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. that article, (as testified to by both sides and all of the scientific experts here,) when the cold is removed, and the action of the pre- servative exhausted, decomposition will reassert itself, and progress even more rapidly than before. The question, therefore, would seem to be perfectly fair, can a person who deals in frozen eggs, or other articles that may be pre- served by cold or otherwise from the process of decay, such pres- ervation being temporary only, rely upon instant use? What is reasonably to be expected, if an article is sent forth in trade for sale and distribution ; and in the particular case of frozen eggs, what is to be expected in the distribution and sale thereof to bakers, for inser- tion into such articles of their product as may require eggs? So, according to my understanding, when those eggs got to Wash- ington on February 12th or two days after they were sold, you are asked to believe by the prosecution that the eggs were then in such condition as would reasonably be expected by any person who put them forth for food consumption, unless they were to be eaten, absolutely frozen. [4] Now, so far as the scientific knowledge which has been ex- posed to us, I am frank to say that a great deal of it falls off me, and I strongly suspect that a great deal falls off you, very much like the proverbial water off a duck's back; but I think that this result may be taken to have been shown by the scientists on both sides: There may be bacteria or bacilli without decomposition, but there cannot be decomposition without the presence of bacilli or bacteria. Decomposition when carried far enough will usually result in organic bodies in putrefaction, which is an advanced stage of decomposition, with a fetid odor; the odor of putrefaction can be temporarily con- cealed by certain chemicals, of which formaldehyde is one. Now, says the Government, from the quantity and kind of bac- teria discernible in this particular shipment of eggs — it is for you to say whether at a time, and in a condition that might reasonably have been expected as the time and condition of consumption — do the eggs show such an advanced stage of decomposition as to bring them under the condemnation of the act ? which I interpret, to the best of my knowledge to mean that those eggs were in common parlance rotten eggs. This, gentlemen, I belive to be the whole case. Returning again to the two propositions, which I have before indicated; if you are of the opinion that formaldehyde was present in the shipment in ques- tion, if you are further of the opinion that formaldehyde is a de- leterious ingredient, that may render the article containing it injuri- ous to human health, that alone is sufficient to warrant a verdict of guilty. If you are of the opinion that there was no formaldehyde in that article, but if you are of the further opinion that the eggs were decomposed, in the sense of being in common parlance, rotten, that fact is sufficient to warrant a finding of guilty. If you are of the opinion that there was no formaldehyde, and if you are further of the opinion that the eggs were not in such a stage of decomposi- tion as to entitle them to be termed rotten, then you should bring in a verdict of not guilty. In this case, no matter whether the person or party proceeded against is a corporation or not, this being a criminal case, it is just as necessary to find the result to which you arrive in favor of the prose- DECISIONS OF COURTS. 347 cution beyond a reasonable doubt, as in any other case. During other trials in which you jurors of the present panel have been sitting, I have had occasion to define the meaning of the words reasonable doubt; I do not think it is necessary to repeat it. I assume I am talking to intelligent men. UNITED STATES v. VON BREMEN et al. (Circuit Court. S. D. New York, December 20. 1910.) N. J. No. 1949. An article labeled "Imported Salad Oil Morel Brand" held misbranded in that such form of labeling misled and deceived the purchaser into be- lieving that the product was olive oil, whereas it was not olive oil but sesame oil. Information charging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty.1 Hough, District Judge (charge to jury). In taking up this, the last case of our session together, I shall not waste time in speak- ing to men who have been here before me for nearly three weeks, re- garding the burden of proof, presumption of innocence and nature of reasonable doubt. I take it for granted that you understand those matters. And also at the session now ending probably every one of you has heard enough about the pure food act to approach your Christmas dinner with greater caution, if not greater intelligence; and, therefore, I shall only point out that this indictment comes under what is commonly called the misbranding section of the act. These defendants sent from New York to Galveston in interstate shipment, an article which bore on its exterior just these words " Imported Salad Oil, Morel Brand." That article is said by the Government to have been misbranded, which the act declares, shall mean (among other things) this: Any article of food, the label on which shall bear any statement regarding such article of food, that is false or misleading in any particular. Such statement constitutes a misbranding of the article of food. Now, the Government in this information asserts that this label by the use of the words " Imported Salad Oil " without more, did contain a statement both false and misleading. False means, of course, untrue. Misleading means cal- culated to deceive, actually tending to deceive. I do not think either word is at all difficult to understand. Therefore, of course, the first inquiry is, what does salad oil mean ? Now, without any reference to dictionaries (about which a great deal has been said), it seems to me that the evidence adduced here, shows that there was a time not within the memory of some of the younger of us when salad oil meant olive oil, and it did not mean anything else. Therefore, you may assume that the first — origi- nal— or prima facie meaning of the words " salad oil " was olive oil. But that phrase, like any other, may acquire in time, and be used in, a trade, a commercial, a secondary, or a wholly new, meaning by the public. Now, that is the inquiry for you, viz. : Whether salad oil has acquired a new or secondary meaning. 1 Reversed, Von Bremen et al. v. United States, p. 500, post. 348 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. If so, what is it? The defendants say that the words " salad oil " have now come to mean an oil which serves for salad as indeed does olive oil in some of its preparations, but which is not necessarily olive oil; and in its trade signification in the United States is not olive oil at all, but an oil made from cotton, sesame, peanuts, and perhaps, quite recently, Indian corn. The question is not whether sesame oil, and cotton seed oil and peanut oil are good to eat; if we want to eat those articles, we can eat them all we like; the question is merely about this label. What is the effect as reasonably judged by reasonable men of that particular label, upon the public ? Is that label false ? That is, is it untrue, according to the understanding of the buying public? Is that label misleading, in the sense that it is calculated to deceive the buying public? The defense practically asserts that the public has been " educated " (to use the expression of one of the defendants who went upon the stand), though not by sesame oil, which is the oil in this case. You will recall that Mr. McMonnies said the education of the public was a matter of some difficulty, but it has been educated, say the defend- ants, in the use of the phrase salad oil, and that education has been received from the enormous and long continued use of cotton seed oil for salad ; for the purposes of olive oil ; and then has been further educated by the smaller use of the other enumerated oils; until the public as represented by a fair and reasonable man recognizes, when such a man asks for " salad oil," and another person hands out to him something labeled " salad oil," that he is getting something which is not olive oil. The prosecution, on the other hand, asserts that the public has not accepted that knowledge of the dealers. The prosecution says there was once a considerable portion of the public which consumed olive oil on salads, they called it " salad oil," and knew no other ; but when ingenious manufacturers found substitutes for the original product of the olive, those dealers called their product salad oil. Now, says the prosecution, that was done in order to conceal the sub- stitution, and incidentally, perhaps, it may be inferred to keep up the prices. I may frankly say that it seems to me admitted as proven that the sale of cheaper oils as salad oils, has long progressed in this country, has attained large dimensions; but it is nevertheless urged upon you by the prosecution that such sales and such trade however large, and however long continued, has always been based upon a misleading of the public, and still is so based. I shall not recapitulate the evidence to you. You happen to be dealing here with a substance with which we are all more or less familiar. The question is for you as reasonable members of the pub- lic, not (so far as known) identified with or particularly interested in either the manufacture and sale or the importation and sale of any brands of oil ; it is for you as reasonable members of the body of citi- zens who are entitled to know so far as labels can tell you what it is you are eating. Are you of the opinion — if such reasonable repre- sentatives of the reasonable public have offered to them bottles of oil, or cans of oil — labeled on the outside "Imported Salad Oil," would such reasonable men be misled in this day and generation into believing that when they buy " Imported Salad Oil " they are DECISIONS OF COURTS. 349 buying olive oil ? If on your oaths you are of the opinion that such men would be so misled, then these defendants are guilty. If you are of the opinion that such reasonable men would not be misled, and would know or ought in reason to know that they were not get- ting olive oil, but were getting some other kind of oil which was suitable for salad, then the defendants are not guilty. Mr. Boyesen. I would like to request your honor to charge the jury that the question for their determination is not whether isolated instances of deception of purchasers through their own carelessness or ignorance might occur through the defendants' sale of goods bear- ing the label in evidence, but whether that label tends to deceive the purchasing or consuming public generally. The Court. The question is whether that label tends to deceive a reasonably intelligent member of the public. Mr. Boyesen. I except. Will your honor charge the jury that there is no question that pure sesame oil is an oil fit for use as a salad oil and that they are to determine whether it is misbranded when branded " Salad oil." Further, that that question will depend on whether it is or is not, in the language of the statute, "An imitation of or sold under the dis- tinctive name of another article." That they must either find that all oils, except olive oil, fit for use as salad oils are imitations of olive oil, or that the term " salad oil " is the distinctive name of olive oil, in order to convict the defendants. The Court. I decline that. The question for the jury is simply whether this particular label is or is not false or misleading. It is not an issue in this case whether sesame oil is pure oil or good oil or a good oil for salads. The question is as to the label, not as to the quality of the oil, although I must say that it seems to have been admitted here that sesame oil is pure oil and can be used for salads. It seems to me, as far as I recall the evidence, entirely harmless. Mr. Boyesen. I except to your honor's refusal to charge as re- quested. I also ask your honor to charge the jury that to find the defendants guilty, they must either find that sesame oil is an imita- tion of olive oil or that the term " salad oil " is its distinctive name. The Court. I will not charge just that. The question is whether this label is calculated by its wording or nature to deceive the public into believing that it is getting olive oil. Mr. Boyesen. I respectfully except. I also ask your honor to charge the jury that they are entitled to consider on the question of the credibility of the Government's witnesses the fact that they are all importers of olive oil, who might naturally be interested in ex- cluding all other oils from the American salad oil market. The Court. Well, I think I will charge that. And I will also charge that an equal number of the defendants' witnesses are manu- facturers of cotton seed oil. Mr. Boyesen. Yes, that is so. Mr. Stephenson. I would request your honor to charge that if the jury find that this label is either misleading or false, that they must find the defendants guilty. They don't have to find both. The Court. Yes; and I may add to that, that in my opinion the sum and substance of both those words, for the purposes of this case, is the same. 350 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Mr. Stephenson. I ask your honor further to charge that even if this label were not false or misleading to people in the trade, they must find the defendants guilty if they find it is false or misleading to the ordinary purchaser. The Court. I have so charged. The defendant moved to set aside the verdict on the ground that it was against the weight of evidence and contrary to law, and also moved for a new trial and in arrest of judgment. Motions denied. UNITED STATES v. UNION PACIFIC TEA COMPANY. (Circuit Court, S. D. New York, December 20, 1910.) N. J. No. 2700. If there is a trade meaning authorizing the contention that the terms " Orange Flavoring " and " Orange Extract " are synonymous, it should be pleaded in an information charging that an article labeled " Orange Flavoring " was misbranded because it did not comply with the standard for orange extract.1 Information charging misbranding in violation of the Food and Drugs Act. On demurrer to information. Demurrer sustained. The article in question was labeled : 2 oz. 20<^. 2 Checks Sovereign Orange Flavoring. Manufactured and sold only by the Union Pacific Tea Company, Washington and Laight Sts., New York. A sample of the product was analyzed in the Bureau of Chemistry and found to be a very weak alcoholic solution of orange oil con- taining only about 20 per cent of the amount of orange oil that should be present in orange extract. Misbranding of the product was alleged in the information for the reason that it was labeled as set forth above, which label was false and misleading, in that it denominated the article as " Orange Flavoring," whereas in truth and in fact it was a very weak alcoholic solution of orange oil con- taining only about 20 per cent of the amount of orange oil which should be present in an orange extract. [2] Hough, District Judge. The sum of the pleading is that an article labeled " Orange Flavoring " is misbranded because it con- tains no more than about 20 per cent " of the amount of orange extract." It follows that to succeed, the prosecution must show that orange " flavoring " is, in strength at all events, identical with orange " extracts." There may be a trade meaning to those words authoriz- ing the contention, but if so it should be pleaded. As the informa- tion stands, nothing is alleged to change the accepted dictionary meaning of the words. By reference to standard works it seems to me plain that while probably every extract (i. e., essence or tincture) is a flavoring substance, not every such substance is an extract. It must be held therefore that identity of " flavoring " and " extract " is not averred, nor is the right to measure a lawfully branded flavor- ing by lawful extract shown. 1 See also United States v. St. Louis Coffee & Spice Mills, p. 196, ante; and United States v. Edward Westen Tea & Spice Co., p. 222, ante. DECISIONS OF COURTS. 351 The case referred to by demurrant (Nave-McCord, etc., Co. v. United States, 182 Fed. 46) is not opposed to the foregoing, but the points decided seem to me different. Demurrer sustained. UNITED STATES v. 443 CANS OF FROZEN EGG PRODUCT. (District Court, D. New Jersey, January 4, 1911.) N. J. No. 1027. A frozen egg product containing sugar, and alleged to consist in whole or in part of a decomposed substance, held not adulterated.1 Libel under section 10 of the Food and Drugs Act. Jury waived. Case tried to the court. Decree for claimant. Libel dismissed. Cross, District Judge (orally). This is a suit brought by the Gov- ernment against 443 cans of frozen egg product, to condemn this egg substance, under the pure food law; the Government claiming that, under that [2] law, the article must be deemed to be adulterated in two respects; under the second subdivision of section 7, if any substance has been substituted wholly or in part for the article, and, under the sixth subdivision of the same section, if it consists in whole or in part, of a filthy, decomposed or putrid animal substance. The charge under the sixth subdivision of section 7 has been lim- ited so that only the word " decomposed " is now relied upon. A bill of particulars was furnished whereby the words " filthy " and " putrid " were eliminated. So, as just stated there remains but two points for consideration— first, whether any substance has been wholly or in part substituted for the article, and, second, whether the food product under examination has been shown to be decom- posed. It has been admitted in the case that this egg mixture is a food product and that it was transported in interstate commerce. I un- derstand that no question is raised about that. The Government is the moving party herein, and the burden of proof, therefore, rests on the Government to establish, by the weight of the evidence, the allegations of its petition of forfeiture. The Government must not only establish its case by the weight of the evidence, but, this being a case involving the forfeiture of property, the evidence must be of a clear and convincing character. Under the second clause of the seventh section, I shall dismiss the Government's charge at once. I do not think, under the evi- dence in the case, that that clause has been violated; that is, I do not think that the egg product in question is adulterated within the meaning of the second subdivision of section seven. It is the very article that it was intended to be — the very article that Avas intended to be made and sugar was a part of that article. This is not a case of misbranding. The article is made under a patent, or at least a similar article is patented — and I do not think that the introduction of sugar under the circumstances disclosed, adulterates the article within the meaning of the act. It is made just as it was ordered 1 Reversed in Circuit Court of Appeals, p. 507, post. Circuit Court of Appeals reversed in Supreme Court, p. 582, post. 352 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. and as it was directed to be made ; that being so it is not clear why sugar adulterates the article any more than the putting of salt and pepper into canned soup would adulterate that article, assuming that the soup was to be seasoned. The only question remaining, therefore, is whether this egg prod- uct was decomposed in whole or in part, and, in determining whether or not it was so decomposed, that word must be given its ordinary signification. It is not used in any technical sense here, and should not have any such meaning given it. The question is whether in the ordinary sense of the word the article was in whole or in part decomposed. I do not think it was under the evidence. There has been a great deal of technical testimony given by ex- perts upon both sides of that question, which testimony, as I look at it is in direct conflict. Under the Government's expert testimony, the substance was apparently decomposed, while if you look at the other expert testimony, that in behalf of the claimant, it certainly could not be so considered. I think the Government has not sustained the burden of proof which rested upon it to show, under the expert testimony, that this egg product was decomposed, either in whole or in part, and if we look at what might be called the lay testimony — the testimony as to tasting, smelling and baking or the practical uses of the sub- stance— it has likewise failed. I think the claimant has really borne the burden of proving that this egg product was not decomposed. The Government has not, therefore, sustained, the burden of proof which rested upon it, but, on the contrary, the clear weight of all of the testimony given is with the claimant and not with the Gov- ernment, and accordingly my finding is in favor of the claimant. The United States appealed from the foregoing judgment to the United States Circuit Court of Appeals for the Third Circuit, as- signing error as follows : ASSIGNMENT OF ERRORS. [3] First. The said court erred in dismissing the libel filed by the United States of America in this cause. Second. The said court erred in making, entering and rendering a decree in said cause in favor of the said claimant H. J. Keith Com- pany, and in adjudging that the frozen egg product seized in this cause should be released by the marshal of this district. Third. That the said court erred in making and entering a decree in said cause that the frozen egg product seized in said cause was not adulterated within the meaning of the act of Congress entitled "An act for preventing the manufacture, sale or transportation of adul- terated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors and for regulating traffic therein and for other purposes " approved June 30, 1906. Fourth. That the said court erred in making and entering a decree in said cause that the frozen egg product seized in said cause did not at the time of said seizure consist in whole or in part of a decom- posed animal substance within the meaning of the act of Congress known as " The Food and Drugs Act June 30, 1906/' DECISIONS OF COURTS. 353 Fifth. That the said court erred in admitting in evidence, and in considering as an element in the case, the contract marked " Exhibit D 1," being a contract between the Waldorf Pound Cake Company and the H. J. Keith Company. Sixth. That the said court erred in admitting in evidence, and in considering as an element in the case, United States Letters Patent Number 955,835 for pwcprv^g pffgs. issued April 19, 1910 to H J. Keith Company. Seventh. That the court erred in not finding that the frozen egg product in question was adulterated within the meaning of the act of Congress known as " The Food and Drugs Act June 30, 1906." Eighth. That the court erred in not finding that the frozen egg product in question consisted in whole or in part of a decomposed animal substance. Ninth. The said order and decree is contrary to the law and the evidence. UNITED STATES v. 3,000 POUNDS OF FROZEN EGGS. (District Court, D. Connecticut, January 13, 1911.) N. J. No. 873. Frozen eggs held adulterated in that they consisted in whole or in part of a filthy and decomposed substance. Libel under section 10 of the Food and Drugs Act. Jury trial. Verdict for libelant. Decree of condemnation and forfeiture. Platt, District Judge (charge to the jury). [2] We have reached the last stage of the interesting inquiry which has been before you for the last two or three days, and the labor of the case now really falls upon your shoulders. It happens to be a case of that description in which the court's duty is nominal and your duties are the important and essential ones in the determination of the issue there is between the Government and these claimants. You have undoubtedly observed, as the case has been presented that I have been extremely liberal in my presentation of the testi- mony before you for your consideration, and I conceive that no fault can be found by either party to the controversy about the privilege which has been accorded them in presenting the case in such a way that in their view you will be able to arrive at a just conclusion. This is a somewhat peculiar action, arising under the Pure Food and Drug Act, as counsel have already explained to you several times, which was passed in 1906 and which puts under the control of the Government the investigation of drugs and food so far as they are concerned with interstate commerce ; that is, so far as they are trans- ported from State to State to form part of the general commerce of the country, aside from the individual commerce carried on here in Connecticut or in New York or in any other State of itself. You understand, of course, that the frozen eggs against which this libel pleads are concededly the subject of interstate commerce and within the province of the Government under the Pure Food and 40060—14 23 354 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Drug Act to take action on. Whether the Government can do what it desires to do depends entirely upon the conclusion which you gen- tlemen reach as to the character of this product. The Government says that this shipment of eggs was adulterated within the meaning of the act of Congress and the manner in which it was adulterated is set forth in the libel as follows : (a) The said article of food, to wit— thrpp ti««i«*na G. Informations charging violations of the Food and Drugs Act should be supported by the oath of some one having knowledge of the facts showing the exist- ence of probable cause. Informations against J. Lindsay Wells charging violations of the Food and Drugs Act, June 30, 1906. On demurrers to informations. Sustained. McCall. District Judge. This case is before me upon a demurrer to the information, wherein J. Lindsay Wells is charged with a viola- tion of The Pure Food and Drugs Act. (U. S. Comp. Stat. Supp., 1909, p. 1187. ) There are two grounds of demurrer First. The said information fails to allege and state that the information therein contained had been sworn to or the facts made upon oath before a United States Commissioner, and, in fact, no affidavit had been made or examination had before a proper officer, previous to the filing of said information, touching the matters and things in said information set out. Second. Said information is not issued in compliance with Article 1 of the Amendments of the Constitution of the United States. The record shows that on February 15, 1913, the Honorable Casey Todd, United States District Attorney, filed with the clerk of this court an information, setting out certain acts of J. Lindsay Wells, which are alleged to be a violation of the statutes made and pro- vided in such cases. Upon the filing of said information and on the same day there was issued by the clerk a capias out of this court for the arrest of J. Lindsay Welis, commanding that he be brought before this court on the fourth Monday of May. 1913. to answer the charges in said information. Also, on the * same day, there was issued a summon for said J. Lindsay Wells to appear and answer said infor- mation. Said summons and capias were executed as commanded by the United States Marshal and returned and filed in court on Feb- ruary 17, 1913, on which date said Wells appeared before A. G. Mathews, United States Commissioner, and gave bond for his appear- ance at the May term of the court to further answer said information. The demurrer raises the question as to the validity of the informa- tion and the proceedings thereunder. There was no affidavit or other paper, tending to support the state- ment contained in the information, other than the information itself, signed by the United States District Attorney, Hon. Casey Todd. There is no question that offenses of this character may be prose- cuted upon information and without an indictment. The question is, is the proceeding by information in conformity with law? In the case of United States v. Morgan, 222 IT. S. 274, the Supreme Court, in passing upon the question as to whether or not it was neces- sary to give notice to the accused of the purpose of the Government 638 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. to indict him for a violation of the Pure Food and Drugs Act. held that such notice was not necessary, and, among other things, said : A fnrfiiPi- answer is, that as to this and every other offense the Fourth Amend- ment furnishes the citizen the nearest practicable safeguard against malicious accusations. He can not be tried on an information unless it is supported by the oath of some one having knowledge of the facts showing the existence of probable cause. The last sentence in the excerpt may possibly be held to be dictum in that case, but it gives expression to the views of the Supreme Court touching the proper construction of the Fourth Amendment to the Constitution of the United States, in cases prosecuted upon infor- mation. There is nothing in the case at bar that indicates that the infor- mation filed by the District Attorney is supported " by the oath of some one having knowledge of the facts showing the existence of probable cause." Indeed, it is conceded by the Government that no such affidavit or statement was made by any one and presented with the information when application was made, either for the summons or capias for the defendant. It is insisted by the Government that the information filed, signed by the District Attorney, is itself made under cath, since the District Attorney is a sworn officer of the Government, and it was not neces- sary for him to further have verified it. I do not think this contention is in keeping with the language above quoted from the case of United States v. Morgan. For to so hold would be to say that the information is self-supporting and made no support by the oath of some one having knowledge of the facts, showing the existence of probable cause. This view is also sustained by Judge Ray, in the case of United States v. Baumart et al., 179 Fed. 735. In addition, it seems to me that the proceeding in this case is irregular and unauthorized by law. \« has been seen, the District Attorney prepared his information, filed it with the clerk of the United States District Court, which official thereupon issued the capias and summons for the defendant. The cases to which my attention has been called, impress me with the idea that before a summons or capias is issued in cases of this char- acter, wherein the defendant is charged with a crime upon a con- viction for which he may be fined and imprisoned, that the informa- tion should be presented to the Judge, supported by the oath of some one having knowledge of the facts, showing the existence of probable cause. This evidence may be oral or by affidavits. Upon the hear- ing of which, the court may or may not cause the arrest of the ac- cused and have him brought before the court to answer the charge, just as he may believe that the evidence does or does not show prob- able cause. In other words, before a citizen is arrested, there should be facts sworn to and presented to the court, showing the existence of a probable cause for such arrest. See United States v. Baumart, supra, and authorities there cited. I think the demurrer in this case should be sustained, and the information quashed and the defendant discharged. An order will be entered accordingly. A like order will be entered in No. 192, United States v. J. Lind- say Wells. DECISIONS OP COURTS. 639 UNITED STATES v. WRIGHT et al. (District Court, W. D. Missouri, May 5, 1913.) . N. J. No. 2828. Crude pyroligneous acid labeled " Wright's Condensed Smoke," and "A Liquid Smoke," held not misbranded. Information charging misbranding in violation of the Food and Drugs Act. Jury trial. On demurrer to evidence. Sustained. On February 10, 1913, the United States Attorney for the Western District of Missouri, acting upon a report by the Secretary of Agri- culture, filed in the District Court of the United States for said dis- trict an information against E. H. Wright, George D. Wright, and T. W. Buckner, partners doing business under the firm name and style of E. H. Wrigrht Co., Ltd., Kansas City, Mo., alleging shipment by said defendants in violation of the Food and Drugs Act, on or about Februarv 2, 1911, from the State of Missouri into the State of Indiana, of a quantity of so-called "Wright's Condensed Smoke,"- which was alleged to have been misbranded. The product was labeled : " Wright's Condensed Smoke A Liquid Smoke made by distilling wood for smoking all kinds of meats. No. 541. Guaran- teed by E. H. Wright Co. under the Food and Drugs Act, June 30, 1906. It will preserve the meat for any length of time, keeping it solid and sweet and free from mold, skippers, flies and all other in- sects. It imparts a true Hickory Smoke flavor to meats, that can be obtained in no other way, making the meat perfectly wholesome and palateable. One bottle will smoke 250 to 300 pounds of meat. Price 75 cts. per Bottle. Every bottle guaranteed to be perfectly satis- factory or money refunded. Get the genuine Wright's Condensed Smoke Manufactured only by The E. H. Wright Co. Limited, Kansas City, Mo." Analysis of a sample of the product by the Bureau of Chemistry of this Department showed that the sample had the general appearance, color, odor, and behavior on distillation of crude pyroligneous acid: that it contained methyl alcohol or a volatile methyl ester, calculated as methyl alcohol, approximately two thirds gram per 100 cc. Mis- branding of the product was alleged in the information for the rea- son that the label upon each of the bottles containing the product, wherein it was stated that the product was a liquid smoke made by distilling wood for smoking all kinds of meats, was false and mis- leading in that the product was not a condensed liquid smoke as stated on the labels, but, in truth and in fact, was crude pyroligneous acid. Misbranding was alleged for the further reason that the labels upon the bottles, wherein it was stated that the product was a liquid smoke made by distilling wood for smoking all kinds of meats, deceived and misled the purchaser into the belief that the product was a liquid smoke made by distilling the wood for smoking all kinds of meats, whereas, in truth and in fact, it was not a liquid smoke but a crude pyroligneous acid. On May 5, 1913, the case having come on for trial before the court anpL a jury, the defendants entered pleas of not guilty, and at the close of the Government's case, after argument of a demurrer inter- 640 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. posed by defendants, the said demurrer to the evidence was sus- tained, as will more fully appear from the following opinion by the court : van Valkenburg, District Judge. I have been following this very closely, and I have read all of the citations suggested that I was not already familiar with. Now, I think this label itself, within the spirit and purview of this act, reads the Government out of court, and that, combined with what has been added in the way of testi- mony, but emphasizes that conclusion. In the first place, it is clearly established from the Government's standpoint that there is no such thing as a condensed smoke, or liquid smoke ; there is nothing but smoke, which can not be reduced to any such form as is stated here. Secondly, the defendant in this case has not been putting off his article as and for some other recognized article of commerce. If he has been representing that he has a tiling here that will do what some other thing will do, that is an entirely different consideration; whether it will or not, we do not know, at least we do not know in this case, and that is immaterial to this particular form of charge. It is not charged that there is being perpetrated a cheat or fraud in the sense that he is putting off a worthless article or deleterious article, but simply that he is putting off on the public an article which is represented to be a specific article of commerce, which it is not. Smoke is not an article of commerce in the sense we are speaking of here, a commodity that can be bottled and confined and sent off as you can do with this product ; but, any- way, " Wright's Condensed Smoke, Liquid Smoke," now what is it ? Why, it is made by distilling wood for smoking all kinds of meats, and that is exactly what this stuff is, according to the evidence. Of course, you say this is not smoke, because smoke is not made by dis- tillation; it is made by imperfect combustion; but this, on the face of it, is not something that would mislead the public into believing that it was identical with smoke. There is no one in the world, whether he be a technical man or a layman, who would be deceived into thinking this is smoke that goes up the chimney; everybody knows it is not that. They are addressing themselves to a specific commercial object, and that is the curing of meat, and they repre- sent here that this is a liquid which is made from distilling wood, which, as you might say, is a fanciful or descriptive name referring to the object. They use the term in a way no one can misunderstand. They use tiie technical term of " smoking " meat, and they tell you how to pour it over the meat, and by that means cure it, in a way that does not deceive anybody; they know it is a liquid. Now, whether its effects are deleterious we do not know, and that has nothing to do with the question. Everybody who buys it knows that it is a liquid he is getting, and that there is no such thing as smoke in a liquid or condensed form which can be put up in bottles or cartons and carried around. The label goes on to say that it will preserve meat and impart a true hickory smoke flavor to the meat, and everything you get from this label merely goes to the effect that they have pro- duced a liquid in a specified way. which is true. The Government, in trying to show that this is not smoke pro- duced by combustion, has shown that it is produced in exactly the same kind of way that is stated on that label. The fact is that thev DECISIONS OF COURTS. 641 have produced something here which they say has something of the flavor and properties similar to the curative properties of smoke; they get it out of wood, and they get it by distillation, and it turns out to be a substance like, if not exactly identical with, pyroligneous acid. Well, nobody could be deceived into thinking it was specifically what the indictment charges they are being deceived with. It is a thing which is produced in such a manner from the art and methods employed in it, that the application of the term " smoke " to it seems to me to be apt or applicable instead of deceptive, and it does not deceive in the sense this statute implies. No one can be more in sympathy and harmony with the Food and Drugs Act than I am, and for that reason I deprecate any effort to place a strained or unreasonable construction upon its terms, which can not help but bring it into disrepute and disrespect with the public. I am not saying this in criticism of the Department or of the district attorney. No doubt there is a point of view that perhaps can be taken in the sense in which this prosecution is leveled, but in its practical application, which is the application the courts in their last analysis must place upon it, it is not a prosecution which aims at the particular thing that this law, at least as construed, was aimed to affect in the sale of drugs and food. The Supreme Court in the Johnson Remedy case says that the law can not be extended to include mere misrepresentations, or rather a mere question of whether the label properly indicates the effectiveness of the article. And in the Bleached Flour case, the court said that it could not be extended to include adulterations only to such an extent that there was enough to be clearly proA^able as deleterious to health. Those two features have been eliminated from this act, and if they are to be restored, or either of them, it rests with Congress, and the courts can not get around those -points and extend the operative effect of this act by interpretations of the branding. If that is the intension of the Department, it must fail so far as this court is concerned. The term " misbranding " will not take the place of adulteration in some respects or of utility or effectiveness in others. It is for Congress to remedy the law if it is defective. And, furthermore, in cases which are supposed to be cases of mis- branding because of producing deception, it must be of such a sub- stantial nature that the court, if it permitted it to go to the jury, and the jury should find a verdict sustaining the charge, could permit such verdict to stand. In this case I do not feel that I could do so, and the demurrer to the evidence is sustained. UNITED STATES v. GOODMAN. (District Court, E. D. New York, May 9, 1913.) N. J. 2844. An article labeled " Cordial Non-Alcohelic Rock & Rey " held not adulterated or misbranded. Information alleging adulteration and misbranding in violation of the Food and Drugs Act. On demurrer to information. Sus- tained. 40066—14 41 642 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. On February 5, 1913, the United States Attorney for the Eastern District of New York, acting upon a report by the Secretary of Ag- riculture, filed in the District Court of the United States for said district an information against Henry D. Goodman, doing business and trading under the name and style of Fulton Extract & Cordial Works, Brooklyn, N. Y., alleging shipment by said defendant, in violation of the Food and Drugs Act, on December 7, 1911, from the State of New York into the State of New Jersey, of a quantity of so-called Cordial Non-Alcoholic Rock and Rey, which was alleged to have been adulterated and misbranded. The product was labeled : (On barrel head) " Cordial Non-Alcoholic Rock & Rey (W8611 12-8-11)" (Tag): "Mr. A. Kandel 557-559 Market St., Newark, N. J. From Fulton Extract & Cordial Works 817 Myrtle Ave.. Brooklyn, N. Y." Analysis of a sample of the product by the Bureau of Chemistry of this Department showed that it was a preparation of water, sugar, glucose, and artificial coloring matters, sold in imitation of rock and rye cordial. Adulteration of the product was alleged in the infor- mation for the reason that it contained a substance and substances which had been substituted in part for the article, to wit, a syrup containing sugar, commercial glucose, and artificial coloring matter. Misbranding was alleged for the reason that the statement " Cordial Non-Alcoholic Rock & Rey," borne on the label, was false and mis- leading in that said label purported that the product was composed of rock and rye, which is a mixture of rock candy and rye whisky, whereas, in truth and in fact, it was not a mixture of rock candy and rye whisky, but was a syrup containing sugar, commercial glu- cose, and artificial coloring matter, and said label did not set forth all the ingredients and substances in said product and failed to set forth that the product did contain another substance and substances, to wit, sugar, commercial glucose, and artificial coloring matter. Misbranding was alleged for the further reason that the statement " Cordial Non-Alcoholic Rock & Rey," borne on the label, was false and misleading in that it represented that the product was a cordial, whereas, in truth and in fact, it was not a cordial, but was a syrup containing sugar, commercial glucose, and artificial coloring matter. Misbranding was alleged for the further reason that the statement borne on the label thereof, to wit, " Cordial Non-Alcoholic Rock & Rey," deceived and misled the purchaser into the belief that the product was cordial, containing rock and rye, a mixture of rock candy and rye whisky, whereas, in truth and in fact, it was not a cordial containing rock and rye or a mixture of rock candy and rye whisky, but consisted of a syrup containing sugar, commercial glu- cose, and artificial coloring matter. On February 20, 1913, the defendant filed his demurrer to the information and on May 9, 1913, the court sustained the demurrer, as will more fully appear from the following memorandum decision by the court : Veeder, District Judge. This is a demurrer to an information under the Food and Drugs Act. The article of food in question was labeled by the defendant " Cordial Non- Alcohol Rock & Rey." It is alleged that it was in fact a syrup containing sugar, commercial glucose, and artificial coloring matter. The supporting affidavit shows that it contained, in addition, prune juice. DECISIONS OF COURTS. 643 The information charges the defendant, in one count, with adul- teration, and in three other counts with misbranding. With respect to adulteration the allegation is that the defendant's food product contained substances — that is, sugar, commercial glu- cose, and artificial coloring matter — " which had been substituted in part for the said article." But the ingredients of the " said article " which is thus alleged to have been debased by an admixture of the substances mentioned are not alleged, and they are certainly not within common knowledge. Adulteration is a relative term, and un- less the relation is disclosed no offense is set up. The second, third, and fourth counts charge misbranding — that the label was false and misleading in representing the article to be (a) a compound of rock candy and rye whisky, (b) a cordial, (c) a cordial containing rock candy and rye whisky, whereas it was syrup containing sugar, commercial glucose, and artificial coloring matter. The designation " Cordial Non- Alcoholic Rock & Rey " is an ar- bitrary and fanciful one, calculated at once to put a purchaser upon inquiry as to the ingredients. But the word non-alcoholic clearly indicates that the product does not contain whisky and that it is not a cordial, the essential ingredient of which is alcohol. Since the act does not require that the ingredients of such a product shall be stated, I am of the opinion that the information fails to set up a case of misbranding. The demurrer is sustained. UNITED STATES v. WEEKS. (District Court. S. D. New York, May 13, 1913.) N. J. No. 284S. An article labeled " Creamtbick * * * Guaranteed to contain no gelatin, gum arabic, egg albumen, or similar article," held misbranded in that it contained an article similar to gum arabic, to wit, Indian gum. Information alleging misbranding in violation of the Food and Drugs Act. Jury trial. Verdict of guilty.1 On February 4, 1913, the United States Attorney for the Southern District of New York, acting upon a report by the Secretary of Agri- culture, filed in the District Court of the United States for said district an information against Oscar J. Weeks, doing business under the name of O. J. Weeks & Co., New York, N. Y., alleging shipment by said defendant, in violation of the Food and Drugs Act, on Sep- tember 28, 1911, from the State of New York into the State of Missouri, of a quantity of a product called " Creamthick," which was misbranded. The product was labeled : " Creamthick — Serial No. 2049— Manufactured by O. J. Weeks & Co., New York, N. Y. It is guaranteed to contain no gelatine, gum arabic, egg albumen, or similar article." Analysis of a sample of the product by the Bureau of Chemistry of this Department showed it to consist of a mixture containing approxi- mately equal parts of Indian gum and rice flour. Misbranding of the product was alleged in the information for the reason that the statement on the label, " It is guaranteed to contain no gelatine, gum 1 Affirmed in Circuit Court of Appeals, Second Circuit, p. 836, post. 644 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. arabic, egg albumen-, or similar article," regarding the ingredients and substances contained in the product, was false and misleading, and the label was calculated to mislead and deceive the purchaser thereof, in that the product did contain as one of its ingredients an article similar to gum arabic, to wit, Indian gum. On May 13, 1913, the case having come on for trial before the court and a jury, after the submission of evidence and argument by counsel, the following charge was delivered to the jury by the court : Hand, District Judge. The charge against this defendant is the violation of the Pure Food & Drugs Act. That act provides that if any part of the label on goods sent in interstate commerce is mislead- ing, the crime has been committed. The jurisdiction of this court to determine that depends on the fact that the Government has charge of interstate commerce. I do not recall whether any of you gentlemen have had any such case or not, but to such of you as have not it may be necessary to explain just why we are all here. Congress has attempted by this law to keep people from sending from one State to another food about which there are misstatements of fact — in this case, on the can. The defendant is not charged with having adulterated this sub- stance, so you need not concern yourselves about that. I remember, last night, one of the jurors wanted to know whether there was any- thing deleterious or injurious in this. The Government concedes that there is not. And I think I told him, and I tell you now, that that has nothing to do with the matter, because we are concerned not only with prevention of those things getting into food which are injurious, but we are also concerned with having people know what they get from the outside of the package. I think that will commend itself to your good sense and judgment, that when we buy something as a food, a man shall not be allowed to mislead us about it, and if he makes any statement about what is inside of the package, and it turns out to be untrue, he cannot come to me and say, "Well, it is true that I did not' sell what I said I would sell you, but it did not do you any harm; you are just as well off as though you had what I sold you." You would answer him by saying, " That may all be A^ery true, but it is not relevant ; I am entitled to know what I am getting, and I am entitled to rely on what you tell me I am getting, and if you have not given me what you told me I was getting, I have a grievance against you." And it is that grievance which Congress has sought to prevent — within the limits of the power of Congress, which means interstate commerce, and it is on that charge that this defendant is before the court. So it is of no consequence in the case whether you find rice flour is innocuous, or the gum chadya which you eat. Now, there is a very limited statement here which is the only thing that this case turns on. This defendant has invented a name of his own for this substance, and he is entitled to use it — an artificial name — no one challenges it. And you see that there is a good deal of printed matter on the outside of the can here. You can take it and read it if you like, but it will not help you in deciding the case, excepting in so far as it may color and throw light upon the particu- lar phrase, which is the phrase which the Government challenges in this case. I am going to speak of that in a moment. But it is per- fectly proper for "you to take this and read the whole of it if you like, DECISIONS OF COUETS. 645 in an effort to understand what the words which the Government has singled out really mean. Now, gentlemen, you have in this case to deal with something that we in court have very constantly to deal with, and that is the mean- ing of language, I suppose all of you, although none of you are learned in law, know how ambiguous language is. A great diplo- matist once said that words were designed to conceal ideas. And sometimes it almost seems as though they were. At least, they can be made to conceal ideas. But that is not the purpose, and that is not what they do between man and man. They are meant to convey ideas, and the only way that you can get the meaning of words is not by taking them and reading them from a dictionary. Lawyers very often come to me when I construe a statute, and bring to me a dic- tionary to use, and I find that it does not help me a bit. I do not care so much what the dictionary says. What I try to do when I am finding out what words mean, and particularly written words, is to exercise a certain process of imagination in the ma tier. I try to put myself in the position of the man that used the words. What did he think those words would mean to the people to whom he used them ? When I try to do that, the next thing I have to do is to say, Who did he think would read those words ? What other words did he think these men would read alongside of them? What was the class of people whom he knew was going to see what he wrote % And then I try to construct in my own mind, not by any artificial rule, but by general common sense, so far as I have it, to reconstruct what the meaning would be to the man who read them. That is what you must do in this case. These words were not to be read by chemists, gentlemen ; they were not to be read by botanists ; they were not to be read by people who dealt in nice distinctions ; they were not to be read by lawyers ; they were to be read by bakers and confectioners, plain men accustomed to use language — not with the nice accuracy of a trained expert, but as ordinary men do. And so when you come to find out what this meant, I apprehend that you won't understand that the people who read this were people who would dissect all the language bit by bit. The language which is criticised here by the Government is that which is a part of this printed matter below the line " Creamthick," which I show you now. It goes down in three paragraphs of some length. You are entitled, in order to determine the words in ques- tion, to take the whole of them, and say what the sentiment of those words was; what the plain men, when they read this, would under- stand the man meant who put it on. He first says that this sub- stance is smooth enough for cream, and is meant to take the place of whole eggs in ice cream, or egg whites in ice cream, and so forth ; that it entirely replaces gelatine. Then comes the words, " It is guaranteed to be a pure food preparation, to contain no gelatine or egg albumen or similar articles." Now, if he had stopped at the words " Or similar article," the Government would not have objected to it here, because it does not contain gelatine, albumen, or egg albumen. But he went farther than that. He said, it contained nothing of the sort. That is one interpretation — one possible interpretation of the language, and it would be important, if it rested with me, which it does not, to de- termine the meaning of these words. 646 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Supposing he had said, " It is guaranteed to contain no gelatine, egg albumen, or anything of the sort." Now, did that mean that it might contain this gum chadya? That is the whole case in a nutshell. Did it, to the ordinary baker and confectioner, include gum chadya? We know now that this gum arabic and gum chadya have certain different properties; a chemist will tell you that they are different. I should say that they have actually different properties so far as water absorption is concerned, because this gum chadya is a much greater water absorber, though not any more than gelatine, and gelatine is used next to gum arabic in this label. But it is true, nevertheless, that it has a water absorption very much greater than gum arabic. But when he said, gelatine, gum arabic, or egg albu- men, would anyone think, who would read those words, that he would put in another kind of gum, a water absorbing gum, which will act better toward making the ice cream hold up in a solid block underneath than gum arabic? I take it that we must assume that he supposed that the bakers might think that the gelatine and gum arabic and egg albumen were things which were used in substances of this sort. It would be a reasonable inference to suppose that he must have thought so, if he indicated as one of the merits of this preparation that it did not have any of them. When he grouped those three together, and then said this had not anything of the sort, did he lead anyone to suppose that it did not include something like this gum? That is the whole case. That, gentlemen, is the question of fact, the meaning of the language, and the character of the substance, which is entirely in your hands. You are the final arbiters of that fact. In this case it is the meaning of the language itself. You must find — I think I have told you this in other cases in this term — that question of fact against the defendant beyond a reason- able doubt. That is to say, if you have any doubt on the subject which is not purely a fictitious one, you must bring in a verdict of not guilty. If it seems to you quite clear that the ordinary people, plain men in the trade who used and read those words would think that it did not have any of the gum, gelatinous gum, then the de- fendant is guilty, but if when he said that it did not contain gum arabic, that did not include that kind of gum, then your verdict must be in favor of the defendant. In other words, to convict you must find that this gum was similar to gum arabic in the minds of men who would buy this stuff; that they would read gum arabic and this gum chadya as similar. If you can determine that, it is of no earthly consequence whether there is a chemical difference or not. Now, gentlemen, there is one question in the case that I want to take up and disabuse your minds of, because I must say that I made an error on it yesterday, and I am going to try to impress upon you what I say now, so that by no chance will it injure the defendant. I permitted yesterday proof of a prior conviction of this defendant under the Pure Food Law. That was a mistake on my part. There are some cases where conviction involves moral turpitude on the part of the witness, which we allow in to impeach his general credibility. That is rather a ponderous way of saying that we allow proof that he had been convicted of immoral acts, so the jury may consider DECISIONS OF COURTS. 647 whether he is worthy of belief. By this conviction was a prior con- viction under the Pure Food Law, and was not such a conviction as that. The reason is, a very good common sense one, because it does not necessarily involve any immoral act on the part of the defendant. A man may be convicted under this act for carelessness in branding, which does not involve his knowledge that he was misleading any one. And so it would be very unfair to the defendant if you should consider that conviction against him. You have no right to con- sider it in weighing his testimony, and you under no circumstances would have any right to reason in this way : " Because he has been convicted once of violating this act, therefore it is likely he would do the same thing again." In the first place, it has no logical bear- ing on the facts of the case. You know all the facts here. All you have to do now is, independently and of your own will, to make up your minds about the meaning of that language. So I lay that question out of the case. There are some questions which I have been asked to charge you, and I will go over them now, gentlemen, and perhaps I will think I have not covered some of them. I will charge you in that order to find the defendant guilty, you must find that this product contained gum chadya, and that the gum chadya was similar to the gum arabic — I have already told you that — I mean, find it similar in the sense in which that word is used on the label. You must find the label to be misleading. I think I have covered that word. And, that it was calculated to mislead and deceive the purchaser. It is true that some evidence was introduced to the effect that he never had misled a purchaser, but that in so far as purchasers never may have found out that gum chadya was here, such evidence was not very important. Mr. Carlin suggests to me that I tell you that the test is not be- tween this gum and gum arabic as put into the mouth but as it is put into the stomach in ice cream, or the other article mentioned on the label. I think that is true. No one expects this gum to be eaten as gum — it is mixed up here with flour, and then the whole sub- stance is added to milk and made into ice cream. UNITED STATES v. 36 BOTTLES OF LONDON DRY GIN. (Two Cases.) (District Court, E. D., Pennsylvania, May 15, 1913.) 205 Fed. Ill ; N. J. No. 2820. An article labeled "London Dry Gin" lield not misbranded as to place where manufactured or produced. Libel under section 10 of the Food and Drugs Act. Jury trial. Verdict for claimant. On motions for new trial. Motions denied.1 On January 8, 1912, the United States Attorney for the Eastern District of Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in the District Court of the United States for said district a libel for the seizure and condemnation of three cases each containing 12 quart bottles of gin remaining unsold in the original 1 Reversed on writ of error in Circuit Court of Appeals, Third Circuit, p. 695, post. 648 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. unbroken packages at Philadelphia, Pa., alleging that the product had been shipped on or about December 19, 1911, and transported from the State of New York into the State of Pennsylvania, and charging misbranding in violation of the Food and Drugs Act. The product was labeled " Sir Robert Burnett & Co. Celebrated Trade Mark London Dry Gin Distilled in New York, as at Vauxhall Dis- tillery, London, in glass stoppered bottles which will entirely pre- vent any possibility of discoloration or loss from evaporation. By this arrangement corkscrews are entirely superseded. Direction. — The stopper is taken out by pressing the thumb first on one side and then on the other." (Blown in bottle) " Sir Robt. Burnett & Co. London Dry Gin." Misbranding of the product was alleged in the libel for the reason that it was labeled and branded so as to purport to be a foreign product when not so, in that each of the bottles bore a label in sub- stance and character as set forth above by virtue of which said label and brand the article purported to be a foreign product, to wit, a product of London, in the Kingdom of Great Britain, whereas, in truth and in fact, the said article of food was not a product of Lon- don, in the Kingdom of Great Britain, but had been produced in the city of New York, in the State of New York, in the United States of America. On February 2, 1912, Sir Robert Burnett & Co. (Inc.), claimant, New York, N. Y., filed its demurrer and exceptions to the libel, which were argued on February 5, 1912, and on February 7, 1912, the ex- ceptions to the libel were overruled, without prejudice, as will more fully appear in the following opinion by the court : McPherson, Circuit Judge. With nothing whatever before me except the libel and the claimant's objections (whether they are named exceptions or demurrers is of slight importance), I do not think I should decide now that this libel is either sufficient or in- sufficient, The district court in Michigan (United States v. Schur- man, 177 Feb., 581) evidently had affidavits before it showing cer- tain facts which influenced the decision; the ruling does not rest upon the mere language of the libel. The objections are overruled, but without prejudice, etc. On October 22, 1912, claimant's answer to the libel was filed and on October 23, 1912, an amended libel was filed in which it was charged that the product was further misbranded in that it was labeled and branded so as to deceive and mislead the purchaser thereof and to purport to be a foreign product when not so, in that the principal label thereon, as hereinabove set forth, was in resem- blance and similitude as to arrangement and design to a label and brand which had theretofore been widely used and was well known to the trade in connection with and as theretofore borne upon a genuine imported gin, the product of, and represented to be the prod- uct of London, England, which resemblance and similitude as afore- said was calculated to deceive and mislead the purchaser of the said article into believing that said article was the product of London, England, and by virtue of which said resemblance and similitude the said article purported to be a foreign product, to wit, a product of London, England, whereas it was not a product of London, Eng- land, but was a product of the United States of America. DECISIONS OF COURTS. 649 J. B. McPherson, Circuit Judge (charge to the jury).1 My in- structions to you will be very brief, because I think you will probably have seen for yourselves, from the discussion to which you have listened^ that this is a comparatively narrow question. Indeed, I may leave out the adverb and say that it is a narrow ques- tion. The Government's case depends entirely, I may say — cer- tainly it depends essentially — upon the sense in which the word " London " is used upon this label. The label that is complained of speaks of " London Dry Gin." It also adds — I forget the precise phrase — "Distilled in New York," I think, " as in Vauxhall, Lon- don." But the Government's complaint is essentially based upon the use of the word " London " in the phrase " London Dry Gin " ; for evidently if there was no such word upon the label, the Govern- ment would have no case. If the label simply said " Dry Gin " there would of course be no case here. Now this proceeding has been brought under the pure food law, to which reference has been made, and it is not the ordinary civil suit, neither is it the ordinary criminal suit. It occupies a place between those two proceedings. It is a suit to enforce a penalty, and it was begun on the part of the United States by seizing the property that is, in effect, before you now. Two seizures were made, but the cases are being tried together. Each of them concerns three dozen bottles of this gin. The attempt is made by the Government to forfeit that property, that is, to take it away from the claimants, this company which is defending the suit, and to destroy it, or to take some other means of disposing of it; at all events, to forfeit and take it away from the claimants. Now that is a remedy which is severe. It is an unusual remedy to be invoked. The ordinary suit is a proceeding with which you are entirely familiar, where two citizens meet each other in court to dispose of a difficulty between them and which is settled according to the ordinary methods of procedure. There the plaintiff is only obliged to make out his case by the fair weight of the evidence, and, if he offers evidence which is better than his opponent's, even if it is only slightly better than his opponent's, he is entitled to his verdict. That is what we mean, as you know, by the fair weight of the evidence, or preponderance of the evidence. That is the rule in a civil suit. Now if a man is charged with a crime, a much more severe burden is imposed upon the Government in that case ; for the Government is always the com- plainant in a criminal suit. The Government is there obliged to make out its case by evidence that is much stronger ; that is, evidence beyond a reasonable doubt. I need not dwell upon that. You have often, no doubt, in your experience in courts, been instructed with regard to that matter. Now the case we are trying comes between these two kinds of cases. It is much more severe than the first remedy and it is not as severe as the second, because there is nobody here charged with a crime and no punishment can be inflicted upon any person in consequence of the verdict. But the result of the verdict, if in favor of the United States, would be to take this prop- erty away from the owner and, therefore, the remedy is a severe remedy, and, as I think, the rule with regard to the burden upon the Government is also heavier than if it were an ordinary suit between !Not published in Federal Reporter. See N. J. No. 2820. 650 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. individuals. I think the Government is bound to offer evidence that is — what language shall I use? Clear and satisfactory has some- times been said ; clear and convincing is another way in which it has been put. I am aware that I am not giving you very definite ideas upon the subject, but the nature of the subject is such that I can not give you definite and positive ideas. I must use general terms to describe it, and I do not know that I can do better than to say that the Government must offer better evidence than just the mere weight, if you were weighing, if you were deciding between parties. It must be stronger and better evidence than that and I have already said, and I say it again, that it must be clear and satisfactory, or clear and convincing, and with that I shall leave it. If the evidence is not, in your judgment, of that character, then the Government has failed to offer the kind of evidence which the law lays upon it, requires it to offer, and your verdict would have to be in favor of the defendant. Now that brings me to what I desire to say with respect to the charge itself. The Government puts the charge in two different ways. The evidence is substantially the same as to each, but they rest upon different provisions in the statute and they do differ, in my judgment, in a certain degree. One of the charges which the Government lays before you in each of these cases is based upon the provision of section 8, which refers to " any food product which is falsely branded as to the State, Territory or country in which it is manufactured or produced," and the Government has, in part of its written charge, declared that this article was falsely branded with regard to the country where it was produced. Now that charge may be made out by evidence which shows that the label does not tell the truth with regard to the country where the article was produced. It makes no difference whether that failure to tell the truth was the result of design or was merely unintentional or accidental. The act of Congress has chosen to punish the failure to tell the truth on that subject and, therefore, if this label does not tell the truth with regard to the country in which this gin was produced, then the Gov- ernment has made out its case under this particular portion of the statute. Now, as I have said, the case of the United States rests essentially upon the use of this word " London " in connection with the words " Dry Gin." What, then, does " London Dry Gin " mean ? This is a question of fact which I intend to submit to you. Does it mean a particular kind of gin, entirely irrespective of the place where the gin was manufactured, or does it mean gin that was made in London ? You have heard in argument various suggestions upon one side or the other about that ; for example, Saratoga potatoes. Nobody supposes that that means potatoes made in Saratoga. French fried potatoes, if I may continue the use of that vegetable — nobody supposes they are fried in France; and so one might go on. On the other hand, there are words that have a geographical meaning and have no other. I will not give any examples of them, for fear I might not get one that was exactly right, but, as you know perfectly well, there are such words, pure geographical words, that have that meaning and have no other. Now the Government says that this word " London " in this phrase " London Dry Gin," means, geographically, that the gin was produced in London and was not produced anywhere else. DECISIONS OF COURTS. 651 On the other hand, the case of the defendant is that this word has come to have, in the course of usage, a meaning which is not geo- graphical, but refers to the qualities and the kind of article which has been produced here before you. Now what is the fact ? I submit it to you for your determination. If this word in this phrase " Lon- don Dry Gin " has come to have a meaning in reference to the kind of article and does not refer to the place where it was made, then the Government's case entirely disappears and your verdict would have to be in favor of the defendant. I shall not go over the evidence. It would be superfluous, as it has been discussed and you only heard it yesterday. As you will recall, there is evidence on both sides of that question, and you must take the evidence and decide for your- selves what the fact is as to that subject. Now, that is the first charge that is presented here by the Govern- ment. The second differs essentially in this respect: The Govern- ment charges that this label was framed for the purpose of deceiving and misleading the purchaser. Now you see that introduces an element we have not in the first charge, namely, the intention of the person that made the gin, the distiller of the gin. What is the fact in that regard? The evidence that has been offered here upon one side or the other — I mean with reference to the other branch of the case — has some bearing upon this branch also and, in addition to that, there is evidence that has a bearing only upon this branch of the case, namely, the evidence offered by the defendant with regard to what took place before the Secretary of Agriculture and before one of the agents of that department in New York. That, in my judgment, bears upon the question of intention and I submit it to the jury, for their determination, to be weighed by them in that regard. Taking all the evidence, then, upon the subject — and I thin!?: all the evidence in the case bears upon the second branch of it, namely, the intention to deceive; the character of the label itself, the type in which it is printed, the communications and proceedings before and with the Department of Agriculture and all the other evidence in the case upon the subject — decide whether or not the second branch of the Government's charge has been made out, namely, that this label was adopted and has been used for the purpose of deceiving and misleading the purchaser. Now that is the case before you which is to be made out by the Government on one or both of those charges, by the quality of evi- dence to which I have referred; and, in order that we may know with definiteness just what your conclusions may be, I shall ask the jury to answer these questions as part of their verdict, no matter whether they find in favor of the United States or find in favor of the defendant. The questions are so framed that you can answer them either yes or no. There are only three of them, and they are brief. The first question is : Is there a distinct kind of gin known as London dry gin ? The answer to that will be yes or no. The second question is : If there is, must this kind of gin be made in London and nowhere else? Of course, you can answer that also yes or no. The third question refers more particularly to the second charge of the Government. It is this: In using the label in suit, did the maker of the gin intend to deceive or mislead the purchaser by rep- 652 EEDERAL EOOD AND DRUGS ACT AND DECISIONS. resenting the gin to be a foreign product when, in truth, it was not a foreign product ? That you can answer yes or no. I am not going to ask you to remember these questions. I will give them to the foreman. Mr. Johnson has just called my attention to what he supposed to be an omission, namely, that I had not referred to the fact that the label contained the words " Distilled in New York as in Vauxhall, London." But, as you remember, I did so allude to it, but I mention it again in case there is to be any doubt on the subject. Besides, you will have the label before you, so that you can inspect it for your- selves. I answered the defendant's first point in the charge and the second point I refuse. Mr. Brinton. May I record an exception? It is rather a state- ment to the court than an exception. The Government most respect- fully excepts to that portion of the charge which advises the jury that the Government's case relies almost entirely, or practically entirely, upon the use of the word " London," for the reason that the Government relies equally upon the charge that the label used by the defendants is in similitude and resemblance to the imported label, and, in this connection, the Government respectfully urges that the court has adopted a view of the second charge of the libel which is not the meaning which was intended to be given to it, or which it holds, or should hold. The second charge of the libel charges that the principal label thereon as hereinabove set forth was then and there in resemblance and similitude as to arrangement and design to a label and brand which .had heretofore been widely used and was well known to the trade in connection with and as theretofore borne upon a genuine imported gin, then and there the product of, and represented to be the product of, London, Eng- land, which resemblance and similitude as aforesaid was then and there calcu- lated to deceive and mislead the purchaser of the said article into believing that the said article was the product of London, England, and by virtue of which said resemblance and similitude the said article did then and there purport to be a foreign product, and the Government submits that that charge does not raise an issue of intention, but the issue as to whether this similitude between this label and the foreign label is, in itself, calculated to lead persons to believe that the article is a foreign product and, therefore, that it purports to be such. It certainly was not the intention to charge intention, as the Government conceded that is not the issue in this case. The Court. In response to what the Government has said, if I did not allude to the foreign label, it was because I did not hear it much alluded to in the course of the trial or in the argument; but I am glad to have my attention called to it, and I say to you distinctly that, as the foreign label, that is the label on the foreign product, has been introduced in evidence here, it is before you for purposes of comparison with the domestic label and in order that you may give such weight to it as you think it ought to have in connection with the other instructions that I have given you. I decline to say to you that the intention of the defendant is of no consequence in this matter. If I understand what the implied meaning of the words " deceive " and " mislead " is, it necessarily means that there is an intention to lead somebody astray. I can not understand that you could talk of someone deceiving another unless he was intending to DECISIONS OF COURTS. 653 do it. Besides, the first part of this section, section 8, under which the first charge of the Government is drawn, I have explained to you, and that would cover a case where the mere facts were of the kind I have alluded to and where there was no question of intention in it at all. I can not see the point of having these two charges brought by the Government unless they were intended to be different, and, upon the construction just suggested to me, they are the same. Mr. Brinton. The Government respectfully excepts to the submis- sion by the court to the jury of the question substantially to the effect as to whether there is a distinct kind of gin known as London dry gin, submitting that the question, if such a question is to be sub- mitted, should be to the effect as to whether there is a distinct kind or type of gin known generally throughout the trade of the United States as London dry gin. The Court. With regard to that suggestion, which is now made for the first time, I say that I think there is a good deal of force in that, as this gin in question was offered to the American public, and I accept the suggestion of the United States in that respect and you may so consider it. The point for charge presented by the defendant, which was re- fused by the court without reading, is as follows : 2. Under all the evidence, your verdict must be for the defendants. The jury found for the claimant. On April 30, 1913, a motion for a new trial was filed on behalf of the United States and on May 15, 1913, a new trial was refused, as will more fully appear upon the following opinion by the courts J. B. McPhekson, Circuit Judge. [Ill] 1 It can hardly be doubted, I thinly that the Government's treatment of the claimant in this dispute leaves something to be desired. In consequence of a difference of opinion between the Department of Agriculture and the claimant and concerning the label now in question, the subject was discussed and considered, and in the end the department announced distinctly that the objection of misbranding would not be taken. The claimant thereupon proceeded to use the label for nine months, when the department changed its mind without previous warning, and, without giving the claimant an opportunity to con- form to its new attitude, made two separate seizures, taking the position now that the bottles were misbranded. Under the circum- stances, this seems rather drastic action and can hardly be com- mended; at all events, it leaves the Government without apparent equity in its favor. Neither, I think, is any legal support left, in view of the special findings that accompanied the general verdict. The indispensable basis of the attack upon the label is the averment that " London Dry Gin " is a descriptive phrase, which points to the place of origin, and not the kind of liquor. If, however, "London Dry Gin" describes a well-known liquor, having certain characteristics that identify it wherever it may be made, the Government's case is wholly with- out foundation, no matter under which clause of section 8 of the Food and Drugs Act (act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 1911, p. 1357] ) the seizure may be defended. And 1 Numbers in brackets refer to pages of -Federal Reporter. 654 FEDEKAL FOOD AND DRUGS ACT AND DECISIONS. this is precisely the point upon which the evidence conflicted, and is precisely the point determined by the jury in two special findings that make part [112] of the verdict. Two of the questions put by the court and the answers thereto are as follows : 1. Is there a distinct kind of gin known as London dry gin? — Answer. Yes. 2. If there is, must this kind of gin he made in London and nowhere else? — Answer. No. These findings, I think, conclusively repel the charge of using a label forbidden by the act; and (if the claimant had a right to use the label) it is immaterial to consider the questions raised by the Government upon the subject covered by the third question and answer : 3. In using the label in suit, did the maker of the gin intend to deceive or mislead the purchaser by representing the gin to be a foreign product? — Answer. No. Of course the verdict does not and cannot, lay down a general rule even in reference to this particular phrase. The jury necessarily acted upon a certain amount and quality of evidence, and as this might not be present in another dispute with another claimant the verdict can do no more than settle the one controversy that was in issue. Although the instructions to the jury concerning the quality of evidence required to make out the Government's case are not com- plained of, I may say briefly that a difference of opinion on this sub- ject no doubt exists. A decision by the court of appeals in the fourth circuit — Grain Distilling Co. v. United States, 24 Treasury Decisions, (Mar. 13, 1913) p. 74, No. 1837 — having been called to my attention, I may cite a recent opinion in the contrary sense by the court of appeals in the second circuit — United States v. Regan, 203 Fed. 433. The motion for a new trial in each case is refused. UNITED STATES v. McCONNON & COMPANY. (District Court, D. Minnesota, May 22, 1913.) N. J. No. 2853. A compound composed of vanillin and coumarin and burnt sugar, labeled " Ex- tract of Vanillin and Coumarin. * * * Burnt Sugar Color" and not plainly labeled so as to show that it was a " compound," held adulterated and misbranded. Information alleging violation of the Food and Drugs Act. Jury trial. Verdict of guilty. This was an information against McConnon & Company, a cor- poration, Winona, Minn., alleging shipment by said company in vio- lation of the Food and Drugs Act on July 10, 1911, from the State of Minnesota into the State of Tennessee, of a quantity of so-called McConnon's Extract of Vanillin and Coumarin which was adulter- ated and misbranded. The article was labeled: "McConnon's Ex- tract of Vanillin and Coumarin. Alcohol 24%. Net contents from 4£ to 4| oz. Burnt Sugar Color * * *." Adulteration of the product was alleged in the information for the reason that it purported to be, and was represented by the labels, DECISION'S OF COURTS. 655 to be an extract of vanillin and coumarin, whereas in truth and in fact it was a compound of vanillin and coumarin, mixed and colored with burnt sugar in a manner whereby the inferiority of said prod- uct was concealed. Misbranding of the product was alleged for the reason that the labels and brands thereof contained and bore a state- ment regarding said article which was false and misleading in that by said labels and brands the article purported to be, and was repre- sented to be, an " Extract of Vanillin and Coumarin. Burnt Sugar Color." whereas, in truth and in fact said article was not an extract of vanillin and coumarin, but was a compound of vanillin and cou- marin, artificially colored with burnt sugar in imitation of vanilla extract. Misbranding was alleged for the further reason that the product labeled and branded as aforesaid purported to be, and was represented to be, an extract of vanillin and coumarin, whereas in truth and in fact it was a compound of said substances with burnt sugar color and prepared in imitation of vanilla extract and was offered for sale without being labeled as an imitation of vanilla extract. Misbranding was alleged for the further reason that the product purported to be and was represented to be an extract of vanillin and coumarin, whereas in truth and in fact it was a com- pound of vanillin and coumarin and was not labeled and branded so as to plainly indicate that it was a compound, with the word " com- pound " plainly stated upon the packages in which it was offered for sale. Morris, District Judge (charge to the jury). The defendant company in this case stands here charged with the violation of what is known as the Pure Food and Drugs Act, passed by Con- gress on the 30th day of June, 1906. It is charged with violating this act in two respects. First, with violating the section against misbranding of articles of food; and second, with violating the sec- tion of the act against adulteration of food. The charge rests upon the label placed upon the bottles of the preparation here in question. The first count in the indictment charges a misbranding, and the section of the law, as far as it is necessary to be considered here, is as follows: That the term misbranding as used herein shall apply to all articles of food or articles which enter into the composition of food, the package or label of which shall bear any statement, design or device regarding such article, or the ingredients or substances contained therein which shall be false or mislead- ing in any particular, * * * That for the purposes of this act an article shall also be deemed to be misbranded * * * In the case of food, first, if it be an imitation of another article; second, if it be labeled or branded so as to deceive or mislead the purchaser." The third subdivision I need not read. And fourth, if the package containing it or its label shall bear any statement, design or device regarding the ingredients of the substances contained therein, which statement, design, or device shall be false or misleading in any par- ticular. The defendant stands here charged with having violated that sec- tion of the act, in that, in this label he has caused people to buy what is in reality an imitation of another article, to-wit, vanilla extract or extract of vanilla. In this first count it is also charged that by this label this preparation was so labeled as to mislead purchasers, and 656 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. third, it is charged that the label and brand contain statements re- garding the ingredients contained therein, which statements are false or misleading. Those are the three particulars in which this act is alleged in this information to have been violated in the misbranding. In this information it is also charged that this preparation was adul- terated, and thereby violated this provision of the act, " That for the purposes of this act an article shall be deemed to be adulterated if it be colored in a manner whereby inferiority is concealed." Then first, as to the misbranding that is charged. You know what the label is, the bottle is there and the label is on it. It is charged that that label is such that it causes people to believe that it is some- thing that it is not. In other words, that the label makes this prep- aration an imitation of another article, that is, an imitation of vanilla extract. Also, that the package is so labeled as to deceive or mis- lead the purchaser ; and third, that the label contains a statement in regard to the ingredients or substances contained therein which is false or misleading. The object of this act, as has been stated by counsel on both sides, is twofold. First, to prevent people who have articles to sell from placing in them ingredients that are injurious or deleterious to the health of people, and causing them to buy without knowing that fact. Now, as far as this information is concerned, that may be left out of the question, because there is no charge and no proof of that; in- deed, it is admitted here in court that there is nothing in this prepa- ration which is injurious to the health of anybody. So that we pass to the second object of this act, and that is the one which it is charged here this defendant has violated. The second object of the statute is to prevent people from so labeling an article that a man buying it will think that he is buying one thing, when in reality he is buying another. In this case the charge is that this label is so made that people purchasing this preparation would think, and would have good reason to think, and the label would lead them to believe, that they were buying vanilla extract, when in truth and in fact they were buying something else, to-wit, a preparation, whether we call it an extract or a compound or a mixture, made of vanillin and coumarin and burnt sugar. So that it seems to me the whole of this case sim- mers down to one proposition, and that is this: Is that label so worded and so printed, taking it as it looks and as it is, the type on it and everything about it, and in connection with the color of the prep- aration— is that label such that a purchaser of this article would think, and have reason to think and believe, when he reads the label, that he was buying vanilla extract, when he was in fact buying another thing? The whole question simmers itself clown to that. As to the misbranding; is that article so branded, first, that it is an imitation of vanilla extract; that people buying it and looking at the brand, and looking at the article, would think that it was vanilla extract? That is the first charge. Second, Is this so branded as to deceive and mislead anyone buying it into the belief that he was buying vanilla extract, when in fact he was buying another mixture? And, third, does it contain a statement which is false or misleading? You cannot say that the label is false, unless the word " extract " makes it false ; that I shall come to hereafter. As to its ingredients, you cannot say that the label is false, because the label says that it does contain vanillin, that it does contain coumarin, that it does con- DECISIONS OF COUETS. 657 tain burnt sugar, and that it does contain alcohol. These things it says it contains. But is it misleading? Is it misleading in that it has the words extract of vanillin and coumarin colored with burnt sugar and with so much alcohol in it? Is it misleading by reason that the word extract is used instead of some other word, as, for in- stance, compound or flavoring, or some word other than extract? Does that make it misleading ? Would that make a man going into a store and buying it, or buying it from a traveling vendor, looking at that label, think that he was buying extract of vanilla which is extracted from the vanilla bean — not something made from a compo- sition or extract of vanillin and coumarin, but an extract of the vanilla bean? Would the words used on that label, in the connec- tion in which they are used, considering the color of the preparation that is in the bottle, would that make a man buying it believe that he was buying vanilla extract? That is the whole question. Now, I come to the word extract. This label must be taken as meaning what would be ordinarily understood by the public in read- ing it. The ordinary and customary meaning given to the word is what should govern you in determining this question, and not the technical meaning of it. What impression, in other words, does that label produce upon the mind, your mind and my mind, when we go to buy that preparation? What impression, what meaning? That you must determine from all the testimony which has been offered here with reference to that question. Extract of vanillin and coumarin, what meaning does that convey to our minds, the ordinary mind ? What meaning does it convey to people who go and buy a bottle of flavoring for food ? If that label, framed as it is, worded as it is, would cause an ordinary man to believe that he was buying vanilla extract, then this defendant is guilty. If it would not, then the defendant is not guilty, that is, on the first count of this information. That is the whole question. Take that label now as it stands, as it is, look at it with the wording on it and the coloring of the mixture in the bottle, would that cause the ordinary purchaser who wanted a flavoring extract to think and believe, and have good reason to believe, that he was buying vanilla extract, and not a compound of vanillin and coumarin with burnt sugar in it? If it would so mislead that purchaser, then that bottle is mislabeled and misbranded under this act, and this defendant is guilty. If it would not, then this defendant is not guilty, upon that proposition. Now as to the adulteration part of it. "An article shall be deemed to be adulterated according to this act, if it be colored in a manner whereby inferiority is concealed." And this brings us right back to the same question. Does the coloring cause a man to believe when he wants vanilla extract that he is getting that or something that is not inferior to vanilla extract? Do I make myself understood? Does the coloring in that bottle with that burnt sugar so operate that it would cause a man buying it, when he wanted vanilla extract, to think that it was the superior article and to get something which without that coloring he would have thought was an inferior article? That is the question on this second count. If that coloring matter does do that then this defendant is guilty on the second count; if it does not then it is not guilty. 40066—14 42 658 FEDERAL FOOD AND DRUGS ACT AND DECISION'S. So after all, it comes down to a single question as to whether or not the purchaser of that article has been deceived into buying a preparation of vanillin and coumarin when he thought he was buy- ing extract of vanilla. That is about all there is of this case. A man has a right to use coloring matter in any article, provided that the coloring matter is not employed to imitate any natural product or another product of recognized name and quality. If this defendant emploj^ed that coloring matter for imitating the vanilla extract, and making people believe that they were getting vanilla extract, then it was employing it to imitate the natural product or some other product of recognized name and quality. That is where this coloring matter comes in. It comes in as bearing upon the intention of this defendant, as bearing upon the natural result of that labeling in connection with the coloring matter. Now, as to whether this defendant put that label on the bottle with the intention of causing this deception. If the putting of the label on the bottle must naturally and probably have produced that result, a man is held to intend to produce the natural and probable results of his action. Of course, if you believe from the evidence that this defendant colored that mixture and put that label on it with the actual intention of deceiving people who might buy it, then he vio- lated this law. If the natural and probable result of putting that coloring matter in there and that label on the bottle would be to mislead the public, and to cause a man to think that he was buying vanilla extract when he was buying something else, then the de- fendant would be held to intend the natural and probable result of what he did even though you may not believe that such was his actual intention. That is all there is of this case. This defendant stands here charged with an offence, which while it is a misdemeanor, gives him the right to the same degree of proof that he would have a right to in any criminal action. The facts which are necessary to be proved in order to convict him must be shown beyond a reasonable doubt, and the evidence must satisfy you beyond a reasonable doubt either that the defendant intended to accomplish the deceit, or that the natural and probable result or tendency of the label was to accomplish such deceit. The evidence must show and satisfy you of either of these matters beyond a reason- able doubt. I cannot give you any definition that would clear lip what we mean by a reasonable doubt. The law writers and the judges have been trying to do that for a long time, and after all they get back to the words reasonable doubt. Those words mean exactly what they say; a reasonable doubt, not an imaginary or fanci- ful doubt, • but a doubt such as you would act upon in the most important affairs of your own life. A doubt coming out of the evidence; a doubt arising from the evidence; not one that can be conjured up by the mind, not an imaginary, not a fanciful one, but a reasonable one. That is what it means. That doubt must be based upon the testimony. The Government must establish the fact of the defendant's guilt beyond a reasonable doubt. If this testimony does not so satisfy your minds, then this defendant is entitled to an acquittal. But, if it does so satisfy your minds, then there should be a conviction, and the defendant should be found guilty as charged DECISIONS OP COURTS. 659 either in the first or in the second count, or as in the entire infor- mation. I have been talking to you about 15 or 20 minutes, and have got back to the original proposition. All there is in this case is, did the defendant intend to accomplish a deceit, or was the natural tendency of this label to accomplish a deceit? Was that label such, taken in connection with the coloring of the product, taken in connection with what you believe to be the customary meaning of the word extract — was that label such that it would naturally and probably cause a purchaser of that preparation to believe that he was buying vanilla extract when he was buying this preparation which is not vanilla extract? That is the whole thing. The only way I can aid you in deciding that question, is put your- self in the place of a purchaser who wanted to buy a flavoring ex- tract, an extract that would give the peculiar fragrancy and delicious aroma that a product of the vanilla bean gives, that we all know vanilla gives. Put yourself in the place of a man buying and being presented with that bottle with that label on it, with that coloring in it, and ask yourself the question, " Would I be deceived when I read that label into believing that I was buying vanilla extract ? " If you believe that you would be or that an ordinary purchaser would be so deceived, then this defendant is guilty ; but unless you are satis- fied of that fact beyond a reasonable doubt, then this defendant is not guilty, and should be so found by any man who comes to that conclusion. That is all, so far as I can see, that there is in this case. I have been presented with a number of instructions, but I think that I have got the law boiled down, and I think I have got this case so that the jury understands it. Put yourselves in the place of a man buying a bottle of flavoring fluid — that is what this is intended for — to flavor food. Ask yourself, if a man comes to sell me that preparation — I look at it and read the label, I examine the color; would I be deceived into believing that I was buying vanilla extract instead of something else ? That is the whole question. Now, gentlemen of the jury, you have heard all the testimony and you will decide the case upon the testimony that has been offered here in court. There has been a whole lot of it; some of it I have not quite understood, I do not know whether you have or not, most of it I have. But, gentlemen, all these witnesses have been very frank, especially these scientific gentlemen ; they have acted like men who are standing upon scientific principles. They have been frank and open, they have been clear, and if any part of their testimony I have not understood, it is not due to them, it is due to my own stu- pidity, or to my own lack of scientific training perhaps. But from all of this testimony you have got to decide this question. Was this defendant branding an article so that it would make people think, who were buying one thing, that they were buying another? Did the coloring matter in this fluid so change its character from what it would otherwise have been, as to make people believe that they were buying vanilla extract when they were buying something else ? That is the whole question for you to decide. 660 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES v. EXCELSIOR BAKING CO. (District Court, E. D. Pennsylvania, June 12, 1913.) N. J. No. 2895. Frozen eggs held adulterated in that they consisted in part of a filthy, decom- posed, and putrid substance. Indictment charging adulteration in violation of the Food and Drugs Act. Jury trial. Verdict of guilty. Motions for a new trial and in arrest of judgment denied. On September 17, 1912, the grand inquest of the United States of America, inquiring in and for the Eastern District of Pennsylvania, acting upon a report by the Secretary of Agriculture, returned an indictment in the District Court of the United States for said dis- trict against the Excelsior Baking Co., a corporation, Philadelphia, Pa., charging shipment by said company, in violation of the Food and Drugs Act, on or about January 5, 1912, from the State of Penn- sylvania into the State of New Jersey of a quantity of frozen egg product which was adulterated. Adulteration of the product was charged in the indictment for the reason that it consisted in part of a filthy, decomposed, and putrid animal and vegetable substance. On June 12, 1913, the case having come on for trial before the court and a jury, after the submission of evidence and argument by counsel, the following charge was delivered to the jury by the court: Thompson, District Judge. The defendant corporation in this case is charged with the violation of what is known as the Pure Food and Drugs Act. The object of that act, as you all are aware, is to protect the consumers from having food or drugs sold to them and delivered to them which are adulterated or misbranded. Under this act it is not necessary to prove the knowledge of a defendant that the article shipped in interstate commerce was adulterated or misbranded. The responsibility is put upon dealers who ship. That is for the protection of the customer. The responsibility is put upon them of shipping only articles that are not adulterated or misbranded. The charge in this case is that the defendant corporation shipped in interstate commerce from Philadelphia, in the State of Pennsylvania, to Newark, in the State of New Jersey, the egg product that has been testified to in this case, and that the egg product in question was adulterated. Under the interstate commerce act, which is known as the Pure Food and Drugs Act, adulteration is defined in this way, an article is, under the act, held to be adulterated if it consists in whole or in part of a filthy, decomposed, or putrid animal sub- stance. The charge in this case was that the egg product which has been testified to was filthy, putrid, and decomposed. The defendant here is charged, through its president, with having delivered for shipment by the Pennsylvania Company this food product which is alleged to be adulterated. It seems to me that the first question for you to consider would be whether the product was in fact shipped by the president of the de- fendant within the scope of his authority as the president of the company, and within the scope of his employment. Upon the wit- DECISIONS OF COURTS. 661 ness stand he testified that he did not make out the shipping order through which this merchandise was shipped, and that he knew nothing about it. You will have to take into consideration the fact that he is an interested party in this case, being the president, and one of the owners of the defendant company, and the Government is, therefore, allowed to contradict his testimony by introducing expert testimony to show that the shipping order upon which this product was shipped, or alleged to be shipped, was in the same handwriting, written by the same person as the other shipping orders which it is admitted he did fill out and sign. So that the first question for you to consider will be the question as to whether that shipping order signed " Frank Riley " was written by the same person who wrote the other shipping orders. You have the testimony of the expert, and you have heard from him the basis on which he expresses an opinion that, without any doubt in his mind, the same person wrote the ship- ping order in dispute who wrote the shipping orders which are ad- mitted to be the act of the president of the defendant company. The inspection of these documents is also for you. You have a right, with your own knowledge of handwriting, to compare the two. They will be before 3^011 for comparison, and if you find from the evidence of the expert, and from your comparison of the handwriting, that the handwriting is the same in both instances, the handwriting of the president of the defendant company, then you have taken one step in the consideration of the case. If, however, upon a comparison of the handwriting and a consideration of the testimony of the expert you are not satisfied that it was written by the same person, then you would be justified in going no further in the case at all, because that is the link which connects the defendant company with the transac- tion. So that if you are not satisfied that it is his handwriting, written by the same person, you would then return a verdict of " Not guilty." But if, after having examined the writings, you are satis- fied beyond a reasonable doubt that the documents were written by the same person, then you will take up the other questions in the case. Now, it is for you to determine from the testimony, as you have heard it, whether the article which was inspected by the laboratory at Washington, and which has been testified to be adulterated within the meaning of the act, was the food that was shipped from the de- fendant to the concern in Newark, N. J. You will take into consid- eration the documentary evidence in the case and the testimony of the witnesses, and if you find from the documentary evidence and from the testimony that this frozen egg product is sufficiently traced from the defendant to the department at Washington, and you find it was adulterated, and you find it was shipped in interstate com- merce by the defendant, and it was adulterated within the meaning of the act, then you would be justified in returning a verdict of guilty. You will bear in mind in this case, as in all criminal cases, the defendant is entitled to the presumption of innocence, and it is upon the Government to establish the defendant's guilt beyond a reasonable doubt. When I say " reasonable doubt," I mean a doubt which would arise in the mind of a reasonable man from the evidence, and you are not to be influenced by anything outside of the evidence to determine whether or not a doubt exists ; that is to say, no preju- dice or whim or anything of that sort should influence you, but you should be governed entirely by the evidence in the case. 662 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. I do not know as there is anything further for me to say to you. The documents in evidence will be submitted to you. You can take them out, and you will return a verdict as you' think the evidence warrants it. Mr. Brinton. Some point was made in the argument about the date of shipment. The Court. The fact that there was a discrepancy between the date of the shipping order and that laid in the indictment is entirely im- material. I will say to you, gentlemen, there has been some point raised here as to the guaranty under the act. There has been no evidence here to establish any guaranty by the dealer from whom it is alleged this article came to relieve the defendant in this case. The act provides just what sort of a guaranty shall be given, and it is not necessary for me to go into the details of it, but no guaranty has been proved in the case, such as comes within the act. UNITED STATES v. FIVE CASES OF CHAMPAGNE. (District Court, N. D., New York, June 23, 1913.) 205 Fed. 817 ; N. J. No. 3109. Ordinary, low grade, carbonated white wine, packed in bottles and cases in imitation of champagne and labeled " Extra Dry," held misbranded. Libel under section 10 of the Food and Drugs Act. Judgment of condemnation. Ray, District Judge. About March 15, 1913, James L. Green, a wholesale liquor dealer of Watertown, N. Y., ordered from Henry H. Shufeldt and Company, of Peoria, 111., five cases of champagne, and said Shufeldt & Co. shipped and billed to him five cases of so-called champagne to fill the order and same was shipped and transported and received in interstate commerce. Each case contained twenty- four bottles, and [818] x each bottle holds about one pint of a liquid mixture which^ on due examination and test, is found to consist of a very cheap, ordinary, low grade carbonated white wine. It is not champagne in any sense of that word, but a low grade, cheap white wine charged with gas. It is bottled and labeled in the following manner. The bottle itself is of the same shape and made in imitation of the ordinary champagne bottle. This bottle is corked and dressed about the neck the same as and in very close imitation in every way of the ordinary genuine champagne bottle, or bottle containing cham- pagne; for instance, Mumm's Extra Dry. It has the same style of label and seal, both attached in the same manner. On the label is the name " Special Gold Cabinet, Superior Quality." There is also a coat of arms, and on one side initials " H. H. S. & Co.," and on the other " 3015." In short the bottles containing the cheap carbonated wine are such a close imitation in form, or shape, dress, corking, and label, that the ordinary observer would and does easily mistake, accept^ and use the imitation as a genuine bottle of imported champagne. This would 1 Numbers In brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 663 and does happen with a large number of purchasers and users, and it may be said with the ordinary user unless he gives the labels an in- spection to determine whether it is the genuine champagne bottle. Evidently it is gotten up and dressed and labeled in this way to de- ceive the ordinary purchaser and user of champagne. The wooden boxes and markings and labels thereon in which shipped also closely imitate the boxes in which genuine champagne is shipped. This is such an imitation as would make a case of unfair competition in trade. The Food and Drugs Act of June 30, 1906, provides amongst other things : " The term ' food,' as used herein shall include all arti- cles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound. (Section 6.)" Section 2 prohibits the introduction into any State from another State of any article of food which is adulterated or misbranded within the meaning of this act. Section 8 provides : That for the purposes of this act an article shall also be deemed to be mis- branded : * * * In the case of food : First. If it be an imitation of or of- fered for sale under the distinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser, or * * *. Provided, That an article of food (drink) which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. * * * And Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends and the word " com- pound," " imitation " or " blend," as the case may be, is plainly stated on the package in which it is offered for sale. In this case, there is nothing to indicate to the purchaser that these bottles contain an imitation or that an imitation is intended. Section 10 provides for the seizure and condemnation of adulter- ated or unbranded [misbranded] articles while being transported in interstate commerce, [819] or after transportation ajid while unsold or in original unbroken packages, which is this case. This wine in question was and is an imitation of genuine imported champagne, and was and is so labeled and branded as to deceive and mislead both the purchaser and users into the belief that it is genu- ine champagne. Is it within the proviso or exception quoted? It contains no added poisonous or deleterious ingredient or ingredients. It was not and is not offered for sale under the distinctive name " champagne," as that word is not on either bottle, label, or package, if the statute means, by " offered for sale under the distinctive name of another article/' that it must be so advertised, or bear on the package containing it the distinctive name of some other article. Even if it has a distinctive name " Special Gold Cabinet," still it is " an imita- tion of " and was actually " offered for sale " under the name " cham- pagne," which is the distinctive name of another article; that is, " champagne " was ordered, and the seller sent this article as and for champagne, thus not only offering it for sale as champagne, but sell- ing it as champagne. By his acts he represented it to be champagne. Hence this carbonated wine contained in these bottles and packages 664 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. is not within the proviso or exception, and must be held to be mis- branded and subject to seizure and condemnation. It is not sufficient to remove an imitation and misbranded article from the condemna- tion of this law that it has a distinctive name applied to it, as the very language of the proviso requires that, if known under its own distinctive name (if it has one) it (the article) must not be either an imitation of another article or offered for sale under the distinctive name of another article. Here this carbonated wine contained in these bottles and cases was in fact offered for sale and sold under the distinctive name of champagne, another article, and, what is con- clusive, was and is, in fact, an imitation of imported champagne. Again, can a distinctive name be given to. an imitation article unless it be to distinguish one imitation from another ? Clearly this cannot be done so as to bring a wine made and bottled and dressed in imita- tion of champagne, and sold and offered for sale as champagne, and delivered to fulfil orders for champagne, within the exception or pro- viso quoted, when it is so labeled or branded as to deceive and mis- lead the purchaser. In this case it is sufficient to bring these cases of wine, the wine contained in these bottles, within the condemnation of the statute, and without the protection of the exception or proviso, that they are in fact " an imitation of another article," viz., genuine imported champagne, and are labeled and branded so as to deceive or mislead the purchaser^ and are not labeled, branded, or tagged so as to plainly indicate that they are imitations, and the word " imitation " is not on the package. It must be borne in mind that in stating that this wine was actually offered for sale and sold under the distinctive name " champagne," I do not mean that the word " champagne " was on the bottles, labels or packages, but that the purchaser ordered champagne, and expected to get champagne, and the seller knew this, and supplied this cheap, carbonated wine, put up in these bottles, dressed, orna- mented, [820] and labeled in close imitation of champagne, and by these acts represented to the purchaser that he was selling and ship- ping to him genuine champagne. I think these facts bring the act of the seller within the language of the act, " offered for sale under the distinctive najne of another article." Hence I hold that; within the meaning of this statute, this wine was not only offered for sale, but actually sold, " under the distinctive name of another article ; " that is, genuine champagne. Again, these bottles containing this wine — that is, the package containing it, both bottles and box — bore designs and devices thereon plainly intended to relate to the contents of such bottles, and indicate to the purchaser and user thereof the nature and character of the substance contained in such bottles. In addition to the marks and words and designs mentioned, there were the words " Extra Dry/' indicating a grade of champagne, and these words were a plain misrepresentation and misstatement as to the character and quality of the contents, which were not " extra dry." These de- signs and devices very plainly said to a purchaser, " champagne," and were intended by the seller to say to the purchaser, " This bottle con- tains extra dry champagne." These designs and devices were false and misleading. The design and devices and certain of the words on these bottles could relate to the substances contained therein only, and had but one purpose and meaning. It was the purpose of Con- gress in enacting this, the " Food and Drugs Act, June 30, 1906," to DECISIONS OF COURTS. 665 put a stop to the transportation and sale in interstate commerce of adulterated and misbranded articles of food, drink, and drugs. It was intended to reach all forms of misrepresentation by misbranding, by the use of words, or by the use of designs or devices, pictures, &c, calculated to mislead and deceive^ cheat, or defraud the purchasers. If A, in New York, orders of B, in Illinois, one thousand one-pound packages of corn and one thousand packages are shipped and trans- ported from the one State to the other in fulfillment of the order, and such packages have labels reading " Fine Illinois," with the picture thereon, or on the package itself, of an ear of corn, but the packages in fact contain sawdust only, is there or is there not an offer for sale under the distinctive name of another article, and is or is not the package so labeled or branded as to deceive or mislead the purchaser, and does or does not the package containing the sawdust or its label bear a design, or device, regarding the substance contained in such package, which is false or misleading in any particular? What does the picture of the ear of corn on the package say ? And, in such case, is there or is there not a violation of the act in question ? Having in view the evils to be remedied, the purpose of Congress, and the lan- guage of the act, it seems to me there can be but one answer. A statute, if its wording will permit, is always to be construed so as to make effectual the intent of the law-making body in enacting it. In selling articles of food, including liquids for drinking, frauds on the public may be perpetrated in two wTays: (1) by adulterating or artificially coloring it, etc., the article itself; and (2) by putting it in packages or receptacles so formed or labeled and dressed as to induce the [821] purchaser to take it as one article, when in fact it is another. Congress aimed at both modes of committing a fraud on the public. There will be a judgment of condemnation. UNITED STATES, v. SPEAGUE et al. (District Court, E. D. New York. July 31, 1913.) 20S Fed. 419 ; N. J. No. 3295. An information charging that certain oysters were adulterated in that they " consisted in part of filthy, decomposed, and putrid animal and vegetable substance " held to state an offense under the act. Information against Smith Sprague and George W. Doughty, alleging violation of the Food and Drugs Act. On motion to quash and demurrer to information. Overruled.1 [420] 2 Chatfield, District Judge. The defendants have been brought into court upon an information filed under act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), known as the Pure Food and Drugs Act. The precise charge is that the defend- ants, as copartners, shipped from Far Kockaway, N. Y., to the State of Pennsylvania, 10 barrels of oysters, upon the 12th day of October, 1911 ; that the oysters were " adulterated " in that they " consisted in part of filthy, decomposed, and putrid animal and vegetable substance," and 1 Defendants subsequently entered a plea of nolo contendere, and the court suspended sentence. 2 Numbers in brackets refer to pages of Federal Reporter. 666 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. that the oysters were an article of food, as distinguished from drugs, etc. The information is sufficient in its general form. The defendants have appeared in court, and interposed a motion to quash the infor- mation upon three grounds: (1) That the information does not charge the defendants with knowingly and wilfully doing any of the things mentioned; (2) That the law above referred to does not cover, and was not intended to cover the shipment of oysters, and that a shipment of unopened oysters, in their natural condition, after re- moval from the water, is not within the language or intent of the sections relating to adulteration; (3) that the papers upon which the information was issued, and which are filed with the information, do not show the oysters to have been, in whole or in part, of a filthy, de- composed, or putrid animal or vegetable substance. The defendants have also interposed a demurrer upon the same grounds above men- tioned, [421] alleging that the information does not state facts suffi- cient to constitute a crime. It is apparent that some of these questions would be raised properly by demurrer rather than by motion to quash (for the alleged defects are claimed upon the allegations of the information, and argument thereon is based upon its language). The question with respect to the scope of the act, and the motion based upon the physical compo- sition or analysis of the substance in question, can be raised by the motions. In support of the motion to quash, the defendants have relied upon facts which are matters of common knowledge and ad- mitted by the United States attorney, to the effect that the oysters, in question were unopened when taken from the waters of a bay in this district by the shippers, and, without any treatment or manufac- ture, except that of gathering or packing for shipment, were trans- mitted in a living state. This presupposes that the muscular struc- ture of the oyster has kept the shell closed, and that nothing has been added thereto, or could have been added thereto, except through the application of liquid. It is alleged and admitted that no liquid has been supplied beyond the ordinary water upon or in which the oysters live. In addition, the motion is based upon the allegations of the information that the adulteration complained of consists of bacteria, particularly the bacillus typhosus and other animal and vegetable bacilli, which were admittedly absorbed by the live oyster during its process of growth ; that is to say, from the liquid which it consumed in its natural functions. The court will not attempt to differentiate between the points raised by demurrer and those raised upon the mo- tion to quash, other than to state them as they are taken up in order. As to the objection that the oysters did not consist in whole or in part of filthy, decomposed, or putrefied animal or vegetable sub- stance, no argument would be needed, if living bacilli had been know- ingly introduced into an oyster by the defendants, and allowed to re- produce therein. It seems hardly open to argument that the words " filthy, decomposed, and putrefied " would be applicable to certain conditions resulting from the presence of living organisms; and in fact, from common knowledge of the present state of scientific re- search, the conditions of animal substance known as " filthy, decom- posed, and putrefied " are caused by the presence of such living organ- isms. When we consider a specific bacillus such as that named, whether or not its presence might cause decomposition or putre- DECISIONS OP COURTS. 667 faction raises a question of fact that cannot be disposed of upon this motion, for the degree of decomposition of tissue might be so slight as to render the use of those words inapplicable, from the standpoint of a substance intended for food. But the language used in the statute is in the alternative, and in the information the words "filthy, decomposed, and putrid " are stated in conjunction. A sub- stance containing bacilli liable to cause disease, to such an extent as to make it dangerous for food purposes, is certainly " filthy ", under the meaning of that word as generally used, and especially since the result of investigation has shown that filth or dirtiness is dangerous through the germs which it contains, and not solely because of offense to the senses. [422] The statute prohibits the manufacture of any article of food or drugs which is " adulterated or misbranded," and by section 7, subd. 6, the definition of the word " adulteration," for the purposes of the statute, is made to cover a substance consisting in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not. It may be assumed that oysters, while belonging to the ani- mal kingdom, would not be classified as animals. But even if they be treated as fish or mollusk, and assuming that the words " whether manufactured or not " relate only to the clause as to the " portion of an animal unfit for food," the indication is that the certain intent of Congress was to give full meaning to the definition of " adulteration " defined as " consisting in whole or in part of a filthy substance." The ordinary use of " adulteration " implies an actual addition to the original substance, through human agency. But the word as used in the section does not restrict this to addition by the hand of man, and if the adulteration of filthy, decomposed, or putrid substance has been added by nature, and is contained in the article to be shipped, it is adulterated in the eyes of the law. This brings us to the principal question in the case. The statute makes it unlawful to manufacture any article of food or drug which is adulterated or misbranded within the meaning of this act. If a person, through his servants, makes an article which is in fact adulterated, he is liable for the manufacture, within the jurisdic- tion of the act of Congress, even though he does not know that the Pure Food and Drugs Law is on the statute book, and does not know that the resultant condition of his process of manufacture has pro- duced a substance which on analysis appears to be adulterated through containing decomposed animal matter. In the same way, he would be liable for a misbranding if the methods employed in his business caused the sending out of goods in violation of the statute. The law further makes any article of food or drugs which is adul- terated or misbranded, within the meaning of the act, contraband; that is, the introduction of them into another State or Territory is pro- hibited. Such goods cannot be transmitted by interstate commerce without rendering the goods subject to seizure and destruction, and under section 10 this of itself shows that the knowledge or intent of the party shipping is not a material element of the situation which is prohibited by the act of Congress. The law further provides that if any person shall ship or deliver for shipment, in unbroken packages or otherwise, an adulterated or misbranded article, or shall offer such for sale, he shall be guilty of a misdemeanor. 668 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The information in this proceeding charges the defendants with having offered for shipment an article which must be held to be adul- terated and to be plainly contraband under the law. They are bound by the fact that the law was in existence. They are bound by the fact that they knew that they were manufacturing for shipment, or were actually shipping by interstate commerce, certain packages of oysters, which would be contraband or subject to seizure if found to contain filthy or decomposed matter (that is, " adulterated ") within the meaning [423] of the law. Congress has seen fit to impose a penalty for such a violation, and it is no defense to claim that the person causing the violation neither knew at the time that the goods were offensive, nor intended to violate the law. Hence an allegation that the defendants knew that the article was adulterated, at the time that they intentionally and willfully shipped it or caused it to be shipped, would apply only to cases where the adulteration had been placed in the goods by or with the knowledge of the shipper, or where an examination of the article had disclosed its presence. But Congress has gone much further, and in the exercise of its police power has imposed a penalty upon the sending of the deleterious or harmful substance, where the shipper is responsible for the act of sending, even though he may have nothing to do with the condition of the article sent, except as possession or ownership make him re- sponsible. The use of interstate commerce or of means of shipping an article from one point to the other, like the manufacture of an article, or its adulteration with a substance by the person preparing it, is an act which, when alleged in an indictment, need be charged as " knowingly " committed only if the person charged has to be alleged to be in possession of and exercising his mental faculties. Such an allegation is not necessary where, as here, the word " ship " means " cause to be shipped." Where a person intentionally uses or has used means of transportation, under such conditions that he may un- wittingly be liable to a fine, then, subject to constitutional limita- tions, the imposition of the fine for the specific act must be deter- mined solely from the conditions under which the penalty would be imposed, and not from the intent or purpose of the one liable to the fine. The defendants have cited a number of cases to show that criminal intent requires knowledge or conscious action on the part of the criminal. They argue that a charge in the language of the statute is not sufficient if the act alleged could be innocently done, unless guilty knowledge is present, from which intent would have to be inferred. But this statute compels liability, if the harmful act has occurred through a shipment personally made by the defendant, or for which he is in a business sense responsible as shipper. The extent of the responsibility is left to the court, when considering the amount of punishment. The determination of when the defendant should be held as the shipper of the contraband article is a matter of law, but the fault of indefiniteness, or of failure to set forth what is charged to be criminal, cannot be urged against the present information. The statutory requirements render the matter more definite, so far as limiting or defining the circumstances under which Congress in- tended that criminal responsibility should be placed upon an indi- vidual, and less latitude is given to those enforcing the law (with respect to everything except the amount of punishment) than if a DECISIONS OF COURTS. 669 determination as to the knowledge or information of the defendant were to be entered into. The conclusion must be that if the person accused is responsible under the statute for the consequences of a shipment by interstate commerce, and if that responsibility carries with it a punishment for [424] violation of some regulation necessarj^ for the safety of health, then the information will lie. The demurrer will be overruled, and the motion to quash denied. UNITED STATES v. 13 CRATES OF FROZEN EGGS. (District Court, S. D, New York, October 20, 1913.) 208 Fed., 950; N. J. No. 2859. Frozen eggs, consisting in whole or in part of filthy, putrid and decomposed animal substance, held adulterated. Libel under section 10 of the Food and Drugs Act for the con- demnation of adulterated frozen eggs. Jury trial. Verdict in favor of the libelant by direction of the court. Decree of condemnation, forfeiture and destruction.1 This was a libel for the seizure and condemnation of 13 crates each containing 2 cans of frozen eggs, remaining unsold in the original unbroken packages in New York, N. Y.2 after having been trans- ported from the State of Illinois into the State of New York. The libel charged adulteration in violation of the Food and Drugs Act, for the reason that each of the 13 crates contained an article of food, to wit: Frozen eggs, which being animal substance, was in whole or in part filthy, putrid and decomposed, contrary to the provisions of subdivision 6, section 7 of the act. Ray, District Judge. The claimant, Armour and Company, of Chicago, 111., having a plant and place of business there, is a pur- chaser of and dealer in eggs and other food products, not a pro- ducer. At Chicago, 111., it purchased and had on hand these eggs in question and others like them. They were released from the shells and frozen, but by reason of decay had so far decom- posed that they were not fit for human food or consumption as such. As unfit for human consumption these with others had been selected and segregated by claimant at Chicago, 111., from their other eggs. It is conceded that these eggs had reached such a stage of decompo- sition as to come within the definition and description of " adulter- ated " articles of food if handled, shipped, or sold, or [951] 2 intended to be shipped and sold as an article of food. Eggs in this condition may be sold and used as an article of food, or for tanning purposes (that isj for use in the tanning of leather) , and claimant had sold eggs of this description, selected and segregated at the same time as these, to a tannery or tanning firm located and doing business at a point not far distant from Chicago for tanning purposes. It had not shipped or sold any of its eggs of this description to be used and consumed as an article of food and did not contemplate doing so. 1 Affirmed in Circuit Court of Appeals, Second Circuit, p. 709, post. 2 Numbers in brackets refer to pages of Federal Reporter. 670 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The thirteen crates of frozen eggs seized and sought to be con- demned in this proceeding were shipped by the claimant, Armour and Company, in interstate commerce from Chicago, 111., to New York City, N. Y., where that corporation had and has a warehouse and place of business and had been received there, but had not been sold or disposed of or offered for sale when the seizure was made. There are tanneries in the vicinity of New York, and in fact the intention of the claimant in so transporting these eggs in question from Chicago to New York was to offer them for sale and dispose of them, if possible, at New York for use in tanning and not for use or consumption as food. This intention or purpose of the claimant had not been disclosed in any way or manner to any person or by any labeling or branding. The eggs in question had not been de- natured or subjected to any chemical or other process. They were rotten, decayed eggs, unfit for human food, and came within the definition " adulterated " for the reason they consisted in whole or in part of a filthy and decomposed or putrid animal or vegetable sub- stance. See subdivision sixth, section 7, of the Food and Drugs Act of June 30, 1906, 34 Stat. 768. By section 6 of the act it is provided that " The term food as used herein shall include all articles used for food * * * whether simple, mixed or compound." By section 2 the introduction into one State from another State " * * * of any article of food * * * which is adulterated * * * within the meaning of this act, is hereby prohibited." Section 10 provides for the seizure and condem- nation of " any article of food * * * that is adulterated * * * within the meaning of this act " and which, having been transported in interstate commerce; remains unsold, etc. The contention of the United States is that eggs are an article of food, and that they remain such if not denatured or subjected to some chemical process which destroys them as ah article of food, and that when they become decomposed and therefore unfit for food they are within the meaning of the act (section 7, subdivision sixth), an adul- terated article of food and subject to the condemnation of the act. The contention of the claimant is that while the eggs prior to decom- position were an article of food, when decomposed they have lost their character as an article of food if the owner does not intend to use, transport, or sell them as an article of food but does intend to transport them and sell them for tanning purposes only and trans- ports them for that purpose only. The contention is that an undis- closed intent to transport in interstate commerce and sell decomposed eggs, which are actually unfit for food, for use in tanning only takes the same out of the category of " adulterated article of food." Tiie difficulty with this contention is that these eggs, or eggs of this [952] character, not denatured, come squarely within the definition of an adulterated article of food. The character of the thing does not depend on the intent or purpose of the owner in transporting it or selling it, or the purpose the owner may have in selling it. It seems to me clear that the purpose of Congress was to prohibit the trans- portation of articles in interstate commerce which come within the definition- given in the statute and make them subject to seizure and condemnation if so transported. If such is not the purpose, then in- terstate commerce may be flooded with eggs of this character and the DECISIONS OP COUKTS. 671 Government will be compelled to prove that the intent of the one transporting the article was to use or sell same as an article of food. Even if the burden is not shifted and the presumption is that it was intended to use or sell such an article as food or as an article of food, still the owner so transporting the article will escape the operation of the statute b}^ swearing to an undisclosed intent which the Govern- ment will be unable to disprove, unless the article has been actually put on sale or sold as an article of food. If these eggs had been de- natured so as to destroy them as an article of food (that is, take them outside the statutory definition of " adulterated " article of food) , the case would be entirely different. It is no hardship to give a construc- tion to this pure food and drugs act which will make it effective and accomplish the purpose intended so long as it is not made oppressive. In all cases of the transportation of frozen eggs so far decayed as to render them unfit for human food the owner may denature them be- fore shipping or perhaps label them ; but in any event, so long as the statute stands as it does, the transportation in interstate commerce of frozen eggs, or eggs not frozen but so far decayed or decomposed that it may be said the}^ consist "in whole or in part of a filthy, decom- posed, or putrid animal or vegetable substance," is prohibited, as eggs, whether the contents of the shell be therein, or removed and in cans or other receptacles and frozen or unfrozen, are an article generally and almost universally used and dealt in as and for food and are adulterated when they consist of a " decomposed animal or vegetable substance." Eggs are either an animal or a vegetable substance. Clearly they are not a mineral substance. The title of this Food and Drugs Act declares it to be : "An act to prevent the manufacture, sale or transportation of adulterated, or misbranded, or poisonous, or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes." Would it be an answer to the seizure and attempted condemnation of a carload of partly de- composed beef being transported from Chicago to New York, for the owner to say " I did not intend it to be used or sold in New York for food, but as soap grease or a fertilizer " ; such purpose not having been in any manner disclosed ? Philadelphia Pickling Co. v. United States (C. C. A. 3rd Circuit) , 202 Fed. 150, 120 C. C. A. 429, while not on " all fours " with this case in all its facts, is, it seems to me^ on " all fours " in principle, unless it can be said that inasmuch as partially decayed eggs, a decomposed article of food, having become unfit for food, are no longer an adulterated article of food, but an article for use in tan- ning leather, and hence not within the act at all as they may be and sometimes are used for that purpose. This contention cannot be sus- tained. If decomposed eggs were incapable of being used for food, as in making cakes and the like, the case would be different. The construction of this Pure Food and Drugs Act contended for by this claimant would open the door to the unrestrained transportation in interstate commerce of partially decomposed eggs, as the owner and dealer would, it might be honestly, transport them for sale in another State for use in tanning and actually, so far as he is concerned, sell them for that purpose or to some one claiming to purchase them for such purpose, when in fact the purchaser was intending to use them as an article of food, or to dispose of them to some one to mix with flour, etc., and use as an ingredient in an article of food, such a& cake, etc. 672 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. In Hipolite Egg Company v. United States, 220 U. S. 45, 31 Sup. Cfc'364, 55 L. Ed. 364, the object of this Pure Food and Drug Act is declared to be: to keep adulterated articles out of the channels of interstate commerce, or if they enter such commerce to condemn them while in transit, or in original or unbroken packages after reaching destination ; and the provisions of section 10 of the act apply not only to articles for sale but also to articles to be used as raw material in the manufacture of some other product. In that case the " other product " was an article of food as the eggs were to be used for baking purposes, but I do not see that such fact affects the force of the decisions as to the purpose of the act, which is to prevent the transportation in interstate commerce of adulterated articles which these eggs, within the definition of the law-making body, are conceded to have been. Eggs released from the shell, and frozen or unfrozen, are an " article of food," and, if adulterated, their transportation in inter- state commerce is prohibited, and the act says (sec. 7) : " That for the purposes of this act an article shall be deemed to be adulterated * * * in the case of food : * * * Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable sub- stance, or any portion of an animal unfit for food, whether manu- factured or not," etc. The fact that decomposed eggs ought not to be used for food or as an ingredient of some food article does not remove them from the category of adulterated article of food, they being within the statutory definition, nor does the fact that they may be used for tanning purposes. If the statute is to be construed so as to make it effective to prevent the interstate transportation of eggs, decomposed or partly decomposed, and hence unfit for human con- sumption, and thus carry out the intent and purpose of Congress, the eggs in question must be held to be within the operation of the act and subject to condemnation. There will be an entry directing a verdict of condemnation and a judgment accordingly. UNITED STATES v. FINLAYSON et al. (District Court, S. D. New York, October 23, 1913.) N. J. No. 2914. An article labeled " Genuine Hollands Geneva Gin Deer's Head Brand Dis- tilled by London Wine & Spirit Co. New York." held not misbranded as purporting to be a foreign product when not so. Information alleging violation of the Food and Drugs Act. Jury trial. Verdict of not guilty. This information alleged violation of the Food and Drugs Act by Alexander M. Finlayson, George H. Armstrong and Etta E. Parish, doing business under the firm name and style of London Wine & Spirit Co., New York, N. Y. The alleged offense consisted in the shipment from the State of New York into the State of Massa- chusetts of a quantity of gin which was alleged to be misbranded. The gin in question was labeled " Genuine Hollands Geneva Gin Deer's Head Brand Distilled by London Wine & Spirit Co. New DECISIONS OP COURTS. 673 York. Deer's Head Brand is the finest type of pure and well matured gin." Misbranding of this product was alleged for the reason that it purported to be a foreign product, to wit: A product of Holland, when not so, but was a product of the United States; and further misbranded in that the statements, designs and devices on the label thereof were false and misleading and calculated to deceive and mislead the purchaser thereof in that said label indicated that the article was a product manufactured or produced in Holland, whereas, in truth and in fact, it was a product manufactured and produced in the United States ; and further misbranded in that it was an imitation of genuine Hollands Geneva gin, and was offered for sale under the distinctive name of that article, whereas it was not genuine Hollands Geneva gin, but was a different article. Mayer, District Judge (charge to the jury). This question before you is apparently an important one, and the case deserves and I have no doubt will receive at your hands very careful and deliberate atten- tion, and I am about to endeavor to instruct you as to the law with considerable care, so that the real issues in the case may be entirely clear to you, and that in such discussion as you may indulge in in the secrecy of the jury room, you may not be led off into subject-matter unrelated to and irrelevant to the issue that you must determine. At the outset you must dismiss from your minds any impression if such should perhaps exist — and I feel quite confident that it does not — as to a controversy in this case between different classes of merchants. This is not a case where these defendants are on trial for some encroachment on a label of another person in the same general line of business. If these defendants or any other persons, at any time, put out goods in some manner that another merchant feels is unfair to him, such question is to be decided in another tribunal, and at another time, and in a proper proceeding, because the case here is a criminal prosecution, specifically brought under a particular statute, whose language, so far as applicable here, will, I am sure, appear very clear and very simple to you. You will not, I am sure, entertain any prejudice or impression, whatever your individual line of business may be, either for or against importers, or for or against domestic manufacturers, because that is not the question in this case. Nor is there any question here before you of trade competition. Every man living in this country, whether he is engaged in the importation of goods, or in the domestic handling of goods, is entitled to compete fairly with other men in the same line of business, and along lines sanctioned by the law. The sole question that you have to determine is a question of fact which I shall state to you in a few moments, and that question of fact, so far as you are concerned, comes as I have said on several occa- sions throughout this trial, within a narrow scope. In this class of cases, the proceeding being of a criminal nature, it is begun usually by what is known as an information, which, to all intents and purposes, has the effect of an indictment. There were more counts in this information than are before you now, but only the last or third count is for you to consider, and I say that so that if you should have occasion to look at the indictment you will not read or pay any attention to the first and second counts. 40066—14 43 674 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The third count is brief, and so far as it is relevant I will read it. It charges that in this jurisdiction the defendants, who are Mr. Finlayson, Mr. Armstrong, and Etta E. Parish, doing business under the name and style of London Wine & Spirit Company, made an in- terstate shipment of a certain article of food in a bottle labeled as follows — and then follows the label that you have seen and with which you are familiar — which said article shipped as aforesaid, was misbranded in that it purported to be a foreign product, to wit, a product of Holland, when it was not so, but was a product of the United States. And the said article was further misbranded, in that the statement, design, and device on the label thereof were false and misleading and calculated to deceive and mislead the purchaser thereof, in that said label would indicate that the said article was a product manufactured or produced in Holland, whereas, in truth and in fact, the said article was an article manufactured and produced in the United States, and that said article was fur- ther misbranded, in that it was an imitation of genuine Hollands Geneva Gin, and was offered for sale under the distinctive name of that article, whereas, in truth and in fact, the said article was not genuine Hollands Geneva Gin, but was a different article. Now the statute under which this information is laid reads as follows, so far as here applicable: That the term " misbranded," as used herein shall apply to all drugs or articles of food, or articles which enter into the composition of food, the pack- age or label of which shall bear any statement, design or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufac- tured or produced. And then the statute goes on, that for the purposes of this act an article shall also be deemed to be misbranded if it be labeled or branded so as to deceive or mislead the purchaser, or purport to be a foreign product when not so. When Congress passed this act it also passed in the act a provision allowing the Department of Agriculture to make rules and regula- tions, in accordance with the act, which when made should have the force of law, and so there is this regulation, which has the force of law, and which is applicable to this case, and upon which this case will practically turn. The use of a geographical name in connection with a food or drug product will not be deemed a misbranding when by reason of long usage it has come to represent a generic term, and is used to indicate the style, type, or brand, but in all such cases, the State or Territory where any such article is manufac- tured or produced shall be stated upon the principal label. The authorities recognize what many of us knew in one way or the other, that long usage has at times transformed a geographical name into a name that does not designate, necessarily, the place from which the article comes, but designates the style or type or brand of the article, and the further fact that this regulation was made by these experienced men in departmental work, doubtless — when I say " men " by " men " I mean, of course, always by the head of the de- partment, but doubtless upon the advice and investigation of the subordinates under him — the very fact that such a regulation was made is in itself a recognition of the proposition that there are cases where the original meaning of the word has been added to, so that the word has a larger or more comprehensive meaning than it had origi- nally. DECISIONS OP COURTS. 675 " Generic " is a simple word, with which I think you are all familiar. It may be defined, I suppose, as meaning a class, as dis- tinct from "specific," which might mean a particular member of a class, and when it is used in this regulation, which I have just read, in connection with the word " term," so as to create the phrase " a generic term," that word " generic " means a class. "A generic term " means the description of a class Of product. If I have made the simple words of this act clear, and the words of this regulation clear, then we may go on to consider what is the issue before you. If, as a fact, you believe that the words " Holland " or " Hollands Gin " or " Hollands Geneva Gin " have acquired this generic mean- ing, so that they are no longer confined to a description of the place from which the gin comes, then the defendants are entitled to an ac- quittal at your hands, without any further consideration upon your part. If you believe that those words include domestic gin of the Hol- land flavor and type, then the use of the word " Genuine " in this label does not add anything to the Government's position in the case. If that be your construction of the facts in the case, then " Genuine " may be construed as meaning a gin of the Holland taste or type, as distinctive from the other kinds of gin ; to wit, the English gins, such as Tom; Dry, and Sloe Gin. There is no definition of what " long usage " is. Those words are elastic, because you can readily see that there are certain kinds of products known in our commercial life which have been known for a considerable time; there are other kinds of products which have been known only a very short time, and the words " long usage " are a good deal like the word " reasonable ; " they change with time and circumstances and the developments of a complex civilization. You are to determine. I am not going to define " long usage," because I can not do it. You are to determine upon the facts of this case whether the usage that has been testified to may fairly be said to be a " long usage." The evidence in the case shows that so far as these defendants are concerned they have used this particular label for a matter of, I think, at least seventeen years, excepting, perhaps, the lower part, and that they have used for some fifteen years, so that their use of this term preceded the Food and Drugs Act. You have also the testimony of other domestic manufacturers as to usage for a considerable number of years. Have these gentlemen who put out domestic gin under this designa- tion done so fairly and honestly, with no attempt at deception, and in such a manner as to create in the mind of the purchaser the idea that when he asks for a Holland gin he is asking for a gin of a flavor and a taste different from the other kinds of gin ? We are not at all concerned with what the importer thinks about it or what the domestic manufacturer thinks about it. We are con- cerned to determine whether, on all the evidence in this case, the purchaser, the ordinary, sane, fair-minded man, is purchasing an article that is intended to make him think it comes from Holland, or an article which has become widely known as an article not neces- sarily coming from Holland, but having a taste different from the other kinds of gin. 676 FEDEEAL EOOD AND DBUGS ACT AND DECISIONS. Pretty nearly everything but the crucial question in this case is not a matter of contradiction. The defendants do not deny that there was an interstate shipment, which brings the case into this court. They admit and concede, without equivocation, that Holland gin, or Hollands Geneva gin was originally the designation of gin made in Holland. They stand, as must the Government, upon the single proposition — the Government says that label means that it is intended to convince or lead any person who buys that article to believe that it was made in Holland, and the defendants say that that is not correct, that that label is intended, not to mislead the public but to inform the public that the contents of that bottle are gin of a certain flavor and type, and that that gin by long usage in this country has come to be known, because of its flavor and type, as a Holland gin. That is the question in this case, and you have got to determine it on the evidence adduced. You have heard all of these witnesses. It seemed to me, although you will exercise your judgment and not take mine, that practically every man was conscientiously giving his point of view as he understood it. One set of men having their minds very much on the imported article, the other set of men being familiar with the course and practices of this particular branch of business in this country. It is for you to determine, and that is one of the values of sending cases of this particular class to a jury of business men drawn from various kinds of work, because you are to determine the fact in this case, which is what I have said. But there is another rule or set of rules which apply in this case. We have had in the case the atmosphere of a civil trial. That has been the court-room atmosphere, because counsel, notwithstanding their very natural occasional controversies, are gentlemen who tried the case in courteous fashion, and the whole conduct of the case has been such to make you forget, perhaps, and at times to make the Court forget; that the case is not a civil case but a criminal case, and while the penalty under, this act for a first offense is not a severe penalty, yet the mere conviction is a matter of profound importance to any reputable merchant. There is no controversy here as to the contents of this bottle being other than entirely proper. No suggestion in the information, and therefore there will be none in the evidence, that this is other than a perfectly proper domestic gin, which has been put in the bottle that contains this label, so it is not a case where you are to be diverted by any notion of a bad product being put up. It is also entirely clear in this case that a different process is used for the manufacture or distillation of Holland gin from these other gins; and that that process has long been used in this country and is familiar to persons in the trade, and as presumably is the taste to the man who drinks gin. So that we get back, and I am repeating myself purposely, to the sole question as to whether this Hollands gin has acquired this extra meaning, and if it has, that is the end of the Government's case, and whether it has, is for you to say. But, as I started to conclude, this is none the less a criminal case, and every man under our system is presumed to be innocent until he is proven guilty beyond a reasonable doubt, and before the Govern- DECISIONS OF COUETS. 677 ment may look for a conviction, or rather I would put it a little bet- ter, before a conviction may be had of any man informed against, or indicted, it is incumbent on the Government to prove his guilt beyond a reasonable doubt. So that in this case your decision does not necessarily finally deter- mine whether the defendants in some civil relationship may use this designation or not. If you entertain a reasonable doubt, such a doubt as a fair-minded man entertains in a consideration of the important affairs of his own life, then the defendants are none the less entitled to an acquittal at your hands. Finally, I may say that in regard to the testimony in cases of this kind, it is quite usual to introduce the definitions from dictionaries, but those definitions have no greater force, and very frequently not as great a force, as the testimony that falls from human lips, where a witness is sworn and able to be examined and cross-examined. AVhat you find in the dictionary is merely the conscientious definition, pre- sumably conscientious, of learned men who have collated their infor- mation from various sources, and it has no more effect, and perhaps not as great, as the sworn words of human beings. I think now that I have covered about all that is necessary to be said, and I hope that I have made the issue to be determined entirely clear, and I sincerely hope that you will confine your deliberations to that particular question that I have referred to under the rules that I have given you, and not be misled by anything that occurred in the case to indicate that this was, perchance, a controversy between merchants of various kinds. The Government has made a certain request to charge. I feel that I have charged sufficiently fully, and I decline to grant the Govern- ment's request. The request last referred to reads as follows : That it is your duty to determine whether taking the label as a whole it Is misleading to the average purchaser in that it creates in the mind of the purchaser the impression that he is getting a gin of the Holland type produced in Holland. Mr. Proskatjer. I have one request, your honor. May I state it orally ? The Court. Yes. Mr. Proskatjer. I ask your honor to charge the jury that the words " distilled by the London Wine & Spirit Co., New York " is a fair compliance with the second provision of the section, stating that where the word has a generic meaning the label shall also contain a statement of the State where it is distilled or made. Mr. Atjchincloss. Your honor, it seems to me that is a question for the jury. The Court. No, I think that is a question of law. I so charge. Mr. Proskauer. In other words, your honor charges the jury that that is a fair statement that the product is made in New York. The Court. Yes ; that leaves simply the single question for the jury to determine. 678 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES v. LIBBY, McNEILL & LIBBY. (District Court, E. D. Virginia, January 17, 1913, and Circuit Court of Appeals, Fourth Circuit, November 12, 1913.) 210 Fed. 148 : N. J. No. 2938. Condensed skimmed milk to which cane sugar had been added and the presence of the cane sugar not declared on the label, held adulterated and mis- branded. Information alleging violation of the Food and Drugs Act. Jury trial. Verdict of guilty. Waddell, District Judge (charge to the jury.1 This is an informa- tion filed by the district attorney against Libby, McNeill & Libby, a corporation. The first count charges that, in violation of the act of Congress, known as the Food and Drugs Act, the defendant shipped in interstate commerce fifteen cases of an article of food, known as con- densed milk, which it is alleged is adulterated within the meaning of the said act of Congress, in that a certain substance, to wit, cane sugar, had been substituted in part for said article. The second count charges that the same shipment is misbranded within the meaning of the said act of Congress, because the labels on the packages containing the said article of food are alleged to be false and misleading, in that the statement " Condensed Skimmed Milk ' borne thereon is false and misleading on the ground that the product is not wholly condensed skimmed milk, but is sweetened con- densed milk, containing about 42.17 per cent of cane sugar. The court charges you that if you believe from the evidence be- yond a reasonable doubt that the defendant company on or about the 3rd day of May, 1912, at the city of Portsmouth, in this district, delivered to the Seaboard Air Line Railway, a corporation common carrier engaged in interstate commerce, fifteen cases of an article known as condensed skimmed milk for shipment to Savannah, Geor- gia, and that such a product was labeled and sold as a condensed skimmed milk, but that it contained 42.17 per cent of cane sugar, and that said sugar is not a component part of condensed skimmed milk, then you are further charged that the substitution of the cane sugar in part for the said product is in violation of section 7, paragraph two of said act of Congress, and therefore constitutes adulteration within the meaning of the said act. You are further charged that if you believe from the evidence be- yond a reasonable doubt that the said product was delivered as afore- said, for shipment to another State, and that the label or brand on said product is false or misleading in any particular, then you are further charged that the product is misbranded within the meaning of the Food and Drugs Act, and you should find the defendant guilty. You are further charged that it is not necessary for the Govern- ment to prove that the substitute substance, if you believe a substance has been substituted, in material part, for the milk, is deleterious or poisonous, or injurious to health; it is sufficient within the meaning of the law if any substance not a component part of the original sub- 1 Not published in Federal Reporter. See N. ,T. 2938. DECISIONS OF COUKTS. 679 stance has been substituted. If such substance was substituted, then the article was adulterated, and you should so find. In Error to the District Court of the United States for the East, ern District of Virginia. Affirmed. [148] 1 Before Pritchard and Woods, Circuit Judges, and Rose, District Judge. Rose, District Judge, delivered the opinion of the court. This is a prosecution under the Food and Drugs Act. It raises two questions as to the construction of that statute : First. Are words in every-day use to be given when found on the labels of food products their ordinary and popular meaning rather than the commercial significance which they have acquired among manufacturers and dealers? Second. Does the first proviso to section 8 of the act permit the use as a name for a compound or mixture intended for food of common words which will to an ordinary man appear to be descriptive but which, if so understood, will be false and misleading % [149] The plaintiff in error was the defendant below. It will be so called here. It is a Maine corporation. Its factory is in Chicago. Among other things it there prepares what it calls the " Target Brand of Condensed Skimmed Milk." It does not put out this prod- uct under its own name, but under that of the " Foster Packing Com- pany." That designation is not the name of an actual corporation, but is a mere trade-name under which the defendant, for some reason of its own, chooses to market some of its products. It is admitted that what it labels " Condensed Skimmed Milk " contains something more than two parts of cane sugar to something less than three parts of the more nearly solid constituents of skimmed milk. The infor- mation charged that the product was adulterated, because cane sugar had been in part substituted for skimmed milk and that it was mis- brancled, because the label was false and misleading, in that the con- tents of the can were not wholly condensed skimmed milk, but were to the extent of 42 per cent cane sugar. The record shows that milk which has been reduced by evapora- tion to a fourth or less of its original weight is sometimes sweetened and sometimes is not. When it is sweetened, sugar is added to the skimmed milk while the latter is still in its natural state, in the pro- portion of three parts of sugar to twenty parts of milk. The mix- ture is then subjected to a process of condensation by evaporation, the effect of which is to reduce its weight by about 70 per cent. Of the 30 per cent remaining, upwards of two-fifths will be sugar. Un- sweetened skimmed milk is condensed or evaporated in the same manner, except that, of course, no sugar is added to it. Unsweet- ened condensed or evaporated milk, whether skimmed or unskimmed, must be thoroughly sterilized before being hermetically sealed. After the seal is broken, it will not keep as long as the sweetened. In the latter the sugar acts as a preservative. The defendant offers much evidence that manufacturers and whole- sale and retail dealers of and in food products know that what passes under the name of " condensed milk " or " condensed skimmed milk " contains a large percentage of sugar. Many of them said that when 1 Numbers in brackets refer to pages of Federal Reporter. 680 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. they ordered condensed skimmed milk they expect to get the sweetened article. If the unsweetened were sent them, they would feel that they had been imposed upon. From the testimony of some of these witnesses, however, it appeared that there were on the market many brands of sweetened condensed skimmed milk which were labeled " sweetened," and others which, containing no added sugar, were marked as " unsweetened." The defendant asked the court to give eight instructions to the jury. Six of these, although in varying phraseology, were to the effect that; if condensed skimmed milk as commercially known is concentrated milk to which sugar has been added, the defendant must be acquitted. These instructions were refused. There is no question that words should sometimes be given their trade or commercial meaning rather than their more ordinary one. Such has been long the rule of construction applied to tariff and revenue acts. [150] Laws regulating the payment of duties are for practical appli- cation to commercial operations, and are to be understood in a commer- cial sense. Such laws are intended for practical use and application by men engaged in commerce, and hence it has become a settled rule in the interpretation of statutes of this description to construe the language adopted by the legislature and particularly in the denomi- nation of articles according to the commercial understanding of the terms used. Tyng v. Grinnell, Collector, 92 U. S. 470, 23 L. Ed. 733. On the other hand, when it is alleged that a particular description, branding, or method of offering of goods for sale will enable one dealer to pass off his products for those of another, it is usually imma- terial whether dealers in such articles are deceived or not. The in- quiry in such cases is whether the ultimate purchaser will be misled. Hopkins on Trade-Marks, sec. 106. Pure food laws are intended to protect the public whose members may be, and in the more numerous part usually are, ignorant of the technical significance which ordinary words may have acquired in particular trades or industries. The Supreme Court of Michigan has said that decisions construing revenue acts — do not apply to cases arising under the pure food laws of State governments. Courts will take cognizance of the well-known fact that farmers, laboring men, and consumers are not generally familiar with the customs of trade and com- merce in importing goods, or of the understandings of the trade between manu- facturers and merchants who buy these products for retail trade. Such con- struction would emasculate the pure food laws, and deprive the people of the protection which the legislature wisely intended to give them. Armour & Co. v. Dairy & Food Commissioner, 159 Mich. 10, 123 N. W. 580, 25 L. R. A. (N. S.) 616. We fully concur in this statement of the true rule of construction to be applied to pure food statutes, whether State or Federal. It fol- lows that the learned judge rightfully refused to instruct the jury otherwise. The other two requests of the defendant for instructions were that the jury should be told in effect that, if they should find that con- densed skimmed milk as manufactured and sold to the public is a mixture or compound sold under its own distinctive name, the de- fendant was not required to indicate on the label of the product the presence of sugar in it. These requests were also denied. DECISIONS OF COURTS. 681 It is not necessary in this case to attempt an exhaustive construc- tion of the first proviso of section 8 of the act. In our view it has no application to the facts of this case. The words on the label were all in ordinary use. Each and every one of them could and would be understood by the general public to have been intended to convey their accustomed meaning ; that is to say, the average man who read the label would suppose that the can contained skimmed milk which had been reduced in bulk by evaporating or otherwise driving off a part of its fluids. Defendant does not question that unsweetened milk may be and habitually is subjected to this process and that a marketable product is thereby obtained. The description on its label would be strictly accurate if applied to such milk product, provided that the words [15.1] used are to be given their customary significance. Under such circumstances, the defendant may not use them to indicate the pres- ence in substantial quantities of a constituent, the existence of which in the product they in their ordinary meaning impliedly deny. The construction which is here put upon the statute works no hardship upon the defendant or upon other manufacturers and deal- ers in like case with it. It does not claim that its trade will be hurt by telling the purchasers of its goods that there is sugar in them. Its whole contention here rests upon the assumption that they already know that there is. If that be true, no harm will be done by stating the fact in plain language upon the label. The defendant assigns error in the instructions actually given by the court below. They, however, do not appear to be open to criti- cism- They left to the jury to find, in addition to the other essen- tial facts, whether sugar was a component part of condensed skimmed milk. Affirmed. UNITED STATES v. FIVE CASES OF HURDLE BRAND HOLLAND GIN. (Supreme Court of the District of Columbia, December 1, 1913.) N. J. No. 3397; 41 Washington Law Reporter, 7S3. An article manufactured in the United States, labeled " Hurdle Brand Hol- land Gin distilled by Baird Daniels Co., Warehouse Point," held not misbranded as purporting to be a foreign product. Libel for the condemnation of a quantity of gin on the ground that it was misbranded in that it purported to be a foreign product when not so. Hearing on libel and answer. Libel dismissed. GornLD, Judge. The questions involved in this case are raised by a libel filed by the United States under the act of Congress of June 30, 1906, commonly known as the Food and Drugs Act, in which it is sought to condemn five cases, containing twelve bottles each of a liquid called gin, on the ground that the same are misbranded. The misbranding is charged to consist in labeling the liquid in such manner as to deceive a purchaser into the belief that it is a foreign product distilled in Holland, in the Kingdom of the Netherlands, whereas it was, in fact, distilled at Warehouse Point, in the State of Connecticut. The claimants are A. E. Beitzel, in whose possession 682 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. the gin was found, and the Baird Daniels Company, which distilled it. The label, a facsimile of which contains the alleged misbranding, appears in the libel. Section 8 of the Food and Drugs Act provides as follows: Sec. 8. That the term " misbranded " as used herein shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regard- ing such article or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manu- factured or produced. In the case of food : First. If it be an imitation of or offered for sale under the distinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser or purport to be a foreign product when not so. Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular. On January 31, 1908, the department promulgated what is desig- nated as regulation 19, which deals with the questions raised by the instant case. It reads as follows: (b) The use of a geographical name shall not be permitted in connection with a food or drug product not manufactured or produced in that place when such name indicates that the article was manufactured or produced in that place. (c) The use of a geographical name in connection with a food or drug prod- uct will not be deemed a misbranding when by reason of long usage it has come to represent a generic term and is used to indicate a style, type, or brand; but in all such cases the State or Territory where any such article is manufactured or produced shall be stated upon the principal label. (d) A foreign name which is recognized as distinctive of a product of a foreign country shall not be used upon an article of domestic origin except as an indication of the type or style of quality or manufacture, and then only when so qualified that it can not be offered for sale undejr the name of a foreign article. Two questions are thus presented for decision: 1st. Has the word " Holland," by reason of long usage, come to represent a generic term as applied to gin? 2d. Does the label fairly state the State or Territory where the article in question is manufactured? If the word " Holland," a geographical name? when used in con- nection with gin has acquired a generic meaning as indicating a particular style, type, or brand of gin, and if the place of manufac- ture is fairly stated upon the label, the claimant, the Baird Daniels Company, would appear to have complied with the law. Probably the larger question, suggested by the terms of the statute itself, is also involved, viz, whether the label is such as to deceive or mislead a purchaser or purports to be upon a foreign product when not so. For, as Attorney General Wickersham once said, one of the main purposes of the Pure Food Law is to prevent deception being practiced on the public. 1st, The testimony for both the libelant and claimant leaves no room for doubt that Holland gin is essentially a distinct type op kind of gin, differing from either a dry gin or a sloe gin. The ex- perts, having practical knowledge of the methods used in producing DECISIONS OF COURTS. 683 each kind, state that the Holland gin is an alcoholic beverage made from small grains, specifically rye, barley, and barley malt, and that, in the distilling, the essential oils of the grain are retained and the fusel oils eliminated, thus giving the liquor its peculiar flavor and rendering it a " Holland " gin, with or without the addition of juniper berries. In a dry gin, on the other hand, the essential oils are entirely eliminated and the pure neutral spirit is distilled from o variety of flavoring materials, one of which is usually juniper berries. The evidence clearly establishes the distinct characters and qualities of the two kinds of gin, the first known as Holland gin and the second as English or dry gin. It may be observed, although not especially significant, that while Holland gin received its name from the fact that it was distilled in Holland, the evidence shows that the elements are not grown or pro- duced in Holland. The grain is obtained by Holland distillers from Russia, Austria, and the United States, and the juniper berries from Italy or Germany. The evidence also establishes the fact that gin, having the genuine characteristics of Holland gin, has been manufactured in this country for at least eighteen years. The standard dictionaries and encyclopedias, to which it is per- mitted to resort as authoritative sources for information in such cases (United States v. Corno Feed, 188 Fed. 453), make clear the distinc- tive character of Holland gin. The Century Dictionary and Cyclopedia, vol. 3, p. 2516, under the word " gin," says : Gin. Abbreviation of Geneva, or rather of tbe older form genever * * * see geneva juniper. An aromatic spirit prepared from rye or other grain and flavored with juniper berries. The two important varieties of gin are Dutch gin, also called Holland and Schiedam, and English gin, known often by the name " Old Tom." Holland gin is almost free from sweetness and is generally purer than English. In the eleventh edition of the Encyclopedia Brittanica, vol. 12, p. 26, after defining the word " gin " as " an aromatized or compounded potable spirit, the characteristic flavor of which is derived from the juniper berry," and stating that the word is an abbreviation of geneva, both being primarily derived from the French genievre (juniper), says : There are two distinct types of gin, namely, the Dutch geneva or Holland and British gin. Each of these types exists in the shape of numerous subvarieties. Broadly speaking, British gin is prepared with a highly rectified spirit, whereas in the manufacture of Dutch gin a preliminary rectification is not an integral part of the process. The old-fashioned Hollands is prepared much after the following fashion : The mash, consisting of about one-third of malted barley or bere #nd two-thirds rye meal, is prepared and infused at somewhat high temperature. After cooling the whole is set to ferment with a small quantity of yeast. After two or three days the attenuation is complete, and the wash so obtained is distilled, and the resulting distillate (the low wines) is redistilled, with the addition of the flavoring matter (juniper berries, etc.) and a little salt. Originally the juniper berries were ground with the malt, but this practice no longer obtains, but some distillers, it is believed, still mix the juniper berries with the wort and subject the whole to fermentation. When the redistillation over juniper is repeated the product is termed double (geneva, etc.). The testimony on behalf of the libelant fully recognized the dis- tinctive character of Holland gin. 684 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. It is considered, therefore, that the term " Holland " in connection with the word gin is a geographical name which has become generic by reason of language, and represents a style, type, or brand. 2d. The second question above suggested is answered by the label itself. In letters sufficiently large and plain to repel any suggestion that they are deceptive in fact or in intent it is stated : " Distilled by Baird Daniels Co., Warehouse Point, Conn." The conclusion, therefore, is that the claimant has complied with the statute and regulations in respect to branding its product. It was contended on behalf of the libelant that, admitting that ' Holland " as applied to a gin has come to be a generic term, and admitting further that the label fairly states the place where the article is manufactured, yet the claimant should qualify his label by adding the word " Domestic " type, style, or process, in juxtaposition1 to the words " Holland Gin." Two answers to this contention sug- gest themselves : First. If " Holland " has become generic, and if the gin distilled by the claimant contains exactly the same ingredients and is made by the same process, and is, in essence, the same identical thing as gin distilled in Holland, then it is " Holland " gin and not Holland " type," " style," or " process." In other words, it is entitled to be called what it is. Second. On the broader question as to whether the label as used is liable to deceive a purchaser into believing he is buying an imported article, it is rather difficult to understand how a customer who would fail to observe the words " Distilled by Baird Daniels Co., Warehouse Point, Conn." plainly printed on the label, would be more liable to notice the word " style," or " type," or other similar word, used in connection with the words " Holland gin." There is also a charge of misbranding in the marking of the wooden crates or cases in which the bottles were transported, the words " Warehouse Point, Conn.," being omitted. This is stated by the claimant to be an oversight, which will be remedied. The consumer, however, does not see the crates and is not, therefore, liable to be deceived by words or the omission of words thereon. On the whole case the order will be that the libel be dismissed. The findings of fact will be made in accordance with this opinion. UNITED STATES v. THE ANTIKAMNIA CHEMICAL COMPANY. (United States Supreme Court, January 5, 1914) 231 U. S. 654 ; Circular No. 76, Office of the Solicitor. A drug containing acetphenetidin, a derivative of acetanilid, held misbranded because it failed to bear a statement on the package or label to the effect that the acetphenetidin contained therein was a derivative of acetanilid; and because of the statement on the package that said drug contained no acetanilid. In Error to and Appeal from the Court of Appeals of the District of Columbia. Keversed.1 The facts are stated in the opinion. 1 Reversing United States v. 100 Packages of Antikamnia Tablets, p. 416, ante. DECISIONS OF COURTS. 685 [659] 1 Mr. Justice McKenna delivered the opinion of the court. Libel for the seizure and condemnation of certain drugs under the provisions of the act of Congress of June 30, 1906, commonly known as the Food and Drugs Act, c. 3915} 34 Stat. 768. The libel alleges that the drugs are in the possession and custody of The Wholesale Drug Exchange, a body corporate, at a numbered place in the city of Washington. The drugs, it is alleged, are intended to be used for the cure and mitigation and prevention of diseases of man. They are described as follows : [660] Twenty packages, more or less, of said drug, labeled and branded as fol- lows: "Antikaninia Tablets, Contain 305 grains of aeetpbenetidin, U. S. P. per ounce. Guaranteed by the Antikaninia Chemical Company, under the Food and Drugs Act, June 30, 1906, U. S. Serial Number 10. The Antikamnia tablets in this original ounce package contain no acetanilid, antifebrin, antipyrin, morphine, opium, codein, heroin, cocaine, alpha or beta eucaine, arsenic, strychnine, chloro- form, cannabis indica, or chloral hydrate, Antikamnia tablets five grains. One ounce Antikamnia Tablets. Manufactured in the United States of America by the Antikamnia Chemical Co., St. Louis, U. S. A." Also seventy other packages, more or less, of said drug, labeled and branded as follows : "Antikamnia and Codein Tablets. Contain 296 grains aeetpbenetidin, U. S. P. per ounce. Contains 18 grains sulp. codein per ounce. Guaranteed by the Antikamnia Chemical Company, under the Food and Drugs Act, June 30, 1906. U. S. Serial Number 10. The Antikamnia and Codein tablets in this original ounce package contain no acetanilid, antifebrin, antipyrin, morphine, opium, heroin, cocaine, alpha or beta eucaine, arsenic, strychnine, chloroform, cannabis indica, or chloral hydrate. One ounce Antikamnia and Codein Tablets. Manufactured in the United States of America by the Antikamnia Chemical Co., St. Louis, U. S. A." Also ten other packages, more or less, of said drug, labeled and branded as follows : " Antikamnia and Quinine Tablets. Contain 165 grains acetphenetidin, U. S. P. per ounce. Guaranteed by the Antikamnia Chemical Company under the Food and Drugs Act. June 30, 1906, IT. S. Serial Number 10. The Anti- kamnia and Quinine Tablets in this original ounce package contain no acetanilid, antifebrin, antipyrin, morphine, opium, codein, heroin, cocaine, alpha or beta eucaine, arsenic, strychnine, [661] chloroform, cannabis indica, or chloral hy- drate. One ounce Antikamnia and Quinine Tablets. Manufactured in the United States of America by the Antikamnia Chemical Co., St. Louis, U. S. A." The ground of confiscation and condemnation alleged is that all of the packages of the drugs contain a large quantity and proportion of acetphenetidin, which, it is alleged, is a derivative of acetanilid, and that under the provisions of the act of Congress and of the regu- lations lawfully made thereunder it is provided and required that the label on each of the packages shall bear a statement that the acet- phenetidin contained therein is a derivative of acetanilid; and yet, it is alleged that each and all of the packages fail. to comply with such provisions. It is also alleged that the packages are further misbranded, in that the labels thereon are false and misleading, for the reason that each and all of them bear the statement that no acetanilid is contained therein, and that the statement imports and signifies that there is no quantity of any derivative of acetanilid contained in the drug. A warrant of arrest was issued upon which the marshal duly made return that he had arrested twenty packages of Antikamnia tablets, ten packages of Antikamnia quinine tablets and sixty-three packages labeled "Antikamnia and Codein Tablets," and otherwise duly exe- cuted the warrant. 1 Numbers In brackets refer to pages of U. S. Reports. 686 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. The Antikamnia Chemical Company, appellee and defendant in error, alleging itself to be the owner of the drugs, petitioned to be made a defendant in the libel. The petition was granted, and the company thereupon filed the exceptions to the libel. The exceptions negative in detail the charges of the libel and assert conformity in the labeling of the packages to the act of Congress of June 30, 1906, quoting its 8th section as follows : " * * * or if the package fail to bear a statement on the label of the quantity or proportion of [662] any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilid, or any derivative or preparation of any such substances contained therein." And it is averred that the act does not provide that there should be added to any derivative of any of the substances contained therein the name of the parent substance, and the act cannot be added to or enlarged by requiring the company to add to the name of a known article, the fact that the article is a derivative of any of the substances mentioned in the act. It is averred, therefore, that the packages are not misbranded and that the statement on the labels that no acetanilid is contained therein is in no way false or misleading because the libel does not allege that there is acetanilid in the packages, and, therefore, the statement instead of being false and misleading is, according to the allegations of the libel, true. The exceptions were sustained and the libel dismissed. It was stipulated that Food Inspection Decision No. 112, issued January 27, 1910, by the United States Department of Agriculture was considered by the court upon the hearing of the cause and should be included in and be considered part of the record on appeal. The decision quotes section 8 of the act, states that the Attorney General, in an opinion rendered January 15, 1909, held that a deriva- tive is a substance so related to one of the specified substances " that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter ' by actual or theoretical substitution,' and it is not indispensable that it should be actually produced there- from as a matter of fact ; " further that the labeling of derivatives, as prescribed by section 8, is a proper subject conferred upon the department by section 3, and that a rule or regulation requiring the name of the specified substance to follow that of the derivative would be in harmony with the general purpose of the act, and an [663] appropriate method by which to give effect to its provisions. In conformity to this opinion, Regulation 28 of the Rules and Reg- ulations for the enforcement of the Food and Drugs Act was amended as follows: * * * Acetanilide (antifebrine, phenylacetamide) Derivatives — Acetphene- tidine, * * * (g) In declaring the quantity or proportion of any of the specified substances the names by which they are designated in the act shall be used, and in declaring the quantity or proportion of the derivatives of any of the specified substances, in addition to the trade names of the derivative, the name of the specified substance shall also be stated, so as to indicate clearly that the product is a derivative of the particular specified substance. The decree of the Supreme Court of the District dismissing the libel was affirmed by the Court of Appeals. The case is not in very broad compass, though the arguments of counsel are somewhat elaborate. The libel is prosecuted for the con- demnation of one hundred packages of Antikamnia tablets as being DECISIONS OF COURTS. 687 misbranded in violation of the Food and Drugs Act of June 30, 190G, c. 3915, 34 Stat. 768. The tablets contain acetphenetidin and the labels so state, and the proportion of the substance. It is a deriva- tive of acetanilid, but the labels do not so state but do state that the tablets contain no acetanilid. And these omissions, it is contended by the Government, constitute a violation of the statute and of Regu- lation No. 28 as amended. The chemical company contends that the first statement is not required by the law and that the second statement is true, and therefore can not be false or misleading. Preceding the discussion of these contentions a question of jurisdiction is presented by the chemical company and a motion to dismiss is made on the ground that only the construction of the statute is involved in the decision of [664] the court below. The company also moves for an affirmance of the judgment on the ground that the appeal is frivolous. Contra the Government con- tends that the Court of Appeals held invalid the regulation requir- ing the name of the primary substance as well as that of the deriva- tive to be stated on the label; and that there is not only drawn in question, but so far denied, an authority exercised under the United States. We concur in this view. The validity of the regu- lation was and is denied. Its validity may, indeed, rest on the statute, but so did the validity of the rule of the Patent Office passed on in Steinmetz v. Allen, 192 U. S. 543. We there said (p. 556) of a rule of practice established by the Commissioner of Patents under a section of the Revised Statutes, " It thereby became a rule of procedure and constituted, in part, the powers of the primary examiner and Com- missioner. In other words, it became an authority of those officers, and, necessarily, an authority ' under the United States.' Its validity was and is assailed by the plaintiff in error. We think, therefore, we have jurisdiction, and the motion to dismiss is denied." United States ex rel. Taylor v. Taft, Secretary of War, 203 U. S. 461, is not in antagonism to this ruling. In that case the relator was dismissed from the public service by an order of the Secretary of War as repre- sentative of the President. She sought restoration by mandamus. It was denied and she brought the case to this court on the ground that the validity of an authority exercised under the United States was drawn in question. Dismissing the case, this court said that as she did not question the authority of the President or his representa- tive to dismiss her but contended only that certain rules and regula- tions of the civil service had not been observed, the validity of an authority exercised under the United States was not drawn in ques- tion but only the construction and application of regulation of the exercise of such authority. On p. 465 it was said [665] Steinmetz v. Allen was not to be contrary, " for there the validity of a rule con- stituting the authority of certain officers in the Patent Office was drawn in question." Motion to dismiss is denied. Joined with the motion to dismiss, we have seen, was a motion to affirm on the ground that the question of the authority of the Secre- taries to make the regulation is frivolous in view of the decisions in United States v. Grimaud, 220 U. S. 506; Williamson v. United States, 207 U. S. 425 and other cases. How far this contention is tenable will be developed as we proceed with the consideration of the act and the power of the Secretaries under it. 688 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. The purpose of the act is to secure the purity of food and drugs and to inform purchasers of what they are buying. Its provisions are directed to that purpose and must be construed to effect it. Section 3 gives the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor, power to " make uniform rules and regulations for carrying out the provi- sions " of the act and the power to collect specimens of foods and drugs offered in interstate and foreign commerce. It adopts the defi- nitions of the United States Pharmacopoeia or National Formulary and provides (section 8) that the term " misbranded" as used in the act " shall apply to all drugs * * * the package or label of which shall bear any statement, design or device regarding such article, or the ingredients or substances contained therein, which shall be false or misleading in any particular." And, further, in case of drugs, an article shall be deemed to be misbranded " if the package fail to bear a statement on the label of the quantity or proportion " of certain enumerated substances " or acetanilid, or any derivative or preparation of any such substances contained therein." These are the applicatory provisions. How are they to be con- strued ? [666] First, as to the power of the Secretaries. It is undoubtedly one of regulation only — an administrative power only — not a power to alter or add to the act. The extent of the power, however, must be determined by the purpose of the act and the difficulties its execution might encounter. The fact that a council of three Secretaries of governmental departments was given power to make the rules and regulations for the execution of the law shows how complex the mat- ters dealt with were considered to be, and the care that was necessary to be taken to guard against their defeat or perversion. The compo- sition of drugs is a matter of technical skill, their denomination often by words of scholastic origin, conveying no meaning to the unin- formed, their uses and abuses learned only by experience, beneficial or evil. It was this experience that the law sought to avail itself of and to avail itself against the ever increasing powers of the lab- oratory or the disguises of a technical nomenclature. Hence the provision of the law that the term " drug " as used in the act shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or externa] use, and hence also the provision that a drug or food product is mis- branded in case it fails to bear a statement on the label of the quantity or proportion of certain enumerated substances, including acetanilid, " or any derivative or preparation of any such substance contained therein." Experience had demonstrated the quality of those sub- stances, their effects had become common knowledge; their names, therefore, were all the warning it was necessary for the law to give. But derivatives of them might, probably would, be of their quality, so derivatives of them were to be guarded against, and the law hence further provided that the labels on them should state the " quantity or proportion " of " any derivative or preparation " of them. This much is clear — there is no obscurity in the words and purpose of the law. The [667] query then occurs, such being the words and purpose, if the quantity or proportion of the substances or any derivative or preparation of them must be stated, is it administrative of the law or additive to it to require by regulation that not only the name of the de- DECISIONS OF COURTS. 689 rivative or preparation be stated but from what substance derived or of what it is a preparation ? It certainly cannot be said that the purpose of the law is not exactly fulfilled by the regulation. If it fulfills the purpose of the law it cannot be said to be an addition to the law, unless, indeed, it can be contended that the law provided a means for its defeat by the easy device of mysterious names. There is illustration in the present case. What information does the use of the word " acetphenetidin " convey to anybody of its good or evil origin? If it be said that the like question may be asked of any of the primary substances, we reply that they are the precautions of the law and adopted as such because they had demonstrated them- selves, the value of their use, the detriment of their abuse, and it was believed that their names would carry no deception. But let us turn from the power of the Secretaries to the law itself and inquire if it needs the assistance of a regulation. It is the con- tention of the Government that it does not, that its requirement that the primary substances should be labeled and that their derivatives should be labeled means, necessarily, that it should be stated of what they are the derivatives to make the warning of the labels complete. A great deal of what we have said in discussing the power of the Secretaries applies to this contention and supports it. The purpose of the law is the ever insistent consideration in its interpre- tation. The purpose is to prevent the surreptitious sale of certain noxious drugs or their derivatives, the latter supposedly partaking of the quality of parent article and as effective of evil consequences. This being the purpose, did the law leave it unexecuted? We can- not attribute to it such defect, and a serious defect it might be. Nor can we consider as a case of omission that which involves so definitely the mischief which was intended to be redressed and which is fairly within the language of the law. And we say this without regard to the various illustrations contained in the Government's brief of the deceptions which can be practiced by using the name of the derivative alone, for the chemical company insists that we may not, in the absence of allegations and proof, look for knowledge in the encyclo- pedias, or medical lexicons or to trade practices for trade disguises, actual or possible. It is not necessary to enter upon the challenged ground. The law furnishes its own tests of what the labels should reveal, and we may grant, for the argument's sake, as contended, that it has penal character; but this does not mean that it should not be given its reasonable intendment. There is no hardship in this either to the manufacturer or the seller of drugs. They surely know what they make or vend — know whether it is primary or of what a deriva- tive— and the law requires only that they put their knowledge on the labels for the information of purchasers. No serious burden is thereby imposed on honest business. Indeed, it makes the label on the packages an assurance as well as a warning and benefits all con- cerned, manufacturer, seller and purchaser. And this in the interest of the public health. Decree reversed and cause remanded with direction to reverse the decree of the Supreme Court and remand the cause with direction to overrule the exceptions to the libel. 40066—14 44 690 FEDERAL FOOD AND DKTJGS ACT AND DECISIONS. UNITED STATES v. 150 CASES OF FRUIT PUDDINE. (District Court, D. Massachusetts, January 17, 1914.) 211 Fed. 360 ; N. J. No. 3329. An article sold under its own distinctive name, to wit, " Fruit Pnddine," held misbranded because of tbe false or misleading statement, " Fruit Flavored," borne on the label of said article. Libel alleging misbranding of certain cases of an article of food labeled " Fruit Puddine." Jury waived, Decree for libelant. [361] 1 Morton, District Judge. This is a proceeding under the Food and Drugs Act, by information (or libel) against 150 cases of a food product called " Puddine " or " Fruit Puddine." A jury hav- ing been waived by both parties, the case was tried before me upon fact and law. I find the material facts, in addition to those alleged in the information and admitted in the answer, to be as follows: " Puddine " or " Fruit Puddine " is the distinctive name, adopted and used as early as 1889, of a proprietary food product consisting largely of cornstarch. It is manufactured by the claimant and is put up in packages or cartons of different flavors, adapted to the retail trade. It does not contain any deleterious or poisonous in- gredient. It is not an imitation of, or offered for sale under the dis- tinctive name of, any other article ; and the name " Puddine " or " Fruit Puddine " is accompanied on the same label or carton with a true statement of the place where it has been manufactured. The alleged misbrandings lies in the words " Cream Vanilla," " Rose Vanilla," and " Fruit Flavored," which appear upon the cartons. " Cream Vanilla " and " Rose Vanilla " are two of the many flavors in which Puddine is manufactured. All the cartons in question appear to have been marked " Fruit Flavored Puddine," to which is added on some cartons " Cream Vanilla," and on others " Rose Vanilla," according to the flavor of the Puddine therein. [362] The plaintiff contends that branding any article of food with the word " Vanilla," alone or in combination with other words, is a representation that it is flavored with vegetable extract of vanilla made from the vanilla bean ; that the word " Cream " prefixed to the word " Vanilla " means the best or highest grade of vanilla ; that the words " Cream Vanilla " on the claimant's cartons mean " flavored with the highest grade of vegetable extract of vanilla ;" that the word " Rose " prefixed to the word " Vanilla " means a combination of the vegetable flavors of rose and vanilla ; that the words " Rose Vanilla " on the claimant's cartons mean " flavored with the vegetable extracts of rose and of vanilla;" and that the words " Fruit Flavored " mean flavored with fruits (commonly so called), capable of being used as flavoring substances. The contention of the claimants, who are the manufacturers of the product, is that " Puddine " and " Fruit Puddine " are artificial words, adopted as the name of their product, and constitute a dis- tinctive name for the article within section 8, subsection 4 (1), of the act in question ; that " Cream Vanilla " and " Rose Vanilla " are 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COUETS. 691 also artificial words, adopted by them to indicate the taste and ap- pearance of their product, and import nothing as to the origin of the taste; that they are not false or misleading; and that the term " Fruit " or " Fruit Flavored," while adopted as an arbitrary or artificial part of the name, is in fact true, because the grain out of which the product is manufactured is, botanically speaking, a fruit. The words in question are to be construed in their ordinary or customary meaning so far as they have one. United States v. 75 Boxes of Pepper (D. C), 198 Fed. 934; United States v. 30 Cases of Grenadine (D. C), 199 Fed. 932; Brina v. United States, 105 C. C. A. 558, 179 Fed. 373. The distinctive or trade name of the product is " Puddine," or " Fruit Puddine," always accompanied on the cartons by words in- dicating the flavor. " Puddine " and " Fruit Puddine " are fre- quently used without the adjective " Fruit Flavored," which is not part of the name. It seems clear that " Fruit Flavored " does signify, as the plaintiff contends, that the article is flavored with " fruit " in the common, not the botanical meaning of the word. As no such fruit is used in " Puddine," the words " Fruit Flavored " are untrue and misleading as applied to it ; and the misleading effect of them is heightened by the picture of a dish of fruit which appears on some of the cartons. If Puddine were not an article of food known under its own distinctive name, it would clearly be " misbranded " within the act by reason of the words " Fruit Flavored " upon the cartons. The claimant contends, however, that articles of food which come within the terms of the proviso to the fourth subsection of section 8 are exempt from the operation of the Food and Drugs Act, and are not to be deemed misbranded, no matter what misstatements are made upon the cartons. The plaintiff contends: (1) That the first paragraph of section 8 prohibits all misbranding as therein defined, and is not limited by the proviso in question; and (2) that, even if the proviso does apply, it is not the intent of it to except from the operation of the act anything except the distinctive name itself ; that even if, as to articles [363] of food which come within the proviso, misstatements which form part of the name itself are not forbidden, it is nevertheless true that any other false or misleading statements regarding the ingredients or substances contained in such articles constitute misbranding. It has been said that the sole purpose of this statute " was : (1) To protect purchasers from injurious deceits by the sale of inferior for superior articles, and (2) to protect the health of the people by pre- venting the sale of normally wholesome articles, to which have been added substances poisonous or detrimental to health." Sanborn, /., Hall-Baker Co. v. United States, 198 Fed. 614, 616, 117 C. C. A. 318 (C. C. A., 8th Circuit). In other words, deception and unwhole- someness are the evils which the act is designed to prevent. The last part of section 8, providing that " manufacturers of proprietary foods which contain no unwholesome added ingredients " shall not be required " to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adul- teration or misbranding," plainly implies that a proprietary product may be misbranded. The report of the committee (House of Rep- resentatives, 59th Congress, First Session, Report No. 2118, March 7, 1906) and the debates, so far as they refer to the proviso in ques- 692 FEDEKAL FOOD AND DRUGS ACT AND DECISIONS. tion, indicate that the attention of Congress was directed to pro- tecting thereby established distinctive or trade names from being outlawed by the act.1 In United States v. 40 Barrels of Coca-Cola (D. C), 191 Fed. 431, 440, it was held that the proviso in question " was only intended to protect an article sold under its distinctive name from the charge of misbranding in so far as any statement or suggestion contained in the name itself [364] is concerned." See, too, United States v. American Chicle Co., U. S. Dist. Court, District of Oregon2 (no opinion filed). It is undoubtedly true that persons purchasing a proprietary article of food, like Puddine, get what they go for, whether all the state- ments on the carton are correct or not. But it is also true that the purchase of a proprietary article may well be induced by false state- ments concerning it upon the cartons ; and it is not difficult to imagine cases in which reliance on such misstatements would work real injury to the purchaser. For example, if such an article were branded " Contains no sugar," when in fact it did, the misbranding might induce the purchase by persons whose diet demanded absence of sugar. Such articles are within the purview of the statute. It does not seem to me that the proviso in question was intended to except them absolutely from the provisions of the act and to leave the manu- facturers free to make misrepresentations concerning them. Such a construction is out of harmony with all the rest of the statute and disregards one of the principal purposes of it. It seems to me that the protection afforded by the proviso is limited to the distinctive name; and, as so limited, I have no doubt that the proviso applies to the first paragraph of section 8 and fully protects distinctive names from being misbranding. I therefore find and rule that the words " Fruit Flavored " upon the cartons containing Puddine were a statement regarding such article, or the ingredients or substances contained therein, which was false or misleading and constituted misbranding within the statute. The conclusion above reached makes it unnecessary to consider whether the use of the words " Cream Vanilla " and " Rose Vanilla " 1 The legislative history of this act is as follows : The bill which, after amendment, became the Pood and Drugs Act of June 30, 1906, was Senate Bill No. 88, 59th Congress, First Session. It is printed in full in the Congressional Record for that session at page 897. It was reported favorably to the Senate December 14, 1905 (Senate Reports, vol. 1, No. 8, 59th Congress, First Session), passed by the Senate February 21, 1906 (Cong. Rec, 59th Congress, First Session, p. 2773), and was introduced in the House of Representatives the next day (page 2853), and there referred to the Committee on Interstate and Foreign Commerce. The Committee's report is found in House Reports, 59th Congress, First Ses- sion, vol. 1, Report No. 2118. The Committee of the House recommended amendment to the Senate Bill by substituting for it the Hepburn Pure Food Bill (H. R. 4527, reported to the House January 18, 1904, and passed by the House) as amended by the Committee. The bill was passed by the House, with amendments, June 23, 1906 (Rec, pp. 9076, 9353), and sent back to the Senate, which refused to concur. Conference Committees filed identical reports June 27, 1906, setting out in full the bill as agreed upon and recom- mending that it pass (House Reports, vol. 3, No. 5056: Senate Docs., vol. 8, Doc. 521; Cong. Rec, pp. 9353, 9379, 9381). The second conference report, making certain minor improvements in sections 1 and 2 of the bill, was filed June 29, 1906, giving the bill as finally enacted (House Reports, vol. 3, No. 5096). The bill was then passed and signed June 30, 1906. As to the distinctive name proviso : The subject matter of this proviso appeared in the original Senate bill, and the proviso as finally passed first appears in substance in the bill as amended by the House Com- mittee, where it is numbered paragraph 4 of section 7. There appears to have been no discussion at all of the " Distinctive Name " proviso in the debates in the Senate, and the only allusion to it in the debates in the House is found under date of June 23, 1906 (Cong. Rec, 59th Congress, First Session, p. 9068). 2 See N. J. No. 1939, p. 524, ante. DECISIONS OF COURTS. 693 constitutes misbranding; but I infer from what was said at the argu- ment that this is a point upon which a decision is particularly desired by the parties. I therefore proceed to find the facts and state my conclusions in reference thereto. No such extract, flavoring matter, or combination as " Rose Va- nilla" is known to the trade, or to the public, except in connection with the defendant's products; nor any such extract or flavoring matter as " Cream Vanilla," except perhaps to a limited extent in the bottling trade, in which it is sometimes used to signify a high- grade vanilla extract; but such use is not known to the public gen- erally and is wholly unrelated to the use by the claimant. " Cream Vanilla," as applied to the claimant's product, is certainly not under- stood by the public as meaning " flavored with a high-grade vanilla extract." The word " Rose," followed by " Vanilla," was registered by the claimant in the United States Patent Office as a trade-mark applicable to " Puddine " on the 21st of May, 1889. Both "Rose Vanilla " and " Cream Vanilla " were in use by the claimant on Puddine before the Food and Drugs Act went into effect. Puddine is not flavored with the vegetable extract of vanilla, but with vanillin, or synthetic vanilla, which is obtained from the oil of cloves. Natural vanillin is found in the vanilla bean and forms the characteristic and most important element in the vegetable extract of vanilla. It is what gives to vanilla extract its characteristic taste. Synthetic vanillin is one of the comparatively recent discoveries in organic chemistry, [365] of which indigo and madder are other examples. It is exactly the same as the natural vanillin. The flavor produced by synthetic vanillin is as wholesome as that produced by the vegetable extract of vanilla and is substantially identical with it in taste, the difference, if any, being due to accidental substances in the natural extract. As used by the claimant, " Cream Vanilla " is applied to cream-colored Puddine flavored with vanillin, and " Rose Vanilla " to exactly the same thing colored pink with a harmless dye, the difference being in color only. When a proprietary product is sold in different flavors, I see no reason why there may not be a distinctive name of a particular flavor, nor any reason for denying to such a name the protection of the proviso. The very purpose of the proviso, as I construe it, was to save distinctive names, which might be of great value, and the use of which might otherwise have been forbidden. " The purpose of the law is the ever-insistent consideration in its interpretation." Mc- Kenna, J., United States v. Antikamnia Chemical Co. (January 5, 1914) , 231 U. S. 654, 34 Sup. Ct. 222, 58 L. Ed. . I find and rule that " Cream Vanilla " and " Rose Vanilla," as used with " Pud- dine." are artificial and distinctive names adopted by the claimant, the use of which is not misbranding. It is unnecessary to decide whether the word " Vanilla," applied to food, amounts, as the plaintiff contends, to a representation that the taste thereof has been produced by the vegetable extract and not by the synthetic product. Decree for plaintiff. 694 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. HUYLER'S, A Body Corporate, v. HOUSTON, Secretary of Agriculture. (Court of Appeals, District of Columbia, February 2, 1914.) N. J. No. 3343. The Police Court of the District of Columbia is a " proper court of the United States " within the meaning of section 5 of the act, which requires United States attorneys to whom violations of the act are reported " to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States " for the enforcement of the penalties provided by the act. In Equity. Appeal from a decree of the Supreme Court of the District of Columbia. Affirmed. Mr Justice Robb delivered the opinion of the court. This is an ap- peal from a decree of the Supreme Court of the District sustaining ap- pellee's demurrer and dismissing appellant's bill for an injunction to restrain the appellee, the Secretary of Agriculture, from publishing (pursuant to section 4 of the so-called Food and Drugs Act of June 30, 1906, 34 Stat. 768) notice of a judgment in the Police Court of the District of Columbia imposing a fine of $200 upon appellant after conviction of the offense of offering for sale and selling an adulterated article of food. Section 4 of said act provides that a chemical examination of specimens of foods and drugs shall be made in the Bureau of Chem- istry of the Department of Agriculture, or under the direction and supervision of that bureau, for the purpose of determining whether such articles be adulterated or misbranded within the meaning of the act, and if the result of that examination shows adulteration or misbranding, it is made the duty of the Secretary to notify the party from whom the sample was obtained. Thereupon the party so noti- fied is given an opportunity to be heard and if, after hearing, it ap- pears that any of the provisions of the act have been violated by such party it is made the duty of the Secretary at once to certify the facts to the proper United States district attorney, with a copy of the result of the analysis or examination of such article duly authenticated by the analyst or officer making such examination, under the oath of such officer. After judgment of the court, notice shall be given by publication in such man- ner as may be prescribed by the rules and regulations aforesaid. Section 5 of the act makes it the duty of each district attorney to whom such a violation shall be reported by the secretary or to whom any health, or food, or drug officer, or agent of any State, Terri- tory or the District of Columbia shall present satisfactory evidence of such violation, to cause appropriate proceedings to be commenced and prosecuted in the proper court of the United States without delay for the enforcement of the penalties herein provided. Appellant was duly convicted in the Police Court of the District of Columbia and fined $200 for offering for sale and selling adulter- ated maple sugar. It is the contention of the appellant that the Police Court is not a " proper court of the United States " within the meaning of said section 5 of the Food and Drugs Act and hence that the judgment of that court is absolutely void. This contention is easily met. Section 43 of the Code confers upon the Police Court DECISIONS OP COURTS. 695 original jurisdiction concurrently with the Supreme Court of the District except where otherwise therein provided, " of all crimes and offenses committed in the said District not capital or otherwise in- famous and not punishable by imprisonment in the penitentiary, except libel, conspiracy, and violations of the post-office and pension laws of the United States." The charge upon which appellant was prosecuted, being a first offense where the punishment may not exceed a fine of $200, was therefore within the jurisdiction of the Police Court. That the Police Court is a court of the United States, although not in the sense of the Constitution, has already been deter- mined. United States v. Mills, 11 App., D. C, 500. The question here is not whether the Police Court is a court of the United States in the constitutional sense, but whether it is a " proper court of the United States," within the meaning of the Food and Drugs Act. All other petty offenses against the United States, except those expressly reserved from its jurisdiction, are triable in that court, and no reason is perceived why one accused of adulterating food in this District is entitled to treatment different than would be accorded him if accused of some other petty offense against the laws of the United States. When, therefore, Congress used the words " in the proper courts of the United States," we think it clear that it meant in the courts hav- ing jurisdiction of similar offenses. The Police Court was therefore a proper court within the meaning of this section. Decree affirmed, with costs. UNITED STATES v. 36 BOTTLES OF LONDON DRY GIN. (Circuit Court of Appeals, Third Circuit, February 2, 1914.) 210 Fed. 271 ; N. J. No. 2820. Where an article is alleged to be misbranded within the meaning of the Food and Drugs Act, June 30, 1906, it is error for the trial judge to submit to a jury the question of intent to violate the statute. In Error to the District Court of the United States for the Eastern District of Pennsylvania. Reversed.1 Before Gray and Buffington, Circuit Judges, and Young> District Judge. Young, District Judge, delivered the opinion of the Court. This is a proceeding by the United States for the condemnation of certain bottles of gin alleged to be misbranded in violation of the Food and Drugs Act of June 30, 1906. The eighth section of that act provides that an article shall be deemed to be misbranded " If it be labeled or branded so as to deceive or mislead the purchaser or purport to be a foreign product when not so." The cause went to trial before a jury upon the libel and amended libel and answer thereto by Sir Robert Burnett and Company, the claimant. The libel alleges that the bottles were labeled and branded so as to purport to be a foreign product, whereas they were in fact a domestic prod- uct. The amended libel alleges that the bottles were labeled and 1 Reversing United States v. 36 Bottles of London Dry Gin, p. 647, ante. 696 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. branded so as to deceive and mislead purchasers thereof and to pur- port to be a foreign product when not so. The assignments of error raise the single question whether or not, in a proceeding under the Food and Drugs Act for the condemnation of misbranded articles, the intent of the claimant is a necessary in- gredient in the determination of the case. The learned trial Judge admitted evidence, over the Government's objection, for the purpose of showing good faith in the branding and absence of an intention to deceive. The court also submitted the question of intent as follows: The third question refers more particularly to the second charge of the Government. It is this : In using the label in suit, did the maker of the gin [272] 1 intend to deceive or mislead the purchaser by representing the gin to be a foreign product, when in truth it was not a foreign product. Under the libel and amended libel, the sole question was whether the packages were so labeled and branded as to deceive and mislead the purchaser. This was not the question submitted to the jury, but the question submitted to the jury was, as we have seen: Did the maker of the gin intend to deceive or mislead the purchaser? The court was in error in submitting the question of intention to the jury. The Food and Drugs Act nowhere requires proof of inten- tion by the use of the words " knowingly," " wilfully," or such like words. The language of section 8 — -in the case of food — subsection 2, of the act is : " If it be labeled or branded so as to deceive or mis- lead the purchaser, or purport to be a foreign product when not so." This language clearly means if the label deceives or misleads the pur- chaser; if the purport of the label be that it is a foreign product when it is not so. This the label, and the label alone, must determine. The intention of the user to deceive is of no consequence. The act strikes at deceiving the public by selling them one thing when they desire to purchase another. As has been frequently said by courts, the purchaser has the right to choose for himself what he will pur- chase, and when he has purchased, the right to receive that which he desires and not something else. It would be destructive of the act, nullify it entirely, to allow the intent of the maker to be considered as a defense. We believe the decided cases sustain the principle that the intent is not a necessary ingredient in the determination of the case. In McDermott v. Wisconsin, 228 U. S. 115, on page 132, 33 Sup. Ct. 431, at page 435 (57 L. Ed. 754), it is said by Mr. Justice Day: The label upon the unsold article is in the one case the evidence of the ship- per that he has complied with the act of Congress, while in the other, by its misleading and false character, it furnishes the proof upon which the Federal authorities depend to reach and punish the shipper and to condemn the goods. If truly labeled within the meaning of the act, his goods are immune from seizure by federal authority ; if the label is false or misleading within the terms of the law, the goods may be seized and condemned. In other words, the label is the means of vindication or the basis of punishment in determining the character of the interstate shipment dealt with by Congress. It is the purchaser that is to be protected. The purchaser has a right to determine for himself which he will buy, and which he will receive, and which he will eat. The vendor cannot determine that for the purchaser. He, of course, can make his arguments, but they should be fair and honest arguments. United States v. 100 Cases of Tepee Apples (D. C.) 179 Fed. 987. 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 697 In United States v. Johnson, 221 U. S. 488, at page 497, 31 Sup. Ct. 627, at page 628 (55 L. Ed. 823), Mr. Justice Holmes says: In further confirmation, it should be noticed that although the indictment alleges a wilful fraud, the shipment is punished by the statute if the article is misbranded, and that the article may be misbranded without any conscious fraud at all. In the District of Columbia v. Lynham, 16 App. D. C. 85, it is said : It was no defense for a druggist prosecuted for selling an adulterated drug in violation of the Act of Congress February 17, 1898 (30 Statutes 246), relating [273] to the adulteration of food and drugs in the District of Columbia, to show simply that he was at the time of sale * * * ignorant of the fact that the drug was adulterated, as he must know what he sells, or proposes to sell, and that it conforms to the standard prescribed by law. In United States v. Five Boxes of Asafoetida (D. C.) 181 Fed. 561, it is said by Judge Holland: The article of food or drug adulterated or misbranded is declared to be for- feited as an offending thing which threatens the health of the citizen, and therefore subject to seizure, without regard to the acts or knowledge of the owners or claimants. For these reasons, the judgment must be reversed, and a new trial granted. UNITED STATES v. SEVEN CASES OF BUFFALO LITHIA WATER. (Supreme Court, District of Columbia, February 16, 1914.) Circular No. 78, Office of the Solicitor. Water taken from a spring at Buffalo Lithia Springs, Mecklenburg County, Va., and labeled "Buffalo Lithia Water Springs No. 2 * * * Buffalo Lithia Springs Water, Nature's Materia Medica," with numerous statements on the label concerning the alleged efficacy of such water as a therapeutic agent, held misbranded because said water did not contain a sufficient amount of lithium to entitle it to be called lithia water. Libel for the condemnation and forfeiture of seven cases, more or less, of so-called "Buffalo Lithia Water/' for misbranding. On amended libel and answer. Jury waived. Judgment for the libelant. Gould, Judge. The original bill in this case was filed December 21, 1910. It sought to condemn seven cases of bottles containing water labeled as " Buffalo Lithia Water," on the ground that they were misbranded and thereby violated the act of June 30, 1906, the mis- branding being alleged to consist of statements that the liquid was 'B lithia water, whereas it did not contain an appreciable amount of lithium, and would not give the therapeutic effect of lithium when a reasonable quantity was consumed, and, further, that the water was not a lithia water, or entitled by reason of its ingredients to be so called. The libel also alleged, as a further misbranding, that the bottles were offered for sale under the distinctive name of lithia water, when in fact it was not lithia water, and that the bottles were labeled and branded so as to deceive and mislead the purchaser thereof. A demurrer having been sustained to this libel on April 6, 1912, an amended libel was filed April 6, 1912, omitting the original allegation that the water did "not contain an appreciable amount of lithium, and will not give the therapeutic effect of lithium when a reasonable 698 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. quantity" is consumed. A demurrer to the amended libel was over- ruled June 13, 1912, whereupon the claimants, on December 12, 1912, filed their answer denying that the water was misbranded. Upon the issue thus joined, voluminous testimony has been taken in different parts of the country. The questions of fact involved have, by agreement, been submitted to the court sitting as a jury. It is somewhat difficult to accurately describe the label as it is voluminous, but the most striking feature of it are the words "Buffalo Lithia Water Springs No. 2," in white letters, relatively large, on a blue field, surrounding the figure of a draped woman, in a sitting posture, holding an urn on her lap, and herself surrounded by the words in much smaller type "Buffalo Lithia Springs Water, Nature's Materia Medica." Beneath the foregoing, in a smaller but plain type, is the following: "This water is indicated in all affections due to the Uric Acid Diathesis — Gout or Rheumatism in all their forms, Stone in the Bladder, Kidneys, or Liver, Bright's Disease and Kidney Diseases of every form, Albuminuria of Pregnancy or Scarlet Fever, Uraemia and its accompanying troubles, Menstrual Irregularities, Acid Dyspepsia, Nervous Disorder in all its forms, Malarial Fevers, and in the preparation of Artificial Food for Infants. Dose: From six to eight glasses of the ordinary size per day is the average dose. Many persons, however, take a larger quantity." At the bottom of the label are the words "Buffalo Lithia Springs Water Co., Buffalo Springs, Virginia." At the top are the words "Guaranteed under the Food and Drugs Act, June 30, 1906." It is admitted by the Government that the water in controversy is a natural spring water taken from a spring known as "Buffalo Lithia Springs" situated at Buffalo Lithia Springs, in Mecklenburg County, Virginia. It is also admitted that the claimants or their predecessors have been continuously shipping and selling this water from this spring since 1878 under the label or brand "Buffalo Lithia Water." There is little dispute as to the essential facts of the case. Naturally, the first question which the controversy suggests is, What is a "lithia water." There appears to be no definition given by the Pure Food Act or by the United States Pharmacopoeia as to the quantity of lithium which a given amount of water must contain in order to reasonably entitle it to be designated "lithia" water. The Government has offered the testimony of chemists, pharmacologists, . physicians, and druggists to the effect that the common under- standing is that a natural lithia water is one that contains enough lithium so that when a reasonable quantity is consumed a physiological or therapeutic effect would be obtained in consequence of the lithium content. This appears not only to be a fair and reasonably accurate definition, one which appeals to the common sense and understanding of a nonscientific person, but is supported by the overwhelming weight of the testimony in the case. Speaking generally, and as an in- dividual of average intelligence and information, it would seem that if one were offered a water which the vendor told him was a "lithia" water, one would have the right to expect enough lithium in the water to justify its characterization as such, thus differentiating it from ordinary potable water; and this amount would reasonably be ex- pected to have some effect upon the consumer of the water by reason of the presence of the lithium. DECISIONS OF COURTS. 699 This is especially true, in view of the fact that lithium has been quite commonly believed to have a therapeutic effect on physical ailments which may be classified generally under the head of the uric-acid diathesis. The second question which also arises quite naturally is as to the actual lithium content in a given quantity of the water in controversy. Several analyses were offered in evidence made by both the Govern- ment and by the claimants. As these differ so slightly in respect to the amount of lithium found in a given quantity of water, those made by the Government will be taken as accurate. In addition, the evidence is uncontradicted that the analyses made by the Govern- ment experts were made according to the most improved methods, and no attempt was made to impugn their accuracy or fairness. Dr. Collins, an expert chemist employed in the Bureau of Chem- istry, examined three samples of the water in controversy, two of which were part of the water seized. He gives in great detail every step taken by him in his analyses to determine the quantity of lithium. The result was that in two liters of the water (about two and one-fifth quarts) he found no weighable amount of lithium. That is, a chem- ical analysis showed absolutely no appreciable amount of lithium in the bottle of water of the size usually sold. By the use of the spec- troscope, however, it was found that there was two-thousandths of a milligram in a litre; that is, about one ten- thousandth of a grain per gallon of water, or one grain in ten thousand gallons of water. To further illustrate the infinitesimal quantity of lithium in this water, it was testified that the average dose of lithium as a uric acid solvent was from five to seven and a half grains three times a day. So that, for a person to obtain a therapeutic dose of lithium by drinking Buffalo Lithia Water he would have to drink from one hundred and fifty thousand to two hundred and twenty-five thousand gallons of water per day. It was further testified, without contradiction, that Poto- mac River water contains five times as much lithium per gallon as the water in controversy. It has already been stated that the claimants made no question as to the accuracy of the Government analysis; it might be added that their own latest analysis, by the Lederle Laboratories in New York City, showed only a spectroscopic trace of lithium in the water. The Government also produced pharmacologists and physicians, eminent in their professions, who testified that the amount of lithium disclosed in this water, either singly, or in combination with the other elements contained in it, could not, by any possibility, have any physiological or therapeutic effect upon the consumer. It is concluded, therefore, that a person drinking Buffalo Lithia Water for the hoped-for benefit he may derive from the lithuim in it, is deceived and misled, because a potable quantity contains no ap- preciable lithium. Moreover, this deception is increased and aggravated by the lan- guage on the label accompanying its designation as "Buffalo Lithia Water." Lithium is supposed to be a solvent for uric acid, to prevent the formation of calculi and to remove it from the system in rheuma- tism and gout. The label, immediately under the large letters "Buffalo Lithia Water," and in the center of the label, contains this language: "This water is indicated in all affections due to the Uric Acid Diathesis — Gout or Rheumatism in all their forms, Stone in the 700 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Bladder, Kidneys or Liver, Albuminuria of Pregnancy or Scarlet Fever, Uraemia and its accompanying troubles, Menstrual irregulari- ties, Acid Dyspepsia, Nervous Disorder in all its forms, Malarial Fevers, and in the preparation of Artificial Food for Infants." The word "indicated" as a medical term, as defined by Webster, means ''to point as to the proper remedy." The Uric Acid Diathesis means the class of diseases due to the presence of an excess of Uric Acid. So that the purport and effect of the label to a purchaser is to tell him that this water, by reason of the lithium in it, is the proper remedy for those diseases which are due to uric acid, of which lithia is a solvent. It becomes pertinent to notice the attitude of the courts towards labels of this character, irrespective of the Pure Food Act. Where the manufacturer of a liquid laxative medicine to which he gave the name of "syrup of figs" and who had spent vast sums in advertising it, sought to enjoin another from using the name, it was held that he was not entitled to the injunction because he falsely represented to the public that the juice of the fig was the important medical agent in the composition of the medicine, when in fact only a suspicion of fig juice was put into it, and the real laxative was senna. This was so held notwithstanding there was much evidence showing that it was a very useful medicine and prescribed by physicians of high standing. In deciding the case Judge Taf t said : ' ' This is a fraud upon the public. It is true it may be a harmless humbug to palm off upon the public as syrup of figs what is syrup of senna, but it is never- theless of such a character that a court of equity will not encourage it by extending any relief to the person who seeks to protect a busi- ness which has grown out of and is dependent upon such deceit." California Fig Syrup Co. v. Frederick Stearns & Co., 73 Fed., 812. This case was subsequently approved and followed by the Supreme Court in Worden v. California Fig Syrup Co., 187 U. S., 519. The same principle was applied in the cases of Memphis Keeley Institute v. Leslie E. Keeley Co. (C. C. A. Sixth Circuit), 155 Fed., 964, and Bear Lithia Springs Co. v. Great Bear Spring Co., 71 N. J., Eq. 595. If the courts assume this attitude toward falsely labeled articles under the general rules of law and equity, a fortiori should they assume it in applying a statute such as the Pure Food Act, which has for its objects "not only to protect the public from unwholesome food and drink, but to require that any article of food, drink or medi- cine sold shall be correctly described by its label." U. S. v. Morgan et al., 181 Fed., 587. In the very able oral argument and elaborate brief of claimant's learned counsel, there are two main contentions: 1st. They deny that the label represents that the contents of said bottles is a "lithia water." They insist that the label distinctly states that the contents of the bottles is that "particular natural mineral water known both as Buffalo Lithia Water and Buffalo Lithia Springs Water, and was taken" from the Buffalo Lithia Springs No. 2, etc. In other words, the argument seems to be that if Buffalo Lithia Springs are falsely named, being called "Lithia" Springs, when they do not flow water containing lithium, therefore the proprietors have the right to sell the product as being Buffalo Lithia Springs Water, thus perpetuating upon the public the misnomer connected with the DECISIONS OF COURTS. 701 origin of the water. It is not apparent how the deceit practiced upon the public by the label is mitigated by carrying it back to the desig- nation of the spring from which the water comes. 2nd. It is next contended that if the word "lithia," as used on the label, can be construed to represent that the contents of the bot- tles is "lithia water," such representation would not be false or misleading, within the purview of the Food and Drugs Act, because the contents of the bottles is a lithia water as the term is understood in the English language, viz, a natural spring water containing "some lithia" or "a trace of lithium." Assuming that the term lithia water requires only "some" lithium in the water, it would seem that even that flexible term should not be attenuated to include a water which contained only one ten- thousandth of a grain in a gallon, and in which even a trace in two litres could only be ascertained by the use of the spectroscope. But the evidence in the case is overwhelming that the term lithia water, as ordinarily understood, means a water containing a sufficient amount of lithium to give a therapeutic effect when drank in reason- able quantities. It is true that the Food and Drugs Act does not prescribe the quantity of hthium that a water should contain to entitle it to the name "lithia water." But that this is not a fatal objection to the law has been frequently held. Shawnee Milling Co. v. Temple, 179 Fed., 517; United States v. Sacks of Flour, 180 Fed., 518. And, even if a standard were fixed as to the quantity which would entitle a water to such designation, it is reasonable to suppose that it would require at least a weighable or appreciable amount in a potable quantity of water. It is also argued that no natural water, designated as lithia water, contains sufficient Hthium to give a therapeutic effect by drinking a reasonable quantity. The evidence is not quite clear on this ques- tion; but the most it would prove would be the misbranding of other so-called lithia waters. It is therefore concluded that the statement "Buffalo Lithia Water," on the labels on the bottles seized, is false and misleading within the meaning of the first general paragraph of section 8 of the Food and Drugs Act, and judgment will be accordingly entered for the libelant. UNITED STATES v. LEXINGTON MILL & ELEVATOR COMPANY. (Supreme Court of trie United States, February 24, 1914.) 232 U. S. 399; Circular No. 79, Office of the Solicitor, N. J. No. 3398. Section 7 of the act, paragraph 5, which provides that an article of food shall be deemed to be adulterated "If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health," does not embrace in its condemnation articles of food containing a poisonous or dele- terious ingredient in such small amount that it can not by any possibility injure the health of the consumer. On writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. Affirmed.1 'Lexington Mill & Elevator Company v. United States, p. 604, ante, affirmed. 702 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Mr. Justice Day delivered the opinion of the Court. The petitioner, the United States of America, proceeding under section 10 of the Food and Drugs Act, 34 Stat., 768, by libel filed in the District Courb of the United States for the Western District of Missouri, sought to seize and condemn 625 sacks of flour in the possession of one Terry, which had been shipped from Lexington, Nebr., to Castle, Mo., and which remained in original unbroken packages. The judgment of the District Court, upon verdict in favor of the Government, was reversed by the Circuit Court of Appeals for the Eighth Circuit (202 Fed., 615), and this writ of certiorari is to review the judgment of that court. The amended libel charged that the flour had been treated by the "Alsop Process," so called, by which nitrogen peroxide gas, generated by electricity, was mixed with atmospheric air and the mixture then brought in contact with the flour, and that it was thereby adulterated under the fourth and fifth subdivisions of section 7 of the act, namely, (1) in hat the flour had been mixed, colored, and stained in a manner whereby damage and inferiority was concealed and the flour given the appearance of a better grade of flour than it really was, and (2) in that the flour had been caused to contain added poisonous or other added deleterious ingredients, to wit, nitrites or nitrite reacting ma- terial, nitrogen peroxide, nitrous acid, nitric acid, and other poisonous and deleterious substances which might render the flour injurious to health. The libel also charged that the flour was adulterated under the first subdivision of section 7, and was misbranded; but the Government does not urge these features of the case here. The ver- dict was broad enough to cover the charge under the first sub- division of section 7, but in the view we take of the case as to the instruction of the court under subdivision 5 need not be noticed. The Lexington Mill & Elevator Company, the respondent herein, appeared, claiming the flour, and answered the libel, admitting that the flour had been treated by the Alsop Process, but denying that it had been adulterated and attacking the constitutionality of the act. A special verdict to the effect that the flour was adulterated was returned, and judgment of condemnation entered. The case was taken to the Circuit Court of Appeals upon writ of error. The respondent contended that, among other errors, the instructions of the trial court as to adulteration were erroneous and that the act was unconstitutional. The Circuit Court of Appeals held that the testi- mony was insufficient to show that by the bleaching process the flour was so colored as to conceal inferiority and was thereby adul- terated within the provisions of subdivision 4. That court also held — and this holding gives rise to the principal controversy here — that the trial court erred in instructing the jury that the addition of a poisonous substance in any quantity would adulterate the article, for the reason that "the possibility of injury to health due to the added ingredient and in the quantity in which it is added, is plainly made an essential element of the prohibition.7' It did not pass upon the constitutionality of the act, in view of its rulings on the act's con- struction. DECISIONS OF COURTS. 703 The case requires a construction of the Food and Drugs Act. Parts of the statute pertinent to this case are : Sec. 7. That for the purposes of this act an article shall be deemed to be adul- terated: * * * In case of food : First. If any substance has been mixed and packed with It so as to reduce or lower or injuriously affect its quality or strength. ******* Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health. ******* Sec. 10. That any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one State, Territory, District, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, * * * shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. And if such article is condemned as being adulterated or misbranded, or of a poisonous or deleterious character, within the meaning of this act, the same shall be disposed of by destruction or sale, as the said court may direct. Without reciting the testimony in detail it is enough to say that for the Government it tended to show that the added poisonous substances introduced into the flour by the Alsop Process, in the proportion of 1 .8 parts per million, calculated as nitrogen, may be in- jurious to the health of those who use the flour in bread and other forms of food. On the other hand, the testimony for the respondent tended to show that the process does not add to the flour any poison- ous or deleterious ingredients which can in any manner render it injurious to the health of a consumer. On these conflicting proofs the trial court was required to submit the case to the jury. That court, after stating the claims of the parties, the Government insisting that the flour was adulterated and should be condemned if it con- tained any added poisonous or other added deleterious ingredient of a kind or character which was capable of rendering such article injurious to health; the respondent contending that the flour should not be condemned unless the added substances were present in such quantity that the flour would be thereby rendered injurious to health, gave certain instructions to the jury. Part of the charge, excepted to by the respondent, reads: The fact that poisonous substances are to be found in the bodies of human beings, in the air, in potable water, and in articles of food, such as ham, bacon, fruits, certain vegetables, and other articles, does not justify the adding of the same or other poisonous substances to articles of food, such as flour, because the statute condemns the adding of poisonous substances. Therefore the court charges you that the Government need not prove that this flour or food-stuffs made by the use of it would injure the health of any consumer. It is the character — not the quantity — of the added substance, if any, which is to determine this case. On the other hand the respondent insisted that the law is, and requested the court to charge the jury: That the burden is upon the prosecution to prove the truth of the charge in the libel, that by the treatment of the flour in question by the said Alsop Process it has been caused to contain added poisonous or other added deleterious ingredients, to wit, nitrites or nitrite reacting material, which may render said flour injurious to health. 704 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. And in this connection you are further instructed that it is incumbent upon the Government to prove that any such added poisonous or other added deleterious ingredients, if any contained in said flour, are of such a character and contained in the flour seized in such quantities, conditions, and amounts as may render said flour injurious to health, and unless you find that all of such facts are so proven you can- not find against the claimant or condemn the flour in question under that charge in the libel, and if you fail to so find your verdict upon that count or charge in the libel must be in favor of the claimant or defendant. ******* The law does not prohibit the adding of nitrites or nitrite reacting material to flour, and a jury cannot find for the Government or against the claimant, even if it be shown that nitrites or nitrite reacting material was added to the flour in question, unless they believe from a preponderance of the evidence that such addition, if any, ren- dered said flour injurious to the health of those who might consume the bread or other foods made from said flour. It is evident from the charge given and refused that the trial court regarded the addition to the flour of any poisonous ingredient as an offense within this statute, no matter how small the quantity, and whether the flour might or might not injure the health of the con- sumer. At least such is the purport of the part of the charge above given, and if not correct, it was clearly misleading, notwithstanding other parts of the charge seem to recognize that in order to prove adulteration it is necessary to show that the flour may be injurious to health. The testimony shows that the effect of the Alsop Process is to bleach or whiten the flour and thus make it more marketable. If the testimony introduced on the part of the respondent was believed by the jury they must necessarily have found that the added ingredient, nitrites of a poisonous character, did not have the effect to make the consumption of the flour by any possibility inju- rious to the health of the consumer. The statute upon its face shows that the primary purpose of Con- gress was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adulter- ated foods. The legislation as against misbranding intended to make it possible that the consumer should know that an article pur- chased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to pro- tect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such articles injurious to the health of consumers. If this purpose has been effected by plain and unambiguous language, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. This principle has been frequently recognized in this court. Lake County v. Rollins, 130 U. S. 662, 670: Where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Hamilton v. Rathbone, 175 U. S. 414, 421: The cases are so numerous in this court to the effect that the province of construction lies wholly within the domain of ambiguity, that an extended review of them is quite unnecessary. Furthermore, all the words used in the statute should be given their proper signification and effect. Washington Market Co. v. Hoffman, 101 U. S. 112, 115: DECISIONS OF COURTS. 705 We are not at liberty (said Mr. Justice Strong) to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that signification and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sec. 2, it was said that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be super- fluous, void, or insignificant." This rule has been repeated innumerable times. Applying these well-known principles in considering this statute, we find that the fifth subdivision of section 7 provides that food shall be deemed to be adulterated: "If it contain any added poison- ous or other added deleterious ingredient which may render such article injurious to health." The instruction of the trial court permitted this statute to be read without the final and qualifying words, concerning the effect of the article upon health. If Congress had so intended the provision would have stopped with the condemnation of food which contained any added poisonous or other added deleterious ingredient. In other words, the first and familiar consideration is that, if Congress had intended to enact the statute in that form, it would have done so by choice of apt words to express that intent. It did not do so, but only condemned food containing an added poisonous or other added deleterious ingredient' when such addition might ren- der the article of food injurious to the health. Congress has here, in this statute, with its penalties and forfeitures,, definitely outlined its inhibition against a particular class of adulteration. It is not required that the article of food containing added poison- ous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the Government in order to make out a case to establish that fact. The act has placed upon the Government the burden of establishing, in order to secure a verdict of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article injurious to health. The word "may" is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. It is, says Webster, "an auxiliary verb, qualifying the meaning of another verb, by expressing ability, •* * *, contingency or liability, or possibility or proba- bility." In thus describing the offense Congress doubtless took into consideration that flour may be used in many ways, in bread, cake, gravy, broth, etc. It may be consumed, when prepared as a food, by the strong and the weak, the old and the young, the well and the sick; and it is intended that if any flour, because of any added poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the ban of the statute. If it can not by any possibility, when the facts are reasonably considered, injure the health of any consumer, such flour, though having a small addition of poisonous or deleterious ingredients, may not be con- demned under the act. This is the plain meaning of the words, and in our view needs no additional support by reference to reports and debates, although it may be said in passing that the meaning which we have given to the statute was well expressed by Mr. Heyburn, chairman of the committee having it in charge upon the floor of the Senate (Congressional Record, vol. 40, pt. 2, p. 1131) : As to the use of the term "poisonous," let me state that everything which contains poison is not poison. It depends on the quantity and the combination. A very large majority of the things consumed by the human family contain, under analysis, some 40066—14 45 706 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. kind of poison, but it depends upon the combination, tlie chemical relation which it bears to the body in which it exists, as to whether or not it is dangerous to take into the human system. And such is the view of the English courts construing a similar statute. The English statute provides (s. 3 of the Sale of Food and Drugs Act, 1875): No person shall mix, color, * * * or order or permit any other person to mix, color, * * * any article of food with any ingredient or material so as to render the article injurious to health. That section was construed in Hull v. Horsnell, 68 J. P. 591, which involved preserved peas, the color of which had been retained by the addition of sulphate of copper, charged to be a poisonous substance and injurious to health. There was a conviction in the lower court. Lord Alverstone, C. J., in reversing and remitting the case on appeal, said: In my opinion, if the justices convicted the appellant of an offence under s. 3 of the Sale of Food and Drugs Act, 1875, on the ground that the ingredient mixed with the article of food was injurious to health — that the sulphate of copper was injurious to health, and not on the ground that the peas by reason of the addition of sulphate of copper were rendered injurious to health, the conviction is clearly wrong. To consti- tute an offence under the latter part of s. 3 the article of food sold must, by the addition of an ingredient, be rendered injurious to health. All the circumstances must be ex- amined to see whether the article of food has been rendered injurious to health. We reach the conclusion that the Circuit Court of Appeals did not err in reversing the judgment of the District Court for error in its charge with reference to subdivision five of section 7. The Circuit Court of Appeals reached the conclusion that there was no substantial proof to warrant the conviction, under the fourth subdivision of section 7, that the flour was mixed, colored, and stained in a manner whereby damage and inferiority was concealed. As the case is to be retried to a jury, we say nothing more upon this point. As to the objection on constitutional grounds, it is not contended that the statute as construed by the Circuit Court of Appeals and this court is unconstitutional. It follows that the judgment of the Circuit Court of Appeals reversing the judgment of the District Court must be affirmed, and the case remanded to the District Court for new trial. Affirmed. UNITED STATES v. 200 CASES OF TOMATO CATSUP. « (District Court, D. Oregon, March 9, 1914.) 211 Fed. 780; N.J. No. 3372. Where a food product is alleged to be adulterated in that it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, held that it is not incumbent upon the Government to prove that such a product would be injurious to the health of the consumer. Libel for the condemnation of certain cases of tomato catsup alleged to be adulterated. Jury waived. Decree in favor of the Government. Bean, District Judge. The United States, proceeding under the Pure Food and Drugs Act (34 Stat. 770), filed a libel in this [781]1 1 Numbers in brackets refer to pages of Federal Reporter. DECISIONS OF COURTS. 70 7 court for the condemnation of 200 cases of tomato catsup, alleging that it was adulterated within the meaning of the act, which declares that a food product is deemed to be adulterated "if it consists in whole or in part of a filthy, decomposed, or putrid animal or vege- table substance." After the seizure the product was claimed by the company which manufactured it and the proceedings defended. The claimant admits the interstate shipment and other jurisdictional facts, but denies that the catsup was decomposed or adulterated within the meaning of the law. By stipulation of the parties the case was tried before the court without a jury. It turns upon two questions : First, whether the product was in fact decomposed; and, if so, whether it was "adul- terated" as defined by the Pure Food Law. It was manufactured from pulp screened from peelings, cores, and by-products of tomatoes, obtained in the course oi their preparation for canning. The decay or decomposition of tomatoes or tomato products is commonly the result of the attack upon the fruit in the field, or in process of manu- facture, of various forms of plant life, such as yeast, bacteria, and mold. They feed upon certain compounds in the fruit, reducing the food value of the product, and producing a by-product of a more or less offensive character, and are evidences of decay and decom- Eosition. The condiments used in the manufacture of tomato catsup ave the effect of concealing decomposition or putrefaction from the senses, and its existence can most readily be determined by a bacte- riological analysis of the manufactured product to ascertain whether the organisms referred to are present in sufficient quantities to indi- cate a decomposed state. Various samples of the product in question have been carefully analyzed under the microscope, separately, by Dr. Schneider, of the University of California and the Government laboratory in San Franci-co, and Prof. Beckwith, of the Oregon Agricultural College, both of whom are expert bacteriologists, and they agree that it con- tains bacteria, yeast, and mold in very large and unusual quantities, as high as from 350 million to 1 billion bacteria and 15 million yeast spores per cubic centimeter (about one-quarter of a teaspoonful) and mold hyphre in abundance, thus indicating, in the opinion of these experts, a largely decomposed condition, Dr. Schneider says from 10 to 15 per cent, and according to their testimony it is unfit for human food. This testimony is not contradicted in any way, although the claimant was permitted to and did take samples of the goods for analysis after their seizure. Nor is there any conflict among the experts as to the scientific deductions to be made there- from. It would seem conclusive therefore of the fact that the product is decomposed in part or in whole. The examination of the bacteriologists is confirmed by a chemical analysis made by the chemist at the Government laboratory, and hi my judgment finds support in the method of manufacture. The evidence shows that the fruit from which the product in question was manufactured was brought to the factory in carload lots in boxes containing about 50 pounds each. Without being sorted or examined in any way except the merest visual examination of the outer layer of [7821 fruit, the contents of the boxes were emptied for washing into a vat containing about 150 gallons of water, which was only changed once a day, except as it might be affected by a one-inch stream running into the 708 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. vat and an overflow pipe at the top. While in the water the tomatoes were stirred by a mechanical screwlike agitator, which subsequently carried them to the steaming table, where they were scalded with hot water to loosen the skin, and washed under a spray of cold water. From there they were taken in buckets to the peeling table, where the skins were removed and the tomatoes graded for canning. Then the skins, with such pulp as adhered to them, the stem ends, and like by-products were placed in buckets by the operatives and subse- quently taken to another department of the factory, where they were used in the manufacture of the catsup in question. The washing of a large quantity of fruit which necessarily is more or less infected with bacteria, mold, and decay in the manner described would naturally have a tendency to foul the water and infect the entire lot, and especially the skins and by-product from which the catsup in question was manufactured. Again, the claimant depended on the peelers or sorters to sort out and reject the decayed portions from the trimmings before they were sent to the catsup department. The peelers were paid by the piece for the peeled tomatoes only, and it is but natural that they would become careless or indifferent about the removal of the decayed material from that portion of the output for the handling of which they received no direct compensation. It therefore seems to me that the method of manufacture adopted by the claimant was calculated to produce just such a product as the bacteriologists found the one in question to be. Better methods of handling the fruit are in vogue, for it is in evidence that in other factories, the output of which was shown to be unobjectionable, the tomatoes were sorted and the decayed or infected ones removed before being washed and were washed in perforated metal cylinders by sprays of clean water. If the testimony in this case is to be considered, and it is uncon- tradicted, there is, in my judgment, but one conclusion which can be reached, and that is the product in question was decomposed and adulterated within the meaning of the Food and Drugs Act. It is argued for the claimant that since the presence of bacteria, mold, and yeast in any quantity is evidence of decomposition or the process of decomposition, and there is no fixed standard by which it can be determined when a product has reached such a stage of decom- position as to "consist in whole or in part of filthy, decomposed, or putrid vegetable substance," the Government can not prevail. I infer from the testimony of the experts that it would be difficult, if not impossible, to fix any arbitrary standard by which the question could be determined, as it depends upon so many contingencies. In any event, no such standard has been fixed, in the absence of which each case must be determined on its own facts; and when it appears, as in this case, that the product is so far decomposed as to be unfit for food it comes within the letter and spirit of the law. It was also urged that since there is no proof that the product in question would be injurious to health a verdict should be ordered in favor of the claimant; but I [783] do not understand that such proof is necessary or required under the provisions of the Food and Drugs Act, on which this proceeding is based. The object of the law is to prevent the manufacture or interstate shipment of adulterated food, and when food is adulterated so as to "consist in whole or in part of filthy, decomposed, or putrid animal or vegetable substance" its DECISIONS OF COURTS. 709 interstate shipment is prohibited, whether its use would be injurious to health or not. The recent decision of the Supreme Court, while not at hand, involved, as I understand from the press report, the construction of the fifth subdivision of section 7, and not the one involved in this controversy. I conclude, therefore, that the motions for nonsuit and directed verdict should be overruled and that a decree should be entered in favor of the Government, as prayed for in the libel. UNITED STATES v. 13 CRATES OF FROZEN EGGS. (Circuit Court of Appeals, Second Circuit, June 3, 1914.) N. J. No. 3411. In a prosecution for violation of the Food and Drugs Act, it is not incumbent upon the Government to prove the wrongful intent of the shipper of an adulterated article of food. Appeal from and in error to the District Court of the United States for the Southern District of New York, to review a decree entered upon a trial directing the condemnation of certain cases of frozen eggs seized under the Food and Drugs Act, June 30, 1906, 34 Stat. 768. Writ of error dismissed, judgment affirmed.1 Before Coxe and Rogers, Circuit Judges, and Mayer, District Judge. Coxe, Circuit Judge. The question involved in this controversy is simply this — whether decayed frozen eggs taken from the shell and mixed together are within the prohibition of the act of Congress which prohibits the transportation from one State to another of any adulterated article of food. We are clearly of the opinion that they are, and that the question of intent of either the shipper or the consignee has nothing to do with the question. The law could not be enforced if the Govern- ment is compelled, in the case of articles clearly prohibited from interstate commerce, to establish the wrongful intent, of the parties. It is enough that such articles are prohibited. All that it is neces- sary for the Government to show is that an adulterated article of food has been transported in interstate commerce, and it has amply shown this in the present case. Judge Ray has found the facts and correctly stated the principles of law applicable. The judgment is affirmed. Coxe, Circuit Judge (dismissing writ of error). In view of our decision in the case of the United States v. 13 Crates of Frozen Eggs, decided at this term, it is hardly to be expected that a conclu- sion in favor of the plaintiff in error would be reached herein, even if we were permitted to review the questions presented at the argument and in the briefs. But we are not permitted to review these ques- tions, because there is no bill of exceptions. None of the questions discussed is properly before us. The writ of error is dismissed. 1 United States v. 13 Crates of Frozen Eggs, p. 669 ante, affirmed. 710 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNITED STATES v. 40 BARKELS AND 20 KEGS OF COCA- COLA. (Circuit Court of Appeals, Sixth Circuit, June 13, 1914.) Circular No. 80, Office of the Solicitor. A beverage labeled "Coca-Cola" held to be an article of food sold under its own dis- tinctive name, and not adulterated because of the fact that it contained caffeine. In error to the District Court of the United States for the Eastern District of Tennessee. Affirmed.1 Before Warrington, Knappen and Denison, Circuit Judges. Denison, Circuit Judge. This proceeding was brought by the United States to condemn a quantity of syrup called Coca-Cola. Forfeiture was claimed under the Pure Food Law (34 Stat., 768), be- cause the syrup was said to be adulterated and misbranded. The case was tried at great length before a jury; at the conclusion of the trial, the Government withdrew certain issues, and upon the two re- maining matters the court instructed a verdict for the Coca-Cola Company, the claimant of the property. The sole question presented by this writ of error is whether there was any evidence tending to show that the article was either adulterated or misbranded within the prohibition of the act. The facts presented and the questions involved are so well set out by the district judge in his. carefully prepared opinion (191 Fed., 431)2 that we refrain from further preliminary statement. The sections and clauses of the act which it seems may have some bearing on the question before us are given in the margin.3 In applying a statute to particular facts and where it becomes neces- sary to construe language to which opposing sides give different mean- ings, it is vital to have in mind the essential scope and purpose of the act. The present case well illustrates the importance of this con- sideration. Much of the Government's contention as to the extent of the prohibitions here found rests upon the theory that Congress intended to protect the public health by preventing (to the extent of 1 Affirming United States v. 40 Barrels and 20 Kegs of Coca-Cola, p. 395, ante. 2 The parts of the libel voluntarily dismissed by the Government were those matters numbered 4 and 5 in the district judge's opinion; the statement on page 440 of 191 Fed. is erroneous in this respect. 8 Sec. 6. * * * the term "food," as used herein, shall include all articles used for food, drink, con- fectionery or condiments, by man or other animals, whether simple, mixed or compound. Sec. 7. That, for the purposes of this act, an article shall be deemed to be adulterated * * * in the case of food * * * third, if any valuable constituent of the article has been wholly or in part abstracted * * * fifth, if it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health. Sec. 8. That the term "misbranded" as used herein, shall apply to all drugs or articles of food or articles which enter into the composition of food, the package or label of which shall bear any statement, design or device regarding such article or ingredients or substances contained therein which shall be false or mis- leading in any particular * * * that for the purposes of this act, an article shall also be deemed to be misbranded * * * in the case of food: First, if it be an imitation of or offered for sale under the distinc- tive name of another article. Second, if it be labeled or branded so as to deceive or mislead the purchaser * * * or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate or acetanilid or any derivative or preparation of any such substances contained therein * * * Fourth, if the package containing it or its label shall bear any statement, design, or device regarding the ingredients of the substances contained therein, which statement, design, or device shall be false or misleading in any particular: Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First, in the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be ac- companied on the same label or brand with a statement of the place where said article has been manufac- tured or produced. Second, * * * And provided further, That nothing in this act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient, to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding." DECISION'S OF COURTS. 711 the constitutional power resting in the commerce clause) the sale or transportation of deleterious foods. The opposing contention denies this broad purpose and concedes only the intent to prevent any fraud or deception in the sale of foods. The title to the act is broad enough to support the Government's utmost claim as to general purpose. It is "An act for preventing the manufacture, sale, or transportation of adulterated, or misbranded or poisonous or deleterious foods," etc. If there was nothing in the body of the act expressly prohibiting the sale of deleterious food, qua deleterious, this title would furnish some reason for expanding in that direction any terms of prohibition there might be, ambiguous enough to permit the implication (Goodlett v. L & N. R. R., 122 U. S. 391, 408) ; but we find in section 11, which relates solely to importations from foreign countries, an express direction that such importation shall be wholly forbidden if the food is adulter- ated or misbranded, "or is otherwise dangerous to the health of the people of the United States." We have, therefore, a provision which responds to the call of the title in this particular and makes it unneces- sary to resort to any otherwise unjustifiable construction for the mere purpose of giving some effect to all parts of the title. With the excep- tion of this clause of section 11, every other directly or indirectly pro- hibitory clause of the act relates to articles which carry the taint of deception and fraud by being adulterated or misbranded. Section 2 prohibits interstate commerce in any article "which is adulterated or misbranded within the meaning of this act," and subsequent clauses of the same section refer to ' ' any such article so adulterated or mis- branded within the meaning of this act," and to "any such adulterated or misbranded foods." The expert examination provided for by sec- tion 4 is to determine "whether such articles are adulterated or mis- branded." Section 7 defines when, for the purposes of the act, an article shall be deemed to be adulterated, and section 8 defines the term "misbranded" as used in the act, and specifies when, for the purposes of the act, an article shall be deemed to be misbranded. Section 9 prescribes a certain immunity from prosecution when there is a guaranty to the effect that the article is not adulterated or mis- branded within the meaning of the act. Section 10 provides for the seizure and forfeiture of the offending articles, but its effect is limited to an article which is adulterated or misbranded within the meaning of the act. A subsequent clause of section 10 furnishes some super- ficial support for the broader theory of the purpose of the act by pro- viding for the disposition of the offending article, if it "is condemned as being adulterated or misbranded, or of a poisonous or deleterious character within the meaning of this act"; but this support is only superficial, because the power to condemn, given by the first part of section 10, rests on the finding that the article is "adulterated or mis- branded." This general reference to a poisonous or deleterious char- acter as ground of condemnation must be to instances where that character, by incorporation into the article, causes the fatal adultera- tion or misbranding. Considering all these parts of the act, together with its title, we can not doubt that, so far as its general purpose and intent furnish any aid for interpretation, that general purpose and intent must be deemed to be the prevention of fraud and deception, so that the purchaser can get the thing he has a right to suppose he is getting, rather than the protection of the public health to the extent of preventing the purchaser from deliberately and intentionally buy- 712 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. ing a particular food which is what it purports to be, even though a jury might think it "deleterious." If argument were needed to sustain this conclusion, it could be found in the provisions as to drugs. Foods and drugs are put on the same basis throughout, save as to matters of definition and some detailed requirements. There can be no room to suppose that the act was intended to prohibit broadly the sale of all deleterious foods and not to prohibit with equal breadth the sale of all poisonous drugs. The latter supposition is impossible; and so the former can not be accepted. Further support will be found in the provisions which, by necessary implication, permit the sale of foods containing cocaine, morphine, and the like, provided the purchaser is properly advised of the contents. These views of the general pur- pose of the act have been accepted by the decisions, so far as they go (Savage v. Jones, 225 U. S. 501, 533-5; McDermott v. Wisconsin, 228 U. S. 115, 131 ; United States v. Lexington Co., 232 U. S. 399, 409). The general language of the court in the last-cited case that "the statute was intended to protect the public health from possible injury," is not at all inconsistent with the view we have expressed, because that language is used with reference to adulterations and the addition to known foods of injurious elements. The very last word "adulterated" imports fraud and deception; it implies that the article is not what it purports to be. Under the statement of facts it is clear that the only question arising under section 7 is whether the caffeine in the Coca Cola is an "added poisonous or other added deleterious ingredient which may render such article injurious to health;" and, under the assumption made by the district judge, of which the Government can not com- plain, and which we here adopt, but only for the purposes of this opinion — i. e., that there was evidence requiring submission to the jury to the effect that caffeine is a poisonous or deleterious ingredient which may render the Coca Cola injurious to health — it is equally clear that the turning point is whether it can be said or whether a jury could be permitted to say that the caffeine was "added" within the meaning of this clause. It is impossible intelligently to conceive the meaning of "added," unless we suppose a base upon which the addition is placed, and we at once meet the question: If caffeine is the addition, what is the base? For fifteen years before the passage of the act, Coca Cola has been an existing article of food (within the statutory definition of "food") and in the latter ten years of that period it had been one of the most widely known and used articles of its general class. It was a compound; it had no distinctive base (unless water, by reason of its larger propor- tions) ; it was made up of water, sugar, caffeine, phosphoric acid, glyc- erine, lime juice, coloring matter, flavoring matter, and "merchandise No. 5." Each of these elements is more or less important; there seems to be no method of determining their relative importance; but if any one may be rejected as comparatively negligible or second- ary or noncharacteristic, that one is not caffeine. In the manufac- turing process, water and sugar are boiled to make a syrup; this boiling is repeated; then caffeine is "added" and then the syrup is boiled once or twice more; the syrup is then put into a cooling tank and then into a mixing tank in which the remainder of the process is carried on and in which the other elements become part of the ulti- DECISIONS OF COURTS. 713 mate combination. It is plain as may be that without caffeine the mixture would not be Coca Cola, and the purchaser who had been using it in its standard form fifteen years when the act was passed and who might then buy an article of the same name which did not contain any caffeine would rightfully think that he was deceived; and yet it is said that the act intended to prevent misleading the public is violated unless the public is thus misled. It is another form of the same thought to say that the mere use of the word "adulterate" or "added" implies the existence of a standard, and it is a contradiction in terms to say that the use of an element necessary to constitute the standard is an adulteration of or addition to the standard; but, to this contradiction, the argu- ment for the Government necessarily leads. So, further, we find that clause 3 of that division of section 7 relating to foods declares adulteration if any valuable constituent has been abstracted. Caf- feine is a valuable constituent. If it is omitted, the article is adul- terated and if it is included the article is adulterated. We must break clause 3 to keep clause 5. It is urged that in case of a compound article each element is, in a proper sense, "added," and so, if any element is deleterious, it is an "added deleterious ingredient." This position not only depends in part upon what we have thought an erroneous view of the gen- eral purpose of the statute, but it destroys all force in the word "added" and gives clause 5 of that part of section 7 relating to food precisely the same meaning as if it read "if it contain any poisonous or other deleterious ingredient," etc. The deliberate and careful insertion of the word "added" before the word "poisonous," and again before the word "deleterious," while the word is omitted in the preceding almost identical clause relating to confectionery, can not be treated as accidental or meaningless. So to do would violate the settled rule of construction which requires us to "give full effect to all the words in their ordinary sense." (Bend v. Hoyt, 13 Pet., 263) and requires that "signification and effect shall, if possible, be carried to evesy word" (Washington Co. v. Hoffman, 101 U. S., 112, 115), and declares it the "duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed" (Montclair v. Rams- dell, 107 U.S., 147, 152). Again, it is urged that the true test whether the deleterious ingre- dient is "added" is whether this ingredient is in its natural or in an artificial form. This criterion is supposed to find support in state- ments made during the congressional debates and in the well-known fact that many natural articles of food, like fruits, contain elements which in the combination formed by the complete fruit are not mate- rially harmful, but which, when extracted and administered sepa- rately, may be injurious. This criterion may often be a useful aid in applying and interpreting the statute-, but to apply it as a hard and fast rule where artificially compounded foods are under consid- eration comes to saying, in the case before us, that if coffee berries or tea leaves, or, we take it, the complete extract of coffee berries or tea leaves, containing the amount of caffeine now in question, were put into the compound in its manufacture, there would be no violation of the law; but that if the caffeine, and that only, which 714 EEDEEAL FOOD AND DKUGS ACT AND DECISIONS. was in these same coffee berries or tea leaves, or in some other natu- ral product, is put into the sirup, the law is broken. Alcohol surely might be considered a "deleterious ingredient" if caffeine may be; but can we suppose that a compound food would be obnoxious to this law if it contained five per cent of alcohol purchased in the mar- ket ready distilled, and yet that a compound otherwise the same would be within the approval of the law, though it contained twenty- five per cent of alcohol distilled from grain during the process of making the compound ? There has been much controversy whether "blended whisky" could be sold under that name, but it has never been thought to be forbidden merely because its alcohol was an "added" ingredient. Many wines are "fortified" by adding alco- hol, and these may be obnoxious to the law for other reasons; but, if the theory now under consideration is correct, they could not be sold at all, no matter how labeled. This theory must even lead us to say that if a ground or pulverized coffee or a coffee extract is so deficient in caffeine as to be below standard the law is violated by adding from another source caffeine enough to make the coffee of full normal strength, or to say that it is a vital distinction whether the citric acid contained in any familiar and popular acid beverage is at the time of compounding squeezed from a lemon or poured from a bottle. We can not follow the argument which brings us to those results. Not only is it without basis in the statute, but it lacks inherent cogency. We get from section 8 some help on the proper meaning of the phrase " added poisonous or deleterious ingredient," because, unques- tionably, the two sections must be construed together and the same phrase should have the same construction in each. The proviso of the fourth paragraph of that part of section 8 relating to food seems to be drawn with express reference to situations like the present. Congress must have known that many proprietary articles of food and drugs were upon the market under proprietary or trade names, and Congress thought fit to provide that these things should not be deemed to be adulterated unless any deleterious ingredient contained therein was "added." This recognizes somewhat more expressly than is done by section 7 the thought that the necessity of a standard before there can be any adulteration applies as well to compounds as to simple foods, and then avoids future difficulties in application by providing that the compound article in its distinctive and known form should be the standard. We do not overlook the argument that the act makes no distinction between compounds known at its date and those thereafter devised, and so that the construction which prevents an inherent element from being considered as "added" leaves the manufacturer at liberty to use any poison he pleases in making up his compound "food," pro- vided only he gives to it and sells it under a distinctive name. This conclusion must, to some extent, be granted; yet it loses most of its apparent force when we remember the real purpose of the act and observe the exoress direction of the law that the maker of a propri- etary food need not disclose its contents if he states the place of manu- facture. It would seem a proper provision that if a proprietary food contains any ingredient fairly subject to be called deleterious, the maker should disclose on the label its presence and its extent, just as is required in numerous specific instances; but we can not make such DECISIONS OF COUETS. 715 a law. On the other hard, it is difFcult to suppose that Congress intended absolutory to forbid the use in any compound of any element that a jury might later call "deleterious;" but it must be one thing or the other. The prohibition is either absolute or nonexistent. The best known habit-forming drugs are selected, and implied permission is given to allow their use in compounding products for sale, provided they are named on the label; but as to the great mass of other food and drug elements which are undoubtedly deleterious if used to excess, there is no provision for naming them on the label. If they are within the definition of "added deleterious ingredient/' they may never be used under any conditions or in any quantity that may be injurious to health, even though they are described in the largest of letters on the outside of the package. This way of reading the statute would practically greatly impede the progress of synthetic chemistry in foods, and we think it distinctly more unreasonable than it is to suppose that Congress, having selected and regulated the use of those things known to be particularly dangerous, thought best not wholly to forbid at that time other things from which no serious danger need be anticipated. There is a middle view which is sufficient for the purposes of this case and which will recognize the composite meaning of "added dele- terious" rather than the separate meaning of each word. This view is that in using the word "added" with reference to a possibly delete- rious food ingredient, Congress had in mind an addition above and beyond the quantity in which such ingredient was normally found in usual and customary articles of food, and that no such ingredient should be considered as "added" if it was present only in the quan- tity in which it existed in these common articles of food with which every member of Congress was familiar, and which had generally been thought wholesome. For example: creosote and other products of destructive wood distillation are, independently considered, injurious, but they have always been present in smoked hams. Can the addi- tion of the same preservatives to the same extent to the same meat be something that Congress intended to prohibit ? The boric acid found in apples is a preservative. If certain apples which are to be pre- served are not up to the maximum in this element, did Congress intend to forbid supplying the deficiency by the same element from another source ? Acetic acid may, of course, be injurious ; but if, by its use, an artificial vinegar is made which is chemically and in every way equivalent to the natural vinegar familiar to the^ members of Congress in many compounds, would they have thought* of it as a deleterious addition ? No example is so clear as the very one here involved. Every member of Congress had been familiar from childhood with tea and coffee; perhaps most of them drank it. The average cup of coffee contains more than two grains of caffeine; the average cup of tea one and one-half grains. A glass of Coca-Cola, as consumed, contains one and one-fifth grains of caffeine. The chemical qualities and the phys- iological effects of the caffeine which is in the tea or coffee and of the caffeine which is in the Coco-Cola are precisely the same. We are quite convinced that the use in an artificial beverage of a certain ele- ment which had been one of its characteristic elements for many years, and when such use was in a less proportion than the same element was known to make up in different natural beverages than in universal use and generally thought wholesome — that such an element so employed 716 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. could not have been within the meaning of Congress when it chose the words "added deleterious ingredient." The question arising under section 8 — the misbranding section — is to be determined by the proviso under the fourth clause relating to food. Separate reference to the first clause, which forbids sale "under the distinctive name of another article," is unnecessary, because the same prohibition is repeated in the proviso under clause four. We have reached the conclusion that Coca-Cola does not contain any ' ' added poisonous or deleterious ingredients," and it is undisputed that the labels carry a statement of the place of manufacture. Hence this proviso declares that Coca-Cola shall not be deemed to be adulterated or misbranded if it was or is known as an article of food under its own distinctive name and if it is not in imitation of or offered for sale under the distinctive name of another article. It is an article of food under the definition of the statute. That it was, at the time of the passage of the law and ever since has been, known under its own distinctive name is too clear for question, except as it is said that the adopted name can not be its distinctive name because it is the distinctive name of another article. Neither is it said to be an imitation of another arti- cle, except as these words also raise the same question whether it is sold under the distinctive name of another article. Coming to that question, and just as on the subject of adulteration we must first find the standard, we here first meet the inquiry: What is the "distinctive name of another article" under which name Coca-Cola is sold? The record makes it very clear to us that there is no such other article. No article, except plaintiff's compound, is or ever has been sold "under the distinctive name," Coca-Cola. These words constitute and are the distinctive name of plaintiff's product, and they are the distinctive name of nothing else. "Coca" is indicative of one article; "cola" is indicative of another, very distinct; but "Coca-Cola" was not, in 1892, and (save for the general knowledge of plaintiff's article) is not now intelligently descriptive of any combination of the two. It might be medicine, food, or drink; it might be to swallow, smoke, or chew. These associated words as the distinctive name of any substance or combination of substances were unknown until adopted by plaintiff; that "distinctive name" is still unknown as an appellation for any other substance on the market. The burden put upon the Government to show that Coca-Cola is masquerading under the distinctive name of another article is surely more exacting than the burden on one attacking the trade-mark to show that the name is sufficiently misleading as indicating the make- up of the product so that it is an improper trade-mark. We consider the latter question in our opinion, this day filed, in Nashville Syrup Co. v. Coca-Cola Co., and conclude that the name carried no forbidden deception. We need not here repeat that discussion. If that conclu- sion is correct, it is even more certain that Coca-Cola is not guilty of posing "under the distinctive name of another article." It follows that the judgment below must be affirmed. DIGEST OF COURT DECISIONS. ACETANILID. Page. A poisonous substance. United States v. Harper 163 Derivatives of acetanilid contained in a drug product must be de- clared on the label by their proper names, but it is unnecessary to state on the label that such products are derived from acetanilid. United States v. 100 Packages of Antikamnia Tablets 416 Reversed, United States v. Antikamnia Chemical Co 684 ACETPHENETIDIN. (A derivative of Acetanilid.) See Acetanilid. ADDED POISONOUS AND ADDED DELETERIOUS INGREDIENTS. Under the act, an article of food other than confectionery is not deemed to be adulterated merely because it contains a poisonous or deleterious ingredient, unless such ingredient has been " added ; " that is, unless it is foreign to the natural or normal composition of the article. United States v. 40 Barrels and 20 Kegs of Coca-Cola 395 Affirmed by the Circuit Court of Appeals for the Sixth Circuit 710 Where a beverage contains an added poisonous or added deleterious ingredient it is immaterial that the ingredient is present in a small quantity ; if it is an appreciable quantity, the article is adulterated. United States v. Koca Nola Co 213 It was not intended by Congress that the Government must prove that an article contained an added poisonous or added deleterious in- gredient in such quantities as would actually render the article in- jurious to health, but simply that the ingredient is of a poisonous nature or character, such as may render the article injurious to health. It is the character and not the quantity of the added ingredient which is to determine whether an article is adulterated. United States v. 625 Sacks of Flour 285 But see United States v. Lexington Mill & Elevator Co 701 In order to show an article to be adulterated within the meaning of paragraph 5, section 7, of the act, in the case of food, it is neces- sary to prove, not only that the article contains an added poisonous or added deleterious ingredient, but that such ingredient actually renders the article injurious to health. Lexington Mill & Elevator Co. v. United States 604 But see United States v. Lexington Mill & Elevator Co 701 To constitute adulteration within the meaning of paragraph 5, sec- tion 7, in the* case of food, it is necessary to prove, not only that the article of food contains an added poisonous or added deleterious ingre- dient, but also that such ingredient is present in such quantity that it may render the article injurious to the health of the consumer. United States v. Lexington Mill & Elevator Co 701 Where it clearly appears that a poisonous substance wholly foreign to the food product has been added to it solely to mislead and de- ceive, the court is under no duty to endeavor to protect the offender against loss from destruction of the article by indulging in hair-split- ting speculation as to whether the amount of poison used may pos- sibly have been so nicely calculated as not to kill or be of immediate serious injury. United States v. 1,950 Boxes of Macaroni 267 See Boric Acid; Caffeine; Cocaine; Formaldehyde; Martius Tel- low ; Nitrites and Nitrite Reacting Material ; Tin, Salts of. 717 718 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. ADMIRALTY PROCEEDINGS. Page. In declaring that " the proceedings of such libel cases shall con- form, as near as may be, to the proceedings in admiralty," Congress did not confer a new jurisdiction upon the district court. The pro- ceedings after seizure take on the character of a law action and can be reviewed only by writ of error. 443 Cans of Frozen Egg Product v. United States 582 Under Rev. St., Sec. 563, Subd. S (U. S. Coinp. St., 1901, p. 457), giving United States district courts jurisdiction of all civil causes of admiralty and maritime jurisdiction, and of all seizures on land and on water not within the admiralty and maritime jurisdiction, the court in cases of seizures on land proceeds, not as a court of ad- miralty, but as a court of common law jurisdiction on a trial by jury. United States v. George Spraul & Co 372 The Food and Drugs Act (Sec. 10) providing that proceedings in seizure cases shall conform as near as may be to proceedings in admiralty, does not render such proceedings within the admiralty or maritime jurisdiction of the federal courts; the jurisdiction in such proceedings being conferred by the act itself. United States v. 2 Barrels of Desiccated Eggs 388 See Appeal and error ; Admiralty rules. ADMIRALTY RULES. Admiralty rule No. 1 provides that libels shall be verified, except those filed on behalf of the United States. United States v. 2 Barrels of Desiccated Eggs 388 Section 10 of the act, providing that seizure proceedings shall con- form as near as may be to proceedings in admiralty, does not adopt admiralty rule 22, that libels on seizure for breach of the revenue, navigation or other laws of the United States shall state the place of seizure and the district within which the property is brought and where it then is, rather than rule 23, providing that the libel, if in rem, shall state that the property is within the district. United States v. George Spraul & Co 372 Admiralty Rule 29 declares that, on the taking of a libel pro confesso, " the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain." Section 10 of the act provides that the proceedings for condemnation shall conform as near as may be to proceedings in admiralty. Held that the libel being confessed the burden was on the Government where misbranding was alleged to prove that _the label contained a state- ment which was substantially false and misleading. United States v. 650 Cases of Tomato Catsup 183 See Admiralty Proceedings; Appeal and Error; Seizure. ADULTERATED. The word " adulterated " imports fraud and deception ; it implies that the article is not what it purports to be. United States v. 40 Barrels and 20 Kegs of Coca-Cola 710 ADULTERATION. The statute provides that any substance packed with an article which reduces, lessens, or weakens the strength of the article of food, that is, renders it less efficient, less capable of performing the pur- pose for which it is eaten, • renders it adulterated. United States v. Potter 576 The word " adulteration," as used in the Food and Drugs Act. means to corrupt, debase, or make impure by an admixture of a for- eign or a baser substance. United States v. St. Louis Coffee and Spice Mills 196 The ordinary use of the word " adulteration " implies an actual addition to the original substance, through human agency. But the word as used in section 7 of the act does not restrict this to addition by the hand of man ; and if the adulteration of filthy, decomposed, or putrid substance has been added by nature, and is contained in the article shipped, it is adulterated in the eyes of the law. United States v. Sprague et al DIGEST OF COURT DECISIONS. 719 ADULTERATION— Continued. Page. In order to render an article liable to condemnation under section 10 of the act, the adulteration complained of must exist at the time of' the seizure. If the adulteration has been corrected after the re- ceipt of the article by the consignee it is not subject to seizure and condemnation. United States v. 5 Boxes of Asafoetida 318 In a proceeding by way of libel for the condemnation and forfeiture of an adulterated food product, it is no defense that the article was in good condition when packed and shipped. The condition of the article when seized governs in determining whether it is adulterated. United States v. 2,000 Cases of Canned Tomatoes 342 AFFIDAVITS. Affidavits used in support of the allegations of an information must contain a venue; and if sworn to before a notary public, must have a certificate attached showing that the person certifying them was at the" time a notary public and authorized by the laws of the State or district to take and certify oaths and affirmations, and that the same was taken and subscribed as required by the laws of the State or district. If taken before a State judge or justice of the peace, or commissioner, outside of the district where the affidavit is to be used, there should be a like certificate. United States v. Baumert et al 267 See Informations. See also United States v. Weeks, p. S36, post. AGENTS. Agents are jointly liable with the principal for acts done on behalf of the principal leading to a violation of the act. United States v. Mayfield 244 Inducement by an agent of the United States Department of Agri- culture of an interstate shipment of a misbranded article is not a de- fense to a prosecution of the shipper. United States v. Morgan et al_ 300 United States v. Schuch ' 364 See Estoppel ; Inducement of Shipment. ALMOND PASTE. See Corn Sirup. ANALYSIS. The Government is not limited to the methods of analysis for vinegar set forth in Bulletin 65, Bureau of Chemistry, United States Department of Agriculture, or any other prescribed form of analysis. United States v. 100 Barrels of Vinegar 448 It is not a condition precedent to a libel proceeding for the con- demnation of adulterated food under section 10 of the ,act that the claimant be furnished with a part of the sample taken and a copy of the results of the analysis made by the Government. United States v. 2,000 Cases of Canned Tomatoes 342 See Libels ; Samples. ANTIKAMNIA. A drug labeled "Antikamnia Tablets " which contained acetpkeneti- din, held not misbranded because of a statement on the label that it contained no acetanilid and because of the failure to declare on the label that the acetphenetidin contained therein was a derivative of acetanilid. United States v. 100 Packages of Antikamnia Tablets 416 Reversed, United States v. Antikamnia Chemical Co 6S4 See Acetanilid. APPEAL AND ERROR. Proceedings undder section 10 of the act by way of libel for con- demnation and forfeiture, after the seizure by process in rem, take on the character of common law cases, and it is inappropriate to review such cases on appeal. Such proceedings can only be reexamined according to the rule of common law, which would be by writ of error. United States v. 779 Cases of Molasses 218 United States v. 3 Barrels of Vanilla Tonka and Compound 586 720 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. APPEAL AND ERROR— Continued. Page. Lexington Mill & Elevator Co. v. United States 604 443 Cans of Frozen Egg Product v. United States 582 See Admiralty Proceedings ; Jurisdiction ; Seizures. APPLES. So-called " Tepee Apples " held niisbranded as to the State where produced. United States v. 100 Cases Tepee Apples et al 172 See Blackberries. ASAF(ETIDA. Asafoetida which did not comply with the tests prescribed by the United States Pharmacopoeia when shipped, held not to be adul- terated or misbranded where the article was tested by the consignee prior to seizure and correctly labeled by him to show its true stand- ard of strength, quality and purity. United States v. 5 Boxes of Asafoetida • 318 See Adulteration; Misbranding; Original Package; Seizure. ATTORNEYS, UNITED STATES. The Food and Drugs Act (section 4) does not repeal Revised Stat- utes sections 701 or 1022, making it the duty of the district attor- neys of the United States to prosecute all offenders against the laws of the United States, nor does said act limit his authority to the • prosecution only of those offenders who have been accorded a hear- ing before the Department of Agriculture. United States v. Morgan et al 494 BACTERIA. There may be bacteria or bacilli without decomposition ; but there can not be decomposition without the presence of bacteria or bacilli. United States v. F. E. Rosebrock & Co 343 Various forms of plant life, such as yeast, bacteria, and mold, in tomato catsup, are evidences of decay and decomposition. United States v. 200 Cases of Tomato Catsup 706 Though not in themselves filthy, bacteria, including B. coli and streptococci, when present in a food, indicate that such food consists in whole or in part of a filthy, decomposed or putrid animal or vege- table substance, and are therefore evidence of adulteration. United States v. Dade 554 A substance containing bacilli liable to cause disease, to such an extent as to make it dangerous for food purposes is " filthy " under the meaning of that word as generally used ; and especially since in- vestigation has shown that filth or dirtiness is dangerous through the germs which it contains, and not solely because of offense to the. senses. United States v. Sprague et al 665 See Filthy, Decomposed, and Putrid. BEEMAN'S PEPSIN CHEWING GUM. Held misbranded because of false and misleading statement on label regarding the quantity of pepsin contained therein. United States v. American Chicle Co 524 See Curative Effect of Drugs; Distinctive Name; Election; Trade Mark. BI-CARB-SODARINE. Held not misbranded by reason of a statement on the label to the effect that the article is better than any other bread preparation. United States v. 165 Cases of Bi-Carb-Sodarine 357 See Dealer's Praise. BLACKBERRIES. So-called " Tepee Blackberries " held misbranded as to the State in which produced. United States v. 100 Cases of Tepee Apples et al 172 See Apples. . DIGEST OF COURT DECISION'S. 721 BLEND. Page. All sirups are " like substances " within the meaning of the act. Held, that sirup composed of refined cane sugar flavored with an » extract of maple wood sold under a label describing it as " Western Reserve Ohio Blended Maple Syrup " is a blend within the meaning of the act and is not misbranded. United States v. 68 Cases of Syrup_ 216 Contra, United States v. Scanlon ; 181 An article composed of black pepper and long pepper, labeled " Pure Pepper," held misbranded ; held that said article was a blend and should have been so labeled. United States v. 75 Boxes of Al- leged Pepper 502 In addition to requiring, in the case of blends, that the word " blend " be stated on the label, Congress added another require- ment— " Provided, That the term blend as used herein shall be con- strued to mean a mixture of like substances," etc. If the substances mixed are not " like substances " the statement on the label, that the product is a " blend," is not sufficient to secure immunity from seizure for misbranding. Distilled vinegar and boiled cider held to be unlike substances, and not to constitute a blend. United States v. 10 Bar- rels of Vinegar 410 See Compound ; Pepper ; Syrup ; Vinegar. BOND. See Importations. BORIC ACID. A poisonous and deleterious substance. United States v. 50 Cans of Preserved Whole Egg 227 See Added Poisonous and Added Deleterious Ingredients; Egg Products. BOURBON WHISKY. See Whisky. BRAIN-FOOD OR BRANE-FUDE. A drug so labeled held misbranded within the meaning of the act. United States v. Harper 163 See Curative Effect of Drugs. BRANDS AND LABELS. The act does not confer upon executive officers the power to pre- scribe the brands and labels upon drugs. United States v. 100 Pack- ages of Antikamnia Tablets 416 But see United States v. Antikamnia Chemical Co 684 See Labels; Regulations. BUFFALO LITHIA WATER. Water taken from a spring at Buffalo Lithia Springs, Mecklenburg Co., Va., and labeled " Buffalo Lithia Springs No. 2 * * * Buffalo Lithia Springs Water, Nature's Materia Medica, * * * " held mis- branded because said water did not contain a sufficient amount of lithium to entitle it to be called lithia water. United States v. 7 Cases of Buffalo Lithia Water 697 See Lithia Water; Standards of Purity. BULLETIN NO. 65. BUREAU OF CHEMISTRY, UNITED STATES DE- PARTMENT OF AGRICULTURE. See Analyses. BURDEN OF PROOF. The burden is on the Government in proceedings for violation of section 2 of the act to establish its case beyond a reasonable doubt. United States v. Hobart 328 United States v. C F. Blanke Tea & Coffee Co 598 Von Bremen et al. v. United States 500 40066—14 46 722 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. BURDEN OF PROOF — Continued. Page. Where the claimant neither answered nor contested the allegations of a libel filed under section 10 of the act, it was held to be the duty of the court, before a decree of Condemnation was entered, to see that a case was made out by the libelant. The burden held to be on the Government to show that the label contained a statement sub- stantially false or misleading. United States v. 650 Cases of Tomato Catsup 183 Where confectionery alleged to contain talc was proceeded against under section 10 of the act, held that the burden was on the Govern- ment to establish by a fair preponderance of the evidence not only that the article contained talc, but that it contained an appreciable amount of talc. United States v. 307 Cases of Confectionery J 516 The burden of proof is on the Government, in proceedings instituted under section 10 of the act, to prove the offense charged by a pre- ponderance of the evidence. United States v. 3,000 Pounds of Frozen Eggs 353 United States v. 625 Sacks of Flour 285 United States v. 175 Boxes of Macaroni 591 The burden is on the Government in seizure cases to establish the allegations of the libel by the weight of the evidence. United States v. 443 Cans of Frozen Egg Product 351 United States v. 300 Cases of Mapleine 190 In seizure proceedings under section 10 of the act, the burden of proof is on the Government to establish its case by a higher degree of proof than a mere preponderance. It is not the ordinary burden of proof such as exists in a civil suit between two parties. United States v. One Barrel of Desiccated Egg Product 253 United States v. 10 Barrels of Olives 280 A seizure proceeding brought by the United States under section 10 of the act is not an ordinary civil suit, neither is it an ordinary criminal suit. It occupies a place between those two proceedings. It is a suit to enforce a penalty. The remedy is a severe one, and the burden is on the Government to offer better evidence than just the mere weight. The evidence of the Government must be clear and convincing to secure a favorable verdict. United States v. 36 Bottles of London Dry Gin 647 See Reasonable Doubt. BUTTER. Alleged to be adulterated under act of Congress of February 17, 1898 (30 Stat. 246, c. 25). District of Columbia v. Coburn 275 CAFFEINE. Caffeine held to be a normal constituent of Coca-Cola, and not an added ingredient within the meaning of the act. United States v. 40 Barrels and 20 Kegs of Coca-Cola 395 Affirmed by C C. A., Sixth Circuit 710 Caffeine held to be an added poisonous and deleterious ingredient in a beverage called " Celery Cola." United States v. Mayfield et al 244 See Added Poisonous and Added Deleterious Ingredients; Celery Cola ; Coca-Cola. CALCIUM ACID PHOSPHATE. An article labeled " C. A. P.," which was composed of calcium acid phosphate and starch, and which contained no added poisonous or added deleterious "ingredients, held not adulterated or misbranded by reason of the addition of starch, the presence of which was not declared on the label, because it was an article manufactured and sold under its own distinctive name. United States v. 100 Barrels Calcium Acid Phosphate 212 See Distinctive Name. 1 Pending on writ of error in the Circuit Court of Appeals for the First Circuit. DIGEST OP COURT DECISIONS. 723 CANCERINE. Page. A drug labeled " Cancerine " held not misbranded on account of alleged false and misleading statements on its label regarding its therapeutic effect or curative powers. United States v. Johnson * 238 Affirmed, United States v. Johnson ' 427 See Curative Effect of Drugs. CATSUP, COMPOUND. Tomato catsup to which pumpkin had been added as a filler, and which was labeled " Compound Catsup," without anything on the labels under which it was sold to show the substances composing the compound, held adulterated and misbranded. William Henning & Co. v. United States 506 See Tomato Catsup. CELERY COLA. A beverage labeled ■' Celery Cola " held adulterated because it con- tained cocaine and caffeine, added poisonous and deleterious ingredi- ents; and misbranded because the quantity or proportion of cocaine present was not declared on the label. United States v. Mayfield et al 244 See Added Poisonous and Added Deleterious Ingredients; Caffeine; Cocaine. CERTIFICATE. See Affidavits. CHAMPAGNE. The term " Champagne," when used alone and apart from any qualifying or descriptive words, is commonly understood to describe an effervescent or sparkling wine produced in a Province of France, the gas therein being the result of natural fermentation. Held, a bot- tle containing wine produced in California and labeled " Extra Dry Champagne," without any other qualifying or descriptive words, tends to mislead and deceive the purchaser into the belief that he is buying a foreign product, and is misbranded under the provisions of the act. United States v. Schraubstadter et al 393 Affirmed, Schraubstadter et al. v. United States 564 A cheap, ordinary, low-grade, carbonated white wine is not cham- pagne in any sense of that word, and such an article labeled " Spe- cial Gold Cabinet Extra Dry " with designs and devices upon the label and the bottle such as are ordinarily found on genuine champagne, and packed, bottled, and dressed in the same manner as genuine champagne, and sold as champagne, is misbranded. United States v. 5 Cases of Champagne 662 CHEWING GUM. See Beeman's Pepsin Chewing Gum. CIRCUIT COURTS OF APPEALS. See Jurisdiction. , CIRCULARS. Section 8 of the act, relating to misbranding, merely embraces any statement, design, or device regarding an article which appears on the outside of the package in which the article is offered for sale, and does not include an advertising circular inclosed with the pack- age. Such a circular is not a part of the label. United States v. American Druggists' Syndicate1 406 False or misleading statements on a circular inclosed with a drug constitutes misbranding within the meaning of the act. United States v. Harper 163 See Label. 1 Decided prior to the enactment of the Sherley Amendment of Aug. 23, 1912. 724 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. CIRCULAR 19, UNITED STATES DEPARTMENT OF AGRICULTURE. Page. See Standards of Purity. CIVIL CASES. Proceedings in rem under section 10 of the act are civil as dis- tinguished from criminal cases. United States v. 300 Cases of Mapleine 190 See Burden of Proof. COCA-COLA. An article labeled " Coca-Cola," containing caffeine, held to be a mixture or compound sold under its own distinctive name, and not adulterated by reason of the presence of caffeine, or misbranded as being sold under the distinctive name of another article. United States v. 40 Barrels and 20 Kegs of Coca-Cola 395 Affirmed by C. C. A., Sixth Circuit 710 See Added Poisonous and Added Deleterious Ingredients; Dis- tinctive Name. COCAINE. An added poisonous and deleterious ingredient. United States v. Koca Nola Co 213 United States v. Mayfleld et al 244 See Added Poisonous and Added Deleterious Ingredients ; Celery Cola ; Delicious Dopeless Koca Nola ; Koca Nola Syrup ; Specific for Asthma. COCOANUT. See Shred Cocoanut. COFFEE. Coffee shipped from Aden, Arabia, whether produced in Arabia or Abyssinia, may properly be labeled " Mocha," but it is misbranded if it fails to state on the label the name of the country in which it was produced. United States v. Thomson & Taylor Spice Co 553 An article labeled " Blanke's Kafeka * * * is the nearest approach to coffee ever put on the market. It has all the merits without any objectionable features * * *," which was shown by proof to contain a quantity of coffee, held not misbranded by reason of said statements on the label. United States v. C. F. Blanke Tea & Coffee Co 598 An article composed almost entirely of Santos coffee, and labeled " Blanke's Mojav Coffee," held not misbranded as purporting to be a mixture of Mocha and Java coffees. United States v. C. F. Blanke Tea & Coffee Co 601 See Regulations. COLORED. The word " colored " must be held to include any artificially produced change in the natural color of the substance in a manner whereby damage or inferiority is concealed. Lexington Mill & Ele- vator Co. v. United States 604 See Added Poisonous and Added Deleterious Ingredients; Flour, Bleached; Macaroni; Martius Yellow; Vanilla Extract. COMMISSIONERS. See Affidavits. COMMON LAW CASES. See Admiralty Proceedings; Seizure. COMPOUND. The act (section 8) requires that a compound be labeled, branded, or tagged so as to plainly indicate the substance composing the compound ; the word " compound " on the label held insufficient to secure exemption from the operation of the act relative to adultera- tion and misbranding. Wm. Henning & Co. v. United States 506 Frank et al. v. United States 490 DIGEST OF COURT DECISIONS. 725 COMPOUND — Continued. Page. The term " Compound White Pepper " does not so naturally imply- to the average purchaser a mixture of white pepper and corn product as to make it a proper branding where the statement of the ingredi- ents is so placed and in such type as not readily to be noticed by the purchaser, and is calculated and intended to mislead and deceive the latter. Frank et al. v. United States 490 A blend is a compound, but a compound may or may not be a blend ; in other words, the term " compound " does not necessarily denote a mixture of unlike substances. (Ibid.) See Blend ; Distinctive Name ; Vanilla Extract. CONDIMENT. A condiment is a food and not a medicine. Savage v. Scovell 170 The condiments used in the manufacture of tomato catsup have the effect of concealing decomposition or putrefaction from the senses, and its existence can most readily be determined by a bacteriological analysis of the manufactured product to ascertain whether the organ- isms referred to are present in sufficient quantities to indicate a de- composed state. United States v. 200 Cases of Tomato Catsup 706 CONFECTIONERY. An article of confectionery labeled " Ghirardelli's Italian Choco- lates, G. Ghirardelli Co., San Francisco, Cal.," with colors and design of the Italian flag, which was manufactured in the United States, held not misbranded as purporting to be a foreign product. United States v. Ghirardelli 563 Confectionery labeled " Silver Dragees," coated with metallic silver, held adulterated in that it contained a mineral substance. United States v. Oriental Dragee Co 188 United States v. French Silver Dragee Co 194 Contra, French Silver Dragee Co. v. United States 276 Confectionery coated with metallic silver held not adulterated within the meaning of the act. French Silver Dragee Co. v. United States 276 Confectionery labeled " Pure Milk Chocolate * * * Manufac- tured by D. Auerbach & Sons, New York City," held not adulterated or misbranded by reason of it containing corn starch, the presence of which was not declared on the label. The article was held to be a compound sold under its own distinctive name. United States v. D. Auerbach & Sons 520 Confectionery containing talc/ held not adulterated within the mean- ing of the act. Held that the burden was on the Government to establish by a preponderance of the evidence that talc was present in the article " beyond a mere chemical trace " in order to secure con- demnation of the article in a seizure proceeding. United States v. 307 Cases of Confectionery1 516 • See Construction, Rules of; Distinctive Name; Ejusdem Generis. CONGRESS, JOURNALS OF. In case of doubt or ambiguity the journals of the legislature may be examined for the intent of the lawmakers to ascertain facts of which such journals are evidence. United States v. Dr. J. L. Stephens Co 466 See Construction, Rules of. CONFLICT OF LAWS. See Constitutionality of State Laws ; Interstate Commerce. CONGRESSIONAL COMMITTEE REPORTS. Considered by the court in arriving at the intent of the statute. French Silver Dragee Co. v. United States 276 United States v. 150 Cases of Fruit Puddine 690 See Debates in Congress. 1 Pending on writ of error in the Circuit Court of Appeals for the First Circuit. 726 FEDERAL EOOD AND DRUGS ACT AND DECISIONS. CONSIST. Page. Where food contains certain types of bacteria, or worms and beetles, it is no defense to say that such food does not " consist in whole or in part of a filthy, decomposed or putrid animal or vegetable substance," but that it contains such substances, and is therefore not adulterated within the meaning of the act. The allegation of adulteration is not that such substances in themselves are filthy, putrid, or decomposed, but that they render the article of food filthy, decomposed, or putrid. Such substances in food are evidence that such food " consists " in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance. United States v. Dade 554 Wm. M. Gait & Co. v. United States 588 CONSTITUTIONALITY OF THE FOOD AND DRUGS ACT. The act is not unconstitutional as an attempt by Congress to exer- cise police powers belonging to the States. The act is not unconstitu- tional and void for uncertainness and indefiniteness in that no standard of grade, quality, or purity is prescribed by the act. Neither is it unconstitutional as depriving persons of property without due process of law, or as delegating legislative power to the courts. United States v. 420 Sacks of Flour 250 Tbe Food and Drugs Act is within the legislative powers of Con- gress. United States v. 100 Cases of Tepee Apples et al 172 The act is within the powers of Congress to regulate interstate commerce. United States v. 74 Cases of Grape Juice 303 United States v. 65 Casks of Liquid Extracts 199 The act is not an exercise of police power within the exclusive jurisdiction of the States, but is within the legislative powers of Con- gress as a proper regulation of interstate commerce Shawnee Mill- ing Co. v. Temple et al 260 Power is given Congress by the Constitution to regulate commerce and to pass all laws necessary and proper to carry that power into effect. The Food and Drugs Act is sanctioned by that power. United States v. 8 Packages or Casks of Drug Products 305 The act is not unconstitutional as being outside of the legislative powers of Congress. Section 10 of the act is not unconstitutional and void as being in contravention of the Fourth Amendment to the Constitution in allowing the seizure and condemnation of property without the filing of complaint or information under oath or affirma- tion. United States v. 300 Cases of Mapleine 190 The act is not unconstitutional as being ex post facto, or in that it contains an improper delegation of legislative power by reason of section 7 providing that a drug shall be deemed to be adulterated when " sold under or by a name recognized in the United States Pharmacopoeia (and differing) from the standard of strength, quality, or purity as determined by the test laid down in (said) Pharmaco- poeia * * * official at the time of investigation." United States v. Lehn & Fink 384 Section 9 of the act, which provides that no dealer shall be prosecuted under the act when he can establish a guaranty signed by the person from whom he purchased the article to the effect that it is not adulterated or misbranded within the meaning of the act, and providing a punishment for the person by whom the guaranty is given, is within the power vested in Congress to exclude from inter- state commerce adulterated and misbranded foods. United States v. Charles L. Heinle Specialty Co 236 Congress has the right, not only to pass laws which shall regulate legitimate commerce among the States and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, to make such as are injurious to public health outlaws of such commerce and to bar them from the facilities and privileges thereof. Congress may itself deter- mine the means appropriate to this purpose, and so long as they do no violence to the other provisions of the Constitution, it is itself the judge of the means to be employed in exercising the powers con- ferred upon it in this respect. McDermott et al. v. Wisconsin 629 DIGEST OF COURT DECISIONS. 727 CONSTITUTIONALITY OF THE FOOD AND DRUGS ACT— Continued. Page. The constitutionality of the act is generally conceded and well established. United States v. Sweet Valley Wine Co 625 See Investigation ; Pharmacopoeia. CONSTITUTIONALITY OF STATE LAWS. Inspection law of the State of Kentucky (laws 1906, p. 282, c. 48) held constitutional, and not rendered invalid by the enactment of the Food and Drugs Act, which does not conflict with its provisions. Savage v. Scovell 170 A statute of the State of Wisconsin prescribing the manner in which corn sirup should be labeled, and prohibiting all other forms of labeling, held unconstitutional and void so far as it relates to goods brought into the State in interstate commerce which are labeled on the retail package so as to comply with the provisions of the Food and Drugs Act, and the regulations for the enforcement of said act. McDermott et al. v. Wisconsin 629 An inspection law of Indiana (acts 1907, c. 206) regulating the sale, and requiring a statement of the formula, of concentrated commercial food for stock, held to be valid, as an exercise of the State's legis- lative police authority, and not unconstitutional as a burden on inter- state commerce, or as being in conflict with the Food and Drugs Act, Savage v. Jones 538 CONSTRUCTION, RULES OF. The statute should be liberally construed to effect its beneficent purposes. United States v. One Carload of Corno Horse & Mule Feed , 434 The act is a criminal statute and should be strictly construed. United States v. J. L. Hopkins & Co 528 It is the duty of the court, in interpreting such statutes, to keep in mind the legislative intent, the evils sought to be overcome, and if possible, to give substantial force and effect to that intent. Wm. M. Gait & Co. v. United States 588 The law should not be given a construction or effect purely theo- retical as opposed to a practical construction. United States v. 307 Cases of Confectionery 516 It is the duty of the court to give the act a fair and reasonable construction for the accomplishment of its object; that object is the exclusion from interstate commerce of food products so adulterated as to endanger health. United States v. 1,950 Boxes of Macaroni 267 The statute, like a written instrument, is to be construed by its express terms, from its four corners. In case of doubt and ambiguity the journals of the legislature may be examined for the intent of the law makers to ascertain facts of which such journals are evi- dence. United States v. Dr. J. L. Stephens Co 466 The construction placed on the act by the Secretary of the Treas- ury, the Secretary of Agriculture, and the Secretary of Commerce and Labor, in the rules and regulations for the enforcement of the act are referred to by the court, not as controlling on the court by way of construing the act, but as being a reasonable construction which the court might adopt if it sees proper. United States v. Piso Co 484 The act, while it contains penal provisions without which it can not be enforced, was enacted to remedy the great mischief resulting from the unrestricted sale of adulterated drugs and articles of food, and ought to be given, where possible, a construction that will effect the general legislative intent. United States v. 100 Packages of Antikamnia Tablets 416 Technical rules of construction must give way to the avowed pur- pose and intention of the act. If it be that an act admits of more than one construction, then that one will be adopted which best serves to carry out the purpose of the act. The rule of ejusdem generis or other technical rule of construction should not be adopted where it limits the scope of the act. United States v. Oriental Dragee Co Contra, French Silver Dragee Co. v. United States 276 728 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. CONSTRUCTION, RULES OF— Continued. Page. The rule of ejusdeni generis held to govern in determining the mineral substances excluded under section 7 of the act, in the case of confectionery, in addition to those specifically enumerated. United States v. French Silver Dragee Co 194 French Silver Dragee Co. v. United States 276 The act is to be strictly construed. United States v. 65 Casks of Liquid Extracts 199 The act is a police regulation enacted to conserve the public health. It will be construed liberally to meet the evils intended to be em- braced within its provisions. United States v. Dade 554 Pure-food laws are intended to protect the public, whose members may be, and usually are, ignorant of the technical significance which ordinary words may have acquired in particular trades or industries. The true rule of construction with reference to such statutes is that words are to be given their ordinary meaning as understood by the general public. United States v . Libby, McNeill & Libby 678 See Object of the Act ; Purpose of the Act ; Remedial Statute. CORDIAL NON-ALCOHOLIC ROCK & REY. An article so labeled, which was composed of syrup, glucose, prune juice, and artificial color, held to be an article sold under an " arbi- trary and fanciful name,'' and not adulterated or misbranded. United States v. Goodman 641 CORN MEAL. An article labeled " Choice water ground plain meal * * *," held misbranded in that it was not ground by the direct application . of water as the motive power of the mill, but was ground by electrical power ; and because said article was not ground by the Hazel Green Mills as represented on the label. United States v. 58 Sacks and 70 Sacks of Corn Meal 480 See Knowledge and Intent; Quality; Water Ground Meal. CORN SIRUP (GLUCOSE). A product containing commercial glucose held not misbranded if labeled so as to show that it contains " corn sirup." United States v. 779 Cases of Molasses , 218 A product labeled " Compound : Pure Comb and Strained Honey and Corn Syrup," held not misbranded, although the percentage of corn sirup largely exceeded the percentage of honey. United States v. Boeckmann 242 Almond paste held not adulterated by reason of it containing 5 per cent of glucose (corn sirup). United States v. Heide 487 Glucose is not misbranded under the Food and Drugs Act, and the regulations for the enforcement of said act, if labeled " Corn Sirup." McDermott et al. v. Wisconsin 629 See Molasses. CORNO HORSE AND MULE FEED. Where a substance sold under the name " Corno Horse and Mule Feed " was contained in a package labeled " Corno Horse and Mule Feed. Mixture of Ground Alfalfa, Oats, Corn, Flax, Bran, Oat and Hominy Feed, made by the Corno Mills Co., East St. Louis, 111.," followed by a guaranteed analysis ; held that such substance being a compound and so described on the package, it was not adulterated because it contained a quantity of oat hulls mixed and packed with it in excess of the amount normally present in oat feed com- posed of whole ground oats. United States v. One Carload Corno Horse and Mule Feed 434 See Construction, Rules of; Distinctive Name; Judicial Notice. CORPORATIONS. The right of a corporation to be sued only in the district where it has its principal place of business and home office relates to civil actions and not to prosecutions under the Food and Drugs Act. United States v. J. L. Hopkins & Co - 568 DIGEST OF COURT DECISIONS. 729 CORPORATIONS— Continued. Page. The officers of a corporation which manufactured an adulterated and misbranded food product shipped by its manager in interstate commerce held subject to prosecution for such shipment, under sec- tion 2 of the act, where they employed the manager and authorized him to operate the plant and sell the product without restriction, and the previous course of business had been to ship such article in inter- state commerce. United States v. Mayfield et al 244 See Agents; Jurisdiction. COSTS. In admiralty cases costs are within the discretion of the court, from which no appeal lies unless perhaps in case of gross abuse of discretion. 2,000 Cases of Canned Tomatoes v. United States 342 In no case can costs be assessed against the United States. (Ibid.) In a proceeding in rem under section 10 of the act the court has jurisdiction to enter personal judgment for the costs against the claimant, and stipulation by owner intervening is unnecessary to give the court such jurisdiction. United States v. 50 Cans of Pre- served Whole Egg 227 Affirmed, Hipolite Egg Co. v. United States 378 COTTONSEED OIL. See Oil, Cottonseed. COURTS OF THE UNITED STATES. See Police Court, Disti'ict of Columbia. CREAMTHICK. An article labeled " Creamthick * * * Guaranteed to contain no gelatine, gum arabic, egg albumin, or similar article," held mis- branded in that it contained an article similar to gum arabic, to wit, Indian gum. United States v. Weeks 643 CREAM VANILLA. A distinctive name. United States v. 150 Cases of Fruit Puddine 690 CRIMES, INFAMOUS. Where the imprisonment authorized by law is for more than one year, the confinement must be in the penitentiary, and constitutes an infamous crime ; where the punishment is for one year or less the confinement must be in the county jail, and would not be an infamous crime. Violation of section 2 of the Food and Drugs Act does not constitute an infamous crime. United States v. J. Lindsay Wells Co_ 326 See Indictment; Information. CRIMINAL CASES. Cases arising under section 2 of the act are criminal cases and subject to the same rules regarding presumption of innocence and reasonable doubt as other criminal cases. ' United States v. Hall- Baker Grain Co__ 452 United States v. Heide 487 United States v. Schuch 364 United States v. Hobart 328 United States v. Edward Westen Tea & Spice Co 222 Von Bremen et al. v. United States 500 Seizure proceedings under section 10 of the act are not criminal cases. United States v. 10 Barrels of Olives 280 See Burden of Proof; Reasonable Doubt. CUF0RHEDAKE. See Brain Food or Brane-Fude. CURATIVE EFFECT OF DRUGS. Statements on the label or package regarding the curative effect of a drug, even though false or misleading, do not constitute misbrand- ing within the meaning of the act. United States v. American Drug- gists' Syndicate 1 406 1 Decided prior to the Sherley Amendment of Aug. 23, 1912. 730 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. CURATIVE EFFECT OF DRUGS— Continued. Page. United States v. Johnson1 238 False or misleading statements borne on the label or package con- taining a drug, as to the curative or therapeutic effect -of the drug, constitute misbranding under the act. United States v. Harper 1 163 United States v. Schuch1 364 DAMIANA. An article labeled " Damiana — a Nerve Invigorator," held mis- branded because it contained little or no damiana, and its label bore no statement of the quantity or proportion of alcohol contained in the article. Steinhardt Bros. & Co. v. United States 488 DEALER'S PRAISE. Statements in the nature of mistaken praise, or "puffing state- ments," do not constitute misbranding within the meaning of section 8 of the act. United States v. Johnson 427 United States v. 165 Cases of Bi-Carb-Sodarine 357 See Curative Effect of Drugs. DEBATES IN CONGRESS. Considered by the court in arriving at the intent of Congress in the act. United States v. Buffalo Cold Storage Co 257 United States v. 150 Cases of Fruit Puddine 690 United States v. Lexington Mill & Elevator Co 701 The fact that Congress refused to incorporate in the act a provision exempting the prescriptions of regularly licensed and practicing phy- sicians held to be practically conclusive that it was the intent of Con- gress that physicians should enjoy no such exemption. United States v. The Dr. J. T. Stephens Co 466 See Congress, Journals of; Congressional Committee Reports. DECEPTIVE LABEL. If, as a matter of first impression, the label of an article tends to convey a false or misleading impression, such an article is mis- branded even though a deliberate reading of the label might correct such an impression. United States v. 10 Barrels of Vinegar 410 A statement in large type on a label which conveys a false or misleading impression constitutes misbranding, even though the mis- leading impression created by such statement is corrected by another statement in small type. Frank et al. v. United States 490 See False and Misleading; Misbranding. DECOMPOSED. See Filthy, Decomposed, and Putrid. DEFENSES. See Estoppel ; Guaranty. DELEGATION OF LEGISLATIVE POWER. See Constitutionality ; Pharmacopoeia. DELETERIOUS INGREDIENTS. See Added Poisonous and Added Deleterious Ingredients. DELICIOUS DOPELESS KOCA N0LA. A beverage so labeled held adulterated because it contained cocaine, an added poisonous and deleterious ingredient; and misbranded be- cause the presence and quantity or proportion of cocaine was not declared on the label. United States v. Koca Nola Co 213 See Added Poisonous and Added Deleterious Ingredients ; Cocaine ; Koca Nola Syrup. 1 Decided prior to the enactment of the Sherley Amendment of Aug. 23, 1912. DIGEST OF COURT DECISIONS. 731 DENATURING. Page. Adulterated frozen eggs, not denatured so as to prevent their use as food or labeled to show that they were intended for technical use, held to be food, and subject to condemnation. Held not incumbent on the Government to prove that they were intended for food. United States v. 13 Crates of Frozen Eggs 669 Affirmed by the C. 0. A., Second Circuit 709 DERIVATIVES. In addition to the trade names of the derivatives of the drugs men- tioned in section 8 of the act, in the case of drugs, paragraph 2, the names of the parent substances of such derivatives should also be stated on the labels of medicines in which they are contained. United States v. Antikamnia Chemical Co 684 See Acetanilid; Acetphenetidin. DESIGNS AND DEVICES. The act was intended to reach all forms of misrepresentation by misbranding, by the use of words or by the use of designs or devices, pictures, etc., calculated to mislead and deceive, cheat or defraud the purchasers. Designs and devices on imitation champagne which give its container the appearance of the container of genuine champagne held misleading and deceptive and to constitute misbranding. United States v. 5 Cases of Champagne 662 An indictment alleging misbranding by means of a pictorial de- sign or device representing a German village held to be sufficient. A more particular description of the picture held unnecessary. United States v. The Sweet Valley Wine Co 625 DISTINCTIVE NAME. An article composed of cherries bleached with sulphur, colored red and packed in liqueur flavored with essence of bitter almond is not sold under its own distinctive name when labeled " Maraschino' Cher- ries." United States v. Bettman-Johnson Co 460 A distinctive name is one ordinarily used to clearly distinguish it, or the article to which it is applied, from all other articles; or one which the public might come to generally recognize as meaning some- thing different from any other thing. The term " Maple Flavo " held not to be a distinctive name. United States v. S. Gumpert & Co 335 A proprietary article of food, consisting largely of corn starch, labeled " Fruit Puddine, Fruit Flavored," some flavors of which were described on the label as " Rose Vanilla " and " Cream Vanilla," held io be an article sold "under its own distinctive name." The terms " Puddine," " Fruit Puddine," " Rose Vanilla," and " Cream Vanilla " held to be distinctive names, and not to constitute misbranding. Said article held misbranded because of the false or misleading statement " Fruit Flavored " borne on the label. United States v. 150 Cases of Fruit Puddine 690 An article composed of calcium acid phosphate and starch, labeled " C. A. P.," held to be a compound sold under its own distinctive name and not adulterated or misbranded within the meaning of the act. United States v. 100 Barrels of Calcium Acid Phosphate 212 A beverage labeled " Coca-Cola " held to be a mixture or compound sold under its own distinctive name and, the name being accompanied on the label by the name of the manufacturer and the place of manu- facture, not adulterated or misbranded within the meaning of the act. United States v. 40 Barrels and 20 Kegs of Coca-Cola 395 Affirmed by C. G A., Sixth Circuit 710 An article labeled " Corno Horse and Mule Feed " held to be a com- pound sold under its own distinctive name and not adulterated or misbranded within the meaning of the act. United States v. One Carload of Corno Horse and Mule Feed 434 An article labeled " Condensed Skimmed Milk," and composed of condensed skimmed milk and cane sugar, held not to be a mixture or compound sold under its own distinctive name. United States v. Libby, McNeill & Libby 678 732 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. DISTINCTIVE NAME— Continued. Page. An article labeled " Grant's Hygienic Crackers " held to be an article sold under its own distinctive name and not misbranded within the meaning of the act. United States v. Hygienic Health Food Co_ 415 A distinctive name is either one so arbitrary or fanciful as clearly to distinguish it from all other things, or one which, from common use, has come to mean a substance clearly distinguishable by the public from everything else. The term " Mapleine " held not to be a distinctive name. United States v. 300 Cases of Mapleine 190 Even though an article is sold under its own distinctive name, it is misbranded if it contain on the label any false statement re- garding the ingredients of the article. United States v. American Chicle Co 1 524 United States v. Weeks 643 United States v. 150 Cases of Fruit PuAdine 690 An article labeled " Pure Milk Chocolate " held to be a mixture or compound sold under its own distinctive name and not adulterated or misbranded by reason of it containing starch, the presence of which was not declared on the label. United States v. D. Auerbach & Sons 520 It is not sufficient to remove an imitation and misbranded article from the condemnation of this law that it has a distinctive name ap- plied to it, as the very language of the proviso requires that if known under its own distinctive name it, the article, must not be either an imitation of another article or offered for sale under the distinctive name of another article. United States v. Five Cases of Champagne- 662 See Compound ; Creamthick ; Mojav Coffee ; Non-Alcoholic Rock & Rey ; Wright's Condensed Smoke. DISTRICT 0E COLUMBIA. The local act of Congress, relating to the sale of adulterated food in the District of Columbia (act of Feb. 17, 189S, 30 Stat. 246, c. 25), held to be repealed by the Food and Drugs Act, June 30, 1906, only to the extent that the earlier act is repugnant to the later act. District of Columbia v. Coburn 275 See Police Court, District of Columbia. DRUG. It is unnecessary for the Government to prove that adulterated turpentine, which was shipped in violation of the act was known by the defendant to be intended for use as a drug rather than for me- chanical purposes. United States v. Lorick & Lowrance 357 See Election. DRUG HABIT CURE. A drug sold as a cure for drug habit held misbranded in that the quantity or proportion of morphine present was not properly declared on the label. United States v. The Richie Co 447 DUE PROCESS OF LAW. See Constitutionality ; Seizure. EGG FOR CUSTARD. An article sold as " Egg for Custard " and bearing no label, held adulterated because skimmed milk had been substituted in part for the article. United States v. German American Specialty Co 619 EGG PRODUCTS. A frozen egg product to which had been added a quantity of sugar, and which was alleged to consist wholly or in part of a decomposed animal substance, held not adulterated. United States v. 443 Cans of Frozen Egg Product1 351 A frozen egg product containing formaldehyde, an added poisonous ingredient, and consisting in whole or in part of a filthy, putrid, and decomposed animal or vegetable substance, held adulterated. United States v. F. E. Rosebrock & Co 343 1 Reversed in the Circuit Court of Appeals, p. 507, ante. Circuit Court of Appeals reversed in Supreme Court, p. 582, ante. DIGEST OF COURT DECISIONS. 733 EGG PRODOCTS— Continued. PageJ. Frozen eggs, containing large numbers of bacteria and having a bad odor, beld adulterated in that they consisted in part of a filthy, de- composed, and putrid animal and vegetable substance. United States v. Excelsior Baking Co 660 A desiccated egg product containing an excessive number of bacte- rial organisms, held adulterated in that it consisted in whole or in part of a filthy, decomposed, or putrid animal substance. United States v. One Barrel of Desiccated Egg Product 253 Eggs shipped for tanning purposes, and not denatured or labeled so as to prevent their use as food, held to be " food " within the meaning of the act, and, as they consisted " wholly or in part of a filthy, de- composed and putrid animal substance," they were held adulterated and subject to condemnation. United States v. 13 Crates of Frozen Eggs 669 Affirmed by the C. C. A., Second Circuit 709 Frozen eggs held to be adulterated in that they were " decomposed and filthy and of a poisonous and deleterious character." United States v. 3,000 Pounds of Frozen Eggs 353 Preserved whole eggs, containing 2 per cent of boric acid, held to be adulterated in that they contained a deleterious ingredient and consisted in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance. United States v. 50 cans of Preserved Whole Egg 227 Affirmed, Hipolite Egg Co. v. United States 378 See Added Poisonous and Added Deleterious Ingredients ; Filthy, Decomposed, and Putrid ; Food. EGGS FOR TANNING. See Denaturing ; Food. EJUSDEM GENERIS. To fall within the prohibition expressed in the phrase " or other mineral substance," in section 7 of the act, in the case of confec- tionery, an article need not be ejusdem generis with the substances specifically prohibited by name, or a poisonous substance ; it is suffi- cient if it be a mineral substance. United States v. Oriental Dragee Co 188 Contra, French Silver Dragee Co. v. United States 276 The term " other mineral substance," used in section 7 of the ' act, in the case of confectionery, is properly construed to refer only to other mineral substances ejusdem generis with those specifically mentioned in the act. United States v. French Silver Dragee Co 194 French Silver Dragee Co. v. United States 276 See Confectionery ; Construction, Rules of ; Judicial Notice. ELECTION. In a prosecution for violation of the act by misbranding, the Gov- ernment can not be required to elect between counts, one of which de- scribes the article as a drug and the other of which describes it as a food or drink, where the question is in controversy and the article would be adulterated or misbranded if either. Steinhardt Bros. & Co. v. United States 488 United States v. American Chicle Co 524 ESTOPPEL. In a libel proceeding by the United States to forfeit certain mis- branded whisky which had been shipped in interstate commerce, held to be no defense that the brand was placed on the packages contain- ing such whisky by the United States gauger on information received from the distiller in accordance with the usual practice ; or that the same kind of liquor had been for a number of years branded and sold under such brand to the knowledge of the agents and officers of the United States. United States v. 50 Barrels of Whisky 174 734 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. EXAMINATION. Page. The examination provided for by section 4 of the act held to be necessary in proceedings in rem under section 10 in all cases reported by the Secretary of Agriculture for prosecution. United States v. 74 Cases of Grape Juice 303 Affirmed, United States v. 74 Cases (or 20 Cases) of Grape Juice 413 United States v. Certain Cans of Syrup 490 The examination provided for under section 4 of the act held to be unnecessary in proceedings in rem under section 10. United States v. 50 Barrels of Whisky 174 United States v. 65 Casks of Liquid Extracts : 199 United States v. 100 Barrels of Vinegar _ 448 United States v. 9 Barrels of Olives 284 See Notice and Opportunity to be Heard. EXECUTIVE OFFICERS. Congress may delegate to executive officers power to make regula- tions looking to matters of detail for the carrying out of its statutes, such as providing the method of proceeding under certain statutes, the fixing of standards, brands, and labels, or the ascertainment of any necessary facts upon which the law must operate. United States v. 100 Packages of Antikamnia Tablets 416 See Constitutionality ; Regulations. EXTRA DRY. The words " Extra Dry " on a bottle of imitation champagne indi- cate a grade of champagne, and such words with designs and devices of the character ordinarily found on genuine imported champagne lead the purchaser to believe that the bottle contains extra dry cham- pagne, and constitute misbranding. United States v. 5 Cases of Champagne 662 EXTRACT. See Hudson's Extract; Lemon Extract or Flavor; Vanilla Extract or Flavor. EXPORT ARTICLES. An article intended for export if " prepared or packed according to the specifications or directions of a foreign purchaser, etc.," is not subject to seizure, even though adulterated, when judged by the standard for such article in the United States. Philadelphia Pickling Co. v. United States 612 EX POST FACTO LEGISLATION. See Constitutionality; Investigation; Pharmacopoeia. FACT, QUESTIONS OF. See Jury Trials. FALSE AND MISLEADING. It is not necessary to show that a label actually misled the con- signee, but it is necessary to show that the label- was of such char- acter as would be calculated to deceive the consignee. United States v. J. L. Hopkins & Co 528 In finding the label of a drug to be misleading, or not so, it must be taken into consideration that the article was being shipped to men familiar with the trade and with the drug business. The question is : Was the label of such a character as to be calculated to deceive these men in the trade. (Ibid.) False means, of course, untrue. Misleading means calculated to deceive; actually tending to deceive. United States v. Von Bremen et al 347 The words " false or misleading," as used in section 8 of the act, are of the same import, and one or the other, or both, may be in- differently used. The appropriate meaning of the word "false," as extracted from the dictionary, is " adapted or intended to mislead " ; and the word " misleading " means " tending to lead astray, decep- tive." United States v. Lehn & Fink 384 See Deceptive Labels ; Misbranding. DIGEST OF COUKT DECISIONS. 735 FIITHY, DECOMPOSED, AND PUTRID. Page. The word " filthy " is capable of a variety of meanings. It is the superlative degree of such a condition as we refer to as " soiled." The word " dirty " might be considered as the comparative degree of the word " soiled," and the word " filthy " as the superlative de- gree. The scientific definition need not be applied to the word " de- composed," as used in the act. The sense in which " decomposed " is used in the act means that stage which, if carried somewhat further, would bring you to the state of a particular substance which would properly be called " rotten." United States v. 10 Barrels of Olives 280 Flour containing worms, insects, and beetles held adulterated in that it consisted in whole or in part of a filthy, decomposed, and putrid animal and vegetable substance. United States v. 350 Sacks of " Princess " and 50 Sacks of " Fancy Melba " Flour 513 Affirmed, Wm. M. Gait & Co. v. United States 588 Tomato paste containing yeasts and spores, bacteria, and mold filaments, and having an offensive odor, held adulterated in that it consisted in whole or in part of a filthy, decomposed, and putrid animal and vegetable substance. United States v. Philadelphia Pickling Co 612 An article of food which is decomposed to the extent that it is unfit for human consumption might reasonably be called filthy and dele- terious and, in a sense, poisonous. United States v. 3,000 Pounds of Preserved Eggs I__ 353 Where an article is alleged to consist in whole, or in part, of a filthy, decomposed, or putrid animal substance, either one of these adjectives, if applied to the substance and established by proof, would be sufficient to justify the jury in condemning the article. De- composition means to break up, to decompose, to resolve to its ele- ments ; so that, when fermentation proceeds far enough, an article becomes decomposed. United States v. One Barrel of Desiccated Egg Product 253 Taking the word " rotten " as expressing the general idea to which the two words " decomposed " and " putrid " may be referred, the word " decomposed " would probably represent a less advanced stage than "putrid." (Ibid.) Eggs may become putrid or decomposed by the simple process of decay and the resultant or natural causes, but they will not become filthy unless something be added thereto which renders them dirty, noisesome, or nasty. A " putrid " substance is in such a state of decay as to be fetid or stinking from rottenness. United States v. F. E. Rosebrock & Co 343 It is not necessary to apply a very fine or close scientific definition to the words " filthy, putrid, and decomposed." In plain English, these words mean that the substance is rotten ; that it is unfit for food for man. United States v. Gidden 522 Where a frozen egg product is so near decomposition that exact chemical and thermal precautions are necessary to prevent decom- position, then the product is, as an article of food, so close to the danger line as to excite suspicion and demand the closest judicial security before it is allowed to become an article of food consump- tion. United States v. 443 Cans of Frozen Egg Product 507 Milk containing bacteria, including the B. coli and streptococci types, held adulterated in that it consisted in whole or in part of a filthy, decomposed, and putrid animal and vegetable substance. United States v. Dade 554 The words "filthy, decomposed, and putrid" are applicable to cer- tain conditions resulting from the presence of living organisms. United States v. Sprague et al 665 See Bacteria ; Unfit for Food. FLAVOR. See Lemon Extract or Flavor; Vanilla Extract or Flavor. 736 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. FLOUR, BLEACHED. Page. Bills in equity to restrain seizure of bleached flour by Federal officials, dismissed; the court upholding the constitutionality of the act, and declining to interfere with the officials in its enforcement. Shawnee Milling Co. v. Temple et al 260 Flour bleached by the Alsop process held to be adulterated be- cause, as a result of such bleaching, said flour contained nitrites or nitrite reacting material, added poisonous and added deleterious in- gredients which might render the flour injurious to health ; be- cause, as a result of such bleaching, substances, to wit, nitrites and nitrite reacting material, had been mixed and packed with the flour so as to reduce, lower and injuriously affect its quality and strength; and because by such bleaching the flour was mixed, colored and stained in a manner whereby damage or inferiority was con- cealed. Said flour was held to be misbranded because it was of- fered for sale and sold under the distinctive name of another article, to wit, " Patent Flour," and because the statements " Patent Flour " and " this flour was made from the first quality hard wheat " " appearing on the labels, were false and misleading. United States v. 625 Sacks of Flour 285 Reversed, Lexington Mill & Elevator Co. v. United States 604 Reversal affirmed by the Supreme Court, United States v. Lexing- ton Mill & Elevator Co 701 Flour bleached by the Alsop process held to be adulterated in that, as a result of such bleaching, it contained nitrites, added poisonous and deleterious ingredients which rendered such flour in- jurious to health ; because nitrites had been mixed and packed with said flour so as to reduce and lower and injuriously affect its quality and strength ; and because, by reason of such bleaching, said flour was mixed, colored and stained in a manner whereby damage and inferiority were concealed. Said flour was held to be misbranded because it was offered for sale under the distinctive name of another article, to wit, " High Patent Flour," when it was not such article, but was a flour of inferior grade to " Patent Flour " ; and because the statement on the label " High Patent " was false and misleading. United States v. 420 Sacks of Flour 250 See Added Poisonous and Added Deleterious Ingredients ; Man- damus ; Standards of Purity. FLOUR, PATENT. See Standards of Purity. • FOOD. Conceivably, an article may be both a food and a medicine, and that when used in the same way, i. e., when taken internally. A manufacturer who labels his article as a food (" International Stock Food " ) is in no position to complain of his article being treated as what he calls it, i. e., as a food. Savage v. Scovell 170 A condiment is a food and not a medicine. " International Stock Food " held to be a food — a condimental food. ( Ibid. ) Where a libel for the condemnation of frozen eggs described them as articles of food, it was not subject to exception for failure to negative that the eggs were intended for other than food purposes. United States v. 300 Cans of Frozen Eggs 444 Wine is a food within the definition of food contained in section 6 of the act, and it is unnecessary that an indictment charging mis- branding of wine contain an allegation that said wine is a food. United States v. The Sweet Valley Wine Co 625 Eggs released from the shell, and frozen, are an " article of food," and if adulterated their transportation in interstate commerce is pro- hibited. The fact that decomposed eggs ought not to be used for food, or as an ingredient of some food article, does not remove them from the category of adulterated food, they being within the statutory definition ; nor does the fact that they may be used for tanning pur- poses. The character of a thing does not depend on the intent of the owner in transporting it or selling it. United States v. 13 Crates of Frozen Eggs 669 See Election. DIGEST OF COURT DECISIONS. 737 FOOD INSPECTION DECISION NO. 100. Page. See Mandamus. FOREIGN PRODUCT. See Gin; Italian Chocolates; Macaroni; Oil, Salad; Oil, Olive; Rusk. FORMALDEHYDE. A frozen egg product containing formaldehyde held adulterated in that it contained an added poisonous and deleterious ingredient. United States v. F. E. Rosebrock & Co 343 See Added Poisonous and Added Deleterious Ingredients. FROZEN EGG PRODUCT. See Egg Products. FRUIT PUDDINE. An article sold under its own distinctive name, to wit, " Fruit Puddine " or " Puddine," held misbranded because of the false or misleading statement, " Fruit Flavored," borne on the label. United States v. 150 Cases of Fruit Puddine 690 See Distinctive Name. GELATIN. See Ice Cream. GENERIC TERM. " Generic " may be defined as meaning a class, as distinct from " specific," which might mean a particular member of a class, and when it is used in regulation 19 in connection with the word " term," so as to create the phrase " a generic term," the word " generic " means a class. "A generic term " means the description of a class of product. United States v. Finlayson et al 672 The term " Holland," used in connection with the word gin, held to be a geographical name which has become generic by reason of long usage, and represents a style, type, or brand, within the meaning of regulation 19 (c). United States v. 5 Cases of Holland Gin 681 GEOGRAPHICAL NAME. See Coffee ; Holland Gin ; Hollands Geneva Gin ; London Dry Gin ; Regulations ; Rusk. GIN. See Holland Gin; Hollands Geneva Gin; London Dry Gin. GLUCOSE. See Corn Syrup. GRENADINE SYRUP. See Syrup, Grenadine. GUARANTOR. In a prosecution for the giving of a false guaranty under section 9 of the act, held to be incumbent on the Government to show that the guarantor had some connection with the interstate shipment. United States v. D. B. Scully Co.1 — 621 GUARANTY. A guaranty made under the provisions of section 9 of the act, if false, can be made with no other purpose than to defeat the object of the act. United States v. Charles L. Heinle Co 236 1 But see United States v. Glaser, Kohn & Co., N. J. No. 3400. 40066—14 47 738 FEDEEAL FOOD AND DRUGS ACT AND DECISIONS. GUARANTY — Continued. Page. If, for any reason, the guaranty is insufficient to impose liability upon the manufacturer, the liability remains where it primarily rested, upon the dealer. United States v. Mayfield et al 244 A guaranty, to afford protection to a shipper under section 9 of the act, must relate to the identical article shipped by him. It is not sufficient that one constituent of the article be guaranteed. (Ibid.) A guaranty given by the manufacturer of a misbranded article 18 months after a prosecution was instituted and four days before the trial of the case, held not to satisfy the requirements of a valid guaranty under section 9, and not to constitute a defense to a prose- cution of the shipper of such article under the act. Steinhardt Bros. & Co. v. United States 488 A guaranty given six years prior to the prosecution, to the effect that all goods to be sold by the guarantor to a particular dealer thereafter would be free from adulteration and misbranding held to be no guaranty at all under the act. United States v. D. B. Scully Co.1 621 See Constitutionality; Knowledge and Intent; Purpose of the Act. GUM ARABIC. A " similar article " to gum chadya, or Indian gum. United States v. Weeks 643 HEARINGS. See Notice and Opportunity to be Heard. HOLLAND GIN. An article of domestic manufacture, labeled "Hurdle Brand Hol- land Gin, Distilled by Baird Daniels Co., Warehouse Point, Conn.," held not misbranded as purporting to be a foreign product. United States v. 5 Cases of Holland Gin 681 See Genei'ic term ; Regulations. HOLLANDS GENEVA GIN. The term " Hollands Geneva Gin " held to have come, through long usage, to indicate a style, type, or brand of gin, and not to constitute misbranding when used on a domestic article, if accompanied on the label by the name of the place where the article was manufactured. United States v. Finlayson et al 672 HONEY. See Corn Syrup. HUDSON'S EXTRACT. An article labeled " Hudson's Extract " held to be misbranded in that it was an imitation of vanilla extract and was offered for sale under the distinctive name of vanilla extract. Hudson Manufactur- ing Co. v. United States 506 HYGIENIC CRACKERS. See Grant's Hygienic Crackers. ICE CREAM. Tee cre^m containing only 7.09 per cent of milk fat held not adulterated by reason of deficiency in fat, as there is no authorized standard for ice cream, and the court considered it was not warranted by the evidence in placing the standard at 14 per cent milk fat. United States v. Rinchini 479 See Standards of Purity. !But see United States v. Glaser, Kohn & Co., N. J. No. 3400. DIGEST OF COURT DECISION'S. 739 IMITATION CHAMPAGNE. Tajre. Ordinary, cheap, low grade, carbonated wine, put up in bottles and cases simulating the appearance of champagne, and bearing words, designs, and devices such as are ordinarily employed on genuine, imported champagne, and which was sold as champagne, held misbranded in that it was an imitation of and sold under the distinctive name of another article. United States v. 5 Cases of Champagne 662 IMITATION VANILLA. See Hudson's Extract; Vanilla Extract or Flavor. IMPORTATIONS. Where certain packages of imported merchandise were delivered to the importer on bond conditioned that the obligors " shall, within 10 days after the package or packages designated by the collector and sent to the public store to be opened and examined have been appraised and reported to him, be returned upon demand to the order . of the collector without having been opened," held that there is no breach of the bond unless 10 days elapsed without compliance being had with a demand for a return. Demurrer to the complaint was sustained because it failed to set forth specifically the date the goods were appraised and reported and date demand was made for their return. United States v. Psaki et al 324 Where imported olives were released to the importer on a bond conditioned that said article would be returned to the Government authorities when demanded, if a sample of the article taken for the purpose of examination was found to be adulterated or misbranded, held that the acceptance of such a bond by the Government is not equivalent to an official declaration that the olives had been found to comply with the act. United States v. 9 Barrels of Olives 284 INADVERTENCE OR MISTAKE. See Knowledge and Intent. INDICTMENT. It is unnecessary that the proceedings under section 2 should be by indictment or presentment by a grand jury, as the crime charged is not infamous. Such proceedings mav be by way of information. United States v. J. Lindsay Wells Co 326 Where an indictment described the defendants as Schraubstadter & Groezinger, " doing business in the City and County of San Fran- cisco, under the firm name and- style of A. Finke's Widow," held that such phrase was merely descriptive of the persons indicted, and the indictment would be regarded as of the individual members of the firm and not of the firm under the firm name. Sehraubstadter et al. v. United States 393 Where an indictment charged the defendants in three counts with misbranding, and the verdict was " guilty as charged in the indict- ment," held that the verdict was tantamount to a Conviction on each of the three counts. (Ibid.) See Crimes, Infamous ; Information ; Notice and Opportunity to be Heard. INDUCEMENT OF SHIPMENT BY AN AGENT OF THE UNITED STATES. It is the duty of officers charged with the enforcement of the dif- ferent acts of Congress to use whatever means they think most suc- cessful in enforcing such acts and suppressing what Congress in- tended should be suppressed. Held, that the fact that the shipment of a misbranded drug was induced by an agent of the United States is not to be considered bv the jury in arriving at a verdict. United States v. Schuch 364 The fact that the shipment of a misbranded article was induced by an agent of the United States, held to constitute no defense to a criminal prosecution for such shipment, in the absence of any- thing to show the intent of the Government agent. United States v. Morgan et al . 300 See Agents. 740 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. INFAMOUS CRIME. Page. See Crimes, Infamous. INFERIORITY CONCEALED. See Colored; Flour, bleached. INFORMATION. The court has no jurisdiction to issue a warrant on an informa- tion filed, made on the information and belief of the United States attorney alone. It must be supported by proof establishing probable cause. There is no substantial doubt that offenses against the act may be prosecuted by information duly filed. United States v. Bau- mert et al 267 United States v. WeHs___„ 637 It is the duty of the court to examine the information and affi- davits supporting it, and if same be insufficient, to deny application of the United States attorney for leave to file the information. Motions of United States attorneys for leave to file information charging misbranding in violation of the act, denied, where, in the opinion of the court, the misbranding was doubtful. United States v. Schurman 249 In re Wilson 186 Procedure by criminal information is common-law practice, and being a matter of practice, it needs no statute to support it. Origi- nally it was a concurrent remedy with indictments for all misde- meanors, except misprision of treason. Informations under the Food and Drugs Act are perfect representations of this ancient practice. In the United States the function of an information is limited by the constitutional provision, that no one shall be held to answer for a " capital or otherwise infamous crime " except on presentment by the grand jury. United States v. J. L. Hopkins & Co 528 Where misbranding is doubtful the court can refuse to permit the United States attorney to file an information charging violation of the act by shipping a misbranded article. Proceedings under section 2 of the act may be by either information or indictment. United States v. J. Lindsay Wells Co ' 326 An information charging a defendant with selling an adulterated or misbranded article of food in interstate commerce in violation of the act should specifically charge the manner of adulteration as de- fined in section 7 of the act, and of misbranding as defined by section 8. United States v. St. Louis Coffee & Spice Mills 196 See Affidavits ; Crimes, infamous ; Notice and Opportunity to be Heard. Seejxlso Weeks v. United States, p. 836. post. INJUNCTION. The Food and Drugs Act, being a valid enactment of Congress, in- junction will not issue to restrain United States officials from making seizures of flour under section 10 of the act. Shawnee Milling Co. v. Temple et al— 260. Petition for injunction to restrain the Secretary of Agriculture from publishing a notice of a judgment of the Police Court of the District of Columbia finding the petitioner guilty of violating the Food and Drugs Act denied. Held, that said court is a " proper court of the United States " in which to prosecute violators of the act. Huyler's v. Houston_i: 694 See Flour, bleached ; Mandamus. INJURIOUS TO HEALTH. If an article of food consists " in whole or in part of a filthy, de- composed, or putrid animal or vegetable substance," its interstate shipment is prohibited, whether its use would be injurious to the health of the consumer or not. LTnited States v. 200 Cases of Tomato Catsup 706 See Filthy, decomposed, and putrid ; Added poisonous and added deleterious ingredients. DIGEST OF COURT DECISIONS. 741 INJURIOUS TO HEALTH— Continued. Page. It is not required that the article of food containing added poison- ous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the Government in order to make out a case to establish that fact. The act has placed upon the Government the burden of establishing, in order to secure a verdict of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article in- jurious to health. If it can not, by any possibility, when the facts are reasonably considered, injure the health of the consumer, such article, though having a small addition of poisonous or deleterious ingredients, may not be condemned under the statute. United States v. Lexington Mill & Elevator Co 701 INNUENDO. An innuendo may not change, add to, enlarge the sense of ex- pressions beyond their usual meaning. It may serve as an explana- tion, but not as a substitute. Consequently, an averment in an in- formation that one who branded an article with a label whose ac- cepted and usual significance correctly described the article, intended that the public or purchaser should understand that the label had another and unusual significance, fails to disclose any misbranding. Nave-McCord Mercantile Co. v. United States 316 INSPECTORS. See Agents ; Inducement of shipment. INTENT. See Knowledge and Intent. INTENT OF THE ACT. See Object of the act; Purpose of the act. INTERSTATE COMMERCE. It was interstate commerce for the owner to ship an article of food from his own place of business in New Jersey to himself in Pennsyl- vania for a business purpose, such as an examination and test of the article; and as the food was adulterated, such a shipment was in vio- lation of the act. Philadelphia Pickling Co. v. United States 612 Traffic by mail is interstate commerce. United States v. Tucker 404 Where a drug was shipped from the manufacturing agent in one State to the owner of the secret formula for its manufacture in an- other State to be bottled and labeled by the owner in the State to which it was shipped before being offered for sale, held that the ship- ment was not in interstate commerce within the meaning of the act, and not subject to seizure under section 10, because the casks con- taining it were not labeled so as to show the quantity or proportion of alcohol contained in the preparation. United States v 65 Casks of Liquid Extract 199 The State has power to make regulations for the protection of its people against fraud or imposition by impure food or drugs, but the State may not under the guise of exercising its police power, or otherwise, impose burdens upon or discriminate against interstate commerce, nor may it enact legislation in conflict with the statutes of Congress passed for the regulation of the subject, and if it does, to the extent that the State law interferes with or frustrates the op- eration of the acts of Congress, its provisions must yield to the superior Federal power given to Congress by the Constitution. McDermott et al. v. Wisconsin 629 To determine the time when an article passes out of interstate into State jurisdiction for the purpose of taxation, is an entirely dif- ferent matter from deciding when an article which has violated a Federal prohibition becomes immune. It was not intended to limit the right of Congress, now asserted, to keep the channels of inter- • state commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end. The legislative means provided in the Federal law for its enforcement 742 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. INTERSTATE COMMERCE— Continued. Page. may not be thwarted by State legislation having a direct effect to impair the efficient exercise of such means. McDermott et al v. Wisconsin t;29 A State can not, under its police power, directly regulate or bur- den interstate commerce, and any statute which even affects in- cidentally interstate commerce is invalid if repugnant to the Food and Drugs Act, June 30, 1906; but a police regulation of a State which bas real relation to the protection of the people of the State and is reasonable in its terms, and does not conflict with any valid act of Congress, is not unconstitutional because it may incidentally affect interstate commerce. Savage v. Jones 538 It is interstate commerce for a person to ship an article of food from one State to himself in another State. United States v. 300 Cans of Frozen Eggs 441 See Sale; Shipment. INTRODUCTION (SECTION 2). One of the principal objects of the act was to prevent the intro- duction into interstate commerce of adulterated or misbranded foods, and it is immaterial that such foods are not intended for sale. Philadelphia Pickling Co. v. United States 612 See Interstate Commerce ; Object of the Act ; Purpose of the Act. INVESTIGATION. The word " investigation "' used in section 7 of the act, paragraph 1, in the case of drugs, is not necessarily identical in meaning with the word " examination " used in section 4 of the act. United States v. Lehn & Fink , 384 The investigation by the Department of Agriculture, provided for in section 4 of the act, is necessary in all cases reported by the Secre- tary of Agriculture for seizure proceedings under section 10 of the act. United States v. 74 Cases of Grape Juice ;>03 Affirmed, United States v. 74 Cases (or 20 Cases) of Grape Juice__ 413 United States v. Certain Cans of Syrup_l 490 The investigation provided for by section 4 of the act refers to cases in which there is to be a prosecution under section 5 for the enforcement of the penalties prescribed by section 2, and not to cases where forfeiture proceedings are contemplated for condemna- tion, as authorized by section 10 of the act; so that it is no objec- tion to forfeiture proceedings that no prior investigation had been instituted by the Secretary of Agriculture under section 4. United States v. 100 Barrels of Vinegar 448 See Constitutionality; Ex Post Facto; Notice and Opportunity to be Heard ; Pha rma copceia. ITALIAN CHOCOLATES. See Confectionery. JUDGES, STATE. See Affidavits. JUDICIAL NOTICE. Judicial notice will be taken of the fact that good, sound wheat of the best variety, properly and timely harvested, put through the sweat in the stack, well ground and bolted, makes nutritious, whole- some white flour. Shawnee Milling Co. v. Temple et al 260 Judicial notice may be taken of the fact that screening or sifting is one of the processes of catsup making. United States v. 650 Cases of Tomato Catsup 183 Judicial notice may be taken of the fact that cider vinegar is far superior to distilled vinegar. United States v. 10 Barrels of Vinegar- 410 Judicial notice may be taken of the fact that standard lexicog- raphers define the words " salad oil " as " olive oil." Von Bremen et al. v. United States 500 Where a court is required to take judicial notice of the meaning of a term as a matter of law, it may resort to any authoritative DIGEST OF COUET DECISIONS. 743 JUDICIAL NOTICE— Continued. Page, sources of information to enlighten its judgment. United States v. One Carload of Corno Horse and Mule Feed 434 The court may take judicial notice of the nature of the substances declared to be adulterants in section 7 of the act, in the case of con- fectionery. United States v. French Silver Dragee Co 194 JURISDICTION. In seizures under section 10 of the act, and on land, the proceedings in the district court are at law, and the circuit courts of appeals are without jurisdiction to review the same on appeal; such review must be by writ of error. Hudson Manufacturing Co. v. United States 506 United States v. 779 Cases of Molasses 218 443 Cases of Frozen Eggs v. United States 582 United States v. 3 Barrels of Vanilla Tonka and Compound 586 Under section 2 of the act, the gist of the offense is shipping or delivering for shipment of adulterated or misbranded articles of foods or drugs to be introduced into another State by interstate commerce, and, hence, jurisdiction exists in the Federal court in the district from which the goods were shipped, though the defendant did not reside in that district. United States v. J. L. Hopkins & Co 568 Where the validity of one of the regulations made pursuant to section 3 of the act was questioned and denied ; held, that the Su- preme Court had jurisdiction to review the judgment of the Court of Appeals, on the ground that an authority exercised under the United States was questioned and denied. United States v. Antikamnia Chemical Co 684 Under section 10 of the Food and Drugs Act, June 30, 1906. it is enough to give the Federal Government jurisdiction over adulterated or misbranded foods and drugs which have been shipped in interstate commerce if the articles are unsold, whether in original packages or not. Bearing in mind the authority of Congress to make efficient regulations to keep impure or misbranded articles out of the chan- nels of interstate commerce, the provisions of section 10 are clearly within its power. Held, that adulterated and misbranded articles of drugs are contraband of interstate commerce, and even though the original package may have been broken and destroyed, if the retail packages remain unsold, they are subject to seizure under section 10 of the act. McDermott et al. v. Wisconsin , 629 See Admiralty Proceedings ; Appeal and Error ; Notice and Oppor- tunity to be Heard ; Original Unbroken Packages ; Police Court, Dis- trict of Columbia ; Regulations ; Seizures. JURY TRIALS. The right to trial by jury granted by section 10 of the act, on de- mand of either party, is absolute, and means a trial by jury accord- ing to the established practice in courts of common law. United States v. 779 Cases of Molasses 218 Under the Constitution of the United States, article 3, section 2, which provides that the trial of all crimes, except in cases of im- peachment, shall be by jury, if an offense amounting to a crime should not be tried by jury, the judgment would be a mere nullity, and would require reversal. The trial of a " petty offense " under waiver of jury would amount to an arbitration as to the questions of fact involved, and the court's conclusion of fact could not be re- viewed. Frank et al. v. United States 490 See Appeal and Error ; Petty Offenses. JUSTICES OF THE PEACE. See Affidavits. KAFEKA, BLANKE'S. Held not misbranded. United States v. C. F. Blanke Tea & Cof- ■ fee Co 598 744 FEDERAL POOD AND DRUGS ACT AND DECISIONS. XARO CORN SYRUP. Page. Articles labeled " Karo Corn Syrup, 10% Cane Syrup, 90% Corn Syrup," and " Karo Corn Syrup with Cane Flavor, Corn Syrup 85%," held not misbranded within the meaning of the Food and Drugs Act, June 30, 1906; and held, that a statute of the State of Wisconsin requiring that such articles be labeled " Glucose flavored with refiners syrup " is unconstitutional as an interference with the Federal au- thority to regulate interstate commerce. McDerrnott et al. v. Wis- consin 629 KNOWLEDGE AND INTENT. The act does not expressly provide that shippers or dealers must knowingly or wilfully violate its provisions ; but if a false label was inadvertently placed on an article by a mistake of an employee, the defendant should not be held guilty of misbranding. United States v. S. Gumpert & Co : 335 United States v. Lehn & Fink 384 The object of the act is to enable the consumer to know what it is in the way of food or drugs that he is putting into his stomach ; and to punish anybody who, whether by wilful design, or carelessness, or inadvertence — it makes no difference which — puts forth for human consumption as food or drug that which is not what it pretends to be. United States v. Lehn & Fink 579 Proof of the absence of knowledge on the dealer's part that an article is obnoxious to some provision of the act is only a defense where the article is purchased from a manufacturer and a guaranty taken from the manufacturer that it complies with the requirements of the act. United States v. Mayfield et al 244 It is unnecessary to prove that the defendant had knowledge that the article shipped by him was adulterated. He is charged with a knowledge of the contents of the article. United States v. Griebler_ 182 United States v. The Piso Co 484 United States v. Hall-Baker Grain Co, 452 United States v. Excelsior Baking Co 660 United States v. Sprague et al 1 665 An article of food or drug which is adulterated or misbranded is an offending thing which threatens the health of the citizen, and is therefore subject to seizure and forfeiture without regard to the acts or knowledge of the owners or claimants. The question of intent does not enter into the case. United States v. 5 Boxes of Asafcetida 318 . United States v. 5S Sacks and 70 Sacks of Corn Meal 480 The question of the defendant's intent to violate the law does not enter into a case prosecuted under section 2 of the act. The question is, Was the law violated? United States v. Gidden 522 United States v. J. L. Hopkins & Co 528 United States v. Griebler 182 United States v. Johnson 427 The intent follows the act. The true construction of the Food and Drugs Act is that the dealer or manufacturer sells a commodity at his peril, and he is bound to understand the ingredients of the prod- uct. United States v. Hobart 328 In a prosecution under the act for the giving of a false guaranty the criminal intent essential to the commission of the offense existed at the time the defendant gave the certificate specifying that it was under the act of June 30, 1906 ; and such a certificate could only be given for the purpose of evading the provisions of the act of Con- gress. .United States v. Chas. L. Heinle Specialty Co 236 It makes no difference, in a case where misbranding is alleged, whether the failure to tell the truth was the result of design or was merely unintentional or accidental. The act of Congress has chosen to punish the failure to tell the truth. United States v. 36 Bottles of London Dry Gin 647 DIGEST OF COURT DECISIONS. 745 KNOWLEDGE AND INTENT— Continued. Page. The act nowhere requires proof of intention by the use of the words knowingly, wilfully, or like words. It would be destructive of the act, and nullify it entirely, to allow the intent of the person violating ir, to be considered as a defense. United States v 36 Bottles of London Dry Gin 693 Where adulterated frozen eggs were shipped in interstate com- merce, not labeled " for technical purposes," or denatured so as to prevent their use as food, held that they were food, no matter what the intent of the shipper may have been ; and it was unnecessary for the Government to prove that they were intended for food. United States v. 13 Crates of Frozen Eggs 709 See Purpose of the act. , KOCA NOLA SYRUP. An article labeled " Koca Nola Syrup " held adulterated because it contained cocaine, an added poisonous and deleterious ingredient, and misbranded because the presence, quantity, or proportion of cocaine was not declared on the label. United States v. Koca Nola Co 213 See Added Poisonous and Added Deleterious Ingredients ; Deli- cious Dopeless Koca Nola. LABEL. The label referred to in sections 7 and 8 of the act is the label on the package the ultimate consumer buys, and not alone the label on the package in which the retail package was shipped to the retailer. United States v. Dr. J. L. Stephens Co • 466 Affirmed, Dr. J. L. Stephens Co. v. United States 628 The act does not require any label on packages of foods or drugs shipped in interstate commerce, except by inference; but where a drug shipped in interstate commerce bears a label, such label must contain the information required by section 7 of the act. United States v. S Packages or Casks of Drug Products 305 The act not only requires that drugs shipped in interstate com- merce shall not be misbranded, but also requires that they shall be labeled with labels conforming to its requirements. United States v. 65 Casks of Liquid Extract 199 The word " label " as used in the act, which requires packages of drugs shipped in interstate commerce to bear a statement on the label of the quantity or proportion of alcohol, etc., means a de- scriptive paper affixed to the package which must include a state- ment of how much alcohol, etc., is contained in the package. (Ibid.) Where an article of food was shipped in carload lots and bore no label, the invoice sheet and certificate of inspection were held to con- stitute a label within the meaning of the act in a prosecution of the shipper for misbranding. United States v. Hall-Baker Grain Co 452 Reversed, Hall-Baker Grain Co. v. United States 557 In case of a clear violation of the statute there is no occasion for granting the respondents opportunity to correct their labels, but in cases where the violation is doubtful and respondents have ac'ted in good faith in being willing to correct their labels to comply with the law, such an opportunity should be granted. United States v. Schurman et al 249 The label referred to in the Food and Drugs Act includes the label which appears on the retail package or other package which goes to the ultimate consumer. McDermott et al. v. Wisconsin 629 See Circulars. LEGISLATIVE HISTORY OF THE ACT. Considered by the court in arriving at the intent of the lawmakers. United States v. Johnson 427 United States v. 150 Cases of Fruit Puddine 690 LEMON EXTRACT OR FLAVOR. Articles labeled " Pure Lemon Flavor " and " Flavor of Lemon " held adulterated and misbranded because not of the standard of strength prescribed for lemon extract. The terms " flavor " and " extract " held to be synonymous. United States v. Edward Westen Tea & Spice Co 222 746 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. LEMON EXTRACT OR FLAVOR— Continued. But see United States v. St. Louis Coffee & Spice Mills 196 An averment in an information that the defendant intended that the label " Flavor of Lemon and Citral — A Pure Flavor " should be understood by the public and purchasers to mean pure flavor or ex- tract of lemon, is futile, because the accepted and usual signification of the label is not that the article is a pure flavor or extract of lemon, but that it is a flavor of lemon and citral. Nave-McCord Mercantile Co. v. United States 316 An article labeled and sold as " Extract Terpeneless Lemon " held adulterated and misbranded because it contained only 0.05 per cent of citral derived from the oil of lemon, and was, therefore, below the standard of purity for said article, which calls for 0.02 per cent of citral derived from the oil of lemon. United States v. Frank et al__ 360 An article labeled " Extract of Lemon Peel " held misbranded because it was not a true extract of lemon peel, but a dilute extract containing no oil of lemon peel. United States v. S. Gumpert & Co__ 335 See Innuendo ; Standards of Purity. LIBEL. Where a libel to forfeit certain syrup for alleged violation of the act stated that the boxes and bottles did not contain a blend of maple syrup, as stated on the labels, but alleged that the article consisted of a mixture or compound of refined cane sugar flavored with an extract of maple wood, the negation of a blend of maple syrup was a conclu- sion of the pleader and was not admitted by a demurrer to the libel. United States v. 6S Cases of Syrup 216 Libels filed, under section 10 of the act, for the seizure, condemna- tion, and forfeiture of adulterated and misbranded articles of food and drugs are not governed by the strict rules of the common law in regard to indictments or criminal information. United States v. 2 Barrels of Desiccated Eggs 388 Where a libel was filed under section 10 of the act, for the seizure, condemnation, and forfeiture of adulterated tomato catsup, the alle- gation in the libel that such article is " unfit for food " may be re- garded as surplusage because the other language completely and dis- tinctly describes an offense. Even in an indictment, such surplus language is not fatal. United States v. 275 Cases of Tomato Catsup_ 297 In a proceeding under section 10 of the act by way of libel for the condemnation and forfeiture of adulterated or misbranded articles of food or drug, it is not necessary that the libel show that the proceed- ing was commenced on information furnished by the Secretary of Agriculture or by a health officer or agent of a State, Territory, or the District of Columbia. United States v. 2,000 Cases of Canned Tomatoes 342 Want of sufficient verification of a libel to forfeit food under sec- tion 10 of the act is not ground for exception or demurrer to the sub- stance of the libel. Admiralty Rule No. 1 provides that libels shall be verified, except those filed on behalf of the United States. United States v. 2 Barrels of Desiccated Eggs 388 United States v. 300 Cases of Mapleine 190 In a proceeding to forfeit goods for adulteration or misbranding under section 10 of the act, the libel should be supported by the affi- davit of some one cognizant of the facts showing probable cause. United States v. 8 Packages or Casks of Drug Products 305 Hee Affidavits; Notice and Opportunity to be Heard; Sale; Seizure. LIMITATIONS, STATUTE OF. The general three years statute of limitations applicable to crimes was not repealed by the Food and Drugs Act (section 5), containing no specific limitation on prosecutions thereunder, so as to require im- mediate prosecution on the theory that in case of delay the right to prosecute would be barred by laches. United States v. J. L. Hop- kins & Co 568 DIGEST OF COURT DECISIONS. 747 LITHIA WATER. Page. The term " lithia water," as ordinarily understood, means a water containing a sufficient amount of lithium to give a therapeutic effect when drunk in reasonable quantities. United States v. 7 Cases of Buffalo Lithia Water 697 See Buffalo Lithia Water; Standards of Purity. LONDON DRY GIN. There is a distinct kind of gin known as London Dry Gin, and the name " London Dry Gin " when applied to that particular kind of gin made in New York does not constitute misbranding. United States v. 36 Bottles of London Dry Gin 647 Reversed by the Circuit Court of Appeals, Third Circuit 695 MACARONI. Macaroni, to which a coal tar dye known as " martius yellow " had been added as coloring matter, held adulterated within the meaning of section 7 of the act, in that it contained an added poison- ous ingredient which might render it injurious to health. United States v. 1,950 Boxes of Macaroni 267 Macaroni, containing au insubstantial amount of artificial coloring matter, the presence of which was inconspicuously declared on the label, and bearing also on the label scenes and pictures alleged to represent scenes in Italy and pictures of Italian life, held not mis- branded. United States v. 175 Boxes of Macaroni 591 See Added Poisonous and Added Deleterious Ingredients. MAIL, SHIPMENTS BY. See Interstate Commerce. MANDAMUS. Petition for writ of mandamus to restrain the Secretary of Agri- culture from issuing Food Inspection Decision No. 100, relating to bleached flour, and to compel cancellation of said decision, denied, on the ground that the interest of the petitioner in the subject matter was too remote, and because the actions of the Secretary in the mat- ter involved the exercise of discretion, and were not ministerial in character. Alsop Process Co., Petitioner, v. James Wilson, Secretary of Agriculture — . 206 MAPLE FLAVO. An article composed of glucose and sugar, and artificially colored and flavored, held misbranded because the label represented it to be a true maple product when not so. The term " Maple Flavo " held not to be a distinctive name within the meaning of the act. United States v. S. Gumpert & Co,. 335 See Distinctive Name. MAPLEINE. The term " Mapleine " held not to be a distinctive name within the meaning of the act, and its use on the label of an article con- taining no maple product held to constitute misbranding of the article so labeled. United States v. 300 Cases of Mapleine 190 MAPLE SYRUP. Maple syrup is popularly recognized as the syrup made by boiling down the sap that flows in the spring of the year from the live maple tree. United States v. Scanlon 181 See Maplewood Extract; Syrup. MAPLEW00D EXTRACT. An extract made from the wood of maple trees after the trees have been cut down is not properly labeled " Maple Syrup." United States v. Scanlon 181 An extract made from the wood of the maple tree after it has been cut down held to be a " like substance " to cane sugar, and to con- stitute a blend within the meaning of the act. United States v. 68 Cases of Syrup 216 See Blend; Maple Syrup; Syrup. 748 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. MARASCHINO CHERRIES. Page. Maraschino is a liqueur or cordial, high in alcohol, produced from the fruit, leaves, and bark of the marasque cherry tree, which grows indigenous in Dalinatia, Austria. Cherries packed in a weak, sweet liqueur, artificially colored and highly flavored with essence of bitter almonds, and not produced from the marasque cherry tree, held mis- branded. United States v. Bettman- Johnson Co 460 See Distinctive Name. MARTIUS YELLOW. An added poisonous and deleterious ingredient. United States v. 1,950 Boxes of Macaroni 267 See Added Poisonous and Added Deleterious Ingredients ; Maca- roni. MILK. Milk containing bacteria, including the Bacillus eoli and strepto- cocci types, held adulterated in that it consisted, in whole or in part, of a filthy, decomposed, and putrid animal and vegetable substance. United States v. Dade 554 MILK, CONDENSED SKIMMED. An article labeled " Condensed Skimmed Milk," and containing about 42 per cent of cane sugar, the presence of which was not de- clared on the label, held adulterated and misbranded. United States v. Libby, McNeill & Libby 678 See Distinctive Names. MILK CHOCOLATE. See Confectionery. MINERAL SUBSTANCES. See Confectionery; Ejusdem Generis. MISBRANDING. Where a libel filed under section 10 of the act charges misbranding it is essential that the libel should set forth the branding and the facts inconsistent therewith. If there is indefiniteness in the state- ment, such indefiniteness must be removed by proof. United States v. 650 Cases of Tomato Catsup ^ 183 The purpose of the act was to protect consumers against impure and adulterated foods and drugs, and also against the use of food and drugs which do not show what they contain by the brands on the package. United States v. Mayfield et al 244 Where misbranding is corrected after an article is received in in- terstate commerce and before it is seized for condemnation and for- feiture, it is not subject to seizure. United States v. 5 Boxes of Asafoetida 318 If an article contains some quantity of a certain ingredient, no matter how small the quantity, if it is appreciable, the use of the name of such ingredient on the label is not misbranding within the meaning of the act. United States v. American Druggists' Syndicate- 406 A food product labeled " Compound : Pure Comb and Strained Honey and Corn Syrup " held not misbranded on account of the per- centage of corn syrup largely exceeding that of honey. United States v. Boeckmann _ 242 A syrup, composed of maple sugar 10 per cent and white sugar ' 90 per cent, labeled "Gold Leaf Syrup," with a trade-mark consist- ing of a gold leaf in the form of a maple leaf, and bearing the state- ment in distinct type " Composed of maple and white sugar," with name of maker, can not be said to be misbranded on account of the proportion of white sugar exceeding the proportion of maple sugar. In re Wilson 186 See Agents; Curative Effect of Drugs; Estoppel; Labels. MISLEADING. See False and Misleading. DIGEST OF COURT DECISIONS. 749 MIXTURES. Page. The prohibition of the act against mixing or packing with an article of food any substance which will reduce, lower, or injuriously affect its quality or strength, includes chemical compounds as well as mechanical mixtures. The evil intended to be remedied by the statute is not limited to a mechanical mixture, but is just as potent when a chemical union results from the two substances with the deleterious effect intended to be prevented by the act. Lexington Mill & Elevator Co. v. United States 604 See Blend ; Compound. MOJAV COFFEE. An article composed almost entirely of Santos coffee, and labeled '' Blanke's Mojav Coffee," held not misbranded as purporting to be a mixture of Mocha and Java coffees. United States v. C. F. Blanke Tea & Coffee Co 601 MOLASSES. Molasses to which had been added glucose and which was sold as molasses under the label " No. 1 Fancy," held misbranded in that it was offered for sale and sold under the distinctive name of another article, to wit, molasses. United States v. Hobart 328 Molasses labeled "Sugar Glen Compound Molasses and Corn Syrup " and " Burro Brand Molasses and Corn Syrup," with state- ments on the label in several places declaring the presence of corn syrup, held not misbranded within the meaning of the act. United States v. 779 Cases of Molasses 218 See Corn Syrup ; Regulations. MORPHINE. Improperly declared on label. United States v. The Richie Co 447 MOTIVE. See Knowledge and Intent. NARCOTIC DRUGS. It is eminently proper that when one buys a patent medicine he should know whether it contains injurious substances, and it is proper when one buys a drug or mixture, a patent medicine, or any- thing which is ordinarily handled with great care, that there should be a statement on the package to the effect that such a substance is in the mixture. The purpose of the act was to prevent people from taking narcotic drugs and other deleterious substances unwittingly. United States v. The Piso Co 484 See Purpose of the Act. NITRITES AND NITRITE REACTING MATERIAL Nitrites and nitrite reacting material present in flour as a result of bleaching by the Alsop process, held to be added deleterious ingredi- ents which might render the flour injurious to health, and to consti- tute adulteration within the meaning of the act. United States v. 420 Sacks of Flour 250 United States v. 625 Sacks of Flour 2S5 Contra, Lexington Mill & Elevator Co. v. United States (reversing United States v. 625 Sacks of Flour) 604 Judgment of the Circuit Court of Appeals for the Eighth Circuit, in Lexington Mill & Elevator Co. v. United States, affirmed by the Su- preme Court. United States v. Lexington Mill & Elevator Co 701 See Added Poisonous and Added Deleterious Ingredients; Flour Bleached. NOTARIES PUBLIC. See Affidavits. 750 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. NOTICE AND OPPORTUNITY TO BE HEARD. Page. Held to be necessary in all cases where criminal prosecution is in- stigated by officers or agents of the Department of Agriculture to allege in the information that the defendant was given notice and opportunity to be heard, as provided in section 4 of the act ; and that proof of such facts be made at the trial. United States v. Morgan et al 300 United States v. Mohn Wine Co 477 But see United States v. Morgan et al 494 An information under the Food and Drugs Act charging violation of section 2 of said act will not be dismissed on appeal by reason of it not appearing from the information that there had been a notice and hearing, as provided by section 4 of the act, before, the Secretary of Agriculture, where no motion to dismiss for this reason was made in the court below and the question was not raised by any pleading or assignment of error. Frank et al. v. United States 490 An information charging violation of section 2 of the act held in- sufficient in that it failed to allege that the defendant had been noti- fied and afforded an opportunity to be heard by the Department of Agriculture prior to instituting the proceeding. United States v. J. L. Hopkins & Co 528 Where an indictment or information is filed by the United States - charging violation of section 2 of the act, it is not incumbent upon the Government either to allege or prove compliance by the adminis- trative officers with the provisions of section 4 of the act, whether the hearing therein prescribed has or has not taken place. United States v. Schraubstadter et al 393 United States v. Morgan et al 494 It is not a condition precedent to prosecution for violation of the act that an investigation or hearing be had in the Department of Agriculture. Where a statute provides for notice in one case and permits prosecution without notice in another case, it shows that there was no intent to make notice jurisdictional. United States v. Morgan et al 494 In seizure proceedings under section 10 of the act it is incumbent upon the Government to allege in its libel and prove that notice has been given to the party from whom the sample was taken and that he has been given an opportunity to be heard, pursuant to the pro- visions of section 4 of the act. United States v. 3 Barrels of Vanilla Tonka and Compound 356 In all proceedings for violations of the act instituted by officials of the United States Department of Agriculture, whether in personam or in rem, it is a condition precedent to prosecution that the notice provided for in section 4 of the act be given to the person from whom the samples were taken and such person should be afforded an oppor- tunity to be heard. United States, v. 74 Cases of Grape Juice 303 United States v. 74 Cases (or 20 Cases) of Grape Juice 413 United States v. Certain Cases of Syrup 490 In seizure proceedings by the United States under section 10 of the act, it is unnecessary that notice be given to the person from whom the sample was obtained, or that such person be afforded an opportunity to be heard, in accordance with the provisions of section 4 of the act. United States v. 75 Barrels of Vinegar 497 United States v. 50 Barrels of Whisky — 174 United States v. 75 Boxes of Alleged Pepper 502 United States v. 65 Casks of Liquid Extracts 199 United States v. 9 Barrels of Olives 284 United States v. 100 Barrels of Vinegar 448 United States v. Morgan et al 494 United States v. 100 Cases of Tepee Apples et al 172 OAT FEED. See Corno Horse and Mule Feed. OATHS. See Affidavits ; Information. DIGEST OF COURT DECISIONS. 751 OBJECT OF THE ACT. Page. The object of the law is apparent; that is, the public shall be put distinctly on notice, and cocaine, among other things mentioned in the act, in any preparation of food or drink, must be stated on the label, and it is immaterial also if it is a small quantity, if it is an appreciable quantity. United States v. Koca Nola Co • 213 The plain and manifest object of the statute is to protect the pur- chaser and consumer of drugs and food stuffs from fraud and im- position. United States v. 68 Cases of Syrup 216 The object of the act is to protect the public from deceit or injury. Its object is (1) to prevent deceit and false pretenses in the sale of foods and drugs; (2) to safeguard the public health. French Silver Dragee Co. v. United States ! 276 The object of the act is not only to protect the public from un- * wholesome food and drink, but to require that any article of food, drink, or medicine sold shall be correctly described by its label. United States v. Morgan et al 300 The act has two clearly separate objects : First, to keep adulter- ated articles completely out of the channels of interstate commerce ; and, second, if they enter such channels, to condemn them in transit or in original or unbroken packages after reaching their destination. Hipolite Egg Co. v. United States 378 It is the duty of the court to give the act a fair and reasonable construction for the accomplishment of its object. That object is the exclusion from interstate commerce of food products so adul- terated as to endanger health. United States v. 1,950 Boxes of Macaroni 267 The act is intended to safeguard the people in their daily lives, and to the end that their health may be conserved. United States v. Gidden 522 The object of the Food and Drugs Act is to prevent the misuse of the facilities of interstate commerce in conveying to and placing before the consumer an adulterated article of medicine or food, and in order that its protection may be afforded to those who are in- tended to secure its benefits, the brands regulated must be on the packages intended to reach the purchaser. McDermott et al. v. Wisconsin 629 See Purpose of the act. OFFAL. The charge in a libel for the seizure of tomato catsup, that the product was made from " offal " of tomato-canning factories, does not charge violation of paragraph 6, section 7, of the act, that the product consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, the word " offal " as used in the libel being of no exact significance. United States v. 650 Cases of Tomato Catsup 183 See Tomato Catsup. OIL CASSIA. A drug labeled " Oil Cassia, U. S. P.," which contained rosin, held adulterated and misbranded. United States v. Lehn & Fink 579 OIL, COTTONSEED. See Oil, Salad. OIL, OLIVE. See Oil, Salad. OIL, SALAD. An article labeled in large type "Olio Sopraffino Savoia Brand Salad Oil," and in small type "A compound of winter pressed cotton- seed oil flavored with pure Italian olive oil," held misbranded in that the label represented the article to be superfine Italian olive oil, when in fact it was composed principally of cottonseed oil. United States v. Italian Importing Co 340 752 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. OIL, SALAD — Continued. Page. Evidence held insufficient to warrant a finding that sesame oil, delivered for shipment in interstate commerce under the label " Im- ported Salad Oil," was misbranded within the meaning of the act. Held to be error on the part of the trial court in refusing to admit evidence to show that the term " salad oil " had acquired a trade meaning not synonymous with " olive oil." Von Bremen et al. v. United States 500 An article labeled " Olio per Insalata Vival Brand Soprafiho Cotton Salad Oil Extra Qualita," and composed of cottonseed oil, held mis- branded in that it was so labeled as to convey the impression that it was a superfine olive oil produced in Italy, when not so. Brina v. United States 259 An article labeled " Imported Salad Oil Morel Brand " held mis- branded because it was not composed of olive oil, but was sesame oil. United States v. Von Bremen et al 347 Reversed, Von Bremen et al. v. United States 500 The term " salad oil " prima facie means olive oil. Brina v. United States 259 United States v. Italian Importing Co 340 United States v. Von Bremen et al 347 See Judicial Notice. OLIVES. Olives held adulterated within the meaning of the act in that they consisted in whole or in part of a filthy and decomposed vege- table substance. United States v. 10 Barrels of Olives 280 See Filthy, Decomposed, and Putrid. ORANGE EXTRACT OR FLAVORING. An article labeled " Orange Flavoring " is not shown to be mis- branded by an allegation in an information to the effect that it con- tained " only about 20 per cent of the amount of orange oil that should be present in orange extract." If there is a trade meaning to the words " orange flavoring " and " orange extract " which is that they should be identical in strength, such trade meaning should be pleaded. United States v. Union Pacific Tea Co 350 ORIGINAL PACKAGE. While the Government can seize only the original package, yet it may open the package and, if it firids anything written on the inside of the package which does not appear on the outside, that is, any misbranding or false statement, it has as much right to proceed as it has when the label is on the outside of the package seized; but, if it does not seize the original package before it is opened, then it has no right whatever to do anything more than to prose- cute any party who may deliver the goods or receive the goods in a criminal case. United States v. 300 Cases of Mapleine 190 Where an adulterated or misbranded drug had been transported in interstate commerce and received by the consignee, who was the owner, and the packages were opened and samples taken, that the strength, quality, and purity might be tested, held that such opening for the purpose of testing did not constitute a breaking of the original package. United States v. 5 Boxes of Asafcetida 318 United States v. 9 Boxes of Asafcetida 323 Change of the original package might not constitute a change of the identity of a food or drug guaranteed by the manufacturer under the provisions of section 9 of the act. United States v. Mayfield et al_ 244 See Interstate Commerce ; Jurisdiction ; Original Unbroken Packages. ORIGINAL UNBROKEN PACKAGE. Where a product in casks is shipped in interstate commerce in car- load lots, the cask and not the car is the original package within the meaning of section 10 of the act, which authorizes the seizure and forfeiture for adulteration or misbranding of articles so shipped while remaining in the original unbroken package. United States v. 65 Casks of Liquid Extracts 199 DIGEST OP COURT DECISIONS. 753 ORIGINAL UNBROKEN PACKAGE— Continued. Page. For the purpose of seizure under section 10 of the act of an adul- terated article of food which has been transported in interstate com- merce, the jurisdiction of the Federal Government contiuues while the food remains in the original unbroken packages at the point of destination even though mingled with the goods of the State. United States v. 2 Barrels of Desiccated Eggs 388 Hipolite Egg Co. v. United States__ 378 By the Food and Drugs Act, adulterated articles, while in inter- state commerce, are made culpable as well as their shipper; while in original unbroken packages they can be seized and they carry their own identification as contraband of law; they are subject to the power of Congress to regulate, and they are not beyond the juris- diction of the National Government because within the borders of a State. Hipolite Egg Co. v. United States 378 See Jurisdiction ; Original Package ; Package. OYSTERS. Canned oysters containing 10.5 per cent oysters and S9.5 per cent liquor, labeled " Cove Oysters. First Quality," held not adulterated or misbranded on account of the excessive amount of liquor present. United States v. Potter 576 An information charging that certain oysters in the shell were adulterated in that they " consisted in part of filthy, decomposed, and putrid animal and vegetable substance," held to state an offense under the act. United States v. Sprague & Co 665 PACKAGE. The words " package " and " original unbroken package " are both used in the act. The word " package " is not used in the same sense as " original unbroken package." The framers of the act mani- festly had in mind the definition heretofore given by the courts to the term " original package," and in the second, third, and tenth sec- tions have used that expression or its equivalent. The word " pack- age " as used in the act means the package made up by the manu- facturer for sale to the ultimate consumer which goes into the pos- session of the person who will use the article of food or drug. United States v. The Dr. J. L. Stephens Co 466 The Dr. J. L. Stephens Co. v. United States 628 That the word " package " or its equivalent expression, as used by Congress in sections 7 and 8 of the act, in defining what shall consti- tute adulteration and what shall constitute misbranding within the meaning of the act, clearly refers to the immediate container of the article which is intended for consumption by the public, there can be no question. Limiting the requirements of the act as to adulteration and misbranding simply to the outside wrapping or box containing the packages intended to be purchased by the consumer, so that the importer, by removing and destroying such covering, could prevent the operation of the law on the imported article yet unsold, would render the act nugatory and its provisions wholly inadequate to ac- complish the purpose for which it was passed. McDermott et al. v. Wisconsin 629 See Original Unbroken Package. PATENT FLOUR. See Standards of Purity. PENAL STATUTE. See Burden of Proof; Crimes, Infamous; Criminal Cases; Reason- able Doubt. PENALTIES. The word " penalties "as used in section 7 of the act is enlighten- ing as showing that the requirements of section 4 do not apply to seizure proceedings under section 10. United States v. 100 Barrels of Vinegar — 448 40066—14 48 754 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. PEPPER,. Page. An article labeled " Perfection Mills Compound White Pepper," which was composed of 65 per cent white pepper and 35 per cent corn product, with a statement of the ingredients in small and inconspicu- ous type on the label, held adulterated and misbranded. Frank et al. v. United States 490 A product composed of long pepper and black pepper, labeled " Pure Pepper," held misbranded ; it was a Mend and should have been labeled as such. United States v. 75 Boxes of Alleged Pepper 502 See Blend; Compound. PEROXIDE CREAM. An article labeled " Peroxide Cream," which contained very little, if any, peroxide, held not misbranded within the meaning of the act, there being no duty on the manufacturer to set forth the amount of peroxide contained in the article. United States v. American Druggists' Syndicate 406 PETTY OFFENSES. A prosecution under section 2 of the act, which provides for no imprisonment for the first offense, but merely for a fine not exceeding $200, is for a " petty offense," and the trial of such a case under waiver of jury would amount to an arbitration as to the questions of fact involved, and the trial court's conclusions of fact could not be reviewed in the appellate court. Frank et al. v. United States 490 See Appeals and Error ; Crimes, Infamous ; Information ; Jury Trials. PHARMACOPCEIA. Congress, in providing that a product shall be deemed to be adul- terated if it fails to comply with the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation, did not delegate legislative power but merely pre- scribed the method of ascertaining facts upon which the operation of the statute was to depend. United States v. Lehn & Fink 384 See Constitutionality ; Ex Post Facto Legislation. PHYSICIANS' PRESCRIPTIONS. The act makes no exception in favor of the prescriptions of regu- larly licensed physicians, and such prescriptions are subject to the same regulations as other drugs relative to adulteration and mis- branding. United States v. The Dr. J. L. Stephens Co 466 A physician's prescription sent through the channels of interstate commerce by a corporation is subject to the provisions of the act. The Dr. J. L. Stephens Co. v. United States 628 PLEADING. See Indictment ; Information ; Libel. POISONOUS INGREDIENTS. See Added Poisonous and Added Deleterious Ingredients. POLICE COURT, DISTRICT OF COLUMBIA. The Police Court of the District of Columbia is a " proper court of the United States " within the meaning of section 5 of the act, which requires United States attorneys to whom violations of the act are reported " to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States " for the en- forcement of the penalties provided by the act. Ffuyler's v. Houston. 694 POLICE POWERS OF STATES. See Constitutionality. POLICE REGULATIONS. The Food and Drugs Act is a police regulation. United States v. The Piso Co 484 United States v. Dade 554 See Knowledge and Intent. DIGEST OF COURT DECISION? 755 POMEGRANATE. Tftge. See Grenadine Syrup. PRESERVED WHOLE EGG. See Eggs, Preserved Whole. PRESUMPTION OF INNOCENCE. See Burden of Proof; Reasonable Doubt. PRIOR CONVICTION. In prosecutions for violations of the act, it is improper to allow proof of a previous conviction for violation of the act to go before the jury. United States v. Weeks 643 PRIOR EXECUTIVE SEIZURE. See Seizure. PROOF. See Burden of Proof. PUDDINE. See Fruit Puddine. PUMPKIN. The addition of pumpkin to tomato catsup held to constitute adulteration. Such a mixture is misbranded if labeled " Compound Catsup." William Henning & Co. v. United States 506 PURCHASER. The word " purchaser " as used in section 8 of the act is without limitation or qualifying terms. If it be broad enough to include wholesale and retail purchasers, it is also broad enough to include the ultimate consumer as a purchaser, and the labeling or branding of the product, package, box, bottle, or other container inclosing the article which he buys must be such as not to deceive or mislead him. United States v. The Dr. J. L. Stephens Co 466 The Dr. J. L. Stephens Co. v. United States 6528 See Package. PURPOSE OF THE ACT. This act was originally passed so as to prevent people from taking cocaine when they did not know there was cocaine in the mixture; or chloroform when they did not know there was chloroform in it or some of the other deleterious substances mentioned in the act. It was intended that, through the instrumentality of the act, food and drugs that pass into interstate commerce should be unadulterated, and should be branded truthfully. United States v. The Piso Co__ 484 The purpose of this act is to conserve the public health by prevent- ing interstate commerce in poisonous or deleterious food and drugs, and, in order that this may be effected, it is not only made a misde- meanor under the act, but the article of food or drug adulterated or misbranded is declared to be forfeited as an offending thing which threatens the health of the citizen. United States v. 5 Boxes of Asafcetida 318 The purpose of the act is to prevent deceit and false pretenses in the sale of foods and drugs, and to protect the public. It is aimed at imitations, shams, frauds, and pretenses of every character as regards articles of food and drugs. Its purpose is to apprise people who buy and use drugs as to what they buy and use and to check the use of drugs which lead to destructive habits. Its primary purpose is the protection of the ultimate consumer — the purchasing public. United States v. The Dr. J. L. Stephens Co 466 The purpose of the act is to protect the people against impure food, where the quantity or quality or value of a food is so adulterated as to reduce the food value. The whole purpose of the law is to have the quality of an article, as well as the quantity, just as described upon the label. United States v. Potter 576 756 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. PURPOSE OF THE ACT— Continued. Page. The purpose of Congress in the enactment of the act was the better protection of the people of the United States from adulterated or deleterious foods, drugs, medicines, and liquors. Wm. M. Gait & Co. v. United States 588 The purpose of the act is to prevent deceit and false pretenses in the sale of food or drugs and to safeguard the public health. United States v. Bettman-Johnson Co 460 The purpose of the act is to protect the consumer in his right to receive what he orders and desires to receive. United States v. Hall- Baker Grain Co 452 This statute was enacted for the purpose of benefiting and pro- tecting the consumer. United States v. 625 Sacks of Flour 285 United States v. 100 Cases of Tepee Apples 172 The statute upon its face shows that the primary purpose of Con- gress was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded or adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be. As against adulteration, the statute was intended to protect the public health from possible injury by adding to articles of food poisonous and deleterious substances which might render such articles injurious to the health of the consumer. United States v. Lexington Mill & Elevator Co 701 The purpose of the act, so far as branding and labeling of articles of food is concerned, is to put the public on notice that it contains in it certain ingredients which the lawmakers believe the public should know before purchasing. United States v. The Koca Nola Co_ 213 The law requires the manufacturer to be honest in his statement of the contents of the package; it requires him to be honest in stating the truth upon the label put upon it. That is what the act is intended to accomplish, and, if properly enforced, it will accomplish. United States v. Edward Westen Tea & Spice Co 222 The title of the act itself, when carefully read and considered, demonstrates the fact that the sole purpose of its enactment was first, to protect purchasers from injurious deceits by the sale of inferior for superior articles; and, second, to protect the health of the people by preventing the sale of normally wholesome articles to which have been added substances poisonous or detrimental to health. Hall-Baker Grain Co. v. United States 557 The general purpose and intent of the act must be deemed to be the prevention of fraud and deception, so that the purchaser can get the thing he has a right to suppose he is getting, rather than the pro- tection of the public health to the extent of preventing the purchaser from deliberately and intentionally buying a particular food which is what it purports to be, even though a jury might think it " dele- terious." United States v. 40 Barrels and 20 Kegs of Coca-Cola__ 710 The purpose of the law is not to protect experts and scientific men alone who know the nature and value of food products, but to protect ordinary people — people without scientific knowledge or experience. United States v. 300 Cases of Mapleine 190 The purpose of the act is to protect the public against deception in the purchase of drugs by punishing adulteration and misbrand- ing, as therein defined. United States v. American Druggists Syndicate 406 The purpose of the act is to conserve public health by preventing interstate commerce in poisonous or deleterious foods and drugs. United States v. 5 Boxes of Asafcetida 318 Congress, by its enactment, intended to promote honesty and fair- dealing in trade, and secure to the public pure and wholesome food and drugs. United States v. Buffalo Cold Storage Co ,_ 257 The purpose of the act was to protect consumers against impure and adulterated foods and drugs and also against the use of foods or drugs which do not show what they contain by the brands on the package. United States v. Mayfield et al 244 DIGEST OF COURT DECISIONS. 757 PURPOSE OF THE ACT— Continued. Page. The underlying purpose of the act was to protect the public health against imposition upon the users of foods, drugs, and medi- cines which are adulterated, misbranded, poisonous, or deleterious. United States v. Johnson 238 The purpose of the act is to secure the purity of foods and drugs, and to inform purchasers of what they are buying. Its provisions are directed to that purpose and must be construed to effect it. United States v. Antikamnia Chemical Co 684 The general purpose of the act is to prevent the sale under mis- leading terms of foods and drugs. United States v. Dunham Manu- facturing Co 602 The Food and Drugs Act was passed by Congress under its authority to exclude from interstate commerce impure and adulter- ated food and drugs and to forbid the facilities of such commerce being used to enable such articles to be transported through the country from their place of manufacture to the people who consume and use them, and it is in the light of the purpose and of the power exerted in its passage by Congress that this act must be con- sidered and construed. McDermott et al. v. United States 629 See Construction, Rules of; Knowledge and Intent; Object of the Act. PUTRID. See Filthy, Decomposed, and Putrid. QUALITY. Where a label on an article is alleged to be misleading and to con- stitute misbranding within the meaning of the act the character of the substance bearing the label is not to be considered, even though it be superior to the article which the purchaser thought he was buy- ing. The purchaser has the right to have the article which he desires and pays for. The whole question in controversy is as to the truth- fulness of the label. United States v. 58 Sacks and 70 Sacks of Corn Meal 48p United States v. Von Bremen et al 347 United States v. Hall-Baker Grain Co 452 See Coffee ; Corn Meal ; Oil, Salad ; Purpose of the Act ; Wheat. RADIO SULPHO. Drug products labeled " Radio Sulpho " and " Radio Sulpho Brew " held misbranded in that the labels contained statements regarding their curative or therapeutic effect which were false and misleading. United States v. Schucha_ 364 See Curative Effect of Drugs; Misbranding. REASONABLE DOUBT. In order to convict a defendant for violation of sections 1 and 2 of the act the jury must be convinced of his guilt beyond a reasonable doubt. United States v. Harper 163 Prosecutions for violations of section 2 of the act are subject to the same rules of evidence as proceedings in other criminal cases and, in order to convict, the jury must be satisfied of the guilt of the accused beyond a reasonable doubt. United States v. S. Gumpert & Co - 335 United States v. Hobart : 328 United States v. John A. Tolman & Co 231 United States v. Mayfield et al 244 United States v. J. L. Hopkins & Co 528 United States v. Schuch 364 United States v. Hall-Baker Grain Co 452 United States v. Heide 487 United States v. Bettman-Johnson Co 460 United States v. Griebler 182 United States v. Gidden 522 United States v. The Piso Co 484 1 Decided prior to the enactment of the Sherley Amendment of Aug. 23, 1912. 758 FEDERAL POOD AND DRUGS ACT AND DECISIONS. REASONABLE DOUBT— Continued. Page. United States v. Dunham Mfg. Co 602 United States v. German American Specialty Co 619 United States v. Scudder Syrup Co 619 United States v. Hudson Mfg. Co _ 622 United States v. Weeks , 643 United States v. Finlayson et al 672 In a prosecution under section 2 of the act for the misbranding of confectionery in such a manner as to make it appear to be a product produced in Italy, when not so, in order to convict, the jury must be satisfied beyond all reasonable doubt that a purchaser of a box of said confectionery, labeled as charged in the indictment, on reading . the label, would at once conclude that the confectionery was manu- factured in Italy. If there is any other construction to be placed on the label, the verdict should be for the defendant. United States v. Ghirardelli . 563 See Burden of Proof. REGULATIONS. Regulation 17 of the Rules and Regulations for the Enforcement of the Act, referred to by the court as having the force and effect of law. United States v. 779 Cases of Molasses 218 Regulations 19 (c) cited and upheld by the court. United States v. Thomson & Taylor Spice Co 553 An article labeled " Genuine Hollands Geneva Gin * * * Dis- tilled by London Wine & Spirit Co., New York," held to comply with regulation 19 (c), and not misbranded. The rules and regulations made pursuant to the authority of section 3 of the act have the force and effect of law. United States v. Finlayson et al 672 An article labeled " Holland Gin," which was manufactured in the United States, and the name of the manufacturer and place of manu- facture was stated on the label, held properly branded under regula- tion 19 (c). United States v. 5 Cases of Holland Gin____ 681 Regulation 28 (d) and (c) held not to be controlling on the court by way of construing the act, but as being a reasonable construction placed on the act by the executive authorities which the court might adopt if it saw proper. United States v. The Piso Co 484 Where the amount of morphine present in a drug varies it may not be sufficient compliance with Regulation 28 (d) to state the maximum amount present in all the bottles "as less than 4 per cent " as the variance might be too great in some bottles. United States v. The Richie Co 447 In so far as regulation 28 designates the several derivatives of the drugs enumerated in section 8 and the preparations containing the same, it is within the power conferred on the three Secretaries by section 3 of the act to make uniform rules and regulations for carry- ing out tha provisions of the act. That part of the regulation which requires that the label should state the name of the parent substance from which the derivative is obtained is an amendment or addition to the act itself, and, therefore, beyond the powers of the executive authority. United States v. 100 Packages of Antikamnia Tablets 416 Reversed, United States v. Antikamnia Chemical Co , 684 Regulation 28, in so far as it requires the name of the parent sub- stances of the derivatives referred to in section 8 of the act, in case of drugs, paragraph 2, to be declared on the labels of medicines, as well as the trade name of the derivatives themselves, upheld as ful- filling the purpose of the law. The regulation can not be said to be an addition to the law. United States v. Antikamnia Chemical Co__ t>S4 See Acetanilid; Geographical Name. DIGEST OF COURT DECISIONS. 759 REMEDIAL STATUTE. Page. The Food and Drugs Act, while containing penal provisions with- out which it could not be enforced, was enacted to remedy the great mischief resulting from the unrestricted sale of adulterated drugs and articles of food and ought to be given, where possible, a con- struction that will effect the general legislative intent. United States v. 100 Packages of Antikaronia Tablets 416 The act is essentially a remedial statute for the correction of known or supposed abuses with respect to the adulteration of food and other articles of human consumption. It is primarily a statute of prevention. Its meaning is made clear when its purpose is known and borne in mind. United States v. 625 Sacks of Flour 285 The act is essentially remedial and its evident purpose is not to be defeated by any narrowness of construction. Lexington Mill & Elevator Co. v. United States 604 The act was passed by Congress to remedy a preexisting evil. The evil produced by adulterated or misbranded articles of food and drugs could never be overestimated, and hence, the evil that Congress designed to remove and obliterate and eradicate was an important one and touching the welfare and comfort of the people. United States v. Hobart 328 See Construction, Rules of. REMEDY. The word " remedy " in its ordinary sense means that which cures disease — any medicine or application which puts an end to disease and restores health. United States v. Schuch 364 See Curative Effect of Drugs. ROSE VANILLA. See Distinctive Name. ROSIN. An adulterant of oil of cassia. United States v. Lehn & Fink 579 RUSK. An information alleging that an article labeled " Genuine Dutch Tea Rusk Made in Holland, Mich., by the Michigan Tea Rusk Co., Holland, Mich.," with the word " Holland " printed in much larger type than the word " Mich.," dismissed by the court on the ground that it presented a doubtful case of misbranding as purporting to be a foreign product when not so. United States v. Schurman et al 249 See Information. SALAD OIL. See Oil, Salad. SALE. Libel for the seizure of an adulterated article of food for condem- nation and forfeiture under section 10 of the act held fatally de- fective for failure to allege that the article seized had been trans- ported in interstate commerce for sale. United States v. 46 Pack- ages and Bags of Sugar 324 But see Hipolite Egg Co. v. United States 378 Libel for the seizure, condemnation and forfeiture of a drug prod- uct under the provisions of section 10 of the act, which had been shipped from the manufacturing agent in one State to the owner in another State for bottling and labeling, dismissed on the ground that said product was not shipped for sale. United States v. 65 Casks of Liquid Extracts 199 In proceeding under section 10 of the act for the seizure, condemna- tion and destruction of an article of food alleged to be adulterated, libel dismissed because evidence of libelant did not show that the article was shipped for sale. United States v. 3 Barrels of vanilla Tonka and Compound 356 A libel filed under section 10 of the act held not to be fatally de- fective for failure to allege that the article proceeded against had been transported in interstate commerce for sale. United States v. 300 Cans of Frozen Eggs 444 760 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. SALE — Continued. Page. Where adulterated vinegar, which had been shipped in interstate commerce, was seized while stored in the original unbroken pack- ages, it was held immaterial that the evidence showed that the article had been shipped in interstate commerce for consumption and not for sale in such unbroken packages. United States v. 100 Barrels of Vinegar 448 Where adulterated eggs had been shipped from one State to an- other, to be used solely as raw material in the manufacture of some other article and not for sale, held that such eggs were subject to seizure by way of libel as provided in section 10 of the act. United States v. 50 Cans of Preserved Whole Eggs 227 Affirmed, Hipolite Egg Co. v. United States 378 Where an article of food had been shipped by the owner in one State to himself in another State for the purpose of testing the same, held that such article was subject to seizure for adulteration by way of libel as provided in section 10 of the act, and it was immaterial that such adulterated article had not been shipped for sale. Phila- delphia Pickling Co. v. United States 612 Where a physician furnished a drug as part of his treatment of a patient, shipping said drug in interstate commerce, and made no sep- arate charge for the drug, held that the sale of the physician's serv- ice included a sale of the drug. United States v. The Dr. J. L. Stephens Co ' 466 Affirmed, The Dr. J. L. Stephens Co. v. United States 628 In view of the decision of the Supreme Court in Hipolite Egg Co. v. United States, it is unnecessary to allege in libels for condemnation under the act that articles of food have been transported for sale. Nor is it material that consignees of seized articles of food do not intend to sell them but to use them for manufacturing purposes. United States v. 2 Barrels of Desiccated Eggs 388 See Libel; Shipment. SAMPLES. Where a representative sample of a commodity has been exam- ined and found misbranded, the jury is authorized to infer from the proof as to the contents of the specific receptacle examined and analyzed, that all the receptacles from the same original packages contained the same ingredients as the sample and were the same com- modity. United States v. John A. Tolman & Co 231 Where only a few sacks of flour taken from a pile of 400 sacks were >■ examined and found adulterated, and the samples so examined were representative samples taken from various parts of the pile, held to be proper to assume, in the absence of satisfactory evidence to the contrary, that all the sacks were adulterated. United States v. 350 Sacks of " Princess " Flour and 50 Sacks of " Fancy Melba " Flour__ 513 Affirmed, Wm. M. Gait & Co. v. United States 588 Whether a sample is fairly representative of the whole shipment is a preliminary question to be decided by the trial court and the de- cision thus reached will not be reversed in the appellate court, unless the facts producing it are before that court — and then only when error clearly appears. It is proper to assume that, if the samples were not representative of the lot, the appellants would have of- fered testimony to that effect at the trial of the case. Wm. M. Gait & Co. v. United States 588 Inspection laws of Kentucky properly provide for the taking of so much of an article covered by thorn as is necessary for analysis in order to determine its true nature. Savage v. Scovell 170 See Affidavits; Analysis. SECRETARY OF AGRICULTURE. See Mandamus. DIGEST OF COUBT DECISIONS. 761 SEIZURE. Page. To render a drug subject to seizure for condemnation and forfeiture under section 10 of the act, it must be adulterated or misbranded when seized. It is immaterial that the drug was adulterated or mis- branded when shipped. It can not be seized if the adulteration .or misbranding has been corrected after its receipt in interstate com- merce by the consignee and prior to seizure. United States v. 5 Boxes of Asafcetida 318 Under section 10 of the act, providing for the seizure by way of libel for the condemnation and forfeiture of adulterated or mis- branded foods and drugs, such seizures can not be made except by authorized officials. There is no authority for the seizure of such articles by private persons. United States v. 2 Barrels of Desic- cated Eggs 388 Section 10 of the act, providing that the procedure in seizing cases shall conform as near as may be to proceedings in admiralty, does not render such proceedings within the admiralty or maritime juris- diction in the Federal courts; the jurisdiction in such proceedings being conferred by the act itself. (Ibid.) Under Revised Statutes, section 563, subdivision 8 (U. S. Coinp. Stat, 1901, p. 467), giving the United States district courts jurisdic- tion of all civil cases in admiralty and maritime jurisdiction, the court, in seizures under section 10 of the Food and Drugs Act, and on land, proceeds not as a court of admiralty, but as a court of com- mon law jurisdiction on a trial by jury. United States v. Geo. Spraul & Co 372 Seizures under section 10, and on land, are in the district courts proceedings at common law, and are reviewable only as provided by the rules of common law. Review must be by writ of error. The circuit courts of appeals have no jurisdiction to entertain an appeal in such cases. Hudson Mamifacturing Co. v. United States 506 United States v. 779 Cases of Molasses 218 United States v. 3 Barrels of Vanilla Tonka and Compound 586 443 Cans of Frozen Egg Product v. United States 582 On a warrant for the seizure of 65 casks of a drug product, a lesser number may be seized. United States v . 65 Casks of Liquid Extracts- 199 In order to give the court jurisdiction over the subject matter in proceedings instituted under section 10 of the act, held to be neces- sary that the thing proceeded against be seized prior to the filing of the libel of information. United States v. 8 Packages or Casks of Drug Products 305 United States v. 275 Barrels of Tomato Catsup 297 Contra, United States v. George Spraul & Co 372 Prior executive seizure of an article proceeded against under sec- tion 10 of the act held to be unnecessary to confer jurisdiction over adulterated or misbranded foods and drugs. The language of the act indicates that the procedure by way of libel should be commenced in the district courts before the property is seized. United States v. 2 Barrels of Desiccated Eggs 388 United States v. George Spraul & Co 372 United States v. 100 Barrels of Vinegar 448 Preliminary examination by the Department of Agriculture and the hearings provided for by section 4 of the act are not necessary conditions precedent to the maintenance of a libel for condemnation and forfeiture of adulterated or misbranded articles of food and drugs under section 10 of the act. United States v. 9 Barrels of Olives 284 United States v. 50 Barrels of Whisky 174 United States v. 65 Casks of Liquid Extracts 199 United States v. Knowlton Danderine Co 243 United States v. 100 Barrels of Vinegar 448 See Admiralty ; Appeal and error ; Jurisdiction ; Libel ; Notice and Opportunity to be Heard; Sale. 762 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. SENNA, ALEXANDRIA. Page. A drug product labeled "Alex. Senna, U. S. P." held not adulterated or misbranded by reason of containing seeds, stalks, and pebbles, and other foreign substances, and through failure to comply with the requirements of the U. S. Pharmacopoeia. United States v. J. L. Hopkins & Co 528 SHIPMENT. The " shipment " referred to in section 2 of the act should not be construed to mean " shipment for sale." Its meaning in this connec- tion covers any shipment for any purpose in the course of commerce. Philadelphia Pickling Co. v. United States 612 The fact that frozen eggs, against which seizure proceedings were instituted under section 10 of the act, had been shipped from one State to another and consigned from the shipper to itself, did not in- dicate that they had not been transported in interstate commerce. United States v. 300 Cans of Frozen Eggs 444 Held that it is not an interstate shipment within the meaning of section 10 of the act where a product is shipped from the manufactur- ing agent in one State to its owner in another State, because such product is not shipped " for sale." United States v. 65 Casks of Liquid Extracts 199 The prohibition in the act against the interstate shipment of adul- terated food and drugs applies to shipments by warehousemen as well as manufacturers and dealers. United States v. Buffalo Cold Storage Co 257 It is an interstate shipment where an article is consigned through the United States mail to a person outside of the State. The mere fact that the negotiations were carried on by mail and the article deposited by the shipper in the post office at the point of origin of the shipment did not make the transaction an intrastate one. United States v. Tucker 404 See Interstate Commerce; Sale. SHORT MEASURE. It is no defense to a prosecution for misbranding as to the measure of the contents of a can of syrup that the short measure was caused by filling the cans while the syrup was hot and that the shortage was due to shrinkage which occurred when the syrup cooled. If the syrup was short measure when shipped, it was misbranded. United States v. Scudder Syrup Co 619 SHRED C0C0ANUT. An article labeled and sold as " Shred Cocoanut " held misbranded by reason of its containing glycerine and sugar, the presence of which substances was not declared on the labeh United States v. Dunham Manufacturing Co 602 SILVER DRAGEES. See Confectionery. SILVER, METALLIC. See Confectionery. SPECIFIC FOR ASTHMA. A drug product labeled " Specific for Asthma " held misbranded within the meaning of the act for the reason that it contained cocaine, the quantity or proportion of which was not declared on the label. United States v. Tucker 404 STANDARDS OF PURITY. The standards of purity for food products, established by the Sec- tary of Agriculture by authority of the act of March 3, 1903, and pub- lished in Circular No. 19 of the United States Department of Agri- culture, governs in determining what constitutes adulteration of such products under the act. United States v. Frank et al 360 Contra, United States v. St. Louis Coffee & Spice Mills 196 DIGEST OF COURT DECISIONS. 768 STANDARDS OF PURITY— Continued. fage. The act of June 30, 1906, is not unconstitutional for indefiniteness or uncertainty on account of the fact that it contains no standards of purity for food products. Shawnee Milling Co. v. Temple et al 260 The act is not void for uncertainty or indefiniteness in that no standard of grade, quality, or purity is prescribed. The determina- tion of standards is left to the courts, as the courts can well protect the rights of parties in each particular case by requiring specific and properly drawn pleadings. United States v. 420 Sacks of Flour 250 In the absence of a standard for lithia water, it is reasonable to suppose that such water should contain at least a weighable amount of lithium in a potable quantity of water. Water containing only 1 grain of lithium in 10,000 gallons of water is misbranded if labeled "lithia water." United States v. 7 Cases of Buffalo Lithia Water— 697 Where ice cream was alleged to be adulterated because it contained only 7.09 per cent of milk fat, held that such article was not adulter- ated within the meaning of the act by reason of the fact that there is no standard for ice cream, and the court did not consider itself warranted by the evidence in fixing the minimum amount of fat at 14 per cent. United States v. Rinchini 479 In the absence of a uniform standard for patent flour, flour found to contain 90 per cent of the flour content of the wheat, held not adulterated or misbranded if labeled " Patent Flour." Lexington Mill & Elevator Co. v. United States 604 Affirmed, United States v. Lexington Mill & Elevator Co 701 In a proceeding by way of libel for the condemnation and for- feiture of vinegar alleged to be adulterated the Government is not limited to the requirements laid down in the Standards of Purity for Food Products (Circular No. 19, U. S. Department of Agriculture) in showing the article to be adulterated. United States v. 100 Bar- rels of Vinegar 448 It is no defense to a prosecution for selling adulterated milk in the District of Columbia that there is no standard fixing the limits be- tween pure and impure milk. The dividing line in each instance is a question of fact. United States v. Dade 554 It would be difficult, if not impossible, to fix an arbitrary standard for determining just what state a food must reach to render it " filthy, decomposed, or putrid " within the meaning of the act. In the absence of such a standard, each case must be determined on its merits. Where it appears that the article is so far decomposed as to render it unfit for food it comes within the letter and spirit of the law. United States v. 200 Cases of Tomato Catsup 706 Vanilla extract which failed to comply with the standard shown by the testimony of the Government's witnesses to be the true stand- ard for vanilla extract as recognized by the trade and public, held adulterated and misbranded. United States v. Hudson Mfg. Co 623 The act is not void for uncertainty and indefiniteness for failure to . fix legal standards for various wines. United States v. The Sweet Valley Wine Co 1 625 See Constitutionality ; Ice Cream ; Tomato Catsup ; Vanilla Extract. STARCH. See Milk Chocolate. STATE HEALTH OR FOOD OFFICERS. The United States district attorney is authorized to prosecute violations of the act on report of State health or food officials, or on his own initiative, without alleging or proving that the provisions of section 4 of the act, relating to notice and hearings, have been com- plied with. United States v. 74 Cases (or 20 Cases) of Grape Juice__ 413 United States v. Morgan et al 494 SUBSTITUTION. In a prosecution for adulteration by substitution, it is unnecessary to prove that the substituted substance is poisonous or deleterious or injurious to health. It is sufficient within the meaning of the act if any substance not a component part of the original substance has been substituted. United States v. Libby, McNeill & Libby 678 764 FEDERAL POOD AND DRUGS ACT AND DECISIONS. SUGAR. Page. All sugars are " like substances," and the mixture of two or more sugars produces a blend within the meaning of the act. United States v. 68 Cases of Syrup 216 The introduction of sugar into a frozen egg product does not con- stitute adulteration of the egg product within the meaning of the act, where it is shown that the egg product was prepared according to the directions of the purchaser or under a patent. United States v. 443 Cans of Frozen Egg Product 351 Condensed skimmed milk, containing 42 per cent of cane sugar, the presence of which was not declared on the label, held adulterated and misbranded. United States v. Libby, McNeill & Libby 678 SYRUP, GRENADINE. The term " Grenadine Syrup " does not necessarily denote an arti-~ cle containing Pomegranate juice. An article labeled " Grenadine Syrup " made from sugar, citric and tartaric acids, and the juice of certain fruits, held not adulterated or misbranded. United States v. 30 Cases of Grenadine Syrup 561 SYRUP. An article labeled "Gold Leaf Syrup" with a design of a leaf of maple and sugar cane stalk, and the statement in plain and distinct type, " Composed of Maple and White Sugar," together with the name of the maker, held not misbranded, although the proportion of cane sugar exceeded the proportion of maple sugar present in the article. In re Wilson 186 An article labeled " Topmost Cane and Maple Syrup * * * Cane Sugar 60%, Maple Syrup 40% * * *," held misbranded be- cause it contained little, if any, maple syrup. United States v. John A. Tolman & Co 231 Certain cases seized by the United States under section 10 of the act, were labeled " Western Reserve Ohio Blended Maple Syrup * * *." The bottles contained in the cases were labeled "Western Reserve Ohio Blended Syrup, Western Reserve Syrup Co., Cleveland, O., Blenders of Fancy Maple Syrup and Maple Sugar," held that, con- struing all the words of the bottle label together, the same meaning was intended in the bottle labels as in the labels on the cases; viz., that the boxes and bottles contained a blended maple syrup, and that such article was not misbranded, although it was composed of cane syrup flavored with an extract made from maple wood. United States v. 68 Cases of Syrup 216 Syrup labeled " "Western Reserve Ohio Blended Maple Syrup," and in small type " This syrup is made from the sugar maple tree and cane sugar," held misbranded, as the label would mislead purchasers into the belief that the article was composed in part of boiled down sap from live maple trees. United States v. Scanlon 181 See Blend; Information; Libel; Maple Syrup; Maplewood Extract; Object of the Act. SYRUP, SCUDDER'S CANADA. Misbranded as to measure. United States v. Scudder Syrup Co — 619 TALC. See Confectionery. TEPEE APPLE. See Apples. THERAPEUTIC EFFECT OF DRUGS. See Curative Effect of Drugs. TIN, SALTS OF. Salts of tin contained in canned tomatoes held to be an added poisonous ingredient, which might render such article injurious to health. United States v. 2,000 Cases of Canned Tomatoes 342 See Added Poisonous and Added Deleterious Ingredients. DIGEST OF COURT DECISIONS. 765 TOMATO CATSUP. Page. Where tomato catsup contains pumpkin as a filler, it is not a suffi- cient compliance with the act to label it " Compound Catsup." It must be labeled, branded, or tagged so as to plainly indicate the sub- stances composing the compound. Win. Henning & Co. v. United States 506 A libel alleging that tomato catsup labeled " Made from choice ripe tomatoes, granulated sugar, selected high-grade spices, grain vinegar," was misbranded because it was actually made from " tomato pulp screened from the peelings and cores as the offal of tomato canning factories and not from choice ripe tomatoes," held not to set forth a prima facie case of misbranding, as it will not be assumed that, because peelings are not used in tomato canning plants, that they are unfit for use as food. United States v. 650 Cases of Tomato Catsup ! 183 Tomato catsup, containing large numbers of bacteria, yeasts, and spores, and shown to have been manufactured by insanitary methods, held adulterated in that it consisted in whole or in part of a filthy, decomposed, or putrid substance. United States v. 200 Cases of To- mato Catsup 706 See Compound; Filthy, Decomposed, and Putrid; Judicial Notice; Offal. TOMATOES. An article labeled " Perfection Brand Tomatoes " held adulterated and misbranded in that it was not entirely tomatoes, as labeled, but consisted wholly or in part of a filthy, decomposed, and putrid vege- table substance; and also contained an added poisonous ingredient, to wit, salts of tin, which might render the article injurious to health. United States v. 2,000 Cases of Canned Tomatoes— 342 See Added Poisonous and Added Deleterious Ingredients ; Tin. Salts of. TRADE-MARK. The filing of a trade-mark for an article of food or drugs does not give the manufacturer a right to put a false statement upon the label of a manufactured article. The fact that the name of an article is a registered trade-mark affords no defense to a prosecution for misbranding on account of false or misleading statements on the article. United States v. American Chicle Co 524 See Beeman's Pepsin Chewing Gum ; Distinctive Name. TURPITUDE. See Knowledge and Intent. UNFIT FOR FOOD. The act does not use the words " Unfit for food," but when it de- scribes an adulterated article as one which is " decomposed and filthy " it means undoubtedly unfit for food to the extent that it would be improper and unfit food for a person to indulge in. United States v. 3.000 Pounds of Frozen Eggs 353 Where it was alleged in a libel that an article was " filthy, de- composed, and putrid and unfit for food," held that it was sufficient that the article be shown to be filthy, decomposed, or putrid, and it was unnecessary to prove the allegation that it was "unfit for food." United States v. 275 Cases of Tomato Catsup 297 When it appears that an article of food is so far decomposed as to render it unfit for food it comes within the letter and spirit of the law, which condemns, as adulterated, foods which consist in whole or in part of a " filthy, decomposed, or putrid animal or vegetable substance." United States v. 200 Cases of Tomato Catsup 706 The condition of a product in the hands of the consumer is the place and time to test its fitness for food. United States v. 443 Cans of Frozen Egg Product 507 See Filthy. Decomposed, and Putrid ; Libel. 766 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. UNSOLD. Page. After transportation in interstate commerce of adulterated and mis- branded goods it is enougli to give the Government jurisdiction over them if the articles are unsold, whether in original packages or not. McDermott et al. v. Wisconsin 629 VANILLA EXTRACT OR FLAVOR. An information charging that defendant sold in interstate com- merce a liquid labeled " Flavor of Vanilla " which did not contain any extract of vanilla does not state a case of adulteration or mis- branding of vanilla extract in violation of the act of June 30, 1906, the words " Extract " and " Flavor " not being synonymous terms. United States v. St. Louis Coffee & Spice Mills 196 But see United States v. Edward Westen Tea & Spice Co 222 An article labeled " Prime Vanilla Extract, made from the ex- tractive matter of prime vanilla beans, sweetened with cane sugar," which contained only 2 grams of vanilla beans to each 100 cc. of the extract, and which was artificially colored with caramel, and con- tained added vanillin, held adulterated and misbranded. United States v. Hudson Mfg. Co 622 A flavoring substance, composed of vanillin, coumarin, and burnt sugar, labeled " Extract of Vanillin and Coumarin, Burnt Sugar Color," held adulterated in that it was colored in a manner whereby its inferiority was concealed, and misbranded in that it was an imi- tation of vanilla extract and was not labeled as an imitation ; and further misbranded in that said article was a compound, and was not labeled so as to plainly indicate that it was a compound, and the word " compound " was not stated on the label. United States v. McConnon & Co 654 Articles labeled " Extract of Vanilla " and " Ext. Vanilla " held misbranded because they were not true extract of vanilla, but were compounds of vanillin and coumarin artificially flavored and colored in a manner whereby inferiority was concealed. United States v. S. Gumpert & Co 335 See Lemon Extract or Flavor ; Hudson's Extract ; Information ; Standards of Purity. VANILLIN. Vanillin added to vanilla extract as such constitutes adulteration, and the resultant product is misbranded if labeled " Prime Vanilla Extract, made from the extractive matter of prime vanilla beans." United States v. Hudson Mfg. Co 622 VENUE. See Affidavits. VERIFICATION. See Affidavits ; Information ; Libel. VINEGAR. Distilled vinegar and boiled cider are unlike substances, and do not compose a blend within the meaning of the act. Held that a substance labeled " Saratoga Brand Vinegar, A Blend of Pure Boiled Apple Cider and Distilled Vinegar," which was composed of distilled vinegar and a small quantity of pure boiled apple cider, was mis- branded, as leading the public to believe that the article was com- posed of pure boiled apple cider vinegar and distilled vinegar. United States v. 10 Barrels of Vinegar 410 An article labeled " Pure Cider Vinegar * * * Guaranteed Cider Vinegar * * *." held adulterated and misbranded for the reason that it was not pure cider vinegar, but consisted wholly or in part of distilled vinegar or dilute solution of acetic acid and a material high in reducing sugars and foreign mineral matter, which had been mixed and prepared in imitation of cider vinegar. United States v. 75 Barrels of Vinegar 497 DIGEST OF COURT DECISIONS. 767 VINEGAR — Continued. Page. In a libel proceeding for the condemnation and forfeiture of vine- gar alleged to be adulterated, the Government, in its proof, is not limited to the tests and standards mentioned in Bulletin No. 65 and Circular No. 19 of the United States Department of Agriculture, nor to the methods of analyses adopted under regulation 4, but may make use of any accurate test. United States v. 100 Barrels of Vinegar 44S Where samples of alleged pure cider vinegar showed only from 0.11 per cent to 0.16 per cent glycerine, it was held not to be pure cider vinegar but an adulterated article. Evidence held to establish the accuracy of the glycerine test for the determination of pure cider vinegar. (Ibid.) See Blend; Judicial Notice. WAIVER OF JURY. See Jury Trials. WAREHOUSEMAN. See Shipment. WATER. See Buffalo Lithia Water. WATER-GROUND MEAL. The term " water-ground " means ground by a mill using water power as a motive force applied directly to a water wheel, and does not allude to meal ground by electric power generated originally by water. United States v. 58 Sacks and 70 Sacks of Corn Meal 434 See Corn Meal. WATER, SPRING. Croton water drawn from the pipes in New York City furnishing the ordinary city water supply, filtered and bottled after the addition of small quantities of mineral salts and carbonic-acid gas, is not spring water, as that term is generally understood ; and the labeling of the bottles as " Imperal Spring Water " constitutes misbranding within the meaning of the act. United States v. Morgan et al 300 WHEAT. An article sold as "No. 2 Red Wheat" held adulterated and misbranded by reason of the fact that an inferior grade of wheat had been substituted for the article and had been mixed and packed with it so as to reduce, lower, or injuriously affect its quality and strength ; arid in that said article was offered for sale under the dis- tinctive name of another article, to wit, No. 2 red wheat. United States v. Hall-Baker Grain Co 452 Reversed, Hall-Baker Grain Co. v. United States 557 WHISKY. Bourbon whisky is a distillate of corn, made from a mixture of fer- mented grains, of which mixture corn forms the greatest part, and is distilled in certain localities, particularly in Kentucky. A product distilled at New Orleans, La., out of molasses, sulphuric acid, and water, and labeled " Bourbon Whisky," held misbranded. United States v. 50 Barrels of Whisky 174 WINE. The word " wine " is, by general acceptance and standard defini- tion, understood to mean the fermented juice of the undried grape. United States v. The Sweet Valley Wine Co 628 See Champagne; Extra Dry; Imitation Champagne. WRIGHT'S CONDENSED SMOKE. An article made by distilling wood, for curing meat, held not mis- branded by the label "Wright's Condensed Smoke. A Liquid Smoke * * *," such name being a fanciful or descriptive name referring to the article, and not implying to the purchaser that the article was actually smoke in condensed, liquid form. United States v. Wright etal 639 WRIT OF ERROR. See Appeal and Error. OPINIONS OF THE ATTORNEYS GENERAL.1 IMPOETED MEAT AND MEAT FOOD PRODUCTS MAY BE ADMITTED INTO THE UNITED STATES, AND TRANS- PORTED IN INTERSTATE COMMERCE, SUBJECT TO THE PROVISIONS OF THE FOOD AND DRUGS ACT, JUNE 30, 1906.2 [50] 3 Department of Justice, September 27, 1906. Sir: In your communication of the 18th instant you ask to be advised whether the prohibition upon transportation contained in the following paragraph of what is known as the meat inspection amend- ment to the agricultural appropriation act approved June 30, 1906 (34 Stat, 669, 674, 676), applies to meat and meat food products im- ported from foreign countries: That on and after October first, nineteen hundred and six, no person, firm or corporation shall transport or offer for transportation, and no carrier of inter- state or foreign commerce shall transport or receive for transportation from one State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to any place under the jurisdiction of the United States, or to any foreign country, any carcasses or parts thereof, meat, or meat food products thereof which have not been inspected, examined, and marked as " inspected and passed," in accordance with the terms of this Act and with the rules [51] and regulations prescribed by the Secretary of Agriculture : Pro- vided, That all meat and meat food products on hand on October first, nineteen hundred and six, at establishments where inspection has not been maintained, or which have been inspected under existing law, shall be examined and labeled under such rules and regulations as the Secretary of Agriculture shall prescribe, and then shall be allowed to be sold in interstate or foreign commerce. This provision, on its face, prohibits the transportation in inter- state commerce and to foreign countries of all carcasses, meat and meat food products which have not been inspected, examined and marked as required by the act; and as imported meat and meat food products cannot meet this test (no inspection being provided in the act for such articles) , question you say has been made by importers, railroads and others as to whether they are not excluded from trans- portation in interstate commerce. Exclusion from transportation in interstate commerce would amount to a restriction upon importation, since trade in such articles would be confined to the State wherein the port of entry is situated. In determining the meaning of the provision in question reference must be had to the amendment in its entirety and the circumstances 1 For opinions of the Attorneys General, published in Food Inspection Decisions, see pp. 51, 86, 110, 113, 121, and 139, ante. 2 26 Op. Atty. Gen. 50. See subsequent opinions of the Attorney General, dated Aug. 25, 1911 (29 Op. Atty. Gen. 227), and Mar. 11, 1912 (29 Op. Atty. Gen. 355) ; also opinion of May 24, 1913 (30 Op. Atty. Gen. 164), p. 800, post. * Numbers in brackets refer to pages of bound volume of Opinions of Attorneys General. 768 OPINIONS OP THE ATTORNEYS GENERAL. 769 which gave rise to this legislation. Considering the amendment as a whole in the light of such circumstances, I fail to perceive any sup- port whatever for the suggestion that Congress intended thereby to prohibit the interstate or foreign transportation of meat and meat food products imported from foreign countries. It is well known that the legislation in question was enacted by Congress immediately in response to the message of the President of June 4, 1906, transmitting the report of Messrs. Reynolds and Neill, who had been appointed by him to investigate the conditions in the Chicago stock yards and packing houses. (40 Cong. Eec, 7800. ) In that message the President said : The report shows that the stock yards and packing houses are not kept even reasonably clean, and that the method of handling and preparing food products is uncleanly and dangerous to health. Under existing law the National [52] Government has no power to enforce inspection of the many forms of prepared meat food products that are daily going from the packing houses into interstate commerce. Owing to an inadequate appropriation the Department of Agricul- ture is not even able to place inspectors in all establishments desiring them. The present law prohibits the shipment of uninspected meat to foreign coun- tries, but there is no provision forbidding the shipment of uninspected meats in interstate commerce, and thus the avenues of interstate commerce are left open to traffic in diseased or spoiled meats. If, as has been alleged on seem- ingly good authority, further evils exist, such as the improper use of chemicals and dyes, the Government lacks power to remedy them. A law is needed which will enable the inspectors of the General Government to inspect and supervise from the hoof to the can the preparation of the meat food product. The evil seems to be much less in the sale of dressed carcasses than in the sale of canned and other prepared products; and very much less as regards products sent abroad than as regards those used at home. ¥ * # :S * * * I urge the immediate enactment into law of provisions which will enable the Department of Agriculture adequately to inspect the meat and meat food products entering into interstate commerce and to supervise the methods of preparing the same, and to prescribe the sanitary conditions under which the work shall be performed. I therefore commend to your favorable considera- tion and urge the enactment of substantially the provisions known as Senate amendment No. 29 to the act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1907, as passed by the Senate, this amendment being commonly known as the " Beveridge amendment." The Beveridge amendment had been adopted by the Senate on May 25, 1906. (40 Cong. Eec, 7420.) On June 19, 1906, the House substituted for it an amendment recommended by the Committee on Agriculture (id. 8720), which subsequently became the law. Both the Beveridge amendment and the House substitute had the same general object in view, namely, the inspection, [53] u from the hoof to the can," of all meats prepared in the slaughtering and pack- ing establishments of this country for shipment in interstate or for- eign commerce. In other words, it was the domestic product and not the foreign article that Congress had in mind. The first paragraph of the amendment finally adopted provides: That for the purpose of preventing the use in interstate or foreign commerce, as hereinafter provided, of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, the Secretary of Agriculture, at his discretion, may cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle, sheep, swine" and goats before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in interstate or foreign commerce. * * * 40066—14 49 770 FEDERAL EOOD AND DRUGS ACT AND DECISIONS. Having thus provided for an ante-mortem examination, Congress, in the next paragraph provided that, "for the purposes hereinbefore set forth," the Secretary of Agriculture should cause to be made, by inspectors appointed for the purpose, " a post-mortem examination and inspection of the carcasses and parts thereof of all cattle, sheep, swine, and goats to be prepared for human consumption at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in any State, Territory, or the District of Columbia for transportation or sale as articles of interstate or foreign com- merce," thus in terms indicating that domestic establishments, and hence the domestic product, were alone in view. Provision is also made for the examination and inspection of all meat food products prepared for interstate or foreign commerce in said establishments, and the marking thereof as "Inspected and passed/' or " Inspected and condemned," as circumstances may require. It is further provided that " the Secretary of Agriculture shall cause an examination and inspection of all cattle, sheep, swine, and goats, and the food products thereof, slaughtered [54] and prepared in the establishments hereinbefore described for the purposes of in- terstate or foreign commerce to be made during the nighttime as well as during the daytime when the slaughtering of said cattle, sheep, swine, and goats or the preparation of said food products is con- ducted during the nighttime." Then follows the paragraph in question, forbidding, on and after October 1, 1906, the transportation in interstate commerce or to for- eign countries of carcasses, meat or meat food products which have not been inspected, examined, and marked as " Inspected and passed," in accordance with the terms of the act and the rules and regulations prescribed by the Secretary of Agriculture. As the act provides only for the inspection of cattle and meat slaughtered or prepared in domestic establishments, this provision manifestly can have no application to cattle or meats slaughtered or prepared abroad and imported into this country. The scope of the act is also indicated by this paragraph of the amendment, which occurs further on : No person, firm, or corporation engaged in the interstate commerce of meat or meat food products shall transport or offer for transportation, sell or offer to sell any such meat oi'meat food products in any State or Territory, or in the District of Columbia, or any place under the jurisdiction of the United States, other than in the State or Territory or in the District of Columbia or any place under the jurisdiction of the United States in which the slaughtering, packing, canning, rendering, or other similar establishment owned, leased, operated by said firm, person, or corporation is located unless and until said person, firm or corpora- tion shall have complied with all of the provisions of this act. It is significant that this provision, which emphasizes the fact that domestic establishments, and hence the domestic product, were alone in the contemplation of Congress, immediately followed the provision under discussion in the Beveridge amendment. It was shifted about in the House substitute, which was based on the Beveridge amend- ment, but apparently without any intention of altering its meaning. The House also added to the provision in question the [55] proviso as to meat and meat food products on hand on October 1, 1906, at establishments where inspection was not maintained or which were OPINIONS OP THE ATTORNEYS GENERAL. 771 inspected under existing law, which clearly has reference only to domestic establishments and their products. The amendment also makes provision for the inspection of cattle, sheep, swine, and goats, and the carcasses and parts thereof, which, or the meat products of which, are intended or offered for export to foreign countries. But there is not in the entire amendment any reference to meat or meat products imported from foreign countries. It is manifest, therefore, that Congress in this legislation was dealing entirely with domestic slaughtering and meat packing estab- lishments and their products. The subject of imported meat food products was, however, under consideration by it at the same time in another connection. I refer to the Pure Food Law,- also approved June 30, 1906. (34 Stat. 768.) That act forbids " the introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from, any foreign country (it will be observed that the provision of the Meat Inspection Amendment in question only refers to transportation to any foreign country), or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded within the meaning of this act." Section 7 provides that for the purposes of the act an article shall be deemed to be adulterated (p. 770) — In the case of food : First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. Second. If any substance has been substituted wholly or in part for the article. Third. If any valuable constituent of the article has been wholly or in part abstracted. Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or other added deleterious ingredient which may render such article injuri[56]ous to health: Provided, That when in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise, and directions for the removal of said preservative shall be printed on the covering or the package, the provisions of this act shall be construed as applying only when said products are ready for consumption. Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. The act further provides (p. 772) : Sec. 11. The Secretary of the Treasury shall deliver to the Secretary of Agri- culture, upon his request, from time to time, samples of foods and drugs which are being imported into the United States or offered for import, giving notice thereof to the owner or consignee, who may appear before the Secretary of Agriculture, and have the right to introduce testimony, and if it appear from the examination of such samples that any article of food or drug offered to be imported into the United States is adulterated or misbranded within the mean- ing of this act, or is otherwise dangerous to the health of the people of the United States, or is of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported, or is otherwise falsely labeled in any respect, the said article shall be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe. * * * 772 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. For several years past the agricultural appropriation acts have con- tained provisions similar to those of section 11. If the meat inspection amendment were held to forbid the inter- state transportation of imported meat and meat food [57] products it would conflict with the intention of Congress as manifested in the pure food law, which plainly contemplates the importation, transpor- tation and delivery of such articles if pure and wholesome and not adulterated or misbranded within the meaning of the act. It is in- conceivable that Congress, in two acts passed at the same time, should intend such diametrically opposed results. The exclusion of such articles from transportation, with the resulting restriction upon their importation, would also produce a considerable loss in the revenue. Imported meat products are dutiable under paragraphs 273-279 of the tariff of 1897, and you state that " immense quantities of imported sausage, gelatin, meat extract, and other meat food products come into the country every year, and are handled by jobbers and dis- tributed from the ports of entry throughout the United States." It is clear, therefore, that the provision of the meat inspection amendment in question can not be held to apply to the transportation of imported meat and meat food products. As has been aptly said, ■"A thing may be within a statute but not within its letter, or within the letter and yet not within the statute. The intent of the law- maker is the law." (Jones v. Guaranty and Indemnity Co., 101 TJ. S. 622, 626.) A case well illustrating this principle is that of Church of the Holy Trinity v. United States, 143 U. S. 457, 458, where it was held that the alien contract labor law did not apply to a contract for the services of a foreign clergyman, although such con- tract came within the letter of the statute. Respectfully, William H. Moody, Attorney General. The Secretary of Agriculture. THERE IS NO REPUGNANCY BETWEEN THE PROVI- SIONS OF THE TEA INSPECTION ACT, MARCH 2, 1897, AND THE FOOD AND DRUGS ACT, SUCH AS TO PRE- VENT THEM FROM STANDING TOGETHER.1 [166] Department of Justice, February 23, 1907. Sir: I have the honor to acknowledge receipt of your letter of February 8 in reference to the tea inspection act of March 2, 1897, and the Food and Drugs Act of June 30, 1906, in which, as a pre- liminary to your action upon certain cases arising out of the adminis- tration of the laws governing the importation and examination of teas, you request my opinion " upon the question of law whether the provisions of the Food and Drugs Act of June 30, 1906, regarding adulteration, labeling, misbranding, and guaranty, [167] are appli- cable to imported tea meeting the requirements of the tea act of March 2, 1897." *26 Op. Atty. Gen. 166. OPINIONS OF THE ATTORNEYS GENEEAL. 773 The tea inspection act of 1897 is a special act, relating solely to the importation of tea. It provides that the Secretary of the Treasury shall annually appoint a board of tea experts, who shall prepare and submit to him standard samples of tea, and that, upon the recom- mendation of this board, he " shall fix and establish uniform stand- ards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States." It is made unlawful to import into the United States any tea which is inferior to the standards so provided, and provision is made for the examination of all imports of tea at the custom-house by an examiner to determine their con- formity to the standards so fixed, and for reexamination by general appraisers in case of a protest against the finding of an examiner. (29 Stat. 604.) The Food and Drugs Act of 1906, on the other hand, is a general act relating to all adulterated or misbranded foods or drugs and is not limited in its prohibitions to the matter of their importation. It defines specifically the various cases in which any food or drug shall be deemed to be adulterated or misbranded, and makes it unlawful to manufacture any such adulterated or misbranded food or drug in any Territory or in the District of Columbia, or to introduce the same into any State or Territory, or the District of Columbia, either through interstate or foreign commerce, or to ship the same to any foreign country. In addition to general authority given the Secre- taries of the Treasury, of Agriculture, and of Commerce and Labor, to make uniform rules and regulations for carrying out the provisions of the act, including the collection of specimens of food and drugs, for examination in the Bureau of Chemistry of the Department of Agriculture, or under its direction, it is provided, in reference to imports, that the Secretary of Agriculture shall, upon his request, receive samples of food and drugs being imported or offered for import, and that if upon examination any of such articles appear to be adulterated or misbranded, or otherwise dangerous to health, or of a kind forbidden entry or restricted sale in [168] the country of its manufacture or export, or otherwise falsely labeled, it shall be refused admission into this country. (34 Stat., 768.) This Food and Drugs Act contains no repealing clause whatever, and does not refer to either the tea-inspection act or any of the other earlier statutes regulating the admission of other food and drugs, such as the act of June 26, 1848, providing for the examination at the custom-house of drugs and medicines with reference to their quality, purity, and fitness for medical purposes. (Rev. Stat., sec. 2933 et seq.) Comparing the tea-inspection act and the Food and Drugs Act, it will be seen that not only is the one special and the other general, but that, even in reference to the importation of teas, the tea-inspection act on the one hand contains no restrictions in reference to the mis- branding of teas, and on the other goes further than the Food and Drugs Act in regard to standards of admission, and authorizes the Secretary of the Treasury to establish standards which are not limited to the purity of the tea, but extend broadly to matters of quality and fitness for consumption. In Butterfield v. Stranahan (192 U. S. 470, 496), in which the con- stitutionality of the tea-inspection act was upheld, and in which the importation was a pure green tea of low grade that had been rejected 774 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. as inferior to standard in cup quality alone, that is, in taste and flavor, it was said that the statute, when properly construed, " ex- presses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or pre- sumably so, because of their inferior quality." It thus appears that under the tea-inspection act the Secretary of the Treasury may prescribe a standard for the quality of tea whose effect will be to exclude from admission tea which, although in no wise adulterated or misbranded within the meaning of the Food and Drugs Act, is, nevertheless, of such inferior quality as, in his opinion, to require exclusion, while, on the contrary, importation of teas may fall within the prohibition of the Food and Drugs Act, as being deemed either adulterated or misbranded within the meaning of the Food and Drugs Act, although [169] fully complying with the standards of admission that may be established by the Secretary of the Treasury. The question then arises as to what extent, if any, these two acts can stand together. In the absence of an express repeal of an earlier statute by a later one covering the same subject, the rule is well set- tled that, as repeals by implication are not favored, effect shall be given to both statutes, unless there is a positive repugnancy between them, in whole or in part, in which case the earlier statute is repealed by implication to the extent of such repugnance; or, unless the pro- visions of the later statute cover the whole subject-matter of the earlier and are plainly intended as a substitute therefor, in which case there is likewise a repeal of the earlier statute by implication. (Wood v. United States, 16 Pet. 342; Daviess v. Fairbairn, 3 How. 636 ; United States v. Tynen, 11 Wall. 88 ; Henderson's Tobacco, 11 Wall. 652; State v. Stoll, 17 Wall. 425; Fabbri v. Murphy, 95 U. S. 191 ; Ex parte Crow Dog, 109 U. S. 556 ; Chew Hoeng* v. United States, 112 U. S. 536.) In Wood v. United States, 16 Pet. 342, 362, it is said, in reference to the question of the repeal of an earlier statute by implication : It is not sufficient * * * that subsequent laws cover some or even all of the cases provided for by it ; for they may be merely affirmative, or cumula- tive, or auxiliary. And in State v. Stoll (17 Wall. 425, 431) the rule is thus stated: If, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be. Further, in Ex parte Crow Dog (109 U. S. 556, 570 )3 it is said, in reference to the rule that a later general act is not to be construed as repealing a previous special act, except by express provision or posi- tive repugnancy: The rule is generalia specialibus non derogant. " The general principle to be applied," said Bovill, C. J., in Thorpe v. Adams (L. R. 6 C. P., 135), "to the construction of acts of Parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the [170] subject, or unless there is a necessary incon- sistency in the two acts standing together." "And the reason is," said Wood, V. C, in Fitzgerald v. Champenys (30 L. J. N. S. Eq., 782; 2 Johns & Hem., 31-54), "that the legislature having had its attention directed to a special sub- ject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention so to do." OPINIONS OF THE ATTORNEYS GENERAL. 775 Applying these principles of construction to the two acts in ques- tion, I am of the opinion that there is no such repugnancy between the special tea-inspection act of 1897 and the general Food and Drugs Act of 1906 as to prevent them, generally speaking, from standing together; that the provisions of the tea-inspection act cover in respect to the importation of tea matters not embraced within the Food and Drugs Act, while the Food and Drugs Act in turn imposes restric- tions upon the importation of all food and drugs, including tea, which are not necessarily embraced in the tea-inspection act; that the Food and Drugs Act does not plainly appear to have been in- tended as a substitute for the earlier statute in the matter of the importation of tea ; but that, generally speaking, the two statutes are cumulative in so far as the importation of tea is concerned and should both be given effect; and hence, that an importation of tea is now subject to the provisions of both of these acts, that is to say, it must comply with the standards established by the Secretary of the Treas- ury under the tea-inspection act and must also stand the tests in ref- erence to adulteration and misbranding imposed by the Food and Drugs Act. I am therefore of the opinion, to reply specifically to your question, that imported tea, although meeting the requirements of the tea-inspection act of 1897, is still subject to the provisions of the Food and Drugs Act regarding adulteration, labeling, misbrand- ing, and guaranty. It, of course, follows from what has been said that, if in the admin- istration of these laws there should develop a repugnancy between any specific provisions of the two statutes, to the extent of such re- pugnancy the provisions of the [171] Food and Drugs Act would prevail, and any conflicting provisions of the tea-inspection act would, to such extent, be impliedly repealed. Respectfully, The Secretary of the Treasury. Charles J. Bonaparte, Attorney General. LABELING OF WHISKY.1 [263] Department of Justice, May 29, 1907. Sir: In accordance with your instruction, I gave a hearing on Wednesday, May 15, to persons desiring to submit to the department criticism or other comment on my opinion of April 10 last past, as to the construction of section 8 of the act approved June 30, 1906, and generally known as the pure-food law. About thirty persons appeared on this occasion and a number of oral arguments were pre- sented; some critical and some approbatory of the opinion in ques- tion. At the conclusion of this argument I announced my willing- ness to receive and consider any matters in writing which might be submitted to me touching its subject-matter, and, in response to sev- eral requests for a further hearing, stated that I would give these requests due consideration and announce later whether I saw any *26 Op. Att. Gen. 262. See F. L. D. Nos. 45, 65, 95, 98, 113, 118, and 127, pp. 36, 51, 110, 113, 129, 133, and 139, ante ; see also Opinions of the Attorneys General, pp. 783 and 797, post; Report of the Solicitor General, p. 818, post; and Decision of the President, p. 831, post. 776 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. sufficient reason to comply with them. As heretofore stated to you verbally, I do not think any useful purpose would be served by an- other oral argument, and, with your approval, I have, therefore, announced that, in this respect, the matter must be considered closed. I received a large number of written communications from various persons commenting on the opinion in question, and I have carefully considered all of them. I find no reason to withdraw the said opin- ion, or to modify it in any respect, and I respectfully report that, in my judgment, this opinion correctly states the law on the subject to which it relates. As a matter of courtesy, however, to the gentlemen who have favored me with their views, and to remove some misap- prehensions which seem to exist respecting the opinion in question, I think it appropriate to further consider in this final report some of the questions discussed at the oral hearing and in the written com- munications hereinbefore stated. It seems to be thought by some of the critics of the opinion here- tofore rendered that I considered myself bound by [264] the defi- nition of " whisky " adopted by the Department of Agriculture and contained in the papers heretofore submitted to me, and, therefore, that the correctness of the opinion, in so far as this depended upon an accurate definition of the word in question, would be successfully impeached by showing an error on the part of the said department in its said definition. This view misapprehends the purport of the opinion. In point of fact, while stating, in substance, that I held the definition in question to be accurate for all purposes directly ma- terial to the subject under discussion, I yet ventured to respectfully question its entire accuracy, because, in the words of my opinion, it was not " quite broad enough to meet the general intent of the law of 1906." Of course, if the proper definition of " whisky " were a ques- tion of fact, this department would be bound by the statements on the subject contained in the papers submitted to it when instructed to furnish an opinion ; but I do not consider this a question of fact. When words are used in a technical or conventional sense, their proper definition must be established by evidence and found by a tribunal appropriate to pass upon questions of fact; but when the words are used in their ordinary meaning, then, in the words of Mr. Justice Gray in Nix v. Hedden (149 U. S. 306), "of that meaning the court is bound to take judicial notice as it does in regard to all words in our own tongue, and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and under- standing of the court ; " that is to say, in the language of the Chief Justice in Sonn v. Magone (159 U. S. 421), "the interpretation of words of common speech is within the judicial knowledge, and mat- ter of law" In the first of these two cases the Supreme Court held it to be a question of law whether tomatoes were fruits or vegetables ; in the second, whether dried lentils and white beans were vegetables or seeds; as it had previously determined in Marvel v. Merritt (116 U. 8. 11) that iron ore was a mineral substance. I think, therefore, the proper definition of " whisky " for the purposes of the pure-food law is a question of law, it being, to my mind, quite clear that for [265] these purposes, the term is to be given its ordinary significance as a word of everyday speech, and is not to be understood in any commercial or scientific sense, as it might be by a distiller, or recti- fier, a chemist or a physician. For the purposes "of my opinion, I OPINIONS OF THE ATTORNEYS GENERAL. 77? had to determine its proper definition just as in Eureka Vinegar Company v. Gazette Printing Company (35 Fed. 570) the court had to determine the definition of " cider," and as in United States v Ash (75 Fed. G52) the court took judicial cognizance of what was " whisky " and even of what was a " whisky cocktail." In establishing the meaning of " like substances." as used in the pure-food law, to determine whether a mixture shall be properly called a " blend " or a " compound," I was able to find no judicial authority which appeared to me sufficiently in point to make its citation appropriate. The essential meaning of " like," as here used, is evidently " of the same class." and on what this class includes must depend the purpose of the classification, or, in other words, the ends of the law. The primary aim of the pure-food law, as explained in my previous opinion, is, in my judgment, to secure an accurate and serviceable nomenclature for articles of food, and its construction is, therefore, governed by rules in some respects different from those applicable to statutes passed for wholly different purposes, as, for example, laws imposing duties on imports; therefore, although my attention had been called, even before the hearing on May 15, to certain decisions of the Supreme Court construing the phrase " of similar description," which may be assumed argwnenti gratia to be synonymous with " like," I did not consider it necessary, in that opinion, to cite or discuss these decisions. It may be, however, well for me to here point out that if they are to be regarded as authorities relevant to the question considered in this connection in the previous opinion, namely, whether ethyl alcohol and whisky are " like sub- stances," they appear to fully sustain the conclusion therein an- nounced. In Greenleaf v. Goodrich (101 IT. S. 278) and Schmieder v. Barney (113 U. S. 646) the Supreme Court held that the simi- larity required by this designation is "a similarity in [266] respect to the product and its adaptation to uses and to its uses, and note merely to the process by which it was produced," and that the material question to be determined in such case would be whether " the goods were or not substantially the same or substantially different." Now I think it is quite clear that, while there may be a similarity in the processes whereby whisky and ethyl alcohol, respectively, are produced from grain mash, alcohol and whisky are not, according to the com- mon understanding of the general public, similar in their respective adaptation to uses and their respective uses in fact. I believe that according to the first thought of an ordinarily intelligent and well- informed man, whisky is adapted for use, and is used, as a beverage, and alcohol is adapted for use, and used, in medicine or in the arts, and I am satisfied that such a man, if asked the question, would, in a great majority of instances, reply without hesitation that alcohol and whisky were substantially different and not substantially the same things. It was developed at the hearing before me that some, at least, of the dealers in whisky who questioned the correctness of my opinion claimed that ethyl alcohol and whisky are not merely " like," but identical; that whisky is ethyl alcohol and ethyl alcohol is whisky. Their argument was, in substance, that ethyl alcohol was whisky from which certain congeneric substances, termed by them " impuri- ties," had been removed ; and whisky was ethyl alcohol in which these " impurities " had been allowed to remain, or to which some substi- 778 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. tute for them had been added. Now it is obvious that " impurities " is a question-begging term, and, if it be admitted that substances so designated are really congeneric with the whisky, it is an illogical, and, therefore, an inappropriate designation. Pearls in an oyster may be the result of disease or injury to the animal, but when we speak of " pearl-bearing oysters," they constitute a very important portion of the idea thus expressed. If the so-called " impurities " are an essential part of whisky, or, in other words, if, in the lan- guage of the definition of the Department of Agriculture, they " give character to the dis- [267] tillate," then it is as inaccurate to describe a substance destitute of them as " purified " or " rectified " whisky as it would be to speak of sugar and water as " lemonade without lemons." To show how the Congress intended the pure-food law, and, espe- cially, the provision as to " like substances," " blends " and " com- pounds," to be construed, my attention has been called to remarks of speakers in debate on the bill, and to proceedings before committees of one or the other House of Congress. In the language of Mr. Justice Peckham, in United States v. Trans-Missouri Freight Asso- ciation (166 U. S. 318), there is * * * a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. * * * The reason is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other, the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed. Thus construed, there would seem to be little difficulty in determin- ing the purpose of the Congress in restricting the use of the word " blend " to a mixture of " like substances," supposing, of course, that this provision was inserted with a view inter alia to the labeling or branding of whisky. The Congress must be presumed to have legislated with reference to well-established processes in the manu- facture and sale of distilled spirits. There can be no doubt that, according to such practice, '" straight " whisky was mixed only with two substances, besides mere coloring and flavoring materials, namely, with " straight " whisky of another kind, and with ethyl alcohol. There is an evident intent on the face of the statute to confine the use of the word " blend " to one kind of mixture and to forbid its use for another kind of a mixture ; and, since the Congress must be [268] supposed to have legislated with regard to existing facts, and, con- sequently, since the mixture to which it intended to deny the designa- tion " blend " must be either a mixture of two different kinds of whisky, or a mixture of whisky with the one other substance generally mixed with it — namely, ethyl alcohol — it follows that, unless we are prepared to say that ethyl alcohol is more " like " to whisky than one whisky is to another, it is reasonable to conclude that the Congress intended to deny the designation " blend " to a mixture of whisky and ethyl alcohol. If this provision was, in fact, inserted with some reference to whiskies (which seems to be generally assumed as a fact by both sides to this controversy), then it is impossible to see why the provision as to blends and compounds was inserted at all, if the Congress considered whisky and ethyl alcohol to be "Jike substances." OPINIONS OF THE ATTORNEYS GENERAL. 779 So far as I am informed, no combination of whisky with another substance was manufactured and sold, either as a " blend " or other- wise, when the pure-food law was enacted, to which the designation " blend " could be denied, or which could be properly labeled a " compound," if the Congress held ethyl alcohol to be a " like sub- stance " to whisky. I have found, therefore, no difficulty in conclud- ing that, according to all the well-established canons of statutory construction, these two kinds of spirits are not to be considered " like substances " for the purposes of the pure-food law. Of course, if the Congress thinks they should be, effect can be readily given to the legislative will by an amendment of the law. However, having given a very patient and careful consideration to the entire subject, I respectfully advise you that, as above stated, the opinion already rendered must stand as that of this department; and I suggest that parties whose interests may suffer from the adminis- tration of the law as thus determined, take, as soon as may be prac- ticable, appropriate measures to obtain a judicial determination of the questions involved. I remain, sir, yours respectfully, Charles J. Bonaparte, Attorney General. The President. THE DEUGS AND MEDICINE ACT OF 1848 AND THE FOOD AND DRUGS ACT ARE CUMULATIVE AND SHOULD BOTH BE GIVEN EFFECT, AND AN IMPOR- TATION OF DRUGS SHOULD NOT BE ADMITTED IF IT FAILS TO CONFORM TO THE STANDARD ESTAB- LISHED BY THE FORMER OR TO THE TESTS IMPOSED UNDER THE LATTER.1 [311] Department of Justice, July 17, 1907. Sir : I have the honor to acknowledge the receipt of your letter of the 10th ultimo in which, in connection with an application for reexamination of certain lemon and orange oil imported by G. H. Reitmann at the port of New York, which has been denied entry by the appraiser, you request [312] an expression of my opinion jipon certain questions arising under the drugs and medicine act of 1848 and the Food and Drugs Act of 1906. 1. The first question submitted is whether in applying the drugs and medicine act of 1848 to importations originating in Italy, the standard of strength and purity to be enforced is that established by either the Italian pharmacopoeia or by any of the foreign phar- macopoeias mentioned in the act. The drugs and medicine act of 1848, which is embodied in sections 2933 and 2937 of the Revised Statutes, provides that all drugs, medi- cines, and medicinal preparations shall, before passing the custom- house, be examined in reference to their quality, purity and fitness for medical purposes (section 2933) ; that if they are found, " in the opinion of the examiner, to be so far adulterated or in any manner *26 Op. Atty. Gen. 311. 780 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. deteriorated, as to render them inferior in strength or purity to the standard established by the United States, Edinburg, London, French, and German pharmacopoeias and dispensatories, and thereby im- proper, unsafe, or dangerous to be used for medicinal purposes, a return to that effect shall be made upon the invoice, and the articles so noted shall not pass the custom-house " (section 2935), unless the owner or consignee shall call for an analytical reexamination at his own expense, when the collector shall cause a careful analysis of the articles to be made by a competent analytical chemist (sections 2935, 2936) ; that the sworn report of this chemist shall be final, and if it declares " the return of the examiner to be erroneous and the articles to be of the requisite strength and purity according to the standards referred to in the next preceding section, the entire invoice shall be passed without reservation, on payment of the customary duties "" (section 2936) ; but that if the report sustains the examiner's return, the articles shall be reexported within six months or the collector shall cause them to be destroyed (section 2937). The Italian pharmacopoeia, it will be seen, is not one of those made a standard by the act. The ambiguity of the language in the act, especially in the use of the words ''standard" in one section and u stand [313] ards" in another, makes it doubtful, as an original question, whether it was intended to require an importation of drugs and medicines to con- form to the several standards of each and all of the pharmacopoeias mentioned ; or to the standards of any one of them ; or to the general standard established by them all considered together, so that an importation falling below the standard of all of them would neces- sarily be excluded, but if meeting the standard of some of them, but not of others, it would not be excluded unless it fell so far below the general standard as to render its use improper, unsafe, or dangerous. The construction of the act, therefore, being one of doubt, it is proper to resort to the construction which has been placed upon it by the Treasury Department, (22 Opin. 163, 167.) It appears that almost immediately after the passage of this act a definite construction was placed upon it by the Treasury Depart- ment, which has been uniformly followed to the present day. I am advised that in article 249 of the Customs Regulations published by the Treasury Department in 1857, being the first edition after the passage of the act of 1848, the following reference was made to the drugs and medicine act: It will be observed, on reference to the third section of the act, that all im- ported " drugs, medicines, and medicinal preparations, &c," are to be tested in reference to their strength and purity by the standards established by the United States, Edinburg, London, French and German pharmacopoeias and dis- pensatories." It is not conceived to be the intention of the law that the articles referred to should conform in strength and purity to each and all of those standards, as such conformity is believed to be impracticable, owing to the variations in those standards. If, therefore, the articles in question be manu- factured, produced, or prepared in England, Scotland, France, or Germany, as the case may be, and prove to conform in strength and purity to the pharma- copoeia and dispensatory of the country of their origin, said articles become exempt from the penalties of the law. All articles of the kind mentioned, pro- duced, manufactured or prepared in any other [314] country than those before mentioned, must conform to the qualities stated in the United States pharma copoeia and dispensatory. I OPINIONS OF THE ATTOENEYS GENEEAL. 781 I am further advised that the construction thus given to the drugs and medicine act has been retained in all subsequent editions of the Customs Regulations, article 1285 of the Customs Regulations of 1889, which are now in force, providing that if imported drugs., medi- cines, and medicinal preparations are " manufactured, produced, or prepared in England, Scotland, France, or Germany, and conform in strength and purity to the pharmacopoeia and dispensatory of the country of their origin, they are exempt from the penalties of the law; but if produced, manufactured, or prepared in any other coun- try than those last mentioned, they must conform to the United States pharmacopoeia and dispensatory." It is a well-settled rule that " when the meaning of a statute is doubtful, great weight should be given to the construction placed upon it by the department charged with its execution, where the construc- tion has, for many years, controlled the conduct of the public busi- ness," and that uniform and long-continued executive construction is " not to be disregarded without the most cogent and persuasive reasons" (Robertson v. Downing, 127 U. S. 607; United States v. Healey, 160 U. S. 136, 141) ; the weight to be given such construction being greater where the statute has been subsequently reenacted by Congress (United States v. Falk, 204 U. S. 143, 152). Applying this rule of construction, I am of opinion that, in view of the great doubt as to the true meaning of the original act of 1848, the construction which has been uniformly given to its provisions by the Treasury Department for more than half a century should not now be disregarded, especially in view of the fact that it was re- enacted in the Revised Statutes after this construction had been given for many years, and that the provisions of the Revised Statutes in which the act is embodied are to be now construed in conformity with the Customs Regulations, that is to say, that if the importation origi- nates in any of the countries whose pharmacopoeias are mentioned, [315] such pharmacopoeia is to be the standard, but if it originates in any other country, then the United States pharmacopoeia is to con- trol ; and hence, to specifically answer your question, that in enforc- ing the provisions of the drugs and medicine act of 1848 in reference .to an importation originating in Italy, the pharmacopoeia whose standard is to be applied is not that of Italy or any other foreign country, but that of the United States. 2. The other question which you submit is : Whether the con- formity of such importation to the standard imposed by the act of 1848 entitles it to admission into this country as against any test which may be applied by the direction of the Secretary of Agricul- ture under section 11 of the Food and Drugs Act of June 30, 1906, or whether the provisions of the act of 1906 regarding adulteration, misbranding, and false labeling are also to be applicable. The Food and Drugs Act of 1906 (34 Stat. 768) is a general act relating to the manufacture, sale, and transportation of adulterated or misbranded food or drugs. It defines specifically the various cases in which any food or drug shall be deemed to be adulterated or misbranded and provides in section 11 that : The Secretary of the Treasury shall deliver to the Secretary of Agriculture, upon his request from time to time, samples of foods aud drugs which are beiug imported into the United States or offered for import, giving notice thereof to the consignee, who may appear before the Secretary of Agriculture, 782 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. and have the right to introduce testimony: and if it appear from the examina- tion of such samples that any article of food or drug offered to be imported into the United States is adulterated or misbranded within the meaning of this act. or is otherwise dangerous to the health of the people of the United States, or is of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported, or is otherwise falsely labeled in any respect, the said article shall be refused ad- mission, and the Secretary of the Treasury shall refuse delivery to the con- signee and shall cause the destruction of any goods refused delivery which shall not be exported by the con- [316] signee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe. Comparing- the drugs and medicine act and the Food and Drugs act, it will be seen that not only is the one special and the other general, but that in reference to the importation of drugs, while the drugs and medicine act on the one hand contains no restriction as to misbranding, each of the two acts on the other hand imposes certain tests in regard to the admission of imported drugs which are not contained in the other. In an opinion which I rendered the Secretary of the Treasury on February 23. 1907. in reference to the tea-inspection act of 1897, the effect of the Food and Drugs Act upon an earlier special statute was carefully considered. (26 Opin. 166.) For reasons analogous to those which are therein stated, I am of the opinion that in the matter of the importation of drugs, the drugs and medicine act and the Food and Drugs Act are, generally speaking, cumulative and should both be given effect, and that an importation of drugs should not be admitted if it fails to conform either to the standard estab- lished by the drugs and medicine act or to the tests imposed under the Food and Drugs Act; and, hence, to reply specifically to your question, that drugs imported ' from Italy, although meeting the standard required by the drugs and medicine act, are still'subject to the provisions of the Food and Drugs Act regarding adulteration, misbranding, and false labeling, and to any test that may be ap- plied to them by the direction of the Secretary of Agriculture in accordance with section 11 of that act. It follows, of course, that the provisions of the drugs and medi- cine act, that importations found to conform to the standard therein' imposed shall be thereupon " passed without reservation, on payment of the customary duties " (E. S., 2936) are repealed by implication, as applied to importations which are subject to rejection under the tests of the Food and Drugs Act. In this connection, it should be noted, that if, as I have been ad- vised, the laws of Italy forbid the sale of a drug which does not conform to the standard of the Italian [317] pharmacopoeia, it would follow that although a drug imported from Italy might not be sub- ject to exclusion under the drugs and medicine act by reason of non- conformity to the Italian pharmacopoeia, it might still be excluded under section 11 of the Food and Drugs Act as being " of a kind forbidden entry into, or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported." Respectfully. Charles J. Bonaparte, Attorney General. The Secretary of the Treasury. OPINIONS OF THE ATTORNEYS GENERAL. 783 MARKING AND BRANDING SPIRIT CASKS.1 [476] Department of Justice, January 11, 1908. Sir : I am duly in receipt of your letter of the 16th ultimo, in which you request my opinion " as to what directions should be issued and steps taken by this department with regard to the marking and branding of casks and packages of distilled spirits, to the end that the regulations so issued may be in harmonious accord, if possible, with those of the Department of Agriculture, looking to the enforce- ment of the pure-food law." If this inquiry could be construed as a request that I offer suggestions as to the form of instructions to be given your subordinates or of regulations to be adopted by your department, for the purpose of securing an administration of the act generally known as the " pure-food law," in harmony with the action of the Department of Agriculture in relation to the same subject, it would seem obvious that such suggestion on my part would not constitute an answer to a " question of law," [477] as the term is used in section 356, Revised States. I understand your request, how- ever, as asking, in substance, my opinion as to how far, if at all, sec- tions 3287, 3289, and 3449 of the Revised Statutes, as amended by subsequent legislation; are amended or repealed by the pure-food law (34 Stat. 768), and whether the regulations of the Commissioner of Internal Revenue set forth in your above-mentioned letter are now authorized by the existing law. To this inquiry, I have the honor to reply as follows : The above-mentioned sections of the United States Revised Stat- utes, as amended by subsequent legislation, read as follows : Drawing off, gauging, etc.. and removal of spirits to warehouse. Sec. 3287. All distilled spirits shall be drawn from the receiving cisterns into casks or packages, each of not less capacity than ten gallons wine measure, and shall thereupon be gauged, proved, and marked by an internal-revenue ganger, who shall cut on the cask or package containing such spirits, in a manner tc be prescribed by the Commissioner of Internal Revenue, the quantity of wine gallons and in proof gallons of the contents of such casks or packages, and the particular name of such distilled spirits as known to the trade — that is to say, high wines, alcohol or spirits, as the case may be, shall be marked or branded on the head of such cask or package in letters of not less than one inch in length ; and the spirits shall be immediately removed into the distillery ware- house, and the gauger shall, in the presence of the storekeeper of the ware- house, place upon the head of the cask or package an engraved stamp, which shall be signed by the collector of the district and the storekeeper and gauger ; and shall have written thereon the number of proof gallons contained therein, the name of the distiller, the date of the receipt in the warehouse, and the serial number of each cask or package, in progressive order, as the same are received from the distillery. Such, serial number for every distillery shall be in regular sequence of the serial number thereof, beginning with number one (No. 1) with the first cask or package deposited therein [478] after July twen- tieth, eighteen hundred and sixty-eight, and no two or more casks or packages 1 26 Op. Atty. Gen. 474. For opinion of the Attorney General on internal revenue regulations based on this opinion, see 26 Op. Atty. Gen. 541. See also F. I. D. 45, 65, 95, 98, 113, 118, and 127, pp. 36, 51, 110, 113. 129, 133, and 139, ante; Opinions of the Attorneys General, pp. 775, ante, and 779, post; Report of the Solicitor General, p. SISj post; and Decision of the President, p. 831, post, on the labeling of whiskies. m 784 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. warehoused at the same distillery shall be marked with the same uumber. The said stamp shall be as follows: Distillery-warehouse stamp No. — . Issued by , collector, district, State of — , distillery warehouse of , 18 — , Cask No. — ; contents gallons proof spirits. Attest : United States Storekeeper. United States Ganger. Provided, however, That upon the application of the distiller, and under such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, distilled spirits may be drawn into wooden packages, each containing two or more metallic cans, which cans shall have each a capacity of not less than five gallons, wine measure, such packages to be filled and used only for exportation from the United States. And there shall be charged for each of said packages or cases for the expense of providing and affixing stamps, five cents, instead of ten cents, as now required by law. Forfeiture of unstamped packages. Sec. 3289. All distilled spirits found in any cask or package containing five gallons or more, without having thereon each mark and stamp required therefor by law, shall be forfeited to the United States. Removing any liquors or wines under other than trade names; penalty Sec. 3449. Whenever any person ships, transports, or removes any spirituous or fermented liquors or wines, under any other than the proper name or brand known to the trade as designating the kind and quality of the contents of the casks or packages containing the same, or causes such act to be done, he shall forfeit said liquors or wines, and [479] casks or packages, and be subject to pay a fine of five hundred dollars. I am informed by your letter that the regulations of the Commis- sioner of Internal Revenue contain the following provisions : The gauger will also mark or brand with a die, stencil, or branding iron on the head of the cask, in letters not less than 1 inch in length, the particular name of the spirits as known to the trade, which mark or brand will be varied to suit whatever kind is contained in the package, as " high wines," " rye," " Bourbon," or " copper distilled " whisky, as the case may be. He will also cut or burn the date of inspection so that the head of the cask will appears as follows: [Drawing of bead of cask bere set out in illustration.] In addition to attaching the stamp for rectified spirits and cancelling the same, the gauger will cut upon the bung stave the result of the inspection in the manner directed herein under the head of " Gauging and marking spirits in warehouse upon request of distiller," and mark upon the head of each cask with a stencil plate in durable ink his name and office, the date of inspection, the particular name of such spirits as known to the trade, the proof, the name and place of business of the rectifier, and the serial number of the stamp for rectified spirits affixed thereto. [Drawing of head of cask here set out in illustration.] The act approved June 30, 1906, generally known as the " pure- food law," is entitled : An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes. The portion of that law which seems to be relevant to the matters under discussion is the following : Sec. 8. That the term " misbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding OPINIONS OF THE ATTORNEYS GENERAL. 785 such article, or the ingredients or substances contained [480] therein, which shall be false or misleading in any particular. * * * That for the purposes of this act an article shall also be deemed to be misbranded : * * * in the case of food : First. If it be an imitation of or offered for sale under the dis- tinctive name of another article. * * * Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular : Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged, so as to plainly indicate that they are compounds, imitations, or blends, and the word " com- pound," "imitation," or "blend," as the case may be is plainly stated on the package in which it is offered for sale : Provided, That the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only: And provided further, That nothing in this act shall be con- strued as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose, their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding. In an opinion rendered by me to the President on April 10, 1907, I said of the purpose of this law : [481] The primary purpose of the pure-food law is to protect against fraud consumers of food or drugs ; as an incident or secondary purpose, it seeks to pre- vent, or, at least, discourage the use of deleterious substances for either purpose ; but its first aim is to insure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes and intends to buy. According to the recognized canons of statutory construction, the language of its provisions must be interpreted with reference to and in harmony with this primary general purpose; so that, in determining the proper nomenclature for articles of food as defined in the act, the intention of the law will be best observed by giving to such articles names readily understood and conveying definite and familiar ideas to the general public, although such names may be inaccurate in the view of a chemist or physicist or an expert in some particular industrial art, as in the distillation and refining of spirits. Moreover, the same name may be given by dealers or by the general public to two or more substances, varying very materially in their scientific character- istics, and this fact must be given due weight in passing upon questions of branding or labeling under the law. It is obvious that the purpose of this act, as thus defined, is an altogether different purpose from that of the provisions of law relat- ing to internal revenue. The Congress can not be presumed to have had in mind, at the time of its enactment, the substitution of new pro- visions for any of those affecting the last-mentioned subject-matter of legislation, and, under such circumstances, it is a well-established rule of statutory construction that the language of the later statute will be harmonized, if possible, with that of the earlier and will be held to have modified the earlier only in so far as they are plainly in conflict. In the event, however, of an evident conflict between the terms of the two enactments, those of the later must of course prevail. Applying these rules of construction, I find nothing in section 3287 of the Eevised Statutes which is necessarily repealed by section 8 of the pure-food law. Section 3287 [482] regulates the removal of distilled spirits from the receiving cisterns of a distillery, pre- 40066—14 50 786 FEDERAL FOOD AND DEUGS ACT AND DECISIONS. scribes the minimum size of the receptacles into which such distilled spirits may be drawn, and requires the ganger, in a manner to be pre- scribed by the Commissioner of Internal Revenue, to mark on the casks or packages, inter alia, " the particular name of such distilled spirits as known to the trade — that is to say, high wines, alcohol, or spirits, as the case may be." This statute constitutes a declaration by the Congress that when distilled spirits left the receiving cisterns they had one or the other of certain appropriate trade names, that is to say, " high wines," "alcohol," or " spirits, as the case may be," the last five words being, in my opinion, intended to apply to " spirits " only and not to " high wines " on the one hand or " alcohol " on the other hand. It is, of course, quite immaterial whether this legislative dec- laration was or was not in accordance with the fact as to trade usages at the time of its adoption, or is, or is not, in conformity with such usages at present. The Congress thereby prescribed certain names and only those given or authorized by implication as proper to be given to distilled spirits when such spirits should leave the receiving cistern ; and, in construing this statute, as we must, with relation to Avell-known facts in connection with the art of distillation, it seems plain that the Congress considered 'the several kinds of "spirits" in the restricted sense in which the word is used in this part of section 3287, liquids which were neither " high wines " nor yet " alcohol " ; it being a notorious fact that the substances cogeneric with alcohol found in what is practically the first product of distillation (that is to sajr, in " high wines ") must be partially transformed or their prop- erties otherwise eliminated to convert this product into some form of potable " spirits," and no less certain that if they be removed, for practical purposes, altogether, the process converts the said product into commercial " alcohol." The thirteenth definition of "spirit (pi.)" given by Webster is: " Rum, whisky, brandy, gin, and other distilled liquors having much alcohol, in distinction from wines and malt liquors." In my opinion the words: " spirits, as the [483] case may be," are used in conformity to this definition and mean : " That distilled liquor included within the definition of ' spirits ' which may be appropriate in the particular case," that is to say, " rum " or " whisky," " brandy," or " gin," or whatever other name of a distilled liquor may be suitable. The brand or label, however, must contain only a general name of a spirit; no description or particular designation is required^ contemplated, or, in my opinion, allowed by the terms of section 3287. The law evidently requires these brands or labels to be truthful, that is to say, if the liquid contained in the casks or packages is really so-called " neutral spirit," or, in other words, for practical purposes, " ethyl alcohol," this statute requires it to be branded or labeled " alcohol," and does not permit it to be labeled a particular kind of potable spirits, as, for example, " whisky " : but, supposing the brands and labels to be truthful, I can not see how such articles could be re- garded as " misbranded " under the provisions of section 8 of the pure-food law, above quoted. I advise you, therefore, that, in my opinion, there is no inconsistency between the provisions of section 3287 of the Revised Statutes and section 8 of the pure-food law, and that the former statute is not superseded or repealed by the latter. The same is true of section 3289. I find nothing in the pure-food law which renders the provision of that section inappropriate, and it OPINIONS OF THE ATTORNEYS GENERAL. 787 was not, in my opinion, repealed, either expressly or by necessary im- plication, by the enactment of the said law. With respect to section 3449 there is more difficult}7. Sections 2 and 10 of the pure-food law (34 Stats., 768) so far as material for our present purpose, are as follows : Sec. 2. That the introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the mean- ing of this act, is hereby prohibited ; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State [4S4] or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Colum- bia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misde- meanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court. Sec 10. That any article of food, drug, or liquor that is adulterated or mis- branded within the meaning of this act, and is being transported from one State, Territory, District, or insular possession to another for sale, or. having been transported, remains unloaded, unsold, or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia or the Territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. It is my opinion that these provisions, in connection with section 8, above quoted, prescribe for the shipment, transportation, or removal of any spirituous or fermented liquors or wines from one State or Territory to another or from or to or within the District of Colum- bia, or from or to any foreign country, or from or to the insular pos- sessions of the United States, a different brand or mark on an article so transported from that required by section 3449. The proper name or brand known to the trade may yet be one containing a " statement," " design," or " device," which [485] may be false or misleading in some particular. As pointed out in the extract heretofore given from the opinion rendered by me to the President on April 10 last past, I think the names intended by the pure-food law to be used in brands or labels should be — names readily understood and conveying definite and familiar ideas to the general public, although such names may be inaccurate in the view of a chemist or physicist or an expert in some particular industrial art, as in the distillation and refining of spirits. It follows that the name " known to the trade as designating the kind and quality " of a wane or a spirituous or fermented liquor may not be one conveying to the general public accurate information as to such character or quality, and, in so far as the provisions of section 3449 relate to shipment, transportation, or removal not wholly within the limits of a State, it seems to me clear that it was repealed by the adoption of the pure-food law ; this construction being strengthened 788 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. by the fact that the latter prescribes an altogether different punish- ment for the offenses described in both. It is yet more difficult to determine whether section 3449 is to be considered as repealed in so far as it relates to purely intra-State shipment, transportation, or removal. So far as I am informed; however, either by your letter and the accompanying documents or from any other source properly open to the consideration of this department, this question has not yet arisen in a practical form, and, in view of its inherent difficulty, I think it more appropriate to defer the expression of any opinion regarding it until circum- stances render such expression necessary. The regulations quoted in your letter and herein before set forth are in conformity with the provisions of section 3287, except in one par- ticular. That section does, indeed, require the ganger to cut on the cask or package containing the distilled spirits drawn from the re- ceiving cistern " the particular name of such distilled spirits, as known to the trade ; " and if this passage stood alone, or if the words 'immediately succeeding could be construed as used by way of illus- tration only, the regulations in question might perhaps be justified by the terms of the law ; but when the Congress adds to the language just quoted the words " that is to say, [486] high wines, alcohol, or spirits, as the case may be," I am obliged to conclude that the inten- tion of the law was to have casks or packages not containing either " high wines " or " alcohol " marked with the name of a recognized distilled liquor included within the definition of potable " spirits " and nothing more. In view of the long-continued practice of your department, as set forth in your letter and the accompanying docu- ments, and the administrative construction thereby given to the statute of 1879, now constituting section 3287, I should be very re- luctant to reach this conclusion were it not for the fact that these regulations seem to me clearly inconsistent with the terms of the pure-food law, and, if they were justified by section 3287, the section would have to be considered pro tanto amended by the law in ques- tion. In saying this I am not unmindful of the fact that the mark- ing to be done under the provisions of section 3287 must be ordinarily a purely intra-State act. But not to mention the improbable con- tingency of a distillery being located so near the boundaries of two States that its warehouse might be on the other side, it is in no wise improbable that a distillery should be located in the District of Columbia; in which case, for the reason already given with respect to section 3449, these regulations would be in evident conflict with the provisions of the pure-food law. t It does not appear from your letter or any of the accompanying documents upon what information the gauger is expected to act in determining the particular name of the spirit " as known to the trade " when he marks the package or cask. If the construction which I have placed on section 3287 is correct, there would be very little, if any danger, of misbranding the articles he has to mark, since there could hardly be^ in any instance, room for serious doubt as to whether the substance was high wines, potable spirits, or alcohol, or, in the secondly mentioned contingency, whether it was rum or brandy or some other well-known liquor ; but the regulations you have called to my attention appear to impose upon the gauger the duty of deter- mining questions respecting the character of the spirit which might OPINIONS OF THE ATTORNEYS GENERAL. 789 be readily attended with considerable difficulty, and this con- [487] stitutes, to my mind, a further reason for confidence in the opinion I have expressed that these regulations can not be sustained under the section in question, independently of the operation of the pure-food law. It is needless to add that the law evidently would not sanction the marking of the casks or packages on merely hearsay information obtained from the distiller or his representative. Such a practice would amount to allowing a manufacturer to mark his own product and have the United States, without inquiry, guarantee the accuracy of his marking. I advise you, therefore, that the portions of your regulations to which you have called my attention are, in my opinion, contrary to law in the respects above indicated, and need to be modified in accord- ance with the law as indicated in this opinion. I remain, sir, yours, respectfully, Charles J. Bonaparte. The Secretary or the Treasury. THE SALE BY MILITARY AUTHORITIES OF THE UNITED STATES OF CONDEMNED MEDICINES WHICH HAVE DETERIORATED IS SUBJECT TO THE PROVI- SIONS OF THE FOOD AND DRUGS ACT.1 [547] Department of Justice, March 27, 1908. Sir: I have the honor to acknowledge the receipt of your letter of the 23d instant in which you state that certain drugs and medicines of the Medical Supply Depot, United States Army, New York City, which were purchased before the enactment of the Food and Drugs Act of June 30, 1906, have been inspected and condemned, as " de- teriorated, not fit for issue " and as " fermented, unfit for issue," and that your department, upon th.e recommendation of the inspector, has ordered the same to be sold under the authority of section 1241 of the Revised Statutes. You further state that the proposed sale would cover the goods in the original cases bearing the marks of the original makers or vendors; and that since on account of the deteri- oration of these supplies the state of purity of each article can not be known without an analysis, it would be impracticable to mark each case according to its actual contents. You thereupon request an expression of my opinion upon the three following questions: Whether the sale of these condemned drugs and medicines under section 1241, Revised Statutes, would be within the purview of the Food and Drugs Act, as distinguished from a sale by a private vendor, so as to render the officers making the sale liable under the act; Whether, if such sale comes within the terms of the act, it would be sufficient to label each original package as follows : " Deteriorated military supplies. Condemned and sold under section 1241, Revised Statutes; and !26 Op. Atty. Gen. 546. 790 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Whether, in any event, the sale of the articles would involve any liability on the part of the original makers or vendors of the con- demned drugs or medicines. In reply, I have the honor to state : 1. I am of the opinion that if the proposed sale otherwise presents a case of Federal commerce coming within [548] the provisions of the Food and Drugs Act, and not merely a case of purchase and sale in State commerce to which the Food and Drugs Act would have no application, the provisions of that act would apply even although the sale were made by officers of the Government under the provision of the Revised Statutes. Revised Statutes, section 1241, provides that: The President may cause to be sold any military stores which, upon proper inspection or survey, appear to be damaged, or unsuitable for the public service. Such inspection or survey shall be made by the officers designated by the Secretary of War, and the sales shall be made under regulations prescribed by him. Section 2 of the Food and Drugs Act (34 Stat. 768 )^ provides that — Any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded food or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court. This act is broad in its terms, without any exception in favor of the Government or its officers, and includes generally " any person " who shall ship, deliver, sell, or offer to sell, adulterated or misbranded food or drugs in violation of its provisions. [549] While it is a well-settled principle of statutory construc- tion that a general prohibition contained in a statute does not ordi- narily extend to or affect the sovereign, yet, as stated in an opinion which I rendered the Secretary of the Treasury on January 2 last, citing the language of Mr. Justice Story in United States v. Hoar (2 Mason, 311, Fed. Cas. 15373), the Government is to be regarded as included within such prohibition when either the nature of the mischiefs to be redressed or the language used shows that this was in the contemplation of the legislature. This is generally the case where the statute " is made for the public good, as for the advancement of religion and justice, or to prevent injury and wrong." (United States v. Knight, 14 Pet. 301, 315; United States v. Herron, 20 Wall. 251, 255; 8 Bacon's Abridgement by Bouvier, 92, Tit. " Prerogative," E. 5.) The mischiefs to be redressed by the Food and Drugs Act are shown by its title, which reads: "An act for preventing the manu- facture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, medicines, and liquors, and for regu- lating traffic therein, and for other purposes." As I have heretofore OPINIONS OP THE ATTORNEYS GENERAL. 791 said, its primary purpose " is to protect against fraud consumers of food or drugs" (26 Op., 219). Clearly, if adulterated or mis- branded food or drugs were sold by the Government or its officers the purpose of the statute would be as much defeated and the injury to I he consumer as great as if such articles were sold by private in- dividuals. Furthermore, the theory that Congress intended that the Government itself might sell adulterated or misbranded drugs under circumstances when a sale by individuals was forbidden would in- volve an inconsistency which undoubtedly was not intended by the legislature. I, therefore, am clearly of the opinion that a sale by Government officers under Revised Statutes, section 1241, is as much subject to the provisions of the Food and Drugs Act as a sale by a private person would be under similar circumstances. 2. Whether, if these drugs and medicines are sold and delivered under circumstances otherwise coming within the [550] Food and Drugs Act, it would be a sufficient compliance with that act to label each original package with a statement that it contains deteriorated military supplies, condemned and sold under section 1241 of the Re- vised Statutes, would depend upon the precise facts. The following provisions of the Food and Drugs Act are applicable to the case of deteriorated drugs : Section 7 provides that drugs shall be deemed to be adulterated in the following cases : First. If, when a drug is sold under or by a name recognized in the United States Pharmacopoeia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investiga- tion : Provided, That no drug defined in the United States Pharmacopoeia or National Formula^ shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or Na- tional Formulary. Second. If its strength or purity fall below the professed standard or quality under which it is sold. Section 8 provides that drugs shall be deemed to be misbranded " the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances con- tained therein which shall be false or misleading in any particular." It does not appear from your letter what portion, if any, of these drugs are sold under names recognized in the United States Pharma- copoeia, or whether the " original packages " to which you refer are the bottles, boxes, or other containers of the drugs in the form in which they are prepared for sale to the consumer, or are larger pack- ages containing several of such bottles or boxes. I am of the opinion that where a drug is not sold under a name recognized in the United States Pharmacopoeia a general statement on the label such as that suggested, showing that its quality has de- terioated and that it has [551] been condemned for sale, Avould be a sufficient compliance with the law, as this would on its face correct any statement on the original label which might otherwise be mislead- ing as to the quality, and would show that it was not sold under any professed standard, so that it could not then be deemed either adul- terated under the second clause of section 7 or misbranded under section 8. 792 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. However, in case of a drug sold under a name recognized by the United States Pharmacopoeia, I am of the opinion that a mere gen- eral statement of this character, showing only the fact of its deteriora- tion, is insufficient, and that, in order that a drug sold under such name may not be deemed adulterated, it is necessary under the pro- viso contained in the first clause of section 7 that the actual standard of strength, qualitj^, or purity should be stated. I am further of the opinion, without passing upon the question as to what constitutes an original package within the meaning of section 2 of the act, that, so far as correcting any statement on the original label is concerned, it would not be sufficient to make such correction merely upon the label on the outer envelope of a package holding several bottles, boxes, or other containers of the drugs, but that the correction must be made upon the label of each bottle, box. or other container in which the goods are intended to reach the consumer, since evidently a statement of the true standard upon the covering of a package containing several bottles or boxes would be entirely value- less as a protection to the purchaser, and, being thrown away before the drug reached the consumer, would enable each bottle or box to be sold without any notice of its inferiority. 3. I am further of the opinion that the proposed sale could, how- ever, in no respect affect the original makers or vendors from whom these supplies were purchased before the passage of the Food and Drugs Act, unaccompanied by any guaranty under that act, and at a time previous to their deterioration. Respectfully, Charles J. Bonaparte. The Secretary of War. A RULE OR REGULATION REQUIRING THE NAME OF THE PARENT SUBSTANCE TO FOLLOW THAT OF A DERIVATIVE ON THE LABEL OF A DRUG WOULD BE WITHIN THE POWERS CONFERRED BY SECTION 3 OF THE FOOD AND DRUGS ACT, ON THE SECRETARIES OF THE TREASURY, AGRICULTURE, AND COMMERCE AND LABOR.1 [143] Department of Justice, January 15, 1909. Sir : I have the honor to acknowledge the receipt of your letters of November 23, 1907, and December 14, 1908, in which you ask my opinion upon two questions, namely: 1. Is acetphenetidine a derivative of acetanilide, within the mean- ing of section 8 of the Food and Drugs Act? [144] 2. If acetphenetidine be held to be such a derivative of acetanilide, is it sufficient to declare it on labels merely as acetpheneti- dine, or must it be stated to be a derivative of acetanilide ? From the papers transmitted and such further information as I have received from your department, I understand that the Secre- 1 27 Op. Atty. Gen. 143. See Regulation 28, p. 26, ante, and United States v. The Antikamnia Chemical Co., p. 684, ante. OPINIONS OF THE ATTORNEYS GENERAL. 793 taries of the Treasury, Agriculture, and Commerce and Labor, in rule 28, promulgated by them under section 3 of the Food and Drugs Act (34 Stat. 768), designated acetphenetidine as one of the deriva- tives of acetanilide ; and that the Secretary of Agriculture., on March 13, 1907, ruled that the name which should be employed in stating the quantity or proportion of the ingredients required by the act to be stated on the labels in the case of derivatives, should be the trade name of the derivative, accompanied by the name of the parent sub- stance used in the act ; that is to say, acetphenetidine should be labeled " acetphenetidine (derivative of acetanilide)" or words to that effect. We must consider, in the first place, whether the regulation adopted by the three Secretaries is conclusive of the first question, in so far as it designates acetphenetidine as a derivative of acetanilide. Sec- tion 3 of the Food and Drugs Act provides that the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Com- merce and Labor shall make uniform rules and regulations for car- rying out the provisions of this act, etc. I do not think that it was intended by this section to confer absolute power upon the three Sec- retaries to determine what particular drugs are derivatives of those mentioned in section 8, subsection 2, with reference to drugs. In my opinion, it was only intended by section 3 to confer upon those Secre- taries the power to adopt such rules and regulations as are appro- priate to secure the enforcement of the act, and not to vest in them any judicial powers to determine when the act of a manufacturer or dealer in drugs or foods constitutes an offense under the statute. If the statute could be so construed, I should entertain serious doubt as to its constitutionality. It appears to me, therefore, that the first question which you submit is essentially one of fact to be de[145]ter- mined, in the first instance, by yourself, and, in the event of judicial proceedings based upon your determination, by the appropriate tri- bunal (court or jury, according to circumstances) called to pass finally upon issues of fact joined in such proceedings. The papers submitted with your letters show, moreover, that the question is not merely one of fact, but a question of fact very earnestly controverted. It is, of course, evident that this department is neither required nor qualified to give an opinion as to such a question. Nevertheless, deem- ing it appropriate to afford you any possible assistance which it may be within the province of this department to furnish, I proceed to give you my opinion as to a question of statutory construction and, therefore, of law, which may be, and appears from some of the papers to be, in fact, involved in the question whether acetphenetidine is a derivative of acetanilide ; that is to say, the meaning of the word " derivative " as used in section 8 of the Food and Drugs Act. It is claimed by the manufacturers of acetphenetidine, in the docu- ments submitted on their behalf, that a derivative, as used in the act, means substantially a product, and that unless it can be shown that the acetphenetidine which they manufacture is, in fact, produced by the use of acetanilide or, at all events, that such is the normal process whereby acetphenetidine is made, their goods cannot be described, with propriety, as a " derivative " of acetanilide. In support of this contention they refer to the cases of Pickhardt v. United States (99 Fed. 719) and Farbenfabriken of Elberfeld & Co. v. United States 794 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. (102 Fed. 603). In the last mentioned case (which was the same as the former appeal) the Circuit Court of Appeals said (p. 605) : There is little room for the claim that, if the word " derived " is to have its ordinary meaning, coal-tar dyes not made from anthracene or from madder are in the free list. It is, however, said in the Pickhardt case that while the dyes in that case were not a product of anthracene, they were " derived" from anthracene, " in the chemical sense of having anthracene as a base, or respond- ing to the chemical tests for anthracene." For example, Prof. Chandler, [146] recognized everywhere as an accurate and learned chemist, says that, to a chemist, the term " derived from " signifies that the body to which the term is applied bears a certain chemical relation to the one from which it is said to be derived ; being a typical group of chemical atoms, which group, more or less modified, appears in every substance said to be derived from it. The Court then stated: It is not important to determine whether these dyes were derived from anthracene, in the chemical sense, for they were not a product of or made from anthracene ; and the term " derived from " is to be understood in its commonly received and popular sense. " It is entirely well settled that, in the interpreta- tion of the revenue laws, words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word." (Lutz v. Magone, 153 U. S. 105, 14 Sup. Ct. 777, 38 L. Ed. 651 ; United States v. Fuel Co., 172 U. S. 339, 19 Sup. Ct. 200, 43 L. Ed. 469. It is obvious that the popular meaning of the term is the meaning given in lexicons, and which is obtained by transmission or produced from, and refers, in this case, to its physical origin. In the decision of the Circuit Court, Townsend, D. J., says (99 Fed. 720) : Counsel for the importers contends that these colors are dyes derived from anthracin, and that the word " derived " is here to be used in the chemical sense of having anthracin as a base or responding to the chemical tests for anthracin. * * * I am satisfied, from a careful examination of the evi- dence and of the exhaustive opinion of the board of general appraisers, that these contentions are not sufficiently proved. The importers have failed to show that the dyes in question were derived from alizarin or from anthracin as a source. They have failed to show that Congress intended that the term " derived " should be used in this connection in the technical or chemical sense, as distinguished from its ordinary sense. I see no reason to question the authority of these decisions; but it is to be observed that, in the cases cited, the [147] courts were con- struing a provision of the tariff law. In my opinion to the Secretary of the Treasury on the marking and branding of distilled spirits as affected by the pure food law (26 Op. 474), I said (p. 481) : The primary purpose of the pure-food law is to protect against fraud con- sumers of food or drugs ; as an incident or secondary purpose, it seeks to pre- vent, or, at least, discourage, the use of deleterious substances for either pur- pose; but its first aim is to ensure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes and intends to buy. * * * It. is obvious that the purpose of this act, as thus defined, is an altogether different purpose from that of the provisions of law relating to internal revenue. This is no less obvious with respect to laws relating to the tariff, and, although it is reasonable to suppose that the Congress may have used the participle " derived " in a customs law in its ordinary and popular sense of " produced," I think the substantive " derivative " in the second subsection of section 8 of the Food and Drugs Act may be reasonably, and, indeed, ought to be understood in its chemical sense. The said subsection provides that a drug shall be deemed to be misbranded, " If the package fail to bear a statement on the label OPINIONS OF THE ATTORNEYS GENERAL. 795 of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein." I have reached this conclusion mainly for two reasons. The word itself is seldom used in its general and popular meaning, and is ordi- narily employed in one or the other of certain technical senses relating habitually either to grammar, music, medicine, mathematics, or chem- istry. Secondly, it is employed here only with respect to various drugs, and may be appropriately understood as those called upon to deal in drugs would naturally understand it. The chemical defini- tion of " derivative " is thus given in Webster's International Dic- tionary : A substance so related to afiother substance by modification or partial sub- stitution as to oe regarded as derived [14S] from it ; thus, the amido compounds are derivatives of ammonia, and the hydrocarbons are derivatives of methane, benzene, etc. snzene, ere. The corresponding definition of the verb " derive is: To obtain one substance from another by actual or theoretical substitution; as to derive an organic acid from its corresponding hydrocarbon. Applying this definition to the subject-matter of discussion, I can answer your first question only by saying that, in my opinion, acet- phenetidine is to be considered a " derivative " of acetanilide, if it is so related to the latter substance that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter " by actual or theoretical substitution ; " and it is not indispensable that it should be actually produced therefrom as a matter of fact. Your second question requires a construction of the subsection of section 8 of the Food and Drugs Act, above quoted. This subsection establishes what may be called an artificial definition of misbranding, by providing that, in addition to certain other contingencies, a drug shall be deemed to be misbrancled if the package fail to bear a state- ment on the label of the quantity or proportion of certain designated drugs, including acetanilide, " or any derivative * * * of any such substances contained therein." In my opinion to the President in regard to the labeling or branding of whiskey, I said, with respect to this statute : " According to the recognized canons of statutory construction, the language of its provisions must be interpreted with reference to and in harmony with this " (its) •' primary general pur- pose ; " and, as above stated, I found that such primary purpose was " to ensure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes and intends to buy." It seems clear that the Congress thought the pur- chasers of drugs might be materially influenced in their determina- tion to buy or not to buy any particular drug by knowing what quan- tity or proportion of the substances designated in this subsection — ■ all of them more or less poisonous in their nature — might be con- tained in each package sold; and Ave [149] must, therefore, so inter- pret this law as to give effect, if possible, to this purpose of the stat- ute. If, however, the package contains something which is itself a derivative or preparation of one of the drugs enumerated, the trade or technical name which it bears may not, and generally would not, indicate this fact; and the information intended by the Congress to 796 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. be conveyed to a purchaser by the label would surely not be conveyed by merely marking it 100 per centum of the article in question. Sup- posing, for the sake of illustration, but only for such purpose, that acetphenetidine is decided to be a derivative of acetanilide, no in- formation to this effect would be given to one having no special knowledge of chemistry by marking the package " 100 per cent acetphenetidine." I am therefore of the opinion that a rule or regulation requiring ihe name of the parent substance to follow that of the derivative would be in harmony with the general purpose of the act, and an appropriate method by which to give effect to its provisions. In the absence, however, of a regulation to this effect, I do not think you can hold a package misbranded because the name of the parent substance does not follow that of the derivative, for it would cer- tainly be a harsh construction of a penal provision such as this to hold that the package and its owner shall incur the grave conse- quences of misbranding under the statute because of this omission, since there is nothing in the law itself to inform the said owner that such omission would constitute an offense. In the language of Mr. Justice Brewer in Railway Company v. Dey (35 Fed. 876) : No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it ; or, as is said by the same justice in Tozer v. United States (52 Fed. 919) : In order to constitute a crime, the act must be one of which the public is able to know in advance whether it is criminal or not. The subject appears to me one eminently appropriate for regula- tion by the three Secretaries under the power conferred upon them by section 3 of the act, since it seems [150] plain that the method of designating the derivative or preparation is one of those matters properly to be determined by a general rule applicable to all such cases; the purpose of section 3 being to enable the three Secretaries to specialize, for practical purposes, the general language of the act, so as to adapt it to the circumstances of particular cases arising in its enforcement. Until such action shall be taken it would seem that the effective enforcement of this provision with respect to " deriva- tives " or " preparations " will be virtually impracticable. In answer to your second question, therefore, I advise you that a rule or regulation requiring the name of the parent substance to follow that of the derivative would be within the power of the board constituted by section 3 of the act ; but that, in the absence of such a rule, no offense would be committed, under the act, by the omission of the name of the parent substance, nor could the article in such case be dealt with as misbranded for that reason alone. I remain, sir, yours, very respectfully, Charles J. Bonaparte. The Secretary or Agriculture. OPINIONS OF THE ATTORNEYS GENERAL. 797 THE LABELING OF WHISKY.1 [202] Department of Justice, February 19, 1909. Sir: I have the honor to return you herewith the communica- tion from Dr. F. L. Dunlap, associate chemist of the Department of Agriculture, to the Secretary of Agriculture, referred to me by you, and, in accordance with your request for an expression of opinion as to the views therein contained, I submit the following observations. Doctor Dunlap says : Under the pure-food law, as administered now, neutral spirits, diluted to proper strength and colored with caramel, must be marked " imitation whisky." The spirit distillers request that this name be not forced upon them, but that they may use in its place one of the three names, " neutral whisky," " rectified whisky," or " redistilled whisky." * * * It is my opinion that the term " whisky " should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel. I believe that the use of the term " whisky " on such a product should be qualified with some term which will carry notice to the consumer of the nature of the product. For this purpose the terms [203] " neutral whisky," " re- distilled whisky," and " rectified whisky " have been suggested. On April 10, 1907, I gave you an opinion on the question of label- ing whisky under the pure-food law in which I said (26 Op. 228) : The definition of " whisky " as a natural spirit involves as its corollary that there can be such a thing as "imitation whisky." If the same process were followed of which we spoke in connection with artificial wine, namely, if ethyl alcohol, either pure or mixed with distilled water were given, by the addition of harmless coloring and flavoring substances, the appearance and flavor of whisky, it is impossible to find any other name for the product, in conformity with the pure-food law, than " imitation whisky." Having, by your direction, given a public hearing to various per- sons dissatisfied with your rulings in accordance with the foregoing opinion, and having fully considered the matter in all aspects, I gave you, on May 29, 1907, another opinion, in which I said, refer- ring to my opinion of April 10 (26 Op. 263) : I find no reason to withdraw the said opinion or to modify it in any respect, and I respectfully report that, in my judgment, this opinion correctly states the law on the subject to which it relates. and added (ib. 266) : It was developed at the hearing before me that some, at least, of the dealers in whisky who questioned the correctness of my opinion claimed that ethyl alcohol and whisky are not merely " like," but identical ; that whisky is ethyl alcohol, and ethyl alcohol is whisky. Their argument was, in substance, that ethyl alcohol was whisky from which certain congeneric substances, termed by them "impurities," had been removed; and whisky was ethyl alcohol in which these " impurities " had been allowed to remain, or to which some substitute for them had been added. Now it is obvious that " impurities " is a question- begging term, and if it is admitted that substances so designated are really congeneric with the whisky it is an illogical and [204] therefore an inappro- priate designation. Pearls in an oyster may be the result of disease or injury to the animal, but when we speak of " pearl-bearing oysters " they constitute a very important portion of the idea thus expressed. If the so-called " impurities " are an essential part of whisky, or, in other words, if, in the language of the definition of the Department of Agriculture, they " give character to the distillate," then it is as inaccurate to describe a substance destitute of them *27 Op. Atty. Gen. 202. See also F. I. D. 45, 65, 95, 98, 113, 118, and 127, pp. 36, 51, 110, 113, 129, 133, and 139, ante; Opinions of the Attorneys General, pp. 775 and 783, ante; Report of the Solicitor General, p. 818, post; and Decision of the President, p. 831, post. 798 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. as "purified" or "rectified" whisky as it would be to speak of sugar and water as " lemonade without lemons." It seems obvious, from the juxtaposition of these extracts from my two opinions and those from Doctor Dunlap's letter, that the assist- ant chemist of the Department of Agriculture suggests that, on the question of the construction of a statute, a very carefully considered and reconsidered opinion of the Attorney General should be dis- regarded. He bases this recommendation upon certain conclusions which he says have been reached by the English " Royal Commission on Whisky and other potable spirits," in what it described as an " Interim Report." He describes this commission as composed of " eminent scientific men," but it does not appear from his letter that the said commission consists of lawyers or that they have had under consideration the construction of the act of Congress generally known as the pure-food law. I am therefore unable to recognize their con- clusions as entitled to weight in determining the above-mentioned question of statutory construction; and I may add that I am unable to see how these conclusions, in so far as stated by Doctor Dunlap, have any bearing upon the question considered in my two opinions. He states these conclusions as follows: 1. That no restriction should be placed upon the process of, or apparatus used in, the distillation of any spirit to which the term " whisky " may be applied as a trade description. 2. That the name " whisky," having been recognized in the past as applied to a potable spirit manufactured from (1) malt, or (2) malt and unadulterated barley or other [205] cereals, the application of the term " whisky " should not be denied to the product manufactured from such materials. It appears to me that these " eminent scientific men," in these con- clusions, make suggestions as to what legislation on the subject should contain, and do not assume to construe legislation already enacted; and especially do not express any opinion as to the construction of an American law dealing with American conditions. Inasmuch, however, as I can not fail to recognize in Doctor Dun- lap's recommendation a challenge of the correctness of my conclu- sions as announced in the two opinions heretofore rendered you, I think it is but proper that I should call your attention to certain judicial decisions rendered upon the question discussed in his letter subsequently to the date of the said two opinions. In the case of Levy v. Uri (31 D. C. App. 441), the Court of Appeals of the Dis- trict of Columbia, speaking by Mr. Justice Robb, says on this ques tion : Each kind of whisky mentioned has its own peculiar flavor and character and is sought after as a beverage because of that flavor and character. Neutral spirits, on the contrary, as the term suggests, is a colorless liquid, has neither flavor nor character, and is not a beverage at all. It may be produced from any fermented substance, such as com, potatoes, and sugar beets. Formerly it was used exclusively in the arts, but with the advent of cheaper methods of production it has been palmed off on the public as a beverage by mixing it with something to give it flavor and character. Since it costs far less to produce than rye whisky, it is apparent that its use by the distiller increases his profits in proportion as the public is deceived. * * * As before stated, neutral spirits is not a beverage, has none of the charac- teristics of rye whisky, and is, therefore. " matter of another kind." In that case it was decided that the use of a label describing a mixture of neutral spirits and whisky as " whisky " only, constituted OPINIONS OF THE ATTORNEYS GENERAL. 799 a fraud on the public, and that such a label would not be protected and could not be legally registered as a trade-mark. [206] In the case of Union Distilling Company et al. v. Bettman (T. D. Int. Rev., vol. 11, p. 120). in the Circuit Court of the United States for the Southern District of Ohio, the court (Thompson, D. J.) says: The question presented is whether natural spirits reduced to potable proof and artificially colored and flavored is whisky or only an imitation of whisky. * * * The affidavits of the complainants do not show that the people — the con- sumers— were ever advised or knew that complainants' product branded "whisky'" was in fret alcohol artificially colored and flavored, and affidavits submitted by the defendants, seven of wholesalers and ten of retailers in Wash- ington and Cincinnati, do show that no wholesaler or rectifier ever offerel to sell to them " as whisky a product which such wholesaler or rectifier represented to be alcohol colored or flavored," and that they "would not knowingly purchase as whisky such a product." * * * The fact that this practice has been long continued does. not establish a right which the court would protect. It misbrands the product in violation of the Food and Drugs Act and of section 3449 of the Revised Statutes of the United States, if that section is applicable to the case. (76 Fed. 367.) It does not truthfully designate "the kind and quality of the contents of the casks or packages," as required by section 3449. The product is not genuine whisky, in the making of which age modifies objectionable elements and develops the flavor whi-eh pleases the taste and adds so much to its ATalue. It should be branded " imitation whisky." In the case of Woolner v. Ilennick (170 Fed. 662), in the Circuit Court of the United States for the Southern District of Illinois, the court says: That there is a product called whisky and also a product called imitation wMsJcy the law itself clearly contemplates, and section 3244, in defining what is meant by the business of rectifying, denominates the maker of imitation whisky and other imitation liquors as a rectifier. * * * [207] The convincing weight of testimony on this subject, given by such men as Professors Frear, of Pennsylvania ; Scovill, of Kentucky; Tolman and Adams, of Washington, D. C. ; Shepherd, of South Dakota ; Jenkins, of Maine ; Fischer, of Wisconsin, and many other State analysts and chemists of repute, is to the effect that neutral spirits reduced by water to potable strength, from which most of the fusel oil has been removed, is not a like substance with whisky. * * * The record also shows that diluted spirits treated with artificial coloring matter and essences are not sold to the trade as such, but are always presented under such labels, terms, and descriptions as import age and maturity, and which the consumer identifies with the genuine product whisky. * * * The fact that this practice had, to some extent, prevailed for many years does not show in the complainants any right which the court should protect. It shows, rather, that the Commissioner of Internal Revenue has been tardy in promulgating a regulation which he had legal power to enforce, even before Congress gave emphasis to the subject by the enactment of the Food and Drugs Act. A decision understood to be the same in effect has been rendered in the Circuit Court of the United States for the District of Maryland, by Morris, D. J., but I have no copy of the opinion. It thus appears that the correctness of the conclusions reached by this department in the two opinions to which I have referred has been tested in at least four decisions by competent courts upon the precise question discussed in Doctor Dunlap's letter ; and the de- cision in every instance has been that what he adA'ises is forbidden by the true construction of the pure-food law. So far as I am aware 800 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. there has been no decision by any court to the contrary. It would be undoubtedly highly appropriate that a final determination of the question should be obtained from a court of last resort, and I have every reason to think that such a determination will be obtained in some one of the suits above mentioned, or in another proceeding. [208] Should this determination show that this department erred in its conclusions embodied in the two opinions heretofore rendered you on this subject, a change in the administration of the pure-food law will of course become proper. At present, however, in so far as in- formed by the decisions heretofore made on this question, I can only advise you that the conclusions announced in the opinions of April 10 and May 29, 1907, are sound, and that to give effect to Doctor Dunlap's suggestions would be to violate the pure-food law. Yours, very respectfully, Charles J. Bonaparte. The President. MEATS AND MEAT-FOOD PRODUCTS PREPARED FOR INTERSTATE OR FOREIGN COMMERCE UNDER THE MEAT-INSPECTION LAW OF JUNE 30, 1906 (34 STAT. 674) , ARE SUBJECT TO THE PROVISIONS OF THE FOOD AND DRUGS ACT OF JUNE 30, 1906 (34 STAT. 768). 1 [164] Department of Justice, May 24, 1913. Sir: I have your letter of the 3d instant requesting my opinion on the following question : Are the peovisious of the Food and Drugs Act. June 30, 1900 (34 Rtat. 70S), applicable to meals and meat-food .products prepared for interstate or foreign commerce under the meat-inspection law, June 30, 1900 (34 Stat. 074) ? The question arises in your department by reason of the fact that rule 39 of the rules and regulations made by the Secretaries of the Treasury, Agriculture, and of Commerce and Labor for the enforce- ment of the Food and Drugs Act provides that said regulations shall not apply to domestic meats and meat- food products which are pre- pared under the meat-inspection law, and that it is your intention, if your question shall be answered in the affirmative, to propose to the other Secretaries that said rule 39 be revoked. I have carefully examined the opinion of the Solicitor of the De- partment of Agriculture, which you inclose for my information, and I agree with him that your question should be answered affirmatively. [165] The agricultural appropriation act of June 30, 1906, contains some 22 paragraphs, which are commonly called the meat-inspection amendment. These paragraphs begin: That for the purpose of preventing the use in interstate or foreign commerce, as hereinafter provided, of meat and meat-food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, etc. On the same day was approved another statute which is popularly known as the Food and Drugs Act. 1 30 Op. Atty. Gen. 164. See also opinion of the Attorney General, dated Sept. 27, 1906, p. 768, ante; and F. 1. D. 151, p. 159, ante. OPINION'S OF THE ATTORNEYS GENERAL. 801 Both statutes had the common purpose of preventing the shipment in interstate and foreign commerce of impure or unwholesome foods. The first act is limited to meats and meat-food products, while the second act is general and covers all foods and drugs. While they have a common object, their method of accomplishing that purpose is quite different. The consensus of opinion among scientists is that it is practically impossible to judge by an examination of a piece of meat, whether or not it came from a diseased animal, but that such fact can only be determined by a post-mortem examination of the carcass of the animal itself. Accordingly, the meat-inspection act prohibits the interstate transportation of meat, unless there has been a post- mortem examination of the animals from which such meat comes and a finding by the official inspectors that the animals were free from disease, and the meat is sound, healthful, wholesome, and fit for human food. The whole structure of this statute is addressed to securing an inspection of the animal from the time it enters the slaughterhouse practically until the meat-food products reach the hands of the retailer, and this purpose is accomplished by forbid- ding and making criminal the interstate transportation of all meat which does not bear the Federal mark of inspection and approval. So far as this statute is concerned, the prerequisite of the lawful transportation of the meat is the Federal inspection and approval, and the crime exists even though the meat transported be perfectly sound and wholesome, if it has not in fact been inspected and ap- proved. [166] The act applies only to cattle, sheep, swine, and goats, and poultry is not inspected under it; it is enforced only by criminal action; it does not provide for the seizure of the meats themselves, nor does it reach meats which have become spoiled after leaving an official establishment, but which are still in interstate commerce. The Food and Drugs Act, on the other hand, accomplishes its pur- pose, not by an inspection preliminary to transportation — for inas- much as the act applies generally to all foods and drugs, such in- spection would be practically impossible — but by making criminal the interstate commerce in adulterated or misbranded foods and drugs. Provision is made for collecting and analyzing samples of foods and drugs, and in addition to punishing violators of the law authority is given to seize and destroy the adulterated or misbranded foods themselves. While these two statutes overlap to some extent, neither is incon- sistent with the other, nor is anything contained in them to indicate that either was intended by Congress as a substitute for the other. I am of the opinion that the acts are supplementary to each other, and that both apply to the same articles of food wherever their language so indicates. That the Food and Drugs Act applies to meats and meat-food products is clear from its language. For instance, in section 6, it is said: The term "food." as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound. 40066—14 51 802 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Section 7 provides that, for the purposes of the act, an article shall be deemed to be adulterated, in the case of food : Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. Respectfully, J. C. McReynolds. To the Secretary of Agriculture. THE SECRETARIES OF THE TREASURY, AGRICULTURE, AND COMMERCE AND LABOR ARE RESTRICTED TO THE MAKING OF RULES AND REGULATIONS FOR CAR- RYING OUT THE PROVISIONS OF THE FOOD AND DRUGS ACT, AND HAVE NO AUTHORITY TO REVIEW FINDINGS OF FACT AND REPORTS MADE TO THE SEC- RETARY OF AGRICULTURE.1 [494] Department of Justice, July 8, 19m. Sirs : I beg to acknowledge the receipt of your letter of the 14th of May, propounding certain questions which have arisen in the en- forcement of the Food and Drugs Act of June 30, 1906 (34 Stat., 768). You state that the Referee Board of Consulting Scientific Experts of the Department of Agriculture has lately completed an investiga- tion on the use in foods of copper salts, " the results of which inves- tigation show that foods containing copper salts are adulterated under the Food and Drugs Act, and articles greened with copper salts must therefore be refused entry into the United States and ex- cluded from interstate commerce." You then state that doubts have arisen whether the announcement of the conclusions of the board shall be [495] made by the three Secretaries in conformity with the practice which has existed here- tofore, or by the Secretary of Agriculture alone, and I am specifically asked : 1. Are the three Secretaries restricted to the making of rules and regulations, or have they any authority to review findings of fact and reports made to the Secretary of Agriculture? 2. If the findings of fact and reports have been approved, should the three Secretaries participate in the announcement, or does the law contemplate that the announcement shall be made by the Secre- tary of Agriculture alone ? Section 3 of the Food and Drugs Act provides that the three Sec- retaries " shall make uniform rules and regulations for carrying out the provisions of this act." Under the provisions of section 4 the examination of specimens of foods and drugs collected under the rules made by the three Secre- taries is to be made in the Bureau of Chemistry of the Department of Agriculture or under the direction and supervision of that bureau ; if such examination shows a violation of the law, a hearing is given to the party from whom the sample was obtained. Regulation 5 pro- 1 29 Op. Atty. Gen., 494. OPINIONS OF THE ATTORNEYS GENERAL. 803 rides that this hearing may be had before the Secretary of Agricul- ture, or such other official connected with the food and drug inspec- tion service as may be commissioned by him for that purpose. In practice I understand the hearing is had before the Board of Food and Drug Inspection in Washington, or such officer of the Bureau of Chemistry throughout the country as may be most convenient in each case. Under the provisions of sections 4 and 5 of the act. when it is made to appear on such hearing that the law has been violated, the papers are to be certified by the Secretary of Agriculture to the proper officer of this department for prosecution. By section 11, in the case of imports the Secretary of the Treasury is to deliver samples to the Secretary of Agriculture, upon the lat- ter's request, and opportunity for a hearing before the Secretary of Agriculture is to be accorded to the owner or consignee. If it ap- pears from such examination that such articles are adulterated or misbranded, then they are refused admission into this country. [496] It clearly appears from this brief statement that the direct and active enforcement of the statute is cast upon the Department of Agriculture and upon that department alone. The sole duty of the three Secretaries in connection with the law is the making of rules and regulations for carrying out its provisions. With this understanding of the law, I think the answer to your questions is plain. The referee Jboard was established by the Secretary of Agriculture and is a board of his department. By letter to me of March 23, 1909, the Secretary stated that the members of the board are charged with the duty of considering and reporting to him upon the wholesome- ness or the deleterious character of such foods, or articles used in foods, as might be referred to them, their sole function being to investigate and report (27 Op., 300-305). This board has, at the direction of the Secretary of Agriculture, investigated the effect of copper salts as a preservative of foods and has reported that copper salts are an added deleterious ingredient, which may render injurious to health the articles to which added. I understand that in similar investigations made by this board the report has been submitted to the three Secretaries, and, if approved by them, a rule has been promulgated to the effect that the preserva- tive investigated will, or will not, constitute an adulteration, as the case may be. I take it that such rules have been made under a misapprehension of the true meaning of the statute. I understand that the finding of the referee board is not conclusive upon the courts should the ques- tion of the correctness of such finding properly arise in a case. On the contrary, I understand that the report of the referee board is no more than the statement of the board in each case that, in the opinion of the eminent chemists composing it, the use of the preservative in question is, or is not, deleterious to the human system. This report is not binding upon the Secretary of Agriculture, but is simply for his information and guidance. Should he approve the finding of the board, and so announce to the public. I understand that this announcement j~497] is merely a statement that in the sub- sequent examinations of samples of foods collected under the Food and Drug's Act the decision thus made will be followed. To take the 804 FEDERAL POOD AND DRUGS ACT AND DECISIONS. present case as an illustration, it is a statement to the public that the Department of Agriculture regards the addition of copper salts to articles of food as an adulteration and will report all such cases to this department for prosecution. I am, therefore, of the opinion that the three Secretaries are restricted to the making of rules and regulations and have no authority to review findings of fact and reports made to the Secre- tary of Agriculture. Respectfully, George W. Wickersham. The Secretaries of the Treasury, of Agriculture, and of Com- merce and Labor. UNDER THE AMENDMENT OF MARCH 3, 1913, THE TOL- ERANCES TO BE ESTABLISHED BY RULES AND REGU- LATIONS INCLUDE LARGE PACKAGES.1 [222] Department of Justice. August 26, 1913. Sir: Your question submitted to me by your letter of the 11th instant in regard to the amendment of March 3, 1913 (37 Stat. 732), to paragraph third of section 8 of the Food and Drugs Act of June 30, 1906 (34 Stat. 768), is one peculiarly requiring the rule that a construction of a statute shall not stick in the letter, but shall con- form to the true spirit and intent of the act, if that can in any way be gathered from its language. The amended act provides that an article shall be deemed to be misbranded in the case of food : Third. If in package form, the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, meas- ure, or numerical count: Provided, however, That reasonable variations shall [223] be permitted, and tolerances and also exemptions as to small packages shall be established by rules and regulations made in accordance with the pro- visions of section three of this act. It is claimed that owing to the absence of a comma after the words "tolerances" and "packages" the rules and regulations provided for may only establish tolerances and exemptions as to small pack- ages. This construction, however, in my judgment, would not con- form to the plain intent of the act. It is evident that " tolerances " are just as necessary in the case of large packages as in the case of small. Indeed, there would seem to be little room for tolerances in the case of small packages. As to them, exemption would be the natural remedy for the strictness of the act. I therefore read the statute in this wise : Provided, however, That reasonable variations shall be permitted by rules and regulations made in accordance with the provisions of section three of this pet, and tolerances, and also exemptions as to small packages, shall be estab- lished by like rules and regulations. That is, administrative rules are to be promulgated specifically defining (1) reasonable variations, (2) tolerances as to large pack- 1 30 Op. Atty. Gen., 222. OPINIONS OF THE ATTORNEYS GENERAL. 805 ages, (3) exemptions as to small, the line between large and small packages to be determined by the three Secretaries. This view is borne out by the legislative history of the act. The act as originally introduced in the House (H. R. 22526) stated the proviso of the third paragraph as follows (Cong. Rec, 62nd Cong., 2nd Sess., p. 10235) : Provided, hoivever. That reasonable variations shall be permitted, and toler- ances shall be established by rules and regulations made in accordance with the provisions of this act. which shall not in the average reduce the weight, measure, or numerical count below that, marked on said package. This proviso, like that in the approved act, may be construed to provide for rules and regulations as to reasonable variations, and as to tolerances for all packages, large and small, but contains no pro- visions as to exemptions. The Senate amended the proviso in question so as to read as fol- lows (Cong. Rec, 62nd Cong., 3rd Sess., p. 3503) : [224] Provided, however, That the Secretary of Agriculture is authorized to establish rules and regulations permitting reasonable variations where in his judgment exactness is impracticable, and shall keep a record thereof : Provided further, That the provisions of this paragraph shall not apply to articles in packages or containers when the retail price of such articles is six cents or less. The Senate amendment, it will be noted, provides for rules and regulations permitting reasonable variations generally, and expressly exempts small packages, but contains no provision as to tolerances. The conference recommended as a compromise the act in its present form (Cong. Rec, 62nd Cong., 3rd Sess., p. 4559), and the confer- ence reports were agreed to. The differences between the two Houses compromised by the ap- proved act were these. The House wanted rules and regulations as to both reasonable variations and tolerances, but did not desire ex- emptions. The Senate wanted exemptions as to small packages and regulations only as to reasonable variations. The approved act retained the House provision as to regulations for both reasonable variations and tolerances, and modified the Senate provision as to exemptions by making them also the subject of rules and regulations instead of granting them as a matter of law. I have the honor to be, Your obedient servant, J. C. McReynolds. To the Secretary or Agriculture. APPENDIX. LEGISLATIVE HISTORY OF FOOD AND DRUGS ACT. An act for preventing the manufacture, sale, or transportation of adulterated or mis- branded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes. (Food and Drugs Act.) Act of June 30, 1906, c. 3915, 34 Stat. 768. (Fifty-ninth Congress, first session, S. 88.) Page.1 Volume 40, Congressional Record : Part 1— Introduced and referred to Committee on Manufactures 140 Reported back with amendments (S. Rept No. 8) 382 Debated in Senate 892,894-898 Part 2— Debated in Senate I 1129-1135,1173, 1216-1221, 1414-1417, 1754-1755, 1868, 1923 Part 3— Debated in Senate 2054,2643-2668,2719-2736,2747-2773 Amended and passed Senate 2773 Referred to House Committee on Interstate and Foreign Com- merce 2853 Part 4— Reported back with amendments (H. Rept. No. 2118) 3489,3494 Part 5— Motion for special order agreed to 4454,4456 Part 7— Bill made privileged 6464-6469 Part 9— Committee on Rules submits a privileged report 8836 House debates and agrees to resolution 8836-8837 Debated 8889-8915, 8955-8971, 8971-89S0, 8980-9003 Consent to print minority report granted, and report (H. R. No. 2118, pt. 2) printed 8910-8915 Cousent to print opinion of attorney general of the State of New York on pure-food legislation granted and letter printed- 9005-9006 Taken up under special order, debated, and amended 9048-9053, 9053-9067, 9068-9072 Part 10— Debated and passed House 9073-9077 Senate disagrees to House amendments 9099-9100,9111 House insists upon its amendments 9172 Conference appointed 9111, 9172 Conference report (H. Rept. No. 5056) made and submitted in Senate 9379-9381 Conference report made and submitted in House 9417 Conference report withdrawn in Senate 9459 Second conference report (H. Rept. No. 5096) made, debated, and agreed to in Senate 9472-9474.9495,9496,9655 Second conference report (H. Rept. No. 5096) made, debated, and agreed to in House 9735-9740 Reports : Senate report No. 8, 59th Cong., 1st session. House report No. 2118, 59th Cong., 1st session, p. 807, post. House report No. 2118, part 2. (Minority report.) House report No. 5056, 59th Cong., 1st session. House report No. 5096, 59th Cong., 1st session. 1 Page numbers refer to bound volumes of Congressional Record. 806 APPENDIX. 807 PURE FOOD.1 The Committee on Interstate and Foreign Commerce, to whom was referred the bills, H. R. 4527, 7018, 12071, 33859, and S. 88, beg leave to report and recommend that the said House bills be laid on the table. H. R. 4527 is the bill known as the " Hepburn pure-food bill," and is similaf to the bill which was reported to the House on January 18, 1904, and which was passed by the House. Your committee has perfected the Hepburn bill by various amendments and recommends that Senate bill 88 be amended by striking out all after the enacting clause and substituting the Hepburn bill as perfected by the committee. The perfected Hepburn bill, offered as a substitute for the Senate bill, is set forth in full at the end of this report. The bill as recommended for passage proposes to regulate to a certain extent the traffic in drugs and foods in the District of Columbia, in the Territories, and insular possessions, also when imported into the United States or intended for export, and in interstate commerce, under rules and regulations to be made in accordance with the provisions of the bill by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. It forbids the importation, or the shipment from one State to another, or the offering for sale in the District of Columbia and the Territories of articles declared by the act to be adulterated or misbranded. DEFINITIONS. It defines the term " drug " as including all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or animal. It defines the term " food " as including all articles used for food, drink, confectionery, or condiment by man or animal. ADULTERATIONS. It describes what shall be considered under the provisions of the act as adulterations, traffic in which is regulated or forbidden by the act. ADULTERATION IN DRUGS. It prescribes that a drug shall be considered as adulterated if when sold under the standard recognized in the United States Pharmacopoeia or National Formulary it differs from the standard of strength, quality, or purity, as laid down therein, or if its strength or purity differ from any other professed standard or quality under which it is sold. ADULTERATION IN CONFECTIONERY. It prescribes that confectionery shall be deemed adulterated if it contain terra alba, barytes, talc, chrome yellow, or other mineral substance, or poisonous color or flavor, or other ingredient deleterious or detrimental to health. ADULTERATION IN FOOD. It prescribes that food shall be adulterated (including under the term both food, drink, and condiment) : First. If any substance has been mixed and packed with it so as to reduce or injuriously affect its quality or strength. Second. If any substance has been substituted wholly or in part. Third. If any valuable constituent has been abstracted wholly or in part. Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or deleterious ingredient which may render such article injurious to health. i House of Representatives, report No. 2118, 59th Cong., 1st sess to accompany S. 88. This is the report of the majority of the committee. The minority report is not included in this compilation. 808 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, or if it is the product of a diseased animal or one that has died otherwise than by slaughter. MISBRANDED. It provides that articles covered by the act shall be deemed " misbranded " when the package or label shall bear any statement regarding the ingredients which shall be false or misleading in any particular, or which shall falsely state the State, Territory, or country where manufactured or produced. It further provides that a drug shall be deemed " misbranded " if it be an im- itation of or offered for sale under the name of another article; or if the contents of the original package shall have been removed in whole or in part and other contents placed in the package; or if it fail to bear a statement on the label of the quantity or proportion of alcohol therein, or of any opium, cocaine, or other poisonous substance therein. It provides that a food (or drink) shall be deemed misbranded: First. If it be an imitation of, or offered for sale under the distinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser or falsely purport to be a foreign product. Third. If in package form the quantity of the contents of the package be not plainly and correctly stated in terms of weight or measure on the outside of the package. Fourth. If the package containing it, or its label, shall bear any false or mis- leading statement, design, or device regarding the ingredients. WHEN NOT ADULTERATED OR MISBRANDED. It is provided, however, that an article of food shall not be considered adul- terated or misbranded if it does not contain any added poisonous or deleterious ingredients in the following cases : First. In the case of mixtures or compounds, known as articles of food under their own distinctive names and not an imitation of or offered for sale under the distinctive name of another article, provided the label or brand shall con- tain a statement where the article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged, so as to plainly indicate that they are compounds, imitations, or blends. And in this connec- tion the bill describes the word " blend " as used therein to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients. It is further provided that manufacturers of proprietary articles which contain no unwholesome added ingredient shall not be required to disclose their trade formulas except in so far as may be necessary to prevent adulteration or mis- branding. PROTECTION FOR RETAIL DEALERS. As the principal purpose of the bill is to prevent interstate and foreign com- merce in adulterated or falsely branded articles of food, drink, and medicine, the committee has inserted in the bill a provision intended to protect all per- sons dealing in the articles subsequent to the manufacturer or importing agent. Section 8 of the bill provides that no dealer shall be convicted when he is able to prove a guaranty of conformity with the provisions of the act signed by the manufacturer or the party from whom he purchased. The section requires that the guarantor shall reside within the United States and that the guaranty shall contain his full name and address. In other sections of the bill there are provisions for collecting samples or specimens and the examination of such in order to determine whether they are adulterated or misbrande'1, and the bill provides that any party from wbom a sample was obtained shall be given an opportunity to be heard before the Secretary of Agriculture shall certify to the United States district attorney the results of an examination of the article as the basis for prosecution ; so that if samples of goods shall be taken from a retail or wholesale dealer who has received a guaranty of conformity with the provisions of the act from the person who sold to him, he will be relieved from prosecution, and any penalty which may attach under the act will be directed to the original guarantor. APPENDIX. 809 These carefully prepared provisions of the bill will prevent any dealer being put to the expense of a prosecution where he takes the precaution to protecl himself by requiring a guaranty. STANDARDS OF FOOD. We realize that it is not possible for Congress to determine the wholesonie- ness or unwholesomeness of each food product, or to fix by legislative act the standard which sball be accepted as complying with well-known names of food articles. We realize that in the end the determination of the standard of a food article under a given name may be one to be settled by the courts. It is, however, essential to the success and operation of any pure-food measure that standards of food products shall be arrived at for the guidance of the officials charged with the administration of the law and often for the information of the courts. One of the principal objects of a national pure-food law is to obtain uni- formity of food standards among the States, which are supreme within their own borders. The intention of the makers of the Constitution and the founders of the Republic that commerce between the States should be free and un- hampered has been largely nullified as to food products by the varying require- ments as to standards and labels in different States. In one State one standard may be required for a named article and in the adjoining State a different standard fixed; and where the same standard is agreed upon in a group of States for precisely the same article different labels may be required in each of them, so that the producer or manufacturer is compelled to not only have com- plete knowledge of the various State laws, but under penalty is required to carefully see to it that a package of goods intended to meet the requirements of one State shall not by error be sent into another State. This has a tendency to prevent the development of small jobbing and wholesale cities, because the small jobber perhaps can not well afford to carry in stock what in fact is the same article properly labeled for a number of different States surrounding him. It is therefore provided in the bill that the Secretary of Agriculture shall fix the standard of food products when advisable, and that to aid him in reaching just decisions he is authorized to call upon the committee on food standards of the Association of Official Agricultural Chemists and the committee of stand- ards of the Association of State Dairy and Food Departments, and such other experts as he may deem necessary. PEESEEVATIVES. The use of preservatives in some form and to some extent has become well- nigh universal in our country as to certain classes of food products. It is con- tended by some that preservatives are injurious and unwholesome; by others that in small quantities they are harmless and necessary for proper prepara- tion of food articles. It is contended by some that a preservative, when intro- duced into the human system, requires an extra and unusual amount of work on the part of the organs of the body to get rid of it, and that though a pre- servative in very small quantities may seem harmless, that, in fact, to the extent to which it exists, it is to a degree injurious to the system in the long run. It is, of course, admitted that food must be preserved in some manner, and it is generally admitted that if food can not be preserved in any other manner than by the addition of small quantities of preservatives, such as boric acid, salicylic acid, benzoic acid, or similar substances, that it is better for mankind to suffer the injury caused by the preservative rather than to do without food which has been kept for a time. Some claim that food can be preserved in sufficient quantities and for a sufficient length of time without the use of these artificial preservatives. Others claim that these preservatives are essential to the manufacture, keep- ing, and use of many articles of food. The question is one of tremendous im- portance. On the one hand, it affects the health of the whole community : on the other hand, it may determine the continuance of great business enterprises. No one desires to injuriously affect the health of the community in order to benefit a manufacturing interest, and no one desires to injure the manufactur- ing interest by forbidding the use of a preservative unless that preservative, in the amount used, is in fact injurious to the public health. 810 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Your committee has not undertaken to determine the wholesomeness of preservatives. By the bill it is provided that before the Secretary of Agri- culture shall make decision concerning the wholesomeness or unwholesomeness of a preservative or other substance which may be added to foods, any person interested may ask for the appointment of a special board for the purpose of considering the matter and advising the Secretary of Agriculture. It is pro- vided that this board shall consist of 1 toxicologist, 1 physiological chemist, 1 bacteriologist, 1 pathologist, and 1 pharmacologist. POLICE POWERS OF THE STATE NOT INTERFERED WITH. It is expressly provided by the bill that it shall not be construed to interfere with commerce wholly internal in any State nor with the exercise of the police powers of the States, but foods and drugs fully complying with all the pro- visions of the act shall not be interfered with by the State authorities when brought from another State so long as they remain in original unbroken pack- ages, except as may be otherwise defined by law or provided by the statutes of the United States. NECESSITY FOR NATIONAL PURE-FOOD LAW. The necessity for pure-food laws is apparent to everyone. Many of the States have endeavored to meet this necessity, so far as rhey can, within their own respective borders, but the several States have proven unable to fully deal with the matter when affected by interstate commerce in adulterated and misbranded articles. It is essential that there be some national legislation as an aid to State legislation against impure foods and drugs. Then, again, the laws and regulations of the different States are diverse, confusing, and often contradic- tory. What one State now requires the adjoining State may forbid. Our food products are not raised principally in the States of their consumption. State boundary lines are unknown in our commerce, except by reason of local regulations and laws, such as State pure-food laws. It is desirable, as far as possible, that the commerce between the States be unhindered. One of the hoped-for good results of a national law on the subject of pure foods is the bringing about of a uniformity of laws and regulations on the part of the States within their own several borders. It is believed that the fixing of food standards through the aid, in part, of the State food officials in collaboration with the Agricultural Department will have the happy result of final uniform food standards and regulations in the different States. VARIOUS BILLS INTRODUCED IN CONGRESS. Legislation regarding interstate commerce in foods has been constantly before the Congress of the United States for about eighteen years. Senate bill No. 3991, introduced June 3, 1890, by Mr. Paddock, passed the Senate about fourteen years ago. Since then the following pure-food bills have been introduced in the Senate and the House : SENATE BILLS. No. Date. Introduced by — No. Date. Introduced by — 3991 June 3, 1890 Mr. Paddock. 3796 Mar. 26,1900 Mr. Jones. 1 Dec. 10,1891 Do. 4047 Apr. 6, 1900 Mr. Foster. 1488 Jan. 11,1892 Mr. Hiscock. 2426 Jan. 15,1900 Mr. Mason. 2984 Apr. 22,1892 Mr. Wilson. 5262 Dec. 18,1900 Do. 3796 Jan. 30,1893 Mr. Faulkner. 1347 Dec. 9,1901 Do. 471 Mar. 18,1897 Mr. Gallinger. 3015 Jan. 20,1902 Do. 4015 Mar. 2,1898 Mr. Faulkner. 2987 do Mr. Cullom. 4144 Mar. 16,1898 Do. 3240 Jan. 27,1902 Mr. Depew. 5375 Jan. 27,1899 Mr. Thurston. 3342 Jan. 29,1902 Mr. Hansbrough. 2048 Jan. 3,1900 Mr. Allen. 6303 June 28,1902 Mr. McCumber. 2049 do Do. 198 Nov. 11,1903 Do. 2050 do Do. 88 Dec. 6, 1905 Mr. Heyburn. 2222 Jan. 8, 1900 Mr. Hansbrough. 3623 Jan. 24,1906 Mr. Hopkins. 3618 Mar. 15,1900 Mr. Proctor. APPENDIX. HOUSE BILLS 811 No. Date. Introduced by — No. Date. Introduced by-^ 283 Dec. 18, 1889 Mr. Conger. 276 Dec. 2, 1901 Mr. Sherman. 11297 July 8, 1890 Mr. Turner of Kansas. 3109 Dec. 6,1901 Mr. Hepburn. 109 Jan. 5, 1892 Mr. Holman. 4342 Dec. 10,1901 Mr. Kahn. 4438 Jan. 21, 1892 Mr. Smith of Illinois. 9351 Jan. 18,1902 Mr. Warner. 8603 May 6, 1892 Mr. Meredith. 9352 Jan. 18,1902 Mr. Mann. 11490 Jan. 9,1899 Mr. Grout. 9960 Jan. 23,1902 Mr. Sherman. 4618 Dec. 18, 1899 Mr. Babcock. 12348 Mar. 10,1902 Mr. Corliss. 6442 Jan. 16, 1900 Mr. Glynn. 5077 Nov. 27,1903 Mr. Hepburn. 7667 Jan. 30, 1900 Mr. Sherman. 6295 Dec. 8,1903 Do. 5441 Dec. 18, 1897 Mr. Brosius. 6295 Jan. 21,1904 Do. 9154 Mar. 15,1898 Do. 4527 Dec. 6,1905 Do. 2561 Dec. 7, 1891 Do. 7018 Dec. 13,1905 Mr. Davidson. 6246 Jan. 15,1900 Do. 12071 Jan. 16,1906 Mr. Lorimer. 9677 12973 Mar. Dec. 16, 1900 19, 1900 Do. Do. 13859 Feb. 2, 1906 Mr. Rodenburg. PURE FOODS. The purpose of the pending measure is not to compel people to consume par- ticular kinds of foods. It is not to compel manufacturers to produce particular kinds or grades of food. One of the principal objects of the bill is to prohibit in the manufacture of foods intended for interstate commerce the addition of foreign substances poisonous or deleterious to health. The bill does not relate to any natural constituents of food products which are placed in the foods by nature itself. It is well known that in many kinds of foods in their natural state some quantity of poisonous or deleterious ingredients exist. How far these substances may be deleterious to health when the food articles containing them are consumed may be a subject of dispute between the scientists, but the bill reported does not in any way consider that question. If, however, poison- ous or deleterious substances are added by man to the food product, then the bill declares the article to be adulterated and forbids interstate traffic. The question whether certain substances are poisonous or deleterious to health the bill does not undertake to determine, but leaves that to the determi- nation of the Secretary of Agriculture under the guidance of proper disinter- ested scientific authorities, after most careful study, examination, experiment, and thorough search. While the provisions of the bill forbid the adulteration of food products, they also attempt to give a measure of protection to the consumer by forbidding interstate traffic in falsely labeled or branded articles. The theory of the bill is that the consumer of food products is entitled to consume whatever he may wish, but that he is also entitled, when he purchases an article purporting to be one thing, not to be cheated by having some inferior or different article passed off on him. The basis of the bill is to require at least a fair degree of honest dealing. From a careful study of the data which have been considered by the com- mittee through extensive hearings in this and former Congresses, it is certain that there is an immense amount of deception, fraud, and deliberate swindling practiced by the misbranding of food products. False and misleading claims are often found attached as a part of the label to food products. False state- ments of origin or of the country in which the substance is produced are often found. Where a particular State or locality has managed to build up a repu- tation for its products and thereby enhance their market value, it has become a somewhat common practice for manufacturers in other sections of the country to steal the name of the favored State or locality and thereby endeavor to steal the benefit of an enhanced price. This is unfair, both to the consumer and to the locality or State which is named. The pending measure forbids the entry into interstate commerce of such fraudulent labels and misleading descriptions. Under the term "food" has been included not only ordinary foods, but also drinks, confectionery, and condiments. It has been shown by the researches of distinguished physiological chemists that beverages generally contain food products which, by their oxidation, furnish heat and energy, and also in many cases upbuild tissues and restore waste. Therefore, a food in liquor form may be considered from the same standpoint as any other food. Condiments are essential to modern food consumption and are, therefore, very properly included under the class of foods. 812 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. HONEST TEADE NEED NOT FEAR ITS PROVISIONS. The penalties of the bill are aimed at cheats. That which is forbidden is the sale of goods under false pretenses, or the sale of poisonous articles as good food. No honest dealer need fear any provision in the bill. Legitimate trade should welcome its enactment into law. Only those wishing to deceive the public will object to its provisions. It simply requires honesty of labeling and the exclusion of injurious added products. He who wishes to sell 14 ounces as a pound, or to sell a cheap-trade article with a high-grade label at the price of the latter quality will denounce the bill as an invasion of the rights of trade, as an interference with the freedom of commerce, as an outrage upon the prop- erty rights of men. In the competition of modern business life it becomes necessary to give some protection to the legitimate manufacturer and dealer as against his dishonest and unscrupulous rival who unfairly competes with imitations and spurious articles of poor quality. Adulteration of food of a harmful character has become prevalent to an alarming extent and, inspired by the cupidity of dishonest men, these adul- terations are rapidly increasing, so that in many classes of foods it is difficult to obtain a pure article. We believe everyone recognizes the necessity of governmental regulations to prevent the sale of adulterated, poisonous, or other injurious food products. The sand with which our forefathers are reputed to have adulterated their sugar, while a fraud upon the purchaser, was doubtless comparatively harm- less. The adulterations of the present day are neither so clumsy nor, as a rule, so harmless. The ingenuity of man has been busy during the last half century in devising new forms of machinery, new methods of commercial enterprise, new ideas and new things in every branch a-nd walk of life, including, new processes of cheapening the cost of the production of articles of food, drink, and drug by the use of mixtures, adulterants, and preservatives. In so far as these are harmless and are not used as a fraud upon the pur- chaser or user they may be of great benefit, but the ingenuity of man in pro- viding either the adulteration or the preservation of food products by the use of substances which are injurious and harmful to the human system must be met by governmental restraint. The varieties of adulterations are so numerous and so different in character that it is impossible to refer to them here even by general classes. Almost every known article of good food has to compete in the market with a similar article which has been adulterated in some form or its apparent freshness maintained by the use of a preservative. The proposed bill is not the suggestion of a moment. It does not represent the opinion of a mere individual. It is the outgrowth of the agitation of many years and represents the suggestions, criticisms, propositions, and efforts of many minds. It is tbe epitome of the best thought on the subject in our land to-day. The main provisions of the substitute Hepburn bill, which we now recommend for passage, have been at different times favorably acted upon by both House and Senate. They have been approved by three successive national pure-food congresses and by many scientific bodies, sanitary congresses, and medical and business associations throughout the United States. We do not presume that the legislation we suggest will be found perfect. We do not doubt that in some respects it will be ineffective. In some particulars the bill may not go far enough and in others it may go too far. But whatever may be its merits or defects it represents the earnest thought and work of your com- mittee. It was not drawn to aid any special interests. It has not been framed by, or at the behest of, any class of trade which will be specially benefited thereby. It is not designed for the purpose of specially protecting one legitimate interest or of injuring another legitimate interest. The committee has steered clear of those special interests, some of which desire provisions in the bill which would aid them, and some of which desire provisions in the bill which would injure their business rivals. Nothing has been written into the bill either by greed or envy. The bill is what it purports to be, a measure in the interest of honest dealing and wholesome foods. OFFICIALS TO CARRY OUT THE LAW. The bill provides that the law shall be carried out under uniform rules and regulations to be made by the Secretaries of the three departments, to wit : Treasury, Agriculture, and Commerce and Labor. It is not designed to APPENDIX. 813 add a vast number of employees to the Government service. If the bill becomes a law no additional employees can be added except as may be authorized by appropriations hereafter made by Congress. Nor will there be any consider- able number of employees required in any event. The officials of the National Government having charge of the enforcement of the law will cooperate with the State food, dairy, and drug officials. The prosecutions which will be commenced by the national authorities will ue mainly directed against the manufacturers of food products ; or, if it be impossible to find the manufacturer, against the jobbers and wholesale dealers. If the State officials cooperate, they will call the attention of the national authorities to the existence of adulterated and misbranded articles within the estate borders. These articles will be examined under the direction of the .Bureau of Chemistry ; and if found contrary to the provisions of the act, then prosecutions will be commenced against the manufacturer, who will be known by his guaranty. There will be no occasion for many officials in the employ of che Government and no occasion for great expense. It is not proposed by the bill to interfere in any way with the power of the .state officials over local trade, but the purpose of the bill is to give to State officials the aid of the National Government and to receive from the State officials their aid in the enforcement of the national law. The passage of this bill is in the interest of protecting the weak from the powerful, the poor consumer from the rich manufacturer. The laboring man or artisan, who knows his own trade, but who may not ue an expert in the quality of foods or their imitations or adulterations, is entitled to the protection of the State to the extent that when he purchases «*n article for the consumption of his family he receives what he pays for, and further, to know that the food which he buys and eats shall give him strength and vigor instead of containing some harmful substance or poison which, in the end, breaks down his health. What is true of such a mm is true of all the rest of us. The public is entitled to protect itself against those who would cheat and defraud it in those necessaries of life where one can not tell the spurious from the genuine, either by casual examination or by consumption. We think it is the duty of the State to give to the public the measure of protection offered by the provisions of the bill which we have recommended for passage. COMMITTEE AMENDMENT. Amend the bill by striking out all after the enacting clause and inserting in place thereof as a substitute the following : That the introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Ter- ritory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, or who, having received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or mis- branded within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dol- lars or be imprisoned not exceeding one year, or both, in the discretion of the court : Provided, however, That no person shall be liable to the penalty of imprisonment as provided herein unless he knowingly committed the offense charged : Provided further, That no article shall be deemed misbranded or adulterated within the provisions of this act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the prepara- tion or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped ; but if said article shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall 814 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. not exempt said article from the operation of all the other provisions of this act. Sec. 2. That the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor shall make uniform rules and regu- lations for carrying out the provisions of this act, including the collection and examination of specimens of foods and drugs manufactured or offered for sale in the District of Columbia or in any Territory of the United States, or which shall be offered for sale in unbroken packages in any State other than that in which they shall have been respectively manufactured or produced, or wbich shall be received from any foreign country, or intended for shipment to any foreign country, or which may be submitted for examination by the chief health, food, or drug officer of any State, Territory, or the District of Columbia, or at any domestic or foreign port through which such product is offered for interstate commerce, or for export or import between the United States and any foreign port or country. Sec. 3. That the examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such bureau, for the purpose of determining from such examinations whether such articles are adulterated or misbranded within the meaning of this act ; and if it shall appear from any such examination that any of such specimens is adulterated or misbranded within the meaning of this act the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained. Any party so notified shall be given an opportunity to be heard, under such rules and regulations as may be prescribed as aforesaid, and if it appears that any of the provisions of this act have been violated by sucb party, then the Secretary of Agriculture shall at once certify the facts to the proper United States district attorney, with a copy of the results of the analysis or the examination of such article, duly authenticated by the analyst or officer making such examination, under the oath of such officer. After judgment of the court notice shall be given by publication in such manner as may be prescribed by the rules and regulations aforesaid. Sec. 4. That it shall be the duty of each district attorney to whom the Sec- retary of Agriculture shall report any violation of this act, or to whom any health or food or drug officer or agent of any State, Territory, or the District of Columbia shall present satisfactory evidence of any such violation, to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States, without delay, for the enforcement of the penalties as in such case herein provided. Sec. 5. Tbat the term " drug," as used in this act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of sub- stances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals. The term " food," as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound. Sec. 6. That for the purposes of this act an article shall be deemed to be adul- terated— In case of drugs: First. If, when a drug is sold under the standard recognized in the United States Pharmacopoeia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of the investi- gation. Second. If its strength or purity differ from any other professed standard or Quality under which it is sold. In the case of confectionery : If it contain terra alba, barytes, talc, chrome yellow, or other mineral sub- stance or poisonous color or flavor, or other ingredient deleterious or detri- mental to health. In the ca se of food : First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. Second. If any substance has been substituted wholly or in part for the article. Third. If any valuable constituent of the article has been wholly or in part abstracted. APPENDIX. 815 Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Fifth. If it contain any added poisonous or other added deleterious ingredient Which may render such article injurious to health : Provided, That when in the preparation of food products for shipment they are preserved by an external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise, the provisions of this act shall be construed as applying only when said products are ready for con~- sumption. Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not. or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. Sec. 7. That the term " misbranded," as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the pack- age or label of which shall bear any statement regarding the ingredients or sub- stances contained in such article, which statement shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced. That for the purposes of this act an article shall also be deemed to be misbranded : In case of drugs — First. If it be an imitation of or offered for sale under the name of another article. Second. If the contents of the original package shall have been removed, in whole or in part, and other contents shall have been placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any alcohol therein,' or of any opium, cocaine, or other poisonous substance which may be contained therein. In the case of food — First. If it be an imitation of or offered for sale under the distinctive name of another article. Second. If it be labeled or branded so as to deceive or mislead the purchaser, or purport to be a foreign product when not so. Third. If in package form, the quantity of the contents of the package be not plainly and correctly stated in terms of weight or measure, on the outside of the package. Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular : Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a state- ment of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends : Provided, That the term blend as used herein shall be construed to mean a mixture of like substances not excluding harmless coloring or flavoring ingredients : And provided further, That nothing in this act shall be construed as requiring 01 compelling pro- prietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in so far as the pro- visions of this' act may require to secure freedom from adulteration or misbranding. Sec. 8. That no dealer shall be convicted under the provisions of this act when he is able to proAre a guaranty of conformity with the provisions of this act in form approved by the rules and regulations herein provided for, signed by the manufacturer or the party or parties from whom he purchased said articles: Provided, That said guarantor resides within the United States. Said guaranty shall contain the full name and address of the guarantor making the sale to the dealer, and said guarantor shall be amenable to the prosecutions, fines, and other penalties which would otherwise attach in due course to the dealer under the provisions of this act. 816 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Sec. 9. That it shall be the duty of the Secretary of Agriculture to fix stand- ards of food products when advisable for the guidance of the officials charged with the administration of food laws and for the information of the courts, and to determine the wholesomeness or unwholesomeness of preservatives and other substances which are or may be added to foods; and to aid him in reach- ing just decisions in such matters he is authorized to call upon the committee on food standards of the Association of Official Agricultural Chemists, and the committee of standards of the Association of State Dairy and Food departments, and such other experts as he may deem necessary. And upon request made to the Secretary of Agriculture prior to reaching any decision as provided for in this section, by any manufacturer or other person interested, asking for the appointment of a board to determine the wholesomeness or unwholesomeness of any preservative or other substance which is or may be added to foods, and concerning the use of which the person making the request has an interest, it shall be the duty of the Secretary of Agriculture to appoint a board of dis- interested experts, which board shall consist of five members, one of whom shall be an expert toxicologist, one an expert physiological chemist, one an expert bacteriologist, one an expert pathologist, and one an expert pharmacologist, which board shall meet at the city of Washington, D. C, or elsewhere, at the call of the Secretary of Agriculture, and pass upon such question after proper notice and hearing granted to the person making such request. The compensa- tion of the members of such board shall be fixed by the Secretary of Agriculture. Sec. 10. That every person who manufactures or produces for shipment and delivers for transportation within the District of Columbia or any Territory, or who manufactures or produces for shipment or delivers for transportation from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any drug or article of food, and every person who exposes for sale or delivers to a purchaser in the District of Columbia or any Territory any drug or article of food manu- factured or produced within said District of Columbia or any Territory, or who exposes for sale or delivers for shipment any drug or article of food received from a State, Territory, or the District of Columbia other than the State, Territory, or the District of Columbia in which he exposes for sale or delivers such drug or article of food, or from any foreign country, shall furnish within business hours and upon tender and full payment of the selling price a sample of such drug or article of food to any person duly authorized by the rules and regulations herein provided for to receive the same, and who shall apply to such manufacturer, producer, or vendor, or person delivering to a purchaser, such drug or article of food, for such sample for such use, in suffi- cient quantity for the analysis of any such drug or article of food in his possession. Sec. 11. That any manufacturer, producer, or dealer who refuses to comply, upon demand, with the requirements of section ten of this act shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding one hundred dollars, or imprisoned not exceeding one hundred days, or both. And any person found guilty of manufacturing or offering for sale, or selling, an adulterated or misbranded article of food or drug in violation of the provisions of this act may, in the discretion of the court, be adjudged to pay, in addition to the penal- ties hereinbefore provided for, all the necessary costs and expenses incurred in inspecting and analyzing such adulterated articles which said person may have been found guilty of manufacturing, selling, or offering for sale. Sec 12. That this act shall not be construed to interfere with commerce wholly internal in any State, nor with the exercise of their police powers by the several States ; but foods and drugs fully complying with all the provisions of this act shall not be interfered with by the authorities of the several States when transported from one State to another so long as they remain in original unbroken packages, except as may be otherwise defined by law or provided by statutes of the United States. Sec. 13. Tbat any article of food or drug that is adulterated or misbranded within the meaning of this act, and is transported or being transported from one State to another for sale, or if it be sold or offered for sale in the District of Columbia or any Territory of the United States, or if it be imported from a foreign country for sale, or if intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States, within the district where the same is found, and seized by a process of libel for condemnation. And if such article is condemned as being adulterated or misbranded, within the meaning of this act, the same shall be disposed of as APPENDIX. 817 the said court may direct, and the proceeds thereof, if sold, less the legal costs and charges, shall be paid into the Treasury of the United States, but such goods shall not be sold in any State contrary to the laws of that State. Tbe proceedings of such libel cases shall conform as near as may be to proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in such case; and all such proceedings shall be at the suit of and in the nafhe of the United States. Sec. 14. That the Secretary of Agriculture is authorized to investigate the character and extent of the adulteration of foods and drugs, and whenever he has reason to believe that articles are being imported from foreign countries which by reason of such adulteration are dangerous, to the health of the people of the United States, or are of kinds which are forbidden entry into or forbid- den to be sold or restricted in sale in the countries in which they are made or from which they are exported, or which shall be falsely labeled in any respect, either by the omission of the name of any added ingredient or otherwise, or in regard to the place of manufacture, or the contents of the package, shall make a request upon the Secretary of the Treasury for samples from original pack- ages of such articles for inspection and analysis; and the Secretary of the Treasury is hereby authorized to open such original packages and deliver specimens to the Secretary of Agriculture for the purpose mentioned, giving due notice to the owner or consignee of such articles, who may appear before the Secretary of Agriculture and have the right to introduce testimony ; and the Secretary of the Treasury shall refuse delivery to the consignee of any of such goods which the Secretary of Agriculture reports to him have been inspected and analyzed and found to be any of the kinds mentioned in this section : Provided, That the Secretary of the Treasury may deliver to the consignee such goods, pending examination and decision in the matter, on execution of a penal bond of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for other purposes, said consignee shall forfeit the full amount covered by the bond. Sec. 15. That the term " territory " as used in this act shall include the -insular possessions of the United States. Sec. 16. That this act shall be in force and effect from and after its passage: Provided, however, That no penalties herein named shall be imposed until after the expiration of one year from the passage of the act. LEGISLATIVE HISTORY OF THE SHERLEY AMENDMENT. An Act To amend section 8 of the Food and Drugs Act, approved June 30, 1906. , Page. Message of President Taft, dated June 20, 1911, recommending amend- ment of the Food and Drugs Act so as to make it applicable to false and misleading statements borne on the packages and labels of drug prod- ucts relative to their therapeutic or curative value (H. Doc. 75). Cong. Rec, 62d Cong., 1st sess 2379-23S0, 2434 Message of the President ordered printed and referred to the Committee on Interstate and Foreign Commerce of the House, and Senate Com- mittee on Manufactures. Cong. Rec, 62d Cong., 1st sess., June 21, 1911 2380,2434 Bill (H. R. 11877) to amend section 8 of the Food and Drugs Act, ap- proved June 30, 1906, introduced and referred to the Committee on Interstate and Foreign Commerce. Cong. Rec, 62d Cong., 1st sess., June 20, 1911 2362 Reported back without amendment, accompanied by a report (No. 1138), and referred to the House Calendar. Cong. Rec, 62d Cong.. 2d sess., Aug. 5, 1912 10257 Debated, amended, and passed by the House August 19, 1912. Cong. Rec, 62d Cong., 2d sess. (see also Appendix, p. 675) 11322-11323 Debated and passed by the Senate August 20, 1912. Cong. Rec, 62d Cong., 2d sess 11352 Approved (Public, No. 301) August 23, 1912. Cong. Rec, 62d Cong., 2d sess_____ 11744,11853 Reports : Message of the President, H. Doc. 75, 62d Cong., 1st sess. House Report, No. 1138, 62d Cong., 2d sess. 40066—14 52 818 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. LEGISLATIVE HISTORY OF THE GOULD AMENDMENT. An Act To amend section 8 of the Food and Drugs Act, approved June 30, 1906. Page. Bill (H. R. 22526) introduced March 28, 1912, and referred to the Com- mittee on Interstate and Foreign Commerce. Cong. Rec, 62d Cong., 2d sess 3981 Reported hack with amendment June 7, 1912, accompanied by a report (No. 850), and referred to the House Calendar. Cong. Rec, 62d Cong., 2d sess ,___ 7833-7834 Debated, amended, and passed by the House August 5, 1912. Cong. Rec, 62d Cong., 2d sess 10235-10236 Bill (H. R. 22526) read twice by its title- in Senate and referred to the Committee on Manufactures August 6, 1912. Cong. Rec, 62d Cong., 2d sess ' 10264-10265 Reported back February 17, 1913, with amendments, accompanied by a report (No. 1216). Cong. Rec, 62d Cong., 3d sess 2273-2274 Debated, amended, and rassed by the Senate February 20, 1913. Cong. Rec, 62d Cong., 3d sess 3503 House disagrees to Senate amendments and asks for a conference Feb- rurary 21, 1913. Conferees appointed. Cong. Rec, 62d Cong., 3d sess 3618 Senate insists on its amendments and agrees to conference February 24, 1913. Conferees appointed. Cong. Rec, 62d Cong., 3d sess 3762 Conference report (No. 1579) made and agreed to in the House February 26, 1913. Cong. Rec, 62d Cong.. 3d sess 4123 Vote on conference report reconsidered in the House and conference re- port withdrawn February 27, 1913. Cong. Rec, 62d Cong., 3d sess 4256 Conference report made, debated, and agreed to in Senate February 28, 1913. Cong. Rec, 62d Cong., 3d sess 4286, 42S7, 4299-4301 Conference report (No. 1606) made and agreed to in the House March 1, 1913. Cong. Rec, 62d Cong., 3d sess _ 4559 Presented to the President for approval March 2, 1913. Cong. Rec, 62d Cong., 3d sess 4635 Approved March 3, 1913 (Public, No. 419) 4854" Reports : House Report 850, 62d Cong., 2d sess. Senate Report 1216, 62d Cong., 2d sess. Conference Report 1579, 62d Cong., 2d sess. Conference Report 1606, 62d Cong., 3d sess. REPORT OF THE SOLICITOR GENERAL TO THE PRESIDENT UPON CERTAIN QUESTIONS SUBMITTED TO HIM CONCERNING THE MEAN- ING OF THE TERM " WHISKY "} [1] Department of Justice, May 2Jh 1909. The President. Sir : Pursuant to the Executive Order made by the President of the United States on April 8, 1909, which reads : A number of distillers and importers of spirits and whisky, represented by Lawrence Maxwell, Esq., Hon. Joseph H. Choate, Alfred Lucking, Warwick M. Hough, and Hon. W. W. Armstrong, having appealed to the President for a hearing with respect to the order issued by the Commissioner of Internal Revenue, known as Order No. 723, pursuant to the rules and regulations for the enforcement of the Food and Drugs Act and Food Inspection Decision No. 65, promulgated and made by the Secretary of Agriculture under date of May 14, 1908, claiming that the provisions of said order are in violation of the terms of the said act in that they require to be branded as imitations or com- pounds, or otherwise, whiskies which have well-settled names in the trade, and which it was not the intention of Congress by the said Food and Drugs Act to require to be described by any other designation ; and certain distillers of whisky having appeared by Edmund W. Taylor and the Hon. John G. Carlisle, !See F. I. D. 45, 05, 95, 98, 113, 118, and 127, pp. 36, 51, 110, 113, 129, 133, and 139, ante; also Opinions of the Attorneys General, pp. 775. 783, and 797, ante; and Decision of the President, p. 831, post, on the labeling of whiskies. APPENDIX. 819 after consideration the matter is hereby referred to Hon. Lloyd W. Bowers, Solicitor General of the [2] United States, to take testimony and report to the President his opinion upon the following points, namely: I. What was the article called whisky as known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure food law? II. What did the term whisky include? III. Was there included in the term whisky any maximum or minimum of congeneric substances as necessary in order that distilled spirits should be properly designated whisky? TV. Was there any abuse in the application of the term whisky to articles not properly falling within the definition of that term at and prior to the pas- sage of the pure food law, which it was the intention of Congress to correct by the provisions of that act? V. Is the term whisky as a drug applicable to a different product than whisky as a beverage? If so, in what particulars? The Solicitor General will from time to time determine the extent and char- acter of the [3] hearing and will report with his opinion the evidence taken by him pursuant hereto. Wm. H. Taet. AprTl 8, 1909. I have the honor respectfully to report as follows : At the beginning of the hearings on April 8, 1909, appearances were made before me by Hon. Joseph H. Choate and Alfred Lucking, Esq., on behalf of Hiram Walker & Sons, manufacturers ; Lawrence Maxwell, Jr., Esq., and Warwick M. Hough, Esq., on behalf of rectifying distillers and blanders and eastern rye distillers; Hon. John G. Carlisle and Edmund W. Taylor, Esq., on behalf of various whisky distillers ; and William W. Armstrong, Esq., on behalf of Duffy's Malt Whisky Company. On May 15, 1909, appearance was made before me by J. D. Rouse, Esq., on behalf of the Louisiana Distillery Company. On April S, 1909, preliminary statements were made, but no evidence was taken. On April 17, 1909, the taking of evidence began, and it continued from day to day (except Sundays) through May 1, 1909. On May 7 and 8, 1909, final arguments were made by the parties appearing as above stated on April 8, 1909. On May 15, 1909, evidence was taken at the instance of the parties appearing on that day, and argument also was then made for those parties. [4] TESTIMONY AND ARGUMENT. The oral testimony taken before me comprises 2,365 pages, contained in 17 separate books, numbered 1 to 16 consecutively, and also 19; each labeled upon its cover " Use of the Term Whisky. Before the Solicitor General," over my signature, A voluminous mass of documentary evidence also was submitted to me. The final arguments of counsel, made on May 7, 1909, and May 8, 1909, are found in books numbered 17 and 18 and labeled and signed by me like the books of testimony. The arguments for the parties appearing before me on May 15, 1909, are contained in book 19, above mentioned, on pages 2721-2742. All the testimony and documentary evidence offered before me and the argu- ments made before me accompany, and are submitted as part of, this report. ANSWERS TO THE SEVERAL QUESTIONS STATED IN THE ORDER OF THE PRESIDENT. The first question is : I. What was the article called whisky as known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure food law? My opinion upon, and answer to, this question is : (1) The article called whisky as known to the manufacturers at and prior to the date of the passage of the pure food law was — [5] (a) What is often spoken of as " straight whisky," made from grain. (6) Also, what is often spoken of as "rectified whisky." made from grain, when not a mere neutral spirit, as described in section (d), below, of the answers to this question I. 820 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II. (d) Also, neutral spirit — being a distillate from grain, which lacks a sub- stantial amount of by-products (other than alcohol) derived by distillation from grain and giving distinctive flavor and properties — when, but only when, colored and flavored and sold by the manufacturer to a retailer; but the purchasing retailer in such case seldom knew that in fact he was getting neutral spirit, col- ored and flavored. Such neutral spirit made from grain was not known to the manufacturer as whisky in the dealings of distillers with rectifiers ; and I do not consider that it is proved to have been known as whisky in the dealings of distillers or rectifiers with wholesalers. A neutral spirit made from molasses, potatoes, or any other sub [6] stance than grain has not been known to manufacturers as whisky, except in very rare cases. (2) The article called whisky as known to the trade at and prior to the date of the passage of the pure food law was — (a) What is often spoken of as "straight whisky," made from grain. (6) Also, what is often spoken of as " rectified whisky," if conforming to the description of whisky given below in answer to question II. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture sat- isfied the description of whisky given below in answer to question II. (d) Also, neutral spirit — being a distillate from grain, which lacks a sub- stantial amount of by-products (other than alcohol), derived by distillation from grain and giving distinctive flavor and properties — when colored and fla- vored; except that neutra] spirit was not known to retail dealers as whisky, because such retailers seldom were aware that the article which they were buy- ing or selling was in fact neutral spirit. A neutral spirit made from molasses, potatoes, or other substance than grain has not been known to the trade as whisky. [7] (3) The article called whisky as known to the consumers at and prior to the date of the passage of the pure food law was — (a) What is often spoken of as " straight whisky," made from grain. (6) Also, what is often spoken of as " rectified whisky " is conforming to the description of whisky given below in answer to question II. (c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II. A neutral spirit derived by distillation from anything else than grain has not been known to the consumer as whisky, whether or not it was colored or fla- vored or both colored and flavored ; and a neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products (other than alco- hol) which are derived by distillation from grain and give distinctive flavor and properties, has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored. [8] The second question is : II. What did the term whisky include? My opinion upon and answer to this question is: The term "whisky" included, both at and prior to the date of the passage of the pure food law, and has since included, the spiritous liquor composed of (1) alcohol derived by distillation from grain; (2) a substantial amount of by-products (often spoken of as congeners) likewise derived by distillation from grain and giving distinctive flavor and properties; (3) water sufficient without unreasonable dilution, to make the article potable; and (4) in some cases — though such addition is not essential — barmless coloring or flavoring APPENDIX. • 821 matter, or both, in amoifnt not materially affecting other qualities of whisky than its color or flavor. A mixture of two or more articles, being each a whisky within the foregoing description, was at and prior to the date of passage of the pure food law, and has since been, whisky. A mixture of one or more whiskies, being each whisky within the foregoing description, with alcohol or a neutral spirit — being an article different from whisky through lack of a substantial amount of by- products derived by distillation from grain, and giving distinctive flavor and properties — is whisky, if the alcohol or neutral spirit is derived by distillation from grain, and if the mixture still conforms to the above general description of whisky; and so it was at and prior to the date of passage of the pure food law. [9] A spirit derived from any other substance than grain was not at or prior to the date of passage of the pure food law. and has not since been, whisky; and a mixture of a whisky with such spirit was not at or prior to the passage of the pure food law, and has not since been, whisky. A neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products derived by distillation from grain and giving distinctive flavor and properties, was not at or prior to the passage of the pure food law, and has not since been, whisky. The third question is : III. Was there included in the term whisky any maximum or minimum of congeneric substances as necessary in order that distilled spirits should be properly designated whisky? My opinion upon and answer to this question is: There was included in the term whisky a minimum of congeneric substances as necessary in order that the distilled spirit should be properly designated as whisky, viz.. such substantial amount of those congeneric substances as is requisite to give to whisky distinctive flavor and properties, differing from the flavor and properties of alcohol and of other distilled spirits. There was no maximum of such congeneric substances, however, except as potability might demand. [10] The fourth question is : IV. Was there any abuse in the application of the term whisky to articles not properly falling within the definition of that term at and prior to the pas- sage of the pure food law, which it was the intention of Congress to correct by the provisions of that act? My opinion upon, and answer to, this question is : There were such abuses. The evidence, however, has not been such as to make possible, or to justify an attempt at, enumeration of the particular abuses, beyond saying that they included the application of the term "whisky" to spirits distilled from other substances than grain, or to mixtures of such spirits with whisky, or to neutral spirits derived from grain but not whisky within the description of it given in answer to question II. or to such mixtures of neu- tral spirits and whisky as do not fall within the description of whisky given in answer to question II. The fifth question is: V. Is the term whisky as a drug applicable to a different product than whisky as a beverage? If so, in what particulars? My opinion upon, and answer to, this question is : The term whisky as a drug is not applicable to a different product than whiskv as a beverage. [11] AN OUTLINE STATEMENT OF SOME PRINCIPAL GROUNDS OF THE FOREGOING ANSWERS. It seems proper, and even due, that I give briefly my chief reasons for some of the answers above made ; especially where those answers depend in part upon legal considerations. The evidence discloses little conflict among the witnesses or in the literature concerning pure facts ; and a detailed review of it therefore becomes undesirable, unless further report of that character be hereafter directed. The questions which I have been called upon to consider have no answer in the act of Congress approved Juno 30. 1906. and known as the pure food law. That statute deals with whisky as well as food, drink, confectionery, condiments and drugs generally, and prohibits their adulteration or misbranding; but it does not afford any means of determining what any one of such articles is in its 822 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. true nature or proper constituents. Before it can be said whether an article is adulterated, by being made to be other than its true nature requires, or is mis- branded by being given a name which is not properly applicable to the article, it is necessary first to know what the article really is — in its true nature and ingredients — whose name is given to the thing claimed to be adulterated or mis- branded. Concretely, before one can say whether the name " whisky " is wrongly applied to a particular article, it is necessary first to ascertain what is properly called whisky ; and that must be ascertained outside the statute. [12] Nor do the questions which I have been called upon to answer relate at all to the relative excellence or merit of one or another article. The problem is not whether straight whisky is better than a blend, or the reverse; or whether whisky is better than alcohol, or the reverse; or whether whisky, gin, brandy, or rum is best ; or whether whisky or water is better. The sole prob- lem is, what is whisky in the general and true significance of that name; or what makes a thing whisky, instead of its being alcohol, brandy, gin, rum, or water? Whisky is not a natural product. It is always a thing manufactured by man. Whether a thing be natural or artificial, however, its name is given to it by man; and accordingly in this matter of names the actual usage of the people controls. A name imports what the people understand by it. The questions in hand can be determined therefore only by endeavoring to ascertain the sig- nificance of the word " whisky " in the public mind ; and that depends upon intelligent public usage. Further, it is the usage of the public at large and of the public of the United States, rather than the verbal practice of manufacturers or traders in whisky (if that practice differs from general usage) or the public usage in foreign countries, which must decide what the name " whisky " means. The pure food act and all similar statutes are intended for the protection of the general public, the fundamental object of such enactments being to assure to the people generally their receipt and use [13] of the very article which, by reason of the public meaning of the name under which they ask for or accept a thing, they expect and are entitled to have. In other words, the pure food act is designed to prevent the fraudulent imposition upon the ordinary purchaser or consumer of an article different in character or quality from what such ordi- nary purchaser or consumer may fairly expect in consequence of the odinary and general meaning of the name under which he orders or receives that article. Insistence upon the controlling force of the popular meaning of whisky is necessary in this matter because, as I have found, the usage of manufacturers and dealers, in reference to the name whisky, differs importantly from the usage of people at large ; though, as I have also found, the name whisky is used gen- erally by retailers in the trade quite as the public use it. It is thoroughly established that, in such a matter as the present, the popular use and meaning of such a name as whisky must control the trade use or meaning of that name, if the two differ. Two leading judicial decisions will illustrate this. In England, upon a prosecution for selling adulterated green tea, it was found that the article alleged to be adulterated was imported from China and was not a natural green tea, but was colored in China ; that this article, however, was the tea generally known to the trade as green tea; that a natural green tea is grown in Japan, but was not generally known to the trade as green tea; and it was held that consumers were euti [14] tied to expect the natural article under the name " green tea," notwithstanding the contrary use of tbat name by the trade. The court said : " It may be that green tea may come in time to mean pure tea with a facing of foreign materials. According to the case, that is now the opinion of the tea trade. * * * The question, however, is what the public who are the purchasers and consumers understand by the expression " green, tea " when they asle to buy it. The case finds that the public know nothing about the coloring of gypsum and Prussian blue. Except for its being an article of com- merce known in the trade as green tea, this mixture would be admittedly an adulteration; and the fact of the public ignorance makes it so in this case, not- Kith standing the received use of the term amongst persons who know what it means. (Roberts v. Edgerton, 30 L. T. (N. S.), 633.)" In this country a similar ruling has been made. In a controversy over the rigbtful use of the name " Syrup of Figs " it appeared that the main in- gredient of syrup of figs was not fig syrup at all, but syrup of senna ; that the true constitution of the article, however, had come generally to the knowledge of the trade through various trade publications; but that the public had been APPENDIX. . 823 led to believe, and did believe, tbat the article was made mainly of fig syrup. The United States Supreme Court refused to protect the name " Syrup of Figs," on the ground that it deceived the public though the trade understood it, saying : [15] " Such publications [i. e., as to the true character of the article] went only to giving information to wholesale dealers. The company by the use of the terms of its so-called trade-mark on its bottles, wrappers and cartons, continued to appeal to the consumers, out of whose credulity came the profits of their business. And, indeed, it was the imitation by the defendants of such false and misleading representations that led to the present suit. (Worden v. California Fig Syrup Co., 187 U. S. 516.)" I turn now to the question which is perhaps of chief moment in the con- troversy over whisky, viz., whether a so-called " neutral spirit," i. e., a distillate from grain which is not substantially different from pure ethyl alcohol (like- wise made from grain), may properly be called whisky; which question, in view of the decisive influence of general, popular usage, is really whether neutral spirit has come to be called whisky by the people at large. I have found that such neutral spirit, at least when colored and flavored like some whisky, has been actually called whisky for a long period by manufacturers in their sales to retailers and by wholesale and retail traders in their dealings with one another and with consumers ; but I have likewise found that this same neutral spirit was being sold during the same period by distillers to rectifiers as neutral spirit — and not as whisky — and that retail traders seldom knew that they were receiving or were selling a mere neutral spirit, and that consumers have not known that in fact they were using a mere neutral [16] spirit, given them under the name of whisky. Under these conditions I have been unable to accept the view that such neutral spirit has become entitled to the name " whisky ; " and several reasons seem to forbid any such view. 1. There is no possible doubt that the public has been almost always ignorant that it was actually receiving and using a practically pure alcohol. During the long period of the manufacture of whisky before 1870 or some- what later (when the modern processes for making neutral spirit came into growing use), whisky unmistakably contained beside alcohol an important amount of associated products derived with the alcohol by distillation from a ferment of grain; and the word "whisky." therefore, certainly indicated until 1870 or somewhat later an article containing such grain contributions other than alcohol. It seems to me that the name " whisky " can not be considered to have been extended by the public since 1S70 to an article importantly different from what before 1870 was known as whisky, viz., to pure or practically pure alcohol, without its being shown that the public since 1870 have accepted the name " whisky " in such radically new and different application icith knoivledge that what was being given them as whisky was in fact alcohol. In the absence of such knowledge, the public must have supposed that they were still getting under the name of whisky what they had alwasrs previously gotten under that name. In other words, while the people make their language and give its words their meaning, that process de|~17"|pends upon the conscious aud intelligent application of words to given ideas or things. A name does not come to include a new article, different from what has previously been known under that name, through mere application of the name to such new article by mistake or in ignorance, whether or not the mistake be induced or the ignorance be caused by fraud. Names embrace only such things as the people actually have in mind when they use those names. However different alcohol be from whisky which contains a substantial amount of by-products derived with its alcohol from grain, it may be admitted that alcohol could come to be embraced within the name whisky if the public were consciously designating alcohol as whisky; but it is quite immaterial how extensively alcohol has been given to the public or received by it as whisky if the public did not know that it was in fact getting mere alcohol- The public can not be held to intend or consent that alcohol be called whisky without knowing that the article to which the name is being applied is really alcohol. 2. Further, as I have found, the retail dealers themselves have been largely ignorant that neutral spirit was actually being sold them when they ordered whisky, or that they were selling neutral spirits to consumers asking for whisky. An important part of the trade consequently has not yet consciously accepted the name "whisky" for pure or practically pure alcohol. Also, as I have found, rectifiers do not order neutral spirits from distillers under the name [18] " whisky," but they order it by the special and unmistakable name of neutral 824 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. spirit, cologne spirit, or perhaps, sometimes, merely spirit. Even trade usage has not been uniform. 3. The name " alcohol " admittedly persists in entirely general use, and the article to which it is applied is most familiar. Have the public come to call the same thing both whisky and alcohol indifferently? Or do they still mean different things by the two words? It cannot readily be believed that these two words, alcohol and whisky, have become identified in general use. 4. The particular thing concerning which the public of the United States seems to be most united in reference to whisky is that it be made from grain. The literature of the subject insists upon this same point ; though some dic- tionaries and other works recognize that it may be made from other substances, such as potatoes, beets, or molasses. It is unimportant for the present point whether molasses may be used in making whisky, and that question will be considered later. Even if whisky may be made from other things than grain, it unquestionably must retain the qualities fundamental in grain whisky. What, then, do the public and the literature of the subject mean when they dwell upon the importance of the grain origin of whisky? Do they mean that whisky shall derive no more than its alcohol from grain? Such a view would make it quite unimportant whether whisky is made from grain or from any other of the scores of articles from which alcohol can be derived ; [19] for alcohol is the same thing whether derived from one or another source. If alcohol is whisky, then anything that will yield alcohol may properly be used for the production of whisky. In my opinion the importance attached to the origin of whisky in grain indicates that the grain must contribute to whisky some distinctive and peculiar elements which can not as well be gotten from other things than grain. Those other elements are the congeneric substances or by-products which are gotten with the alcohol through distillation from grain. Just as whisky is commonly viewed as made from grain, rum is understood to be made from sugar cane or molasses, and brandy is understood to be made from fruits. The ouly things that differentiate whisky and rum and brandy are the by-products of the distillation; and if only alcohol is essential to whisky or to rum or to brandy, it might as well be said that whisky may be made from fruits or from molasses, because they will yield the same alcohol that is gotten from grain ; and it might as well be said that rum may be made from grain or froni fruits, because grain or fruits will yield the same alcohol that is gotten from sugar cane ; and it might as well be said that brandy may be made from grain or from sugar cane, because grain or sugar cane will yield the same alcohol that is gotten from fruits. All distinctions between these articles fall unless they are differentiated by their by-products or congeners; and both the public views and the statements of the books about the origin of these several articles become trivial unless [20] distinctive and characteristic substances other than alcohol are essential to whisky, rum and brandy, re- spectively, and those substances are gotten from the grain or sugar cane or fruits from which the public and the books believe that the whisky, rum or brandy should be made. An illustration may be taken from cane sugar, beet sugar and maple sugar. These three things have for their brise an article called sucrose, which is identi- cal whether it is gotten from one or another of the three things. By processes of refinement the associated or congeneric substances may be separated and the sucrose so gotten in pure form from either cane, beet or maple sugar. Is that sucrose, the common element in the three sugars, the same as any one of the three; and if the same as any one, is it not the same as all; and accordingly are not all three — cane, beet and maple sugar — themselves the same things? If sucrose is maple sugar or beet sugar or cane sugar, it would be foolish to say that maple sugar comes from the maple tree, or that cane sugar comes from sugar cane, or that beet sugar conies from beets ; because the sucrose might as well come from any of them. In the same way it would be trivial, I think, for the public or the books to insist upon the grain origin of whisky if it may consist only of alcohol, which as well can be gotten from a hundred other things than grain. 5. Another thing which the witnesses agree is dominant in the public mind about whisky is its capacity for betterment through age. In this feature whisky is looked upon by the public just as wines, brandies [21] and rums are; all are thought to improve with age. The public therefore must still retain the idea that whisky consists of somethiug else than alcohol, just as they must think that wines, rums and brandies consist of something else than alcohol ; APPENDIX. 825 for alcohol has not the property of improving by age as whiskies, wines, rums and brandies do. Next to the grain origin of whisky, this idea that whisky has a nature or is composed of things leading to improvement with age is probably the most common and definite of the public opinions about whisky ; and it is significant of wbat the public must think whisky to be. 6. The United States Pharmacopoeia (as revised to June 1, 1907) thus describes whisky: "An alcoholic liquid obtained by the distillation of the fermented mash of grain — such as Indian corn, rye, wheat and barley, or their mixtures. An amber-colored liquid having a distinctive odor and taste and a slightly acid reaction." Certain specific tests for good whisky, as distinguished from poor whisky, are then added ; but they are unimportant here. This definition of whisky is in line with the other tests which I have men« tioned, and is weighty. Only grain is recognized as a proper origin for whisky ; and beyond that whisky is recognized as having " a distinctive odor and taste." The odor and taste of alcohol are indisputably not those of whisky, any more than are the odor and taste of wine, rum, or brandy ; and such distinctive odor and taste of whisky can only come from the by-products of its distillation, derived with the alcohol from the grain. [22] 7. Several judgments of the courts are important. It has been dis- tinctly held in United States Circuit Courts for the Southern District of Ohio (western division) ; for the Southern District of Illinois (northern division) ; for the Northern District of California ; and for the Eastern District of Ken- tucky, that neutral spirit (that is, an article which is pure or practically pure alcohol) is not whisky. These decisions, indeed, go to the length of holding that the mixture of an admitted whisky with neutral spirit may cease to be whisky, if the addition of neutral spirit is unduly large ; but they involve- a fortiori that neutral spirit alone is not whisky. Union Distilling Co. et al. v. Bettman et al. Woolner & Co. et al. v. Rennick, Collector, et al. Western Distilleries v. Muenter et al. Joseph W. Cheeseman et al. v. Meyers. (N. B. — These cases having not yet appeared in the regular legal reports, the first three may be found on pp. 120, 133, 137, Vol. 11, Internal Revenue Decisions, 190S. The Cheeseman case seems not yet to have been reported in any printed publication.) The same thing, that alcohol is not whisky, was held by Attorney-General Taft under date August 4, 1875 (Int. Rev. Rec. and Customs Journal, issue of August 21, 1876; found in Vol. 22, No. 34, fol. No. 607). In English, upon two prosecutions in the Borough of Islington for selling what was called in one case [23] Scotch and in the other case Irish whisky, though in fact it consisted in the former instance of a mixture of Scotch whisky and neutral spirit and in the latter instance of a mixture of Irish whisky and neutral spirit, the magistrate held the mixture to be unduly diluted with neutral spirit, and therefore not to be Scotch whisks'- or Irish whisky, and in the course of his decision also pronounced neutral spirit itself not to be- whisky. I have been unable to find this decision reported elsewhere than in the publication of the United States Department of Agriculture, Bureau of Chemistry, Bulletin No. 102. issued December 20, 1906. The magistrate's decision was affirmed upon appeal by a tied court. The case just mentioned led to a considerable agitation in Great Britain concerning the character and purity of the articles currently sold as whisky s and on February 17, 190S, a royal commission was appointed " to inquire and report " — 1. Whether, in the general interest of the consumer, or in the interest of the public health, or otherwise, it is desirable — (a) To place restrictions upon the materials or the processes which may be used in the manufacture or preparation in the United Kingdom of Scotch whiskey, Irish whiskey, or any spirit to which the term whiskey may be applied as a trade description; (5) To require declarations to be made as to the materials, processes of manufacture or preparation, or age of any such spirit ; [24] (c) To require a minimum period during which any such spirit should be matured in bond; and (d) To extend any requirements of the kind mentioned in the two sub- divisions immediately preceding to any such spirit imported into the United Kingdom. 826 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. 2. By what means, if it be found desirable that any such restrictions, declara- tions or period should be prescribed, a uniform practice in this respect may be satisfactorily secured. The final report of this commission has not yet been made, but on June 24, 1908, the commission submitted an interim report as follows : " Whilst the labours of the commissiouers are by no means terminated, we have arrived at certain conclusions, which we now humbly submit to Your Majesty as follows : 1. That no restrictions should be placed upon the processes of, or apparatus used in, the distillation of any spirit to which the term " whiskey " may be applied as a trade description. 2. That the term " whiskey " having been recognized in the past as applicable to a potable spirit manufactured from (1) malt, or (2) malt and unmalted barley or other cereals, the application of the term " whiskey " should not be denied to the product manufactured from such materials. We reserve for further consideration the question of the advisability or other- wise of attaching special significance to particular [25] designations such as " Scotch Whiskey," " Irish Whiskey," " Grain Whiskey," and " Malt Whiskey " ; of placing restrictions upon the use of such designations as trade descriptions ; or of requiring such designations to be used in connection with the sale of whiskey. We ask Your Majesty's permission to postpone stating in full the grounds upon which we have arrived at the above conclusions until we submit our final Report upon the matters referred to us." It has been strongly contended that this report shows that neutral spirit properly passes as whisky in Great Britain, notwithstanding the case from the Borough of Islington. I do not so construe the report. In the first place, the questions submitted to the commission were what action, if any, of a legis- lative kind ought to be taken, instead of being questions concerning existing fact or law. The conclusion of the commission concerning the expediency of legislative action naturally would be, and probably was, quite unaffected by any question whether neutral spirit is really whisky in England as the law now stands. If neutral spirit is not whisky in England, as was announced in the Borough of Islington case, there would be no occasion for legislation to forbid its being called whisky, even if it were thought that it ought not to be called whisky; and, on the other hand, if neutral spirit is whisky in England, no legislative restrictions upon its being so called would be recommended unless the public health or other weighty considerations were found [26] to put the balance of advantage upon the side of a new restrictive rule. In the second place, the commission expressly reserves the question whether some .such name as " grain whisky " or other particular description ought not to be required for a neutral spirit, and any conclusion of the commission that neutral spirit should be permitted to be called whisky might be induced or at least importantly influenced by a preference for legislation requiring neutral spirit to be labeled " grain whisky " or by other distinctive name, clearly indi- cating its special and peculiar character, instead of requiring that neutral spirit be not called whisky at all. The inquiry before me, however, as to what is whisky under existing fact and law in the United States, does not permit my taking into account the rela- tive advantage of different legislative possibilities for practical treatment of the situation. A report made by a Select Committee of the House of Commons of the British Parliament, appointed under order of July 7, 1S90, for consideration of the subject of British and Foreign Spirits, is more pertinent to the questions before me than the stated Royal Commission's report. This Parliamentary committee's report (made April 30, 1891) takes the definite position that" " whisky is certainly a spirit consisting of alcohol and water, with a small quantity of by-products coming from malt or grain, which give to it a peculiar taste and aroma" (p. V of the Report) ; and this position is in entire accord with, [27] and directly supports, the conclusion which I have reached concern- ing neutral .spirit. If, then, the by-products or congeneric substances derived by distillation from a fermented grain are necessary in some amount, beside alcohol, to make whisky, how much of these by-products is essential? All pertinent considera- tions show, in my opinion, that the amount of by-products must be substantial, giving to the whisky distinctive flavor and properties, but that no higher amount can be required and no more definite rule can be fixed. APPENDIX. 827 1. It is obvious that no less than a substantial amount of by-products will suffice, otherwise there will be no substantia] difference between alcohol and whisky. A mere trivial addition of by-products to alcohol can not convert it into whiskey. 2. The problem really lies in the question whether all or most or any definite percentages of the by-products obtainable by distillation from grain are essential to whisky; and here the history of the art is quite decisive. As already said, whiskey is purely a manufactured article; and the evidence shows that it has never been made to contain all the by-products procurable by distillation from grain. Some of them have always been left behind in the distilling process or have been deliberately eliminated in the course of manufacture. Beyond that the course of the art has been continuously, though gradually, to reduce the amount of by-products in whisky. At any one time, too, the proportion of by- products has greatly varied in different places and among different makers. All [28] the while the public have accepted these articles, with varying strength or quantity of by-products, as whisky ; and until the point was reached where a substantial amount of the by-products no longer remained in association with the alcohol it could not be said that the article had changed in kind. Until that point was reached the difference was only in degree. It is impossible to draw a line anywhere between what remains whisky and what ceases to be whisky, on the basis of the amount or proportion or strength of by-products or congeneric substances, until the alcohol no longer has with it a substantial amount of such by-products, giving distinctive flavor and properties and differ- entiating the article substantially from alcohol. 3. No one of the reasons I have given for my conclusion that pure or prac- tically pure alcohol is not whisky prevents acceptance as whisky of an article in which the by-products of the distillation from grain are present in sub- stantial and effective amount. The public are not given an article actually of a different kind in ignorance of that fact so long as the qualities of stronger whisky are present in substantial amount. The insistence of the public and of the general and technical literature on the subject that whisky be derived from a special source, rather than from any one of the many things out of which alcohol may be obtained, is satisfied. The names whisky and alcohol remain distinct instead of being identified. And the judicial decisions which I have cited are not contravened; for none of those cases decides what amount or strength of by-products must be present to [29] make whisky. Finally, the betterment from aging of course becomes possible when the by-products are present in substantial degree, whether or not that betterment is as great as would occur in a whisky containing more by-products. 4. Nor can it be an objection to the rule requiring a substantial amount of by-products to be present that the determination of such amount is a question of fact. In the absence of the erection of a definite standard by competent public authority, the distinction of whisky from alcohol inevitably will depend upon such question of somewhat indefinite fact. The law does not shrink from such questions; as is illustrated by the decisions of courts and juries concerning what is negligence (or a want of ordinary care), or concerning what is rea- sonable time, or concerning what is the reasonable or fair value of services or of goods upon which no definite price has been put by agreement. Indeed, in this very field of legislation concerning the adulteration or misbranding of food products the statute often itself recognizes a necessarily indefinite question of fact as decisive, and sometimes the statute even creates the question of fact. Thus, the English Sale of Food and Drugs Act, 1875 (38 and 39 Vict., c. 63), section 6, says that — " No person shall sell to the prejudice of the purchaser any article of food, or any drug which is not of the nature, substance and quality of the article de- manded by such purchase." [30] and it is held to be a question of fact under this act whether the article furnished the purchaser is what he " would reasonably %xpeet to receive." (Webb v. Knight, L. R. 2 Q. B. D., 530.) Similarly, section 4 of the act of Congress approved May 9, 1902 (32 Stat., 193, 194), includes among different kinds of "adulterated butter" such as is made " with intent or effect of causing the absorption of abnormal quantities of water, milk, or cream ; " and it is held that in the absence of definite regula- tions, such as the act empowers the Commissioner of Internal Revenue to make on the subject, a jury could determine whether the quantity of absorbed water, 828 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. ruilk, or cream is "abnormal." (Coopersville Cooperative Creamery Co. v. Lemon, 163 Fed. 145.) The contention that whisky may be made from molasses I have found to be incorrect. This question, like most of the others, depends wholly upon the fact whether or not the American public have knowingly recognized and accepted as whisky an article made from such a source; and I am compelled to believe that most Americans would be surprised by an assertion that it could be so made. It is true that some dictionaries say that whisky, beside being made from grain, is sometimes made from potatoes or molasses; but such manufac- ture of whisky from potatoes has never existed, I believe, in Great Britain or in the United States, and its manufacture from molasses is not known to have occurred elsewhere than in the United States, and has been carried on onlv by two firms in the United States, and for a period not [31] very considerable. The public certainly can not be considered yet to have learned that what is some- times given it as whisky — though on no relatively extensive scale — is actually made from molasses; nor can the public be considered yet consciously to have acquiesced in such an origin for whisky. It may be that by careful modern processes and management an article not very different from grain whisky can be made from molasses ; but, on the other hand, differences will appear in con- sequence of the use of grain or molasses unless there be the nicest manipulation, and it is probable that some differences always exist. On the theory of the advocates of molasses whisky themselves, it would be just as possible to make rum or brandy from grain, or to make whisky or rum from fruits, as to make whisky from molasses. It would hardly be disputed, however, that the public have not come to the point of regarding rum or brandy as a thing made from grain, or of regarding whisky or rum as a thing made from fruit ; and I con- sider and have found that the public likewise do not yet regard a thing made from molasses as whisky. I come now to the subject of the addition of coloring or flavoring "matter as affecting the right to the name whisky. On the one hand, the evidence convinces me that the public do not consider that added coloring or flavoring matter can make whisky out of what otherwise, or before such addition, is not whisky. Whisky is regarded generally and naturally as having a flavor and properties of its own. There is no more reason for saying that alcohol becomes whisky be- cause [32] colored and flavored like some true whisky than for saying that alco- hol becomes brandy or rum because colored and flavored like some brandy or rum. As a matter of fact, the manufacture of imitation brandies by this process of coloring and flavoring alcohol has at times been quite extensive in the United States and other countries. Nobody has yet contended, however, that such col- ored and flavored alcohol is brandy"; though it has been sold to and used by the public under the name of brandy in quite the same way, and relatively perhaps to total consumption in as large amount, as colored and flavored alcohol has been given to the public as whisky. On tbe other hand, the mere addition of harmless coloring- or flavoring matter to what is previously whisky does not destroy its whisky character, unless such addition unduly dilutes or otherwise affects (as the addition of water may do) other essential properties of the whisky. It has always been true that coloring or flavoring matters of one or another kind were extensively used in making whisky. Old sherry casks long ago were used for this purpose in England. Saffron and fruit juices have long been so employed. And the evidence makes it quite clear that the use of the charred barrel for holding whisky is largely, and probably altogether, a method of coloring and flavoring; because the whisky derives from the charred barrel important quantities of tannin and certain tars and resins which affect the coloring and flavoring. Whisky having been, then, in all its history extensively and variously colored and flavored, by addition [33] of extraneous matter, such coloring and flavoring can not be considered illegitimate or incompatible with the name whisky. The United States pure-food law also provides in terms that the addition of " harm- less coloring or flavoring ingredients used for the purpose of coloring and flavor- ing only " is consistent with the term " blend," and therefore, of course, may be done without creating a compound article. One of the most important matters in a practical view is whether a mixture of an admitted wbisky with neutral spirit or alcohol may be called whisky. Such mixtures have been made most extensively for a very long period, and have become a most popular form of the beverage both in the United States and in England. It is even true, as I understand the testimony, that a larger quantity of these mixtures than of straight whisky has been consumed during APPENDIX. 829 the last twenty years or more. My reasons for holding that this mixture of whisky with alcohol or neutral spirit is entitled to the name whisky — provided the mixture retains a substantial amount of by-products in proportion to the volume of the mixture, giving distinctive flavor and properties — are two: 1. As a matter of pure theory I can see no reason wby the mixed article is not whisky, so long as it retains the substantial quality of whisky within the description which I have attempted in answer to question II. Alcohol is an admittedly proper and essential ingredient of whisky; indeed, it is whisky's chief ingredient. The addition of alcohol to whisky [34] is therefore not the introduction of a foreign substance, but is merely an enlargement of the pro- portion of one proper constituent. In other words, addition of alcohol to whisky is merely a form of dilution, just as the addition of water is. Nobody would contend that whisky is compounded or adulterated because more water is put with it unless the dilution by water goes so far as to rob the article of that substantial strength which is deemed characteristic of it. Dilution by water lessens both the alcoholic strength and the strength of the by-products, or what shortly may be called the congeneric strength of whisky. Dilution by alcohol lessens only the congeneric strength, without reducing the alcoholic strength. Why, then, may not alcohol be added just as well as water, without destroying the right of the article to be called whisky, unless the dilution with alcohol unduly affects the congeneric strength? The grounds have already been given on which I have found that the by- products of distillation from grain need be present in whisky only to the extent of a substantial amount, which has and gives distinctive flavor and properties. All those reasons equally support the use of the name " whisky " for an article retaining such substantial amount of by-products, whether its content of by- products be the same as when the article first comes from the still or has been reduced within proper limits by subsequent addition of alcohol. For a particu- lar case, we may notice the fact that straight whiskies themselves vary greatly in their congeneric strength; one straight [35] whisky sometimes being, three or four times as strong as another in amount of congeners. Unmistakably, reduction of the stronger straight whisky by addition of alcohol to an identity with the weaker straight whisky does not deprive the mixed article of the name " whisky." In principle this case is the same as any other case of mixing with .alcohol, if the dilution of congeneric strength does not go beyond the limit of preserving to the mixed article the requisite substantial amount of by-products. 2. It is really unimportant whether I am right on this point of mixing whisky and alcohol as a matter of theory or logic ; for the most extensive acceptance and use of the mixed article by the public as whisky for a period probably not less than thirty years, and perhaps longer, has entitled it to the name " whisky " as a matter of fact. So long as the mixed article varies only in respect of be- ing stronger or weaker, without losing distinctive flavor and properties in substantial degree, and consequently the article has not altered its essential nature, it can not be said that the public has given the name " whisky " to the article in ignorance of its character or under a delusion concerning the thing to which the name " whisky " was being applied. Even a compound article, made by the commingling of two things wholly foreign to each other, may, through informed application to it by the public of a single distinctive name acquire the full right to that name. In such case, the established distinctive name properly describes the compound article, and the pure-food act recognizes this, it being provided [36] in section 8 of that act " in the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article," the use of such name shall not be a misbranding. Whisky mixed with alcohol can not be an imitation of other whisky, while it still retains the requisite amount of by-products of the distillation from grain, because it is identical with un- mixed whisky under the description which I have given of it; and mixed whisky which remains identical in constitution and character with another article properly called " whisky " can not in its own use of the ii?me " whisky " be said to be using the distinctive name of the other, identical article. These things, as I have said, are true even when a single distinctive name is used for a true compound; even more plainly they must be true con- cerning the use of an established distinctive name for an article which is mixed only in the sense that a further quantity of one of its own proper and essential ingredients has been put into it. 830 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Iu this connection I wish to quote from the report of the Select Committee on British and Foreign Spirits, appointed under order of the House of Commons of the English Parliament, to which I have already once referred. That com- mittee said in its report, dated April 30, 3891, that whisky — " may be diluted with a certain quantity of water without ceasing to be whisky, and it may be diluted with spirits containing a little of the [37] bye-products to suit the pocket and palate of customers, and it still goes by the popular name of whisky. Your Committee are unable to restrict the use of the name as long as the spirits added are pure and contain no noxious ingredients." (p. V of the Report.) Further, the committee said : " Your committee do not recommend any increased restrictions on blending spirits. The trade has now assumed large proportions, and it is the object of blending to meet the tastes and wants of the public both in regard to quality and price. The addition of patent still spirit, even when it contains a very small amount of bye-products, may be viewed rather as a dilution than an adultera- tion, and, as in the ease of the addition of water, is a legal act within the limits of strength regulating the sale of spirits." (p. VII of the Report.) The last of the questions put to me is whether the name whisky has different scope according to the fact whether the article called whisky is used as a drug or as a beverage; and I have answered that it has not. No foundation for giving different significance to the name in the two cases exists in actual public usage. What is whisky for drinking is equally whisky as a medicine, so far as the popular acceptance of the name can determine. It has been suggested, however, that the pure-food act makes the drug called whisky different from what public usage considers the beverage whisky, because section 6 of that act declares that " the term ' drug ' as used in this act [38] shall include all medi- cines and preparations recognized in the United States Pharmacopoeia or Na- tional Formulary for internal or external use; " and section 7 of that act pro- vides that a drug shall be deemed adulterated — " if when a drug is sold under or by a name recognized in the United States Pharmacopoeia or National Formulary it differs from the standard of strength, quality, or purity as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation: Provided, That no drug defined in the United States Pharmacopoeia or National Formulary shall be deemed to be adulterated under this provision if the stand- ard of strength, quality, or purity be plainly stated upon the bottle, box or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or National Formulary." The argument seems to be that under these provisions of the pure-food act what- ever is described in the Pharmacopoeia as whisky must be entitled to the name " whisky," and that the description of whisky in the Pharmacopoeia differs from that which I have found to result from public usage. I am unable to see, how- ever, that the pharmacopceiac definition of whisky is other than I have given. The Pharmacopoeia's definition has already been quoted, and I have stated my view that such definition, beside insisting upon the grain origin of whisky, de- mands [39] both because of such origin and also because of its requirement that whisky have " a distinctive odor and taste." that a substantial amount of the by-products of the distillation of grain, giving distinctive flavor and other properties, be present in whisky. The particular requirements which the Pharmacopoeia makes, after giving its definition — such as that " whisky should be at least four years old," and that its specific gravity, acidity and other particular qualities satisfy special tests — do not seem to be parts of the defini- tion, but are rather points of distinction between superior and inferior whisky. They do not obliterate the fundamental requisites of whisky, as given in the definition itself. Further, it is to be noted that if an article conforms to the definition of whisky given in the Pharmacopoeia but does not satisfy the tests of excellence prescribed by the Pharmacopoeia, that article may still be sold as whisky without being deemed adulterated under section 7 of the pure food act if " the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof." The proviso of section 7, as quoted above, expressly so declares. Very respectfully, Lloyd W. Bowers, Solicitor General. APPENDIX. 831 WHAT IS THE MEANING OF THE TERM "WHISKY " UNDER THE PURE POOD ACT, AND THE PROPER REGULATIONS FOR BRANDING VARIOUS KINDS OF WHISKY UNDER THE INTERNAL REVENUE ACT?1 [Decision bj President Tart.] By the pure-food act of June 30, 190G, Congress forbade tire introduction iuto interstate and foreign commerce of adulterated or misbranded drugs or articles of food, with two objects, one to preserve the health of the people, and the other to prevent their being deceived by label or brand as to the real character of drugs or articles of food offered for sale. Within the definitions of the act potable liquors are articles of food. An important controversy has arisen in the execution and the application of the act as to whether the branding of cer- tain potable liquors with the name " whisky " is a misbranding within the act. All distilled spirits- pay, under the internal-revenue laws, a heavy tax. The tax is measured by a certain rate per proof gallon. Theoretically pure ethyl alcohol is 200° proof. A proof gallon of distilled spirits is half water and half alcohol, or a gallon of 100° proof. Potable strength varies from 90° to 102° or 103°. Distilled spirits are manufactured under the close supervision of revenue officers and the brands which are placed upon the packages containing the spirits after manufacture are placed there under regulations of the Internal Revenue Bureau. It is, of course, of the highest importance that the internal- revenue law and the pure-food law should be enforced in such a way as to accomplish the purposes of both. In Internal Revenue Order No. 723 (April, 1907) directions were given as to how certain distilled spirits should be branded. The effect of this order was to deny the right to the use of the brand " whisky " to any distilled liquor except that which is known to the trade as " straight whisky " and to require the branding of several kinds of liquors distilled from grain as " imitation whisky." The pure-food act does not mention the term " whisky " ; it does not authorize any officers to fix a standard in respect to any article of food or liquor. It therefore leaves the question of what liquor may be properly branded as whisky to those who have to execute the pure-food law and the internal-revenue law, subject, of course, to a review of the correctness of their action by courts when- ever a case between parties litigant, properly within the jurisdiction of such courts shall arise. Attorney General Bonaparte was asked to pass upon the question of what properly might be included under the brand of whisky within the pure-food law, and rendered two decisions in which he in effect limited the proper use of the brand to what is known in the trade as " straight " whisky. So far as appears from Mr. Bonaparte's opinions, he accepted a definition of whisky from a dictionary or encyclopedia, and, in forming and expressing his opinion, he had not the benefit of any evidence as to the meaning or scope of the term acquired from manufacturers, dealers, or consumers in the trade. Internal Revenue Order 723 wa,s founded on Mr. Bonaparte's opinions. A petition was filed in April last by a large number of distillers whose inter- ests were affected, asking that the issues passed upon by Mr. Bonaparte and confirmed by Mr. Roosevelt in Internal Revenue Order No. 723 be reheard on the ground that the meaning of the term " whisky " is one of fact, and is to be properly determined only after consideration of competent evidence drawn from those familiar with the trade in which liquors are manufactured and sold. The rehearing was granted, and the matter was referred to Hon. Lloyd Bowers, Solicitor General, to determine upon evidence to be submitted by all parties in interest: 1. What was the article called " whisky " as known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure-food law? 2. What did the term " whisky " include? 3. Was there included in the term " whisky " any maximum or minimum of congeneric substances as necessary in order that distilled spirits should be properly designated "whisky"? 4. Was there any abuse in the application of the term " whisky " to articles not properly falling within the definition of that term at and prior to the pas- sage of the pure-food law, which it was the intention of Congress to correct by the provisions of that act? !See P. I. D. 45, 65, 95, 98, 113. 118, and 127, pp. 36, 51, 110, 113, 129, 133, and 139, ante; also Opinions of the Attorneys General, pp. 775, 783, and 797, ante; and Report of the Solicitor General, p. 818, ante. 832 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. 5. Is the term "whisky" as a drug applicable to a different product than whisky as a beverage? If so, in what particulars? A very full hearing was had before the Solicitor General and a large amount of evidence was taken, making a record of more than 1,200 printed pages. The answers of the Solicitor General to the questions were detailed and exact. I shall not set them out. It is sufficient to say that he found from the evidence that whisky, as a term of the trade for many years, included much more than " straight " whisky ; that it included " rectified " whisky, " redistilled " whisky, and all distillates of grain reduced by water to potable strength and contain- ing a sufficient trace of fusel oil or the congeneric substances accompanying grain distillation to give a distinctive whisky flavor to the liquor ; and this Whether or not colored by burnt sugar or other harmless flavoring and coloring matter. But he excluded from the proper meaning and scope of the term " whisky " that product of continuous distillation called " neutral spirits," though reduced to potable strength and colored and flavored- by burnt sugar, on the ground that in such product there was not enough of the fusel oil or con- generic substances to give to the liquor the distinctive flavor of whisky. He found further that the mixture of neutral spirits with whisky, if a sufficient quantity of fusel oil or congeneric substances remained to retain the whisky flavor, was not an adulteration and did not make it other than whisky. Exceptions were taken by all parties to these findings of the Solicitor Gen- eral, and the whole record of the evidence has been brought before me for con- sideration and decision. I invited the Attorney General and the Secretary of Agriculture to sit with me and hear the arguments. Because of the importance of the case, I have thought it necessary to read with care the entire evidence adduced. The Solicitor General has rendered an opinion to justify his findings of great ability and acumen ; and I reach a somewhat different conclusion from him with much reluctance. But I am led to-do so by a very clear con- viction as to what the evidence shows. Whisky for more than one hundred years has been the most general and com- prehensive term applied to liquor distilled from grain. It is derived from the Irish word " Usquebaugh," and for more than a century has been used in Ire- land, Scotland, England, and in this country to mean ardent spirits distilled from grain reduced to potable strength. Its flavor and color have varied with the changes in the process of its manufacture in the United States, Ireland, Scotland, and England, and have been varied by the introduction into it of fruit juice and burnt sugar and other substances. It was manufactured originally in what was called a " pot still " by the distillation of wort or beer fermented from grain. It was composed of about equal parts of water and ethyl alcohol and certain substances now called congeneric substances which united were known as fusel oil; and when the distillate was first produced the so-called fusel oil gave to the liquor a very disagreeable odor and a very raw taste. The efforts of those engaged in the manufacture were directed toward the reduction of the amount of fusel oil in the product and toward the elimination of the dis- agreeable odor and taste produced by it. This was effected for a great many years by passing the distilled spirit through leaching tubs of charcoal, which tended to purify it and reduce the amount of fusel oil, and subsequently recti- fication was followed by another step — i. e., redistillation — and at all times by the introduction of fruit essences or burnt sugar. Burnt sugar is used in Scotch whisky as well as in American whisky, though not to the same extent or in the same proportion. Between 1850 and 1860 in this country a very large and profitable business began in certain well-known brands of whisky, which were purified by leaching tubs and were colored and flavored by the use of cara- mel or burnt sugar. Though there was some American white whisky, the con- , ventional amber or brown color and whisky flavor in America was that produced by a mixture of the raw whisky with its fusel oil reduced as much as possible, and of burnt sugar or caramel. Some 'time during the Civil War, it was discovered that if raw whisky as it came from the still, unrectified and without redistillation, and thus containing from one-half to one-sixth of 1 per cent of fusel oil, was kept in oak barrels, the inside of the staves of which were charred, the tannic acid of the charred oak which found its way from the wood into the distilled spirits would color the raw white whisky to the conventional color of American whisky, and after some years would eliminate altogether the raw taste and the bad odor given the liquor by the fusel oil and would leave a smooth, delicate aroma, making the whisky exceedingly palatable without the use of any additional flavoring or coloring. The whisky thus made by one distillation and by ageing in charred APPENDIX. 833 oak barrels came to be known as "straight" whisky, and to those who were good judges came to be regarded as the best and purest whisky. Meantime the other and shorter method of making whisky grew greatly in its use, and the amount of distilled spirits made from grain either by rectifying or by redistilling, which were reduced to potable strength and given a conven- tional flavor of whisky by the use of burnt sugar and other essences, far ex- ceeded that of the so-called "straight whiskies;" and as according to this method a potable, pleasant beverage could be made in a short time without the ageing in wood and without the loss of interest on the capital involved in hplding the product for two or three years while it acquired color and flavor, it could be sold, of course, much cheaper. It was. made originally by distilling a product at a proof of from 140° to 1G0°, called " high wines ", by taking these high wines to a rectifying house and there passing them through leaching tubs to reduce as far as possible the fusel oil, and then coloring and flavoring the whisky with burnt sugar; or by another step of purification, which was a re- distillation of the high wines, reducing the fusel oil still further, and then the coloring and flavoring by caramel. The product of this system was known as "finished whisky;" whereas the raw spirits delivered were known as "high wines." Subsequently, about 1872 or a little later, a patent still came into use by which it was possible through one process of continuous distillation to clarify the spirits somewhat more completely of the fusel oil than the old system of rectifying by leaching tubs, or even by redistillation as a separate step; and the result of this continuous distillation was the production of what was known, and is known now, as " neutral spirits " at a proof varying from 160° to 188°. They still had a small trace of the congeneric substances that go to make up what is known as " fusel oil," but not enough substantially to affect the flavor. The rectifiers, who pay a tax as such under the internal-revenue law, then began to use neutral spirits as they had used high wines before, to color them with burnt sugar, and to offer them as whisky. The difference between whisky made from high wines and the whisky made from neutral spirits was the difference in the traces of fusel oil, being less in the latter than in the former, but, so far as I am able to determine from the evidence, there was only a difference in slight degree. The importance of the fusel oil in the product ready for the drinker can be judged by the fact that it varies in straight whisky from one-half of 1 per cent to one-sixth of 1 per cent, but that in rectified and redistilled whisky it is considerably less, and in the presence of burnt sugar it can hardly be perceptible to the taste. All these products — straight whisky, rectified spirits whisky, redistilled spirits whisky, and neutral spirits whisky — when reduced by water to a hun- dred proof or less and sold upon the market as beverages were known to the trade and to the customers as "whiskies;" the difference between straight whisky and the neutral spirits whisky, which now constitutes and for thirty years last passed has constituted, perhaps 75 per cent of all the whisky sold, was well understood, and the difference between the two was seen in the differ- ence in price which each commanded in the market. It was supposed for a long time that by the ageing of straight whisky in the charred wood a chemical change took place which rid the liquor of fusel oil and thus destroyed the unpleasant taste and odor. It now appears by chemical analysis that this is untrue; that the effect of the ageing is only to dissipate the odor, and to modify the raw, unpleasant flavor, but to leave the fusel oil still in the straight whisky. Fusel oil is known to be poisonous and injurious. In the small quantity in the straight whisky it probably does no harm. But however this may be, it is certain that in the whisky made of neutral spirits there is less fusel oil and less of the poison arising therefrom than there is in the straight whisky. The question, therefore, is not here one of health. It is only one of correct branding to prevent deceit of the public as to what it is buying. After an examination of all the evidence it seems to me overwhelmingly established that for a hundred years the term " whisky " in the trade and among the customers has included all potable liquor distilled from grain ; that the straight whisky is, as compared with the whisky made by rectification or redistillation and flavoring and coloring matter, a subsequent improvement, and that therefore it is a perversion of the pure-food act to attempt now to limit the meaning of the term " whisky " to that which modern manufacture and taste have made the most desirable variety. 40066—14 53 834 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Exactly the same question has arisen in England and has been determined by a Royal Commission of eminent lawyers and scientific men in the same way. That commission held, after a full investigation, that neutral, or velvet spirits as they are there more frequently called, made by a patent still from grain was whisky when reduced to potable strength. The same conclusion is shown to have been in the mind of Congress in 1882 when a question arose in the House of Representatives, as between the method of taxation of straight whisky and of that liquor which was the product of continuous distillation. Both were denominated whisky in the discussion. Congress legislated with reference to the distinction between the two in the method of manufacture and preparation for use as a beverage, which was admitted on all sides to exist, but no question was made as to the proper application of the term " whisky " to both kinds of liquor. With deference to the very able consideration of this question made by Doctor Wiley and other distinguished chemists, I think the fundamental error in all conclusions differing from this is one of fact as to what the name of whisky actually has included for the last hundred years; and while Mr. Bowers, the Solicitor General, greatly enlarged in his definition the character and scope of the term " whisky " beyond theirs, he fell into what seems to me to be the error of making too nice a distinction in reference to the amount of congeneric substances or traces of fusel oil required to constitute whisky for practical purposes when the flavor and color of all whiskies but straight whis- kies, have been chiefly that of ethyl alcohol and burnt sugar. If high wines at from 140° to 160° when reduced to potable strength and containing a very small quantity of fusel oil and flavored by burnt sugar are whisky, as he has found, then the mere improvement in the process by continuous distillation so as to give a product of from 160° to 188° proof and still further to reduce its fusel oil, is to not change its whole nature or to make what was genuine " whisky " " imitation whisky " because of a slightly reduced trace of one ingredient. The distinction is too impracticable, in my judgment, for the execution of the law. It may be that the public were not fully or exactly advised as to the change in the process when it was made, but the change in the process was slight and effected economy in the production rather than the flavor of the product; and if the public detected no difference in flavor in the product of the improved process, as they did not, but continued for forty years to regard it as the same, there was no deceit in continuing to call whisky that which was thus merely improved in its manufacture without substantial change of composition or flavor. It is undoubtedly true that the liquor trade has been disgracefully full of frauds upon the public by false labels; but these frauds did not consist in palming off something which was not whisky as whisky, but in palming one kind of whisky as another and better kind of whisky. Whisky made of rectified or redistilled or neutral spirits and given a color and flavor by burnt sugar, made in a few days, was often branded as Bourbon or Rye straight whisky. The way to remedy this evil is not to attempt to change the meaning and scope of the term " whisky " accorded to it for one hundred years, and narrow it to include only straight whisky ; and there is nothing in the pure-food law that warrants the inference of such an intention by Congress. The way to do it is to require a branding in connection with the use of the term " whisky " which will indicate just what kind of whisky the package contains. Thus, straight whiskies may be branded as such and may be accompanied by the legend " aged in wood." Whisky made from rectified, redistilled, or neutral spirits may be branded as whisky made from rectified, redistilled, or neutral spirits, as the case may be. With this result, the question arises what ought the order to be so that the purpose of the pure-food law can be carried out. The term " straight whisky " is well understood in the trade and well understood by consumers. There is no reason, therefore, why those who make straight whisky may not have the brand upon their barrels of straight whisky, with further descriptive terms as " Bourbon " or " Rye " whisky, as the composition of the grain used may justify, and they may properly add, if they choose, that it is aged in wood. Those who make whisky of " rectified," " redistilled," or " neutral " spirits can not complain if, in order to prevent further frauds, they are required to use a brand which shall show exactly the kind of whisky they are selling. For that reason it seems to me fair to require them to brand their product as " whisky made from rectified spirits," or " whisky made from redistilled spir- its," or "whisky made from neutral spirits," as the case may be; and if aged APPENDIX. 835 In the wood, as sometimes is the case with this class of whiskies, they may add this fact. A great deal of the liquor sold is a mixture of straight whisky with whisky made from neutral spirits. Now, the question is whether this ought to be regarded as a compound or a blend. The pure-food law provides that " in the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends." the term " blend " shall be con- strued to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only. It seems to me that straight whisky and whisky made from neutral spirits, each with more than ninety-nine and one-half per cent ethyl alcohol and water, and with less than half of one per cent of fusel oil, are clearly a mixture of like substances, and that while the latter may have and often does have burnt sugar or caramel to flavor and color it, such coloring and flavoring ingre- dients may be regarded as for flavoring and coloring only, because the use of burnt sugar to color and flavor spirits as whisky is much older than the col- oring and flavoring by the tannin of the charred bark. Therefore where straight whisky and whisky made from neutral spirits are mixed, it is proper to call them a blend of straight whisky and whisky made from neutral spirits. This is also in accord with the decision of the British Royal Commission in the case which I have cited upon a similar issue. Canadian Club whisky is a blend of whisky made from neutral spirits and of straight whisky aged in the wood, and its owners and vendors are entitled to brand it as such. Neutral spirits made from molasses and reduced to potable strength has sometimes been called whisky, but not for a sufficient length of time or under circumstances justifying the conclusion that it is a proper trade name. The distillate from molasses used for drinking has commonly been known as rum. The use of whisky for it is a misbranding. There are other kinds of liquor in respect to which a decision is invoked, but it is thought that the principles above stated, and the directions above given in specific cases, will furnish a clear precedent for all other cases. By such an order as this decision indicates the public will be made to know exactly the kind of whisky they buy and drink. If they desire straight whisky, then they can secure it by purchasing what is branded " straight whisky." If they are willing to drink whisky made of neutral spirits, then they can buy it under a brand showing it ; and if they are content with a blend of flavors made by the mixture of straight whisky and whisky made of neutral spirits, the brand of the blend upon the package will enable them to buy and drink that which they desire. This was the intent of the act. It injures no man's lawful business, because it only insists upon the statement of the truth in the label. If those who manufacture whisky made of neutral spirits, and wish to call it " whisky " without explanatory phrase, complain because the addition of " neutral spirits " in the label takes away some of their trade, they are without a just ground, because they lose their trade merely from a statement of the fact. The straight-whisky men are relieved from all future attempt to pass off neutral-spirits whisky as straight whisky. More than this, if straight whisky or any other kind of whisky is aged in the wood, the fact may be branded on the package, and this claim to public favor may truthfully be put forth. Thus the purpose of the pure-food law is fully accomplished in respect of misbranding and truthful branding. This opinion will be certified to the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor to prepare the regu- lation in accordance herewith, under the pure-food law; and to the Secretary of the Treasury and the Commissioner of Internal Revenue to prepare the nroper regulation under the Internal Revenue Law. Wm. H. Taet. The White House, December 27, 1909. 836 FEDERAL POOD AND DRUGS ACT AND DECISIONS. WEEKS v. UNITED STATES. (Circuit Court of Appeals, Second Circuit, June IS, 1914.) Office of the Solicitor, Circular No. 81. The fourth amendment to the Constitution of the United States, which provides that "no warrants shall issue but upon probable cause, supported by oath or affirmation," held not to require an information filed by a United States attorney alleging violation of the Federal Food and Drugs Act to be supported by the oath or affirmation of any person having knowledge of facts showing probable cause for the prosecution, where the defendant voluntarily appeared and answered the allegations of the information, and no warrant of arrest was issued on said information. Evidence held sufficient to warrant the trial court in submitting to the jury the question of fact as to whether an article labeled: "Creamthick * * *. It is guaranteed to contain no gelatine, gum arabic, egg albumen, or similar article," was misbranded because it contained Indian gum, which was alleged to be a "similar article" to gum arabic. In Error to the District Court of the United States for the Southern District of New York. Affirmed.1 Before Coxe, Ward, and Rogers, Circuit Judges. Rogers, Circuit Judge. The defendant has been convicted of a crime committed in violation of the Pure Food and Drugs Act, approved June 30, 1906. The information charged the defendant with having shipped from New [2] York City to St. Louis, Mo., a certain article of food, labeled in part as follows: "Creamthick— Serial No. 2049— Manufactured by 0. J. Weeks & Co., New York, New York. It is guaranteed to contain no gelatine, gum arabic, egg albumen or similar article." This label, it was charged, was false and misleading and calculated to mislead and deceive purchasers in that the article of food contained as one of its ingredients an article similar to gum arabic, to wit, Indian gum. The information was signed by the United States attorney, but was not verified, nor were any affidavits filed or sub- mitted to the court. The defendant appeared and demurred to the information, and in specification of points under his demurrer alleged "that the said information is not supported by a verification or oath showing personal knowledge or probable cause." His demurrer was overruled, and being required to plead he pleaded not guilty. At the close of the trial his counsel renewed his motion that the information be dismissed for reasons before stated, but his motion was denied and the case was submitted to the jury and a verdict of guilty was rendered. The question we nave to decide, therefore, is whether an attorney for the United States can proceed in the courts of the United States by information to prosecute one who is alleged to have committed a misdemeanor, where the information is not verified or supported by an affidavit showing personal knowledge or probable cause. There can be no conviction or punishment for a crime without a formal and sufficient accusation. A court can acquire no jurisdiction to try a person for a criminal offense unless he has been charged with the commission of the particular offense and charged in the particular form and mode required by law. If that is wanting his trial and conviction is a nullity, for no person can be deprived of either life, liberty, or property without due process of law. The forms or modes of accusation which the law recog- nizes are: Indictment or presentment by a grand jury, and information by the public prosecutor. The colonists who came to this country from England brought with them the com- mon and statute laws of England as they existed at the time of their emigration and in so far as they were applicable to the local circumstances of the colonies which they established. Among the principles of the common law which they brought were those which regulated the mode of proceeding in criminal cases — the law relating to indictments and informations and the right to trial by jury — although in the colo- nies as well as in England various statutes had abolished, prior to the Declaration of Independence, a number of the oppressive provisions of English law relating to crimi- nal trials. Among the principles which had thus been abrogated, [3] for example, was that which denied to a person accused of a capital crime the right to have com- pulsory process for his witnesses and that which withheld from him the right to exam- ine on oath those witnesses who voluntarily appeared for him, as well as that which forbade him the aid of counsel in his defense, except only as regarded questions of law. (See United States v. Reid, 12 How., 360, 363 (1851).) The proceeding by information is said to have been unpopular in England and to some extent in the colonies. But it has never been abolished in England, although in some of our States it has been abolished. At the time of the Declaration of Inde- pendence it was a familiar mode of criminal procedure in all the colonies. When the statute of 3 Henry VII extended the jurisdiction of the court of star chamber and informations became restricted in practice to that court, the members i Affirming United States v. Weeks, p. 643, ante. APPENDIX. 837 of which were the sole judges of the law, the fact and the penalty, Blackstone (4 Commentaries, 310) states that a very oppressive use was made of them for something more than a century, "so as continually to harass the subject and shamefully enrich the Crown." And when the court of star chamber was abolished in the time of Charles I and proceedings by information were again used in the court of King's bench, the prejudice which had arisen from the long abuse of this process was so strong that it was strenuously contended that all proceedings by information were illegal as being contrary to the nature of English laws and to Magna Charta. But the objections were overruled, Sir Matthew Hale saying: "That although in all criminal cases the most regular and safe way, and most con- sonant to the statute of Magna Charta, is by presentation or indictment of 12 sworn men, yet, for crimes inferior to capital ones, proceedings might be by information, and this from long and frequent practice was certainly established as the law of the land." (5 Mod., 463; Show., 106; Bacon's Ab. Information, A; 2 Hawk., P. C. 260; 4 Black. Com., 130; 1 Ersk. Speeches, 275; State v. Dover, 9 N. H., 468 (1838).) And the unpopularity of informations was not restricted to the mother country, but, as we have already said, existed to some extent in this country. Mr. Justice Wilson, of the Supreme Court of the United States, and who was also a member of the Constitutional Convention of 1787, in the lectures which he delivered as professor of law in the Univertity of Pennsylvania in 1790-1792, after calling attention to the two kinds of informations — those filed ex officio by the public prosecutor and those carried on in the name of the Commonwealth or Crown, but in fact at the instance of some private person or common informer — said : "The first have been the source of much; the second have been the source of intolerable vexation; both were the ready tools by using which Empson and Dudley, and an arbitrary star chamber, fashioned the proceedings of the law into a thousand tyrannical forms. Neither, indeed, extended to capital crimes; but ingenious tyranny can torture in a thousand shapes without depriving the person tortured of his life." [4] After calling attention to the fact that in England restraints had been imposed upon informations at the instance of private persons but not upon those filed ex officio by the public prosecutor, he went on to say: "By the constitution of Pennsylvania, both kinds are effectually removed. By that constitution; however, informations are still suffered to live; but they are bound and gagged. They are confined to official misdemeanors; and even against those they can not be slipped but by leave of the court. By that constitution, 'no person shall for any indictable offense, be proceeded against criminally by information' — 'unless by leave of the court, for oppression and misdemeanor in office.' " (2 Wilson's Works, Andrews ed., p. 450.) There seems to be no doubt that prosecution by information is as ancient as the common law itself. The subject had no reason to complain because this method of prosecution was adopted, for as Blackstone (4 Commentaries, p. 310) states: "The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had been by indictment." Moreover, it seems to have always been the rule that the substantial parts of the information had to be drawn with as much exactitude as the con-esponding parts of an indictment for the same offense. In the early years of the Federal Government informations were principally used, if not exclusively used, for the recovery of fines and forfeitures. And Mr. Justice Story, in his Commentaries on the Constitution, section 1780, and written in 1833, said, in speaking of informations: "This process is ^rely recurred to in America; and it has never yet been formally put into operation by any positive authority of Congress under the National Govern- ment, in mere cases of misdemeanors; though common enough in civil prosecutions for penalties and forfeitures." But within the last 50 years prosecutions by informations have increased greatly in the Federal courts. (See ex parte Wilson, 114 U. S., 417, 425.) It appears, as Stephens states in his History of the Criminal Law, volume 1, page 295, that from the earliest times the law officers of the King accused persons of offenses not capital in his own court without the intervention of a grand jury. But the right to prefer a criminal information is at common law restricted to misdemeanors. At common law any information will lie for any misdemeanor, but not for a felony." (22 Cyc, 187, and cases there cited.) The offense charged in the information now under consideration was plainly a mis- demeanor, and for more than 200 years the right has been established in England to prosecute by information and without the sanction of a grand jury a person charged with having committed a misdemeanor. 838 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. [5] Bacon in his Abridgement, volume 3, page 635, after stating that an information differs principally from an indictment in that "an indictment is an accusation founded by the oath of 12 men, whereas an information is only the allegation of the officer who exhibits it," goes on to explain that there were two kinds of criminal informations in use in England under the common law procedure. The first, which was for offenses more immediately against the King, was filed, he says, by the attorney general, ex officio, and without leave of court. The second, which was for offenses against private individuals, was exhibited by masters of the Crown, and, as matter of course, prior to the statute of 4 and 5 William and Mary, c. 18. But after that statute was enacted informations of the second class, he declares, could not be filed except upon leave of court, and all such informations had to be supported by the affidavit of the person at whose suit it was filed . In the United States it has been suggested that informations brought by the prose- cuting officers answer to the informations filed by the masters of the Crown and which, as said, had to be supported by affidavit and not to the informations of the first class or those which related more immediately to the King and which could be filed with- out affidavit. Those who make this suggestion rely upon the statement found in Blackstone's Commentaries, volume 4, page 309, where that distinguished commen- tator says: "The objects of the King's own prosecutions, filed ex officio by his own attorney general, are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his Government, or to molest or affront him in the regular discharge of his royal functions. For offenses so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the Crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal; which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations filed by the master of the Crown office upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the Government (for those are left to the care of the attorney general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion." Now, this statement may seem to imply that the attorney general's right to file informations for misdemeanors was not unlimited, but Avas restricted to misdemeanors which tended to disturb or endanger the Government. But if this was his meaning it is evident that he was mistaken in his understanding of the law. C'hitty in his great work on the Criminal Law, page 384, says: "Informations may be filed by the attorney general for any offense below the dignity of felony, which tends, in his opinion, to disturb the Government or imme- diately interfere with the interests of the public or the safety of the Crown. He most frequently [6] exercises this power in cases of libels on Governments or high officers of the Crown, etc. He seems, indeed, at his option to exact it when any offense occurs which may thus be prosecuted in the Crown office. He may file an information against any one whom he thinks proper to select, without oath, without motion or opportunity for the defendant to show cause against the proceeding." And Cole, in his work on Criminal Informations, page 9, says that — "The attorney general may exhibit an ex officio information for any misdemeanor whatever." And Hawkins, in his Pleas of the Crown, volume 2, page 369, says: "As to the first of these particulars, viz: In what cases such informations lie, it hath been holden, that the King shall put no one to answer for a wrong^lone principally to another, without an indictment or presentment, but that he may do it for a wrong done principally to himself. But I do not find this distinction confirmed by experience; for it is everyday's practice, agreeable to numberless precedents, to proceed by way of information, either in the name of the attorney general or of the master of the Crown office, for offenses of the former kind, as for batteries, cheats, seducing a young man or woman from their parents in order to marry them against their consent, or for any other wicked purpose; spiriting away a child to the plantations, rescuing persons from legal arrests, perjuries and subornations thereof, forgeries, conspiracies, whether to accuse an innocent person or to impoverish a certain set of lawful traders * * * and other such like crimes done principally to a private person, as well as for offenses done principally to the King." In Clark on Criminal Procedure, pages 128 and 129, it is said: "By an early English statute (4 and 5 William and Mary, c. 18), however, which is old enough to have become a part of our common law, if applicable to our conditions, APPENDIX. 839 it was provided that informations by masters of the Crown office could only be filed by leave of court and that they should be supported by the affidavit of the person at whose suit they were preferred. The law remained that informations filed by the attorney general (and as already stated he could file them for any misdemeanor) need not be verified and that he was the sole judge of the necessity or propriety of filing them. * * * There is some authority for the proposition that the kind of infor- mation to be used at common law in this country is that which in England was filed by the masters of the Crown office. * * * But by the better opinion, the other kind of information is the one in use with us." In Bishop's Criminal Procedure, section 144. it is said: " In our States the criminal information should be deemed to be such, and such only, as in England is presented by the attorney or solicitor general. This part of the English common law has plainly become common law with us. As with us, the powers which in England were exercised by the attorney or solicitor general are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office and without leave of court." If it is true, and it seems to be, that the district attorneys exercise the powers which in England were exercised by the attorney or solicitor general, then they are entitled to proceed upon information, and that without leave of the court and without affidavit. It is necessary to keep in mind what Mr. Stephen, in his General View of the Criminal Law of England, page 156, calls the "most [7] characteristic principle of the law of England" on the subject of criminal procedure, namely, that in that country "every- one, without exception, has the right to use the Queen's (King's) name for the pur- pose of prosecuting any person for any crime." The statute (4 and 5 William and Mary, c. 18) was intended to restrict the right of prosecution by private and not public prosecutors. Prior to that act it had been within the power of any individual to file an information without disclosing to the court the grounds upon which it was exhibited. (4 T. R. 290.) And the meaning of the statute was that the clerk of the Crown should thereafter file no information of a private prosecutor without leave of the court, and that the fact that there was probable cause for filing it should be dis- closed in order that the court might know whether to grant leave, and it was further intended to preclude the issuance of process on such informations without recog- nizance. (Comyn's Digest, vol. 4, p. 558, note.) But there was no intention to limit the right of the attorney general to prosecute by information as he always has done. It was not necessary in England either before or after the statute that he should obtain leave of the court before filing his information and there was, therefore, not the same reason why he should verify any information which he filed. More- over, he was acting throughout under his oath of office and it was not assumed that he would proceed upon information without probable cause. We think that the weight of authority is that in this country, as the text writers assert, the informations used by the prosecuting officers are the informations used by the attorney general in England and not those exhibited by masters of the Crown and which were governed by 4 and 5 William and Mary, c. 18. And as at common law an information could be filed by the attorney general simply on his oath of office and without verification, it has been held in this country that verification of an infor- mation by a prosecuting attorney is unnecessary unless required by some constitutional or statutory provision. (Long. v. People, 135 111., 435; People v. Graney, 91 Mich., 646: State v. Pohl, 170 Mo., 422, 22 Cyc, 281.) We pass, therefore, to inquire whether there is anything in the Constitution of the United States or in the acts of Congress which in any way alters the common law respecting the right of the prosecuting officers of the Government of the United States to proceed by information in criminal cases in the Federal courts. The Constitution of the United States leaves all offenses against the United States open to prosecution by information except those which are capital or infamous. The restriction as to those offenses is contained in the fifth amendment: "No persons shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger. " [8] The Supreme Court in ex parte Wilson (144 U. S., 417 [1885]) authoritatively decided what meaning is to be attached to the word "infamous" in this connection. The court held that a crime punishable by imprisonment for a term of years with hard labor is an infamous crime. In the constitutional sense it is not the character of the crime, but the nature of the punishment which renders the crime infamous. The offense with which the defendant in this case is charged is not an infamous one, but one upon which he might be tried upon information. 840 FEDERAL POOD AND DRUGS ACT AND DECISIONS. The acts of Congress not only have not prohibited the use of informations, but have on the contrary expressly authorized their use in certain cases. (See sec. 1022 of the Revised Statutes.) The fourth amendment to the Constitution of the United States provides as follows, "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." Mr. Justice Story, in his Commentaries on the Constitution, volume 2, section 1902, in speaking of this amendment, states that: " It is little more than the affirmance of a great constitutional doctrine of the common law." If that be true and if it also be true that at common law the Attorney General could file an information without verification or affidavit of probable cause, his oath of office being regarded as sufficient, then this particular amendment should not be regarded as altering the rule upon that subject. In United States v. Maxwell (3 Dillon, 257 [1875]), in an opinion written by Judge Dillon, it is said: "We are of the opinion, therefore, that offenses not capital or infamous may, in the discretion of the court, be prosecuted by information. We can not recognize the right of the district attorney to proceed on his own motion and shall require probable cause of guilt to appear by the oath of some credible person before we will allow an informa- tion to be filed and a warrant of arrest to issue. But with these safeguards there is no more reason to fear an oppressive use of information than there is reason to fear an abuse of the powers of a grand jury." The facts in the case were that prior to the term complaint on oath had been made before a United States commissioner charging the defendant with several violations of the internal-revenue laws, and the defendant was arrested upon a warrant issued by the commissioner and held to answer to the district court. At the term, the district attorney, upon the said complaint, warrant, and recognizance, moved the court for leave to file criminal information against the defendant, charging him with said offenses, which leave was granted and the information accordingly filed. The defend- ant appeared and pleaded guilty. Afterwards his counsel made a motion in arrest of judg[9Jment upon the ground that the defendant could only be punished criminally upon an indictment and not upon an information. The motion in arrest of judgment was overruled, the court using, in the course of its opinion, the language already quoted. The case can not be regarded as holding that an information must be verified. The court, in a dictum, announced that it would not permit an information to be filed and a warrant of arrest to issue without some evidence being presented under oath that probable cause of guilt existed. In United States v. Smith (40 Fed., 755 [1889]), in a case which arose in the Circuit Court for the Eastern District of Virginia, Judge Hughes said: "A preliminary question raised in the argument was whether the district attorney may, of right, by virtue of his official prerogative, file informations charging citizens with offenses brought officially to his knowledge. This can not be done, under the rules and practice of this court, except upon previous complaint under oath, after opportunity has been given the accused to appear before the examining officer and to confront the witnesses testifying in support of the complaint. This requisite makes it necessary that the district attorney shall have leave from the court to file an information; and, if it is within the discretion of the court to grant the leave or not, then the right to file is not a prerogative of the prosecutor's office, and the court may require him before granting leave to bring the accused, by rule or other pro- ceeding, before the court to show cause, if cause there be, against the filing of the information. ' ' The decision does not hold that an information must be verified. The case most frequently cited in the Federal courts on this subject is that of United States v. Tureaud (20 Fed., 621), decided in 1884 in the fifth circuit by Judge Billings, of the eastern district of Louisiana. It was decided in that case that informations must be based upon affidavits which show probable cause arising from facts within the knowledge of the parties making them. And the court quashed an information which was based on an affidavit which read: "George A. Dice, being duly sworn, says: All the statements and averments in the foregoing information are true, as he verily believes." It was conceded — "that under the usages of the Government of Great Britain this information belongs to the class of formal accusations which could be made by the King in his courts with- out any evidence and against all evidence." APPENDIX. 841 The opinion then continued: " But the adoption of the fourth amendment affected all kinds and modes of prose- cution for crimes or offenses, for there can be no legal pursuit of accused persons with- out apprehension. All prosecutions require warrants. An information, a suggestion of a criminal charge to a court, is a vain thing unless it is followed by a capias. The procedure by information, therefore, after it was acted upon by this amendment lost its prerogative function or quality. It could not thereafter be the vehicle of preferring any arbitrary accusation — not by Kings — because we have in the depart- ment of criminal law no successor to him, so far as he represented a right to institute, [10] if it pleased him, unsupported incriminations, nor by the district attorney, nor any other officer of the United States, for the Constitution has said, in effect, that in no way nor manner shall magistrates or courts issue warrants, except upon proofs, which are to be upon oath and make probable excuse." What is said aa to the necessity for a verification of the information we think is correct in any case where the application for the issuance of a warrant of arrest is based on the information. In the United States v. Polite (35 Fed., 58 [1888]) in the district court for the district of South Carolina, it is said that — ■ "informations must be based upon affidavits which show probable cause arising from facts within the knowledge of the parties making them, and that mere belief is not sufficient." In this case the information was not sworn to, but accompanying it were the papers of the commissioner who held the preliminary examination, including the sworn testimony of the witnesses taken in the presence of the accused. It was held that this was sufficient, and a motion to quash was refused. In Johnston v. United States (87 Fed., 187 [1898]) in the Circuit Court of Appeals for the Fifth Circuit the two preceding cases are referred to and approved. The information was not sworn to but was accompanied by an affidavit. The court said: "The affidavit on which the information was based was wholly insufficient to -warrant the arrest and trial of the plaintiff in error and is altogether too general in terms as to the offense against the United States said to have been committed; and it shows no knowledge, information, nor even belief on the part of the affiant as to the guilt of the party charged, beyond the bare statement that 'there is probable cause to believe that the said offense has been committed by P. T. Johnston.' However false the affidavit may be it would be next to impossible to assign and prove perjury upon it." In the United States v. Baumert (179 Fed., 735, 742 [1910]) District Judge Ray in a carefully prepared opinion said: "Under the common law the information was not necessarily verified; but, as stated, this led to abuses and the adoption of the fourth amendment to the Constitution, which in legal effect demands that no warrant shall issue upon an information filed by the United States attorney, unless it states facts, a crime, etc., and is supported by the oath of the officer filing it, who must speak from personal knowledge or by the oaths or affirmations of others who speak from personal knowledge." There is nothing in the opinion rendered which holds that an information must in all cases be verified or supported by an affidavit showing probable cause. But only that an information must be so verified or supported when an application for the issuance of a warrant is based on it. The sole question before the court was as to the issuance of a warrant, and the court declined to direct its issuance on an information made on the information and belief of the district attorney alone. In United States v. Morgan (222 U. S., 274, 282 [1911])* the Supreme Court in the case of one prosecuted for a violation of the Pure Food and Drugs Act said : [11] ' ' A further answer is that as to this and every other offense the fourth amend- ment furnishes the citizen the nearest practicable safeguard against malicious accu- sation. He can not be tried on an information unless it is supported by the oath of some one having knowledge of facts showing the existence of probable cause. Nor can an indictment be found until after an examination of witnesses, under oath, by grand jurors, the chosen instruments of the law to protect the citizen against unfounded prosecutions, whether they be instituted by the Government or prompted by private malice." This statement as to the necessity of the information being supported by the oath of some one having knowledge of facts showing the existence of probable cause is obiter dictum. The court has certainly never decided that under such circumstances as exist in the case now before us no trial could be had. In Foster's Federal Practice, fifth edition, section 494, page 1659, this usually accurate writer states the rule as follows: "An information can not be filed without leave of the court. * * * An informa- tion must be supported by an affidavit showing probable cause for the prosecution arising from facts within the knowledge of the affiant; or by the depositions of witnesses 842 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. taken upon a preliminary examination or affidavits upon which a warrant of arrest against the accused was previously issued, which may be sufficient." The limitation imposed by this amendment is a limitation solely upon the powers of the Federal Government and not upon the powers of the State governments. This principle of construction was settled as early as 1833 by a decision written by Chief Justice Marshall in the leading case of Barron v. Baltimore (7 Peters, 243) and has been adhered to by the Supreme Court in numerous cases which have subsequently arisen. But in the constitutions of some of the States a provision exists similar to that embodied in the fourth amendment. And we may briefly inquire as to the effect given to it, as respects informations, by the decisions of the State courts. They have held in a num- ber of cases that a constitutional provision similar in terms to that embodied in the fourth amendment to the Constitution of the United States is violated if proceedings are had under an information which is not supported by the oath or affirmation of any person. (Lustig v. People, 18 Col., 217 [1893]; State v. Gleason, 32 Kans., 245 [1884]; Myers v. People, 67 111., 503 [1873]; Eichenlaub v. State, 36 Ohio St., 140 [1880]; De Graff v. State, 2 Okl. Cr., 519 [1909]; Thornberry v. State, 3 Tex. App., 36 [1877]; State v. Boulter, 5 Wyom., 236 [1894].) But the State courts are not agreed in this view, some of them having reached a contrary conclusion. (See State v. Smith, 114 La., 322 [1905]; State t>. Guglielmo, 46 Oregon, 250 [1905]; Territory v. Cutinola, 4 N. Mexico, 160 [1887].) In the case at bar the information was not verified, neither was it supported by any affidavit. The information begins, "Now comes Henry A. Wise, United States attor- ney for the Southern District of New York, leave having been first had and obtained, and respect [12] fully informs this court that," etc. It does not appear, however, that in obtaining leave of the court to file the information there was ever presented to the court any complaint under oath or any affidavit showing probable cause to believe that the person accused in the information had ever committed the offense charged against him. If the fourth amendment makes it necessary that under all circumstances an infor- mation must be verified or supported by an affidavit showing probable cause, then proceedings had in the prosecution of the defendant can not be sustained. But the right secured to the individual by the fourth amendment, as we understand it, is not a right to have the information by which he is accused of crime verified by the oath of the prosecuting officer of the Government or to have it supported by the affi- davit of some third person. His right is to be protected against the issuance of a war- rant for his arrest except "upon probable cause supported by oath or affirmation" and naming the person against whom it is to issue. If the application for the warrant is made to the court upon the strength of the information, then the information should be verified or supported by an affidavit showing probable cause to believe that the party against whom it is issued has committed the crime with which he is charged. But if no warrant has issued, no arrest been made, and the person has voluntarily appeared, pleaded to the information, been tried, convicted, and fined, we fail to discover wherein any right secured to him by the fourth amendment has been infringed. The fact that in the case at bar the defendant demurred to the information because it was not verified and he then pleaded not guilty only after his objection to the demurrer was overruled does not affect the matter. There was nothing in the ruling of the court that deprived him of his constitutional right to have no warrant issued for his arrest "but upon probable cause, supported by oath or affirmation." No such warrant has been at any time issued and no application for its issuance has ever been so much as requested. The Pure Food and Drugs Act makes it a crime against the United States if any part of the label on goods sent in interstate commerce is false and misleading. The goods shipped by the defendant were on the label "guaranteed to contain no gekv tine, gum arabic, egg albumen, or similar article." The claim of the Government is that while the goods contained no gum arabic they did contain India gum and that India gum was " similar" to gum arabic. The jury found that this was so after being instructed that if they had a reasonable doubt on the subject they must find for the defendant. There was sufficient evidence to warrant the submission of the case to the jury, and we find no error in the rulings of the court. Judgment affirmed. INDEX. Absinth — Page. an adulterated article 157 importation prohibited 157 Abuse of guaranty for advertising purposes 65 Acetanilide — name on label, opinion of Attorney General 792-796 name on label, requirement, regulation 28 26 name on label, statutory requirement 12 parent substance of acetphenetidine, opinion of Attorney General 792-796 Acetphenetidine — derivative of acetanilide, opinion of Attorney General 792-796 derivative of acetanilide, regulation 28 26 Adulteration — ■ confectionery, statute defining 11 drugs, statute defining 11 foods, statute defining 11 regulations concerning 20-22 Advertising purposes, abuse of guaranty for 65 Age, statement of, regulation 21 25 Agent, corporation, etc., liability 14 Agriculture — Commerce, and Treasury, Secretaries, authority to make regulations, House committee report 812, 814 Commerce, and Treasury, Secretaries, authority under Food and Drugs Act, opinion of Attorney General 802-804 Commerce, and Treasury, Secretaries; authorized by statute to make regu- lations 10 Secretary, appeal to for remuneration, etc., regulation 37 30 Secretary, authority to determine colors, preservatives, and other substances in foods, regulation 15 21 Secretary, authority to fix food standards, House committee report 816 Secretary, authority to investigate adulterations, etc., opinion of Attorney General 802-804 Secretary, duties in connection with hearings 10, 18-19 Secretary, duty in rejection of imports, regulation 38 30 Secretary, duty to enforce Food and Drugs Act 10 Secretary, duty to examine imports for adulteration and misbranding 14 Treasury, and Commerce, Secretaries, authority to make regulations, opinion of Attorney General 792-796 Alcohol — definition, relation to high wines and spirits, etc., opinion of Attorney General 786 derivatives and preparations, regulation 28— 26 name on label, requirement of statute 12 name on label, requirement, regulation 28 26 present in drug products, declaration of the quantity or proportion of 43, 44 Amendment of regulations, regulation 40 31 Analysis, methods, provision for, regulation 4 18 Animals, unfit for food, adulterated 11 Appeal — for remuneration for samples, regulation 37 30 publication required, regulation 6 19 Application of regulations to domestic meats 159 Approval of labels - 32 Ash, United States v., cited 777 Associations, etc., liability 14 Attorneys — General, opinions 768-805 United States, duty to conduct prosecutions for violations of the act 10 843 844 FEDERAL POOD AND DRUGS ACT AND DECISIONS. Barley and oats, bleached 156 Barney, Schmieder v., cited 777 Barytes, adulterant of confectionery 11 Beet-sugar molasses in the preparation of whisky compounds and imitation whiskies, use of neutral spirits distilled from 110-112 Beuzoate of soda — amendment to Food Inspection Decision 76, relating to the use in foods of. . 106 use hi food 116-117 use in food , provisions for, regulation 15 22 Bettman et al., Union Distilling Co. et al. v., cited 799-825 Beverages, classification as food, House committee report 811 Beveridge amendment, notes on 769, 770 Bills, pure-food, in Congress, 1889-1906, dates and authors 810-811 Bitters, labeling of 91-92 Bleached flour, adulterated 116 Bleached oats and barlev, labeling of 156 Blend- definition of term 13 labeling of 12 of whiskies 778, 779 use of term in labeling whisky 828 Blended whiskies 36 Blends — method of labeling, regulation 17 22, 23 without distinctive names, regulation 21 24 Bonaparte, Charles J. — Attorney General, opinion on declaring names of derivatives on labels of drugs 792-796 Attorney General, opinion on harmony of Tea Inspection Act with Food and Drugs Act 772-775 Attorney General, opinion on labeling whisky, May 29, 1907 775-779 Attorney General, opinion on labeling whisky, February, 1909 797-800 Attorney General, opinion on marking and branding of spirit casks 783-789 Attorney General, opinion on relations of Drugs and Medicine Act of 1848 and Food and Drugs Act 779-782 Attorney General, opinion on sale of condemned medicines by the military authorities 789 Bond- consignee's, for delivery of imports prior to examination, regulation 35 30 for release of imports 14 Border importations, minor 48 "Bourbon," use in name of whisky, discussion by President Taft 834 Bowers, Lloyd W., Solicitor General, report on the labeling of whisky 818-830 Branding — incompleteness, regulation 24, 25 medicines condemned by military authorities, opinion of Attorney General _ 791, 792 proper, not complete guaranty, regulation 23 25 spirit casks, opinion of Attorney General 783-789 Brandy, definition and labeling of 160 Butter — adulterated 827 coloring of 41 Butterfield v. Stranahan, cited 773 California Fig Syrup Co., Worden v., cited 823 Canadian Club Whisky, labeling of 139-143 Candied citron, labeling of 155 Cane and maple sirups, labeling of mixtures of 69 Cannabis indica — name on label, statutory requirement 12 preparations of, regulation 28 26 Canned foods — use of sugar in 61 use of water, brine, sirup, sauce, and similar substances in the preparation of 155-156 INDEX. 845 Page. Cantaloupes, Rocky Ford 131, 132 ' ' Caracas Cocoa, ' ' labeling 130, 131 Caramels, labeling of 84, 85 Certificate and control of dyes permissible for use in coloring foods and food- stuffs. 79-82 Certificates for imported meats and meat food products of cattle, sheep, swine, and goats 67-69 Certification of straight dyes and mixtures under secondary certificates (amend- ment to F. I. D. 77) 144-146 Change in form of guaranty legend 114, 115 Charlock as a substitute for mustard, use of 150 Cheese — coloring of 41 "soaked curd " 113 Cheeseman, et al. , v. Meyers, cited 825 Chemicals, dyes, and preservatives in foods 69-79 Chemistry Bureau, duty in examination of foods and drugs 10 Chew Hoeng v. United States, cited 774 Chloral hydrate — derivatives and preparations, regulation 28 26 name on label, statutory requirement 12 Chloroform — name on label, statutory requirement 12 preparations containing, regulation 28 26 Chocolate and cocoa, labeling of 149, 150 Chocolates and other confections, use of shellac and other gums for coating 133-134 Chrome yellow, adulterant of confectionery 11 Citron, labeling of candied 155 Citrus fruit, frozen 159 Citrus fruits, coloring of green 147-148 Coated, definition of term, regulation 12 20 Coated to conceal damage or inferiority 11 Cocaine — derivatives and preparations, regulation 28 26, 27 name on label, statutory requirement 12 Cocoa — labeling of Caracas 130, 131 labeling of chocolate and 149-150 Cocoa butter, substitutes 48, 49 Coffee- glazed. 83, 84 imitation 40 importation of 126 labeling of Dutch East Indies 85, 86 labeling of Mocha 107-108 Collection of samples 83 Coloring — addition to whisky, discussion 820, 828, 832-833, 834 butter and cheese 41 foods and foodstuffs, certificate and control of dyes permissible for use in. . 79-82 foods, to conceal damage and inferiority, prohibited 11 green citrus fruits 147, 148 harmless, use in blends permitted 13 harmless, use in blends, regulation 21 24, 25 vegetables 108, 157, 158 Colors — harmless, permitted in food, regulation 12 20 harmless, use in confectionery, regulation 10 20 use of certified _. 132, 133 wholesomeness, regulation 15 21 Commerce — ■ Agriculture, and Treasury, Secretaries, authority to make regulations, opinion of Attorney General 792-796 Agriculture, and Treasury, Secretaries, authority to make regulations, House committee report 812, 814 846 FEDERAL POOD AND DRUGS ACT AND DECISIONS. Commerce — Continued. PaSe- Agriculture, and Treasury, Secretaries, authority under Food and Drugs Act, opinion of Attorney General 802-804 and Labor, Secretary, authorized by statute to make regulations 10 interstate. See Interstate commerce. Secretary, approval of food substances, regulation 15 21 Secretary, duty in making food and drugs regulations 10 Composition of evaporated milk 146-147 ' ' Compound " in names of drug products, use of the word 50 Compounds and mixtures — use of terms, regulation 27 26 imitations and blends, labeling of 12, 13 imitations and blends, labeling of, regulation 21 24 Condemnation, procedure under Food and Drugs Act 13 Condemned medicines, sale of, by military authorities of the United States, opinion of Attorney General 789-792 Condiments, classification as food 11, 811 Confectionery — adulteration, regulation 10 20 adulteration, statute defining 11 Congress — committee of, report 807-817 index to debates in _ 806, 817, 818 Coopers ville Cooperative Creamery Co. v. Lemon, cited 828 Copper salts — importation of vegetables greened with 108, 117, 157, 159 in food, findings of Referee Board ^ 157 in the greening of foods, use of 108, 157, 158 Cordials, labeling of 138 Corn sirup, labeling of 105 Corporations, etc., liability 14 Customs regulations, retention of Treasury construction of Drugs and Medicine Act, 1848 781 Daviess v. Fairbairn, cited 774 Day, Railway Co. v., cited 796 Decisions of the Board of Food and Drug Inspection 32-162 Decisions of the courts under the Food and Drugs Act 163-716, 836-842 Declaration — food and drug products for importation, regulation 33 . . .- 29 of the quantity or proportion of alcohol present in drug products 43, 44 Decomposed substance, foods consisting of 11 Deleterious ingredients, natural, application of law, regulation 13 21 Denaturing — amendment to regulation 34 • 109 of foods, regulation 24 29-30 Derivative, meaning of word in Food and Drugs Act 793 Derivatives — labeling of, amendment to regulation 28 128 of drugs, declaration on labels, opinion of Attorney General 792 of drugs, declaration on labels, regulation 28 26 ' ' Derived from, ' ' chemical meaning 794 Design — ■ as part of label, regulation 17 23 false or misleading 12 Device — as part of label, regulation 17 23 false or misleading 12 Distilled spirits — control by Government in warehouse 783-784 marking and branding, opinion of Attorney General 783-789 Distinctive name, foods sold under 12, 24 Distributed by, labeling of food and drug products 62, 63 District of Columbia, manufacture and sale of adulterated and misbranded foods and drugs in 9 Downing, Robertson v., cited 781 Drinks — classification as food, House committee report 808, 811 defined as food 11 INDEX. 847 Drug— page> adulteration, statute defining 11 definition of term, House committee report 807, 814 law, act of June 30, 1906, text 9-14 law, Sherley amendment of Aug. 23, 1912 14-15 misbranding, definition, House committee report 808, 815 products, declaration of the quantity or proportion of alcohol present in. . . 43, 44 products, preparation for importation, regulation 32 29 products, use of the word "compound" in names of 50 statutory definition of term 11 Drugs — adulteration, definition, House committee report 807, 814 and Medicine Act, 1848, construction of 780 and Medicine Act, 1848, relation to Food and Drugs Act, opinion of Attor- ney General 779-782 examination by Chemistry Bureau 10 formula on the label of . 43 misbranding, Sherley amendment 15 misbranding, statute defining 12, 14 purity requirements under Food and Drugs Act 11 sale below standards, provision for 19 standard of 1848 act, applicability under Food and Drugs Act, opinion of Attorney General 779 standards, regulation 7 19 Dunlap, Dr. F. L., views on the labeling of whisky 797, 798 Dyes— and mixtures under secondary certificate's, certification of straight (amend- ment to F. I. D. 77) 144-146 chemicals, and preservatives in foods 69-79 permissible for use in coloring foods and foodstuffs, certificate and control of. 79-82 Edgerton, Roberts v., cited 822 English language, use on label under foods act 23 Entry of vegetables greened with copper salts 117 Ethyl alcohol. See Alcohol. Eucaine — name on label, statutory requirement 12 preparations, name on label, requirement, regulation 28 26 Eureka Vinegar Co. v. Gazette Printing Co., cited 777 Evaporated milk, composition of 146, 147 Ex parte Crow Dog, cited 774 Expert, opinion not justification of misleading statement, regulation 17 23 Export foods and drugs, provisions regulating 9, 10 Exports — exemption from control of Food and Drugs Act 10 foods and. drugs, preparation, etc., regulations 31-39 ,. 28-31 Extracts, flavoring, labeling of 38, 39 Fabbri v. Murphy, cited 774 Factories, food, required to be open for inspection, regulation 8 19 Fairbairn, Daviess v., cited 774 Falk, United States -a., cited 781 Farbenfabriken of Elberfeld & Co. v. United States, cited 793 Fictitious firm names 37, 38 Filing guaranty 32 Filthy substance, foods consisting of 11 Firm names, fictitious 37, 38 Flavor, poisonous, prohibited in confectionery 11 Flavoring — extracts 38, 39 use in blends 13 use in blends, regulation 21 25 Flavors, use in confectionery, regulation 10 22 Floating of shellfish 135, 136 Flour, bleached 116 Flours, mixing 33 848 FEDERAL FOOD AND DRUGS ACT AND DECISION'S. ' Food— Page adulterated, regulation of traffic in 771 adulteration, definition, House committee report 807-808, 814-815 adulteration, English statute, cited 827 adulteration, statute defining 11 and Drugs Act, cumulative with Drugs and Medicine Act, 1848, opinion of Attorney General 779-882 and Drugs Act, legislative history 806, 817, 818 and Drugs Act not repugnant to Tea Inspection Act, opinion of Attorney General 772-775 and Drugs Act, procedure for condemnation 13 and Drugs Act, provisions, application to meats and meat-food products. . 800 definition of term, House committee report 807, 811, 814 export, provisions 9, 10 imports, provisions 9 inspection decisions, scope and purpose of 35-36 law, act of June 30, 1906, text 9-14 misbranding, definition, House committee report 808, 815 misbranding, statute defining 12, 15 products, preparation for export, regulation 31 28 products, preparation for importation, regulation 32 29 pure, House committee report 807-817 standards, authority of Secretary of Agriculture to fix, House committee report 816 standards, discussion in House committee report 809 statute defining term 11 Foods — examination by Chemistry Bureau 10 misbranding, Gould amendment 15-16 packing, substances permitted, regulation 11 20 poisonous, application of law, regulation 13 21 proprietary, inspection of factories, regulation 8 19 proprietary, statements required, regulation 8 19 Foreign name, use on label, regulation 19 24 Form of label 41, 42 Formula on the label of drugs 43 Formulary — appendix, National 48 National, nomenclature required, regulation 17 23 National, standards adopted 11 National, standards adopted, regulation 7 19 Formulas, proprietary foods, regulation 8 19 Frozen citrus fruit 159 Fruit, citrus, frozen 159 Fuel Co., United States v., cited 794 Fusel oil, extraction from whisky, discussion 832-834 Gauger, duties in marking liquor packages, discussion 788 Gazette Printing Co., Eureka Vinegar Co. v 777 Geographical names — on the use of 131, 132 restriction of use on label, regulation 19 24 Glazed coffee _ 83, 84 Goodrich, Greenleaf v., cited 777 Gould amendment — construction of, by Attorney General 804-805 Food and Drugs Act, text 15-16 legislative history J 818 Grain, necessity in manufacture of whisky 820, 821, 824, 825 Greening of foods, use of copper salts in the 108, 157, 158 Greenleaf v. Goodrich, cited 777 Guaranties and serial numbers thereof, use of 65-67 Guaranty — as a bar to prosecution 13 based upon a former guaranty, issue of a, opinion of the Attorney General. . 86-91 filing ._ 32 filing of, provision for, regulation 9 20 INDEX. 849 Guaranty — Continued. Page. for advertising purposes, abuse of 65 for protection of dealer, House committee report 815 form of, regulation 9 19 legend, change in form of 114, 115 legend, use of, discontinued 160 on imported products 49 proper branding not a complete, regulation 23 25 serial number 112, 113 serial number, use of, prohibited 160 Healey, United States v., cited 781 Hearings- — amendment to regulation 5 146 provision for, regulation 5 18 provisions for 10 Hedden, Nix v., cited 776 Henderson's tobacco, cited 774 Heroin — name on label, requirement 12 preparations of, regulation 28 26 High wines — definition 833 definition, relations to alcohol and spirits, etc 786 Homogenized butter and skimmed milk in the manufacture of ice cream, use of . 147 House of Representatives — bills, pure-food, 1889-1906, dates and authors 811 committee report on pure-food bill 807-817 Ice cream, use of homogenized butter and skimmed milk in the manufacture of . 147 Imitation — coffee 40 definition of term, regulation 21 25 labeling of 12 "Imitation whisky, " discussion of term as label 797-800 Imitations without distinctive names, regulation 21 24 Importations — coffee 126 minor border 48 private 105, 106 Imported meats — and meat food products, interstate transportation of 67 and meat food products of cattle, sheep, swine, and goats, certificates for. 67-69 Imported products, guaranty on 49 Imports — bond for delivery prior to examination, regulation 35 30 food and drugs, preparation, etc., regulations 31-39 28-31 food and drugs, provisions 9 inspection for adulteration and misbranding 13, 14 rejected, shipment from United States, regulation 38 30 samples, delivery by Secretary of Treasury to Secretary of Agriculture 13 Indian River oranges 131-132 Ingredients as required by law, names to be employed in declaring the amount 44, 45, 46 Inspection of food and drugs and identification of inspectors 64 Inspectors, identification of 64 Internal revenue — regulations for marking liquors 784 Order No. 723, discussion by President Taft 831 Interstate commerce, food and drugs, provisions 9, 13 Interstate shipment of adulterated and misbranded foods and drugs, prohibited. 9 Interstate transportation of imported meats and meat food products 67 Invoices, imported food products, declaration, regulation 33 29 Issue of a guaranty based upon a former guaranty, opinion of the Attorney General 86-91 Italian Pharmacopoeia, as standard for imported drugs 782 Italy, drugs from, exclusion under Food and Drugs Act 782 40066—14 54 850 FEDEKAL FOOD AND DKTJGS ACT AND DECISIONS. Page. Judgments of courts, notice by publication 10, 19 Knight, Webb v., cited 827 Label — amendment to regulation 17 91 definition under Food and Drugs Act, regulation 17 22 names of drugs and derivatives to be declared on, regulation 28 26-27 of drugs, formula on the 43 requirement of use, regulation 22 25 Labeling — bitters. 91-92 candied citron 155 canned salmon and whitefish 119-120 "Caracas " cocoa 130, 131 caramels 84, 85 chocolate and cocoa 149-150 coffee produced in the Dutch East Indies 85, 86 cordials 138 corn sirup 105 food and drug products " manufactured for, " " prepared for, " "distributed by, " etc 62, 63 foods and medicinal mixtures for stock and poultry 106-107 maraschino and maraschino cherries 153, 154 medicinal and table waters 109-110 medicines condemned in Army, opinion of Attorney General 791, 792 mixtures of cane and maple sirups 69 Mocha coffee 107-108 New Orleans molasses 148 Ohio and Missouri wines 134-135 port and sherry wines produced in the United States 136 products used as foods and drugs as well as for technical and other purposes . 47 requirements under Food and Drugs Act 12 rices 136-137 sardines 51 stock feed 137-138 succotash 65 turpentine 117 vinegar 151-153 whiskies sold under distinctive names, opinion of the Attorney General in regard to the .---.---. 139-143 whisky, blends, compounds, and imitations thereof 51-60 whisky compounds 113-114 whisky compounds under F. I. D. 113 133 whisky, decision of President Taft 831-835 whisky mixtures and imitations thereof, 129, 130 whisky, opinions of Attorneys General 51, 111, 113, 139, 775-779, 783, 797-800 whisky, report of the Solicitor General on 818-830 wines 126, 127 yeast 128 Labels — after October 1, 1907, use of 82, 83 approval of 32 form of . . 41-42 Language, foreign, use on label, regulation 17 23 Law — pure-food, National, necessity 810 violation, notification to importer, regulation 36 30 Laws — food and drugs, text, 9-16 foreign, relation to exports of foods and drugs 10 Legislation, food and drugs, history 806, 810, 811, 817, 818 Lemon, Coopersville Cooperative Creamery Co. v., cited 828 Levy v. Uri, cited 798 Libel, procedure for condemnation under Food and Drugs Act 13 "Like substances, " meaning of words 777-778 Liquor, adulterant of confectionery 11 Lutz v. Magone, cited 794 INDEX. 851 Page. Magone, Lutz v., cited 794 Magone, Sonn v., cited 776 Malt liquors, prohibited in confectionery 11 Manufacture of adulterated and misbranded foods and drugs, prohibited 9 "Manufactured for, " labeling of food and drug products 62, 63 Manufacturer — name and address, use on label, regulation 18 23 name, place on label, regulation 17 22 Maple sirup, labeling of mixtures of cane and 69 Maraschino and maraschino cherries, labeling of 153, 154 Marking — liquor packages, actual measurement by gauger required 788-789 spirit casks, opinion of Attorney General 783-789 Marvel v. Merritt, cited 776 McReynolds, J. C. — Attorney General, opinion construing net weight amendment 804-805 Attorney General, opinion on application of Food and Drugs Act to meats and meat food products 800-802 Measures — regulation governing marking of 161 statement and variation, regulation 29 28 statement on package, statutory requirements 12, 15 Meat — exclusion from importation, regulation 32 29 imported, certificate required, regulation 32 29 imported, subject to provisions of Food and Drugs Act, opinion of Attorney General 768-772 inspection and transportation in interstate commerce, regulation 32 29 inspection law, discussion 800 inspection, law of 1906, application to imported meats, opinion of Attorney General. 768-772 interstate or foreign commerce in, subject to Food and Drugs Act, opinion of Attorney General _. : 800-802 products, imported, subject to Food and Drugs Act, opinion of Attorney General 768-772 products, interstate and foreign commerce, subject to provisions of Food and Drugs Act, opinion of Attorney General 800-802 Meat food products — interstate transportation of imported meats and 67 of cattle, sheep, swine, and goats, certificates for imported meats and 67-69- Medicinal and table waters, labeling of 109-110 Medicines, condemned, sale under Food and Drugs Act, opinion of Attorney General 789-792 Melons, Rocky Ford 131-132 Merritt, Marvel v., cited 776 Message, President's, stock yards report, extract 769 Method of stating quantity or proportion of preparations (containing opium, morphine, etc.) used in manufacturing other preparations 44 Meyers, Cheeseman et al. v., cited 825 Military authorities of the United States, sale of condemned medicines by, opinion of Attorney General 789-792 Milk, composition of evaporated 146, 147 Mineral substances — prohibition in confectionery 11 prohibition in confectionery, regulation 10 20 Minor border importations 48 Misbranded, definition under Food and Drugs Act 12 Misbranding — definition, House committee report 808, 815 definition, modification by Gould amendment 15-16 definition, modification by Sherley amendment 15 drugs named after a single constituent, regulation 17 23 foods and drugs, statutory prohibitions 12-16 no restrictions in Drugs and Medicine Act of 1848 as to 782 regulations 22-28 Mixed, to conceal damage or inferiority 11 Mixing flours 33 852 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Page. Mixture, labeling of, regulation 17 22, 23 ' ' Mixtures, ' ' use of term, regulation 27 26 Mocha coffee, labeling of 107, 108 Molasses, labeling of New Orleans 148 Moody, William H., Attorney General, opinion on application of Food and Drugs Act to imported meat and meat products 768-772 Morphine — use in manufacturing other preparations, method of stating quantity or proportion of 44 name on label, statutory requirement 12 derivatives and preparations, name on label, requirement, regulation 28.. 26 Muenter et al., Western Distilleries v., cited 825 Murphy, Fabbri v., cited 774 Mustard, use of charlock as a substitute for 150 Name — character, for food or drug, regulation 19 24 character of, amendment to regulation 19 91 distinctive, definition and conditions of use, regulation 20 24 distinctive, on foods : . . . 12 foreign, use on labels, conditions, regulation 19 24 geographic, restriction of use on label, regulation 19 24 manufacturers', place on label, regulation 17 22 manufacturers', use on label, regulation 18 23 parent substances of derivatives, declaration on label, regulation 28 26 Names to be employed in declaring the amount of the ingredients as required _ by the law 44-46 Narcotic drug — adulterant of confectionery 11 inclusion of term, regulation 10 20 National Formulary — appendix 48 standard for drugs 11 Net weight — regulation governing marking of 161 requirement of Food and Drugs Act 12 requirements of branding under Gould amendment 15-16 statement of, regulation 29 28 New Orleans molasses, labeling of 148 Nix v. Hedden, cited 776 Notification, importers', of violation of law, regulation 35 30 Oats and barley, bleached 156 Object of Food and Drugs Act, House committee report 812 Officer, corporation, etc., liability 14 Officials to carry out law, House committee report 812-813 Oil, sweet, use of the term 151 Opium — derivatives and preparations, name on label, requirement, regulation 28 . . 26 morphine, etc., used in manufacturing other preparations, method of stating quantity or proportion of 44 name on label, statutory requirement 12 Oranges, Indian Paver. See Citrus fruits 131, 132 Original packages, interpretation of regulation 2 92-105 Original unbroken packages — articles remaining in, subject to seizure 13 definition, regulation 2 17 Oysters. See Shellfish. Package form, quantity of the contents of food in 12, 15, 28, 161 Packages — large, "tolerances" to include, opinion of the Attorney General 804-805 original _ 92-105 Packing, foods, substances permitted, regulation 11 20 Parent substances of derivatives — name of, on labels 26-27 name on labels, opinion of Attorney General 792-796 INDEX. 853 Parliament, British, Committee on British and Foreign Spirits 826, 830 Penalty for violation of the Food and Drugs Act 9 "Person, ' ' definition under Food and Drugs Act 14 Pharmacopoeia- — Italian, as standard for imported drugs 782 United States, nomenclature required, regulation 17 23 United States, requirements made standard under Food and Drugs Act 11 United States, standard adopted, regulation 7 19 United States, standard for whisky 825, 830 Pharmacopoeias, foreign, use under Drugs and Medicine Act, 1848 780 Physicians' prescriptions 46, 47 Pickhardt v. United States, cited 793 Place of manufacture — mention on label, regulation 18 23 statement on label, regulation 27 26 Poisonous ingredients — natural, application of law, regulation 13 21 prohibited in confectionery and food 11 Poisonous preservatives — external application of, regulation 14 21 removal before use required 11 Police powers of State not interfered with by Food and Drugs Act, House com- mittee report 810, 813, 816 Polishing and coating rice 61, 62 Poultry, labeling of foods and medicinal mixtures for stock and 106, 107 Powdered, definition of term, regulation 12 20 Powdering food — to conceal damage and inferiority, prohibited 11 to conceal inferiority, regulation 12 20 Preparation of foods, substances used in the 39 Preparations (containing opium, morphine, etc.) used in manufacturing other preparations, method of stating quantity or proportion of 44 "Prepared for," labeling of food and drug products 62, 63 Prescriptions, physicians' 46-47 Preservatives — deleterious, removal before use, printed directions required 11 discussion in House committee report 809 external application of 11 external application of, regulation 14 21 in foods, dyes, chemical 69-79 inedibility, requirement, regulation 14 21 wholesomeness, regulation 15 21 President — decision on meaning of "whisky" and branding regulations 831-835 letter to Solicitor General on term "whisky," Apr. 8, 1909 818-819 Private importations 105, 106 Proportion, meaning of expression, regulation 30 28 Proprietary foods — disclosure of trade formulas 13 statements required, regulation 8 19 Protection for retail dealers, House committee report 808 Publication — notice of judgment 10 notice of judgment, regulation 6 19 Pure food, discussion and report of committee, H. R. 2118, 59th Cong., lstsess.. 807-817 Pure-food law, National, necessity, House committee report 810 Pure foods, discussion in report of committee, H. R. 2118, 59th Cong., 1st sess. . 811 Putrid substance, foods consisting of 11 Quantity, meaning of expression, regulation 30 28 Raw materials, examination by Secretary of Agriculture, regulation 16 22 Railway Co. v . Day, cited 796 Reexamination, provision for, regulation 5 18 Referee Board — of Consulting Scientific Experts, findings, opinion of Attorney General. . 802-804 opinion of the Attorney General in regard to the legality of the 121-125 854 FEDERAL POOD AND DRUGS ACT AND DECISIONS. Refuse, branding of products made of, regulation 26 26 Regulation — 2 (original packages), interpretation of 92-105 5 (hearings) , amendment to 146 9 (guaranty), amendment to 160, 162 28 (labeling of derivatives), amendment to 128 29 (statement of weight or measure) , amendment to 161 34 (denaturing), amendment to 109 39 (application of regulation) revoked 159 Regulations — adoption, date, and signatures 31 alteration and amendment of, regulation 40 31 application, note, regulation 39 31 application of 159 17 (label) and 19 (character of name), amendments to 91 See also Rules. Rennick, Woolner v., cited 799, 825 Relabeling of goods on hand 34 Report of the Solicitor General to the President on the meaning of the term "whisky" 818-830 Retail dealers, protection of, House committee report 808 Retailer, protection by guaranty of wholesaler 13 Rice, polishing and coating 61, 62 Rices, labeling of 136, 137 Roberts v. Edgerton, cited 822 Robertson v. Downing, cited 781 Rocky Ford cantaloupes 131-132 Rules — and regulations, adoption, modification, etc., notes 17 and regulations, text 17-31 Saccharin — in food 148-149,150 use in food prohibited, regulation 15 22 and tapioca 144 Sales, Government, control by Food and Drugs Act 791 Salmon and whitefish, labeling of canned 119-120 Salts of tin in food 139 Samples — collection, directions, regulation 3 17 collection of 83 Sardines, labeling of 51 Schmieder v. Barney, cited 777 Scope and purpose of food-inspection decisions 35 Secretary — of Agriculture. See Agriculture, Secretary. of Commerce and Labor. See Commerce, Secretary. of Treasury. See Treasury, Secretary. Seizure proceedings, method 13 Senate bills, pure food, 1890-1906, dates and authors 810 Serial number — guaranty 112, 113 provision for, regulation 9 19 Serial numbers — canceled 160 of guaranties, use of 65-67 Shellac and other gums for coating chocolates and other confections, use of 133-134 Shellfish 127-128 Sherley — amendment, Food and Drugs Act, text 14-15 amendment, legislative history 817 Shipment of adulterated and misbranded foods and drugs 9 Shipper, declaration, regulation 33 29 Short title of act, regulation 1 17 Sirups — labeling of corn 105 labeling of mixtures of cane and maple 69 INDEX. 855 "Soaked curd" cheese 113 Societies, etc., liability 14 Soda, benzoate of, use in food substances. 21 Solicitor General, report on meaning of "whisky " 818-830 Sonn v. Magone, cited 776 Spirit — casks, marking, opinion of Attorney General 783-789 neutral, not whisky 820, 821, 823, 825 Spirits — British and foreign, report of committee of House of Commons 826, 830 definition, relations to alcohol and high wines, etc 786 distilled. See Distilled spirits. Spirituous liquor, prohibited in confectionery 11 "Stain," definition of term, regulation 12 21 Stained food, to conceal damage or inferiority 11 Staining, food, regulation 12 21 Standards — drug 11 drug, regulation 7 19 food, authority of Secretary of Agriculture to fix, House committee report. . 816 food, discussion in report of committee, H. R. 2118, Fifty-ninth Congress, first session 809 State- officers, duty to report violations to Secretary of Agriculture, regulation 5. . 18 v. Stoll, cited 774 Statutes, food and drugs, text 9-16 Stock and poultry, labeling of foods and medicinal mixtures for 106, 107 Stock feed, labeling of 137, 138 Stockyards report, Reynolds and McNeil, extract from President's message on. . 769 Stoll, State v., cited 774 Stranahan, Butterfield v., cited 773 Substances used in the preparation of foods 39 Substitutes, cocoa butter 48, 49 Substitution — adulteration by 11 name of substitute required on label, regulation 25 25 Succotash, labeling of 65 Sugar in canned foods, use of 61 Sulphur dioxid, amendment to Food Inspection Decision 76, relating to the use in foods of 106 "Sweet oil," use of the term 151 Taft, Wm. H.— decision on meaning of "whisky," and branding regulations 831-835 letter to the Solicitor General on the term "whisky " 818-819 Talc, adulterant of confectionery 11 Tapioca, sago and 144 Tea- green, adulteration, decision in England 822 Inspection Act, relation to Food and Drugs Act, opinion of Attorney Gen- eral.. > 772-775 misbranding, lack of provision in Tea Inspection Act 773 standards, provision in Tea Inspection Act 773 Technical — and other purposes, labeling of products used as food and drugs, as well as for 47 purposes, articles ordinarily used for food purposes must be denatured for 108, 109 Terra alba, adulterant of confectionery 11 Territories, manufacture and sale of adulterated and misbranded drugs in 9 Territory — definition, House committee report 817 definition of term under Food and Drugs Act 14 Time required to reach decisions on different problems connected with the Food and Drugs Act 39-40 Tin in food, salts of 139 Tolerances to include large packages, opinion of Attorney General 804-805 856 FEDERAL FOOD AND DRUGS ACT AND DECISIONS. Tozer v. United States, cited 796 Trade- formulas, exemption from disclosure 13 honest, not harmed by Food and Drugs Act 812 Trans-Missouri Freight Association, United States v . , cited 778 Treasury — Agriculture, and Commerce Secretaries authority to make regulations, House committee report 812, 814 Agriculture and Commerce, Secretaries, authority to make regulations, opinion of Attorney General 792-796 Agriculture and Commerce, Secretaries, authority under Food and Drugs Act, opinion of Attorney General 802-804 Department, construction of Drugs and Medicine Act, 1848 780 Secretary, approval of food substances, regulation 15 21 Secretary, authority to open and sample original package, House committee report 817 Secretary, authority under Food and Drugs Act 773, 774 Secretary, duty in delivery of samples of imports to Secretary of Agricul- ture 13 Secretary, duty in making food and drugs regulations 10 Secretary, duty to exclude rejected imports, regulation 38 30 Turpentine, labeling of 117 Tynen, United States v., cited 774 Type, size required on label, regulation 17 23 Union Distilling Co. et al. v. Bettman et al., cited 799, 825 United States — Chew Hoeng v. , cited 774 Farbenfabriken of Elberfeld & Co. v., cited 793 Pickhardt v., cited 793 Tozer v., cited 796 v. Ash, cited 777 v. Falk, cited 781 v. Fuel Co. , cited 794 v. Healey, cited 781 v. Trans-Missouri Freight Association, cited 778 v. Tynen, cited 774 Wood v., cited 774 Unloaded, articles remaining, subject to seizure 13 Unsold, articles remaining, subject to seizure 13 Uri, Levy v., cited 798 Use— of certified colors 132-133 of charlock as a substitute for mustard 150 of copper salts in the greening of foods 108 of guaranties and serial numbers thereof 65-67 of homogenized butter and skimmed milk in the manufacture of ice cream. 147 of labels after October 1, 1907 _ 82, 83 of neutral spirits distilled from beet sugar molasses in the preparation of whisky compounds and imitation whiskies 110-112 of shellac and other gums for coating chocolates and other confections .... 133-134 of sugar in canned foods 61 of the term "sweet oil" 151 of the word "compound " in names of drug products 50 of water, brine, sirup, sauce, and similar substances in the preparation of canned foods 155-156 Vegetables — greened with copper salts, entry of 117 greening of 108, 157-158 Vinegars, labeling of 151-153 Vinous liquor, prohibited in confectionery 11 Warehouse, spirits, control by Government 783 Waste materials, branding of packages made of, regulation 26 25 Water, brine, sirups, sauce, and similar substances used in the preparation of canned foods 155-156 INDEX. 857 Waters, labeling of medicinal and table 109-110 Webb v. Knight, cited 827 Weight- place on label, regulation 17 '. 23 regulation of marking the 161 statement and variation, regulation 29 28 statement of, statutory provisions 12, 15-16 Western Distilleries v. Muenter et al., cited 825 Whiskies — blended 36 sold under distinctive names, decision of the Attorney General in regard to the labeling of 139-143 Whisky — aging in wood, effects, branding, etc 832-833, 834 blends, compounds, and imitations thereof, labeling of, opinion of the Attorney General 51-60 branding regulations, under internal-revenue act, decision by President Taft 831-835 Canadian Club, labeling of 139-143 compounds and imitation whiskies, use of neutral spirits distilled from beet- sugar molasses in the preparation of 110-112 compounds, labeling of 113, 114 compounds under F. I. D. 113, labeling of 133 description in United States Pharmacopoeia 825, 830 difference from alcohol 777 distilling history, discussion by President Taft 832-833 drug same name as beverage 821 "Irish, " term, discussion 825-826 labeling of, opinions of Attorneys General 51, 111, 113, 139, 775-779, 783-789, 797-800 meaning of term, report of Solicitor General 818-830 meaning of term under pure-food law, decision, President Taft 831-835 mixtures, and imitations thereof, under the Food and Drugs Act of June 30, 1906, labeling of 129, 130 mixtures, discussion 820, 821, 829, 830, 835 "rectified, " definition 820, 832, 834 "Scotch, " term, discussion 825-826 "straight, " definition 82,0, 829-830, 832, 833, 834 Whitefish, labeling of canned salmon and 119, 120 Wholesaler, guaranty, protection to retailer 13 Wickersham, George W., Attorney General, opinion on authority of Secretaries of Agriculture, Treasury, and Commerce 802-804 Wines — labeling of 126, 127 labeling of Ohio and Missouri 134, 135 produced in the United States, labeling of port and sherry 136 removal from warehouse 784 Wood v. United States, cited 774 Woolner v. Rennick, cited 799, 825 Worden v. California Fig Syrup Co., cited 823 Yeast, labeling of 128 o Accession no. 31874 Author Jl A .. *Wv_> Call no. Atr /y , )ciif [looted)