CORNELI, LAW LIBRARY come.. UnWerslW Library The la\N of pure e of high power microscopes, with which it is impossible to examine at any time more than an infinitesimal portion of the milk, and that portion may or may not be a fair sample of the whole bulk, while to examine specimens enough to reach a fair average requires so much time that a commodity as perishable as milk would spoil while being tested. We can not say that, in adopting the tuberculosis test, the board of health ex- ceeded its legitimate function. That function is distinct from the function of the court." "We are not impressed by the suggestion that healthy cows may, and diseased cows may nob, react to the tuberculin test; that many cows react that have had tuberculosis and recovered; that many that now have tuberculosis are likely to recover; and that it is possible for the producer of milk to destroy the value of the test by trick. These arguments would be of more importance if the board of health were undertaking to condemn to death all cattle that react. This they are not doing. If the cattle are likely to recover the owner may keep them until they do, and may use their product for any proper purpose. His loss is similar in kind, although perhaps greater in degree, than the loss of milk at the time of parturition. If the cows are in fact free from tuberculosis, or have already recov- ered, he could no doubt make a market for his milk upon establishing these faets.^ The fact that the value of the test may be destroyed by the trick of the owner of the cow only shows that the method is not perfect; few methods could be beyond the reach of deception. It is beside the point to sug- gest that, if this test were applied to human beings, eighty percent of mankind must be condemned as diseased. In deal- ing with human beings a different rule is followed from that which is applied in dealing with cattle, because men make the rule. The test might be applicable to human beings if it were proposed to use the produce of their bodies as food 3 "Provision is made for special cases by Section 7 of Article 8 of the Sanitary Code." § 37] LAW OF PURE POOD AND DRUGS. 70 for others. A wet nurse might properly be subjected to a more stringent examination."* §37. Requiring Delivery of Sample of Milk for Inspection. Milk dealers may be required to furnish samples of milk for inspection and analysis; and such requirements are valid. Thus where an ordinance required milk to be of a certain purity, and provided "that every vendor or establishment or person who sells milk shall be obliged to permit any sani- tary officer or inspector of the board of health of the State for inspection and analysis on application therefor, a sample of the milk sold by said vendor or establishment or person from the can or other vessel from which it is sold to the public," the sample not to exceed one-half pint, for which no charge could be made, it was held valid and a proper method of municipal legislation. Such an ordinance or stat- ute does not force a milk dealer to furnish evidence of his guilt. "Appellant complains," said the 'COurt, "that the or- dinance is vexatious and oppressive, in that the inspectors are subject to no special and uniform rules to control their action. He claims it opens the door to favoritism and to the gratification of personal spite and prejudice ; that the inspec- tors may harass the vendors of milk by unnecessary and re- peated demands for samples. The mere fact that powers under an. ordinamce may be abused does not make the ordi- nance itself illegal, unreasonable, or oppressive. It is very difficult to so hedge in power conferred as to withdraw from it opportunities for wrongdoing. If such wrongdoing as appellant anticipates were to occur, we think that there are ample remedies at hand to correct and punish it. The efficiency of the inspection referred to in this case rests, to a great extent, upon the very uncertainty as to the time and place of inspection of which counsel complains. It would be an easy matter to prepare for inspections, if parties knew in advance precisely where and when they were to be made." The courit did not deem the requirement with respect to the * Borden's Condensed Milk Co. v. Montclair (N. J. L.), 80 Atl. 30. 71 CONSTITUTIONALITY OF STATUTES AND OEDINANCES. [§37 furnishing of samples was a taking of property without com- pensation.^ "We do not think," said the Supreme Court of Louisiana, "that the objections urged by appellant to the ordinance, that it deprives him of equal protection of the law; that it denies him protection in the enjoyment of his property; that it denies him protection in person and in property against unreasonable searches and seizures, and authorizes the inva- sion of the same without warrant founded on oath or affir- mation; and that it deprives him of property and liberty without due process of law, are well founded. Defendant has selected as a business one which, improperly conducted, in the hands of unscrupulous men, would seriously affect the health of the public. It is no longer a debatable question whether callings of that character can be legally brought under reasonable restraints and regulations through the ex- ercise of the police power. The object of the ordinance in ques- tion is to protect the general public against dishonest ven- dors in milk. Its effect will be, not only to injure appellant, but to protect him, as a member of the public, from that class of persons, and, incidentally, to serve him, as an honest vendor in that business, from injurious competition through fraudulent devices and ill practices. Honest vendors could certainly see nothing to flow from the ordinance but proper and beneficial results. They certainly should raise no com- plaint at having their own actions brought to a test, when, in so doing, they purge the business of disreputable charac- ters. "We do not think the ordinance was beyond the scope of the police power of the city, nor that, considered as a health ordinance, it bears no substantial relation thereto. "We are of the opinion that in delegating to the common coun- cil as it did, the Legislature contemplated thiat it would adopt a reasonable system to render the power effective. "We agree 1 State V. Dupaquier, 46 La. 577, Commonwealth v. Carter, 132 Mass. 15 So. 502, 26 L. R. A. 162, 49 12; SMvers v. Newton, 45 N. J. L. Am. St. 334; St. Louis v. Liessing, 469; Blazier v. Miller, 10 Hun 190 Mo. 464, 89 S. W. 64, 1 L. R. 435. A. (N. S.) 918, 109 Am. St. 774; § 37] LAW OF PUEB rOOD AND DEUGS. 73 with plaintiff's counsel that a reasonable method of inspec- tion of the milk offered for sale to the public falls legiti- mately under the grant of power. There are two methods of inspection: The first is to compel the vendor to exhibit the articles he proposes to dispose of to a public officer as a condition precedent to their sale; but inasmuch as there are certain cases where the prior inspection would fail of ac- complishing its purpose, by reason of the facility offered for subsequently tampering with the goods inspected, a second system is often had recourse to. Under this system the ven- dor is permitted to proceed with his sales without prior in- spection, but with the obligation to submit his commodity to inspection when the latter think it necessary to demand an examination. The penalty is laid upon the sale, not of un- inspected wares, but of the improper ones. We are of the opinion that the liability at any moment to call for inspec- tion, together with the dread of the penalty following de- tection, operates strongly, by way of prevention, against the perpetration of frauds, and, as counsel well says, 'are the most effective of checks against the sale of adulterated food, land the object of the law, otherwise unattainable, is accom- plished'. "^ "Where a statute provided that no person should sell, or exchange, or offer or expose for sale or exchange, any un- clean, impure, unhealthy, adulterated or unwholesome milk, and declared that if the milk had been delivered by the "producer" for sale or shipment, or from a "milk vendor who produces" the milk which he sold, and it was designed to prosecute such producer, a sample should be taken from the "mixed milk of the herd of cows" from which the milk claimed to be adulterated was drawn, it was held that the statute was not unconstitutional in that it required a test of the milk of the herd to be made when it was sought to prose- cute the producer, while it authorized a conviction of the milk vendor on sample taken from the milk sold by him.' 2 State V. Dupaquier, 46 La. 577, Dairy Company, 62 Ohio St. 350, 15 So. 602. 26 L. E. A. 162, 49 Am. 57 N. E. 62, 57 L. E. A. 181. St. 334; State v. Capitol City s People v. Laesser, 79 N. Y. App. Div. 384, 79 N. Y. Supp. 470. 73 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 38 §38. Forcible Seizure of Samples of Milk Without a Warrant. A statute of the State which authorizes all milk inspectors to enter all carriages used in the conveyance of milk, and, whenever they have any reason to believe any milk found therein is adulterated, to take specimens of it for the purpose of analyzing or otherwise satisfactorily testing it, is a valid exercise of the police power, and does not compel a dealer to furnish evidence of his own guilt. If the seizure is such as is authorized by the Constitiition and a law passed in pur- suance of it, the fact that the thing seized may be used in evidence against the person from whose possession it is taken does not render the seizure itself a violation of a clause in the usual Declaration of Eights that no man shall be compelled to give evidence against himself.^ "It is said that the provision is unconstitutional because it authorizes the taking of property without consent or com- pensation, warrants unreasonable searches and seizures, com- pels one to furnish evidence against himself, and is not within the police power of the commonwealth. An analysis of a specimen of milk offered for sale is an appropriate means of carrying into effect the various provisions of the statutes regulating the sale of milk in this commonwealth."' "If the statute had required that all milk offered for sale should first be inspected, it could be hardly contended that the trifling injury to property occasioned by taking samples for inspection would be such a taking of private property for public use as to require that compensation be made there- for. Such an injury to property is a necessary incident to the enforcement of reasonable regulations affecting trade in food. Private property is held subject to the exercise of such public rights for the common benefit; and in the case of licensed dealers in merchandise, the injury suffered by in- spection is accompanied by advantages which must be re- garded as a sufficient compensation. Instead of requiring 1 Commonwealth v. Carter, 132 Mass. 12; State v. Doris, 117 Mo. 014, § 39] LAW OP PURE FOOD AND DRUGS. 74 milk offered for sale to be first inspected, the Legislature, for obvious reasons, has permitted licensed dealers to sell milk without inspection; has imposed penalties for selling adul- terated milk; and has provided that, when the inspector of milk has reason to believe that any milk may be adulterated, he may take specimens thereof, in order that, by analysis, he may determine whether the milk has been adulterated. Such a seizure of milk for the purpose of examination is a reason- able method of inspection, and does noit require a warrant. It is a supervision, under the laws of the State, by a public ofiScer, of a trade which concerns the public health, and it is within the police power of the commonwealth.^ There is nothing in this ease which requires us to deter- mine the rights of the defendant if the inspectors had at- tempted to take a larger quantity of milk for analysis than was reasonably necessary for the performance of his duties. "We have not found it necessary to consider whether the defendant, by voluntarily accepting a license to sell milk, has not assented to the conditions and regulations which the Legislature has seen fit to impose upon the exercise of the trade licensed."' §39. License to Sell Milk, Power of Municipality to Exact. Whether or not a municipality may exact a license for the sale of milk depends upon its charter or some statute author- izing it to exact it. Usually statutes on this subject are of such certainty that little controversy can arise over the at- tempt to confer the power.^ But the power to exact the license does not fall within the scope of the usual general 2 Citing Commonwealth v. Ducey, 1 L. R. A. (N. S.) 918, 109 Am. 126 Mass. 269, and Jones v. Root, St. 774. 6 Gray 435. i See St. Louis v. Grafeman 3 Commonwealth v. Carter, 132 Dairy Co., 190 Mio. 507, 89 S. W. Mass. 12; State v. Dupaquier, 46 627, 1 L. R. A. (N. S.) 936; as an La. 577, 15 So. 502, 26 L. R. A. instance of this kind, Littlefield v. 162, 49 Am. St. 334; St. Louis v. State, 42 Neb. 223, 60 N. W. 724, Liessing, 190 Mo. 464, 89 S. W. 611, 28 L. R. A. 588. 75 CONSTITUTIONALITY OF STATUTES AND OKDINANCES. [§ 39 welfare clause of municipal charters.^ Where a city charter authorized a city to inspect and provide against the adultera- tion of milk or cream sold, or bought to be sold, in the city, it was held that it did not either expressly or impliedly authorize it to demand a license from persons engaged in the sale of milk.' But in New Jersey, where no express power was given to require a license fee, yet it was held that the city board of health had the power to require a license fee sufficient to pay the expenses of license and the necessary expense of inspecting the milk, under a statute authorizing it to prohibit the sale of, or having in possession for sale, any milk containing any unhealthful ingredient, or which had been transported or stored in an unclean manner or place, or which was produced from diseased cows, or cows stabled under unhealthful conditions.* If the State has undertaken to regulate the sale of milk and tlo license the busdness, then a municipality can not claim implied power to require license from milk dealers.^ This is particularly true where a city charter forbids the enactment of an ordinance upon any matter which is regulated by public statute, and there is a statute which provides full regulations in respect to the adulteration of milk. In such an instance the municipality has no power to regulate the sale of impure milk by requir- ing a license from the owner of vehicles by means of which the business is carried on.* So where a statute regulated the siale of mdlk and expressly provided that any ordinance passed under it should not be in conflict with it; and the State granted a license to a milk dealer, it was held that a munic- ipality in which he was licensed to sell milk could not de- stroy the privilege thereby conferred on him, by refusing him a municipal license except upon payment of an inspec- tion fee, the fee being to all intents and purposes an addi- 2 Bear v. Cedar Rapids, 147 Iowa * Blanke v. Board of Health, 64 341, 126 N. W. 324, 27 L. R. A. N. J. L. 42, 44 Atl. 847. (N. S.) 1150; Mayher v. Lexington, 5 Bear v. Cedar Rapids, 147 Iowa 8 Ky. i.. Rep. 138. 341, 126 N. W. 324, 27 L. R. A. 3 Gray v. Wilmington, 2 Marv. (N. S.) 1150. (Del.) 257, 43 Atl. 94. estate v. Tyrrell, 73 Conn. 407, 47 Atl. 686. §40] LAW OF PURE FOOD AND DEU6S. 76 tional license.' A municipality, however, under the power to license can not exercise such power to raise revenue. Such power must be exercised as a means of regulation only. Nor can the Legislature authorize the power of taxation under the pretense of sanitary regulation or other exercise of police power of the State in the interest of the public health or safety. But "such a measure will be upheld by the courts wherever it appears to have been designed to pro- mote the welfare of the public, and the revenue derived therefrom is not disproportionate to the cost of its enforce- ment and the regulation of the business to which it applies. ' '* § 40. Requiring Permit to Sell Milk. A statute which provides that "No milk shall be received, held, kept or offered for sale or delivered" in a particular city "without a permit in writing from the Board of Health and subject to the conditions thereof," is valid, being a rea- 7 St. Paul V. Peck, 78 Minn. 497, 81 N. W. 389; State v. Mofson, 86 Minn. 103, 90 IS. W. 309; Burling- ton V. Bumgardner, 42 Iowa 673. 8 Littleueld v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 589 (a license fee of $10 for a milkman is reasonable) ; State v. Hoboken, 41 N. J. L. 71; People v. MulhoUand, 82 N. Y. 324, 37 Am. Rep. 568; Van Baalen, 40 Mich. 258; Chicago V. Bartie, 100 111. 57; Kinsley v. Chicago, 124 111. 359, 16 N. E. 260. To an application for a, mandam- us to secure a license to sell milk, it is a good answer to allege that the applicant had been refused a license on the ground that he had been selling unclean milk. People V. Oilman (N. Y.), 103 N. Y. Supp. 954. An ordinance made it unlawful to drive a milk wagon over the streets of a city without a license. It also prohibited the peddling of any goods and wares in or along such streets Avithout a license, and this paragraph was followed with a deiinition of a peddler, and with a proviso that the section should not apply to farmers selling the pro- ducts of their own farms. The de- fendant resided outside the city, and was arrested while driving a milk wagon in which he had noth- ing but milk from cows kept on his farm, which he was selling to his customers in the city. It was held that the ordinance required him to take out a license for driving the milk wagon on the streets, and he was not excepted by the proviso, which related only to the license required to be taken as a peddler. Macoon v. Cumberland, 92 Md. 451, 48 Atl. 136. 77 CONSTITUTIONALITY OF STATUTES AND OEDINANCES. [§ 41 sonable enactment, and being neither a violation of the Fed- eral or State Constitution. "In great cities," said the court, "where, in certain sections, life exists under crowded con- ditions that can not be fully comprehended unless seen, and where many articles for table consumption by all classes of the community are liable to pass through processes and con- ditions little short of appalling unless regulated by law, the full and vigorous exercise of the police power in the interests of the public health and general welfare is absolutely essen- tial. It is quite impossible that every offender against the provisions of the sanitary code should be accorded due proc- ess of law as embracing jury trial and the slow results of the ordinary procedure in the courts. The vesting of powers more or less arbitrary in various officials and boards is neces- sary if the work of prevention and regulation is to ward off fevers, pestilence and the many other ills that constantly menace great centers of population. . . . The requirement that the relator should not sell milk without a permit is rea- sonable and violates neither the Federal nor State Constitu- tion [and] is in accordance with law and long-established precedent. ' '^ § 41. Registration of Milk Dealers — ^License. Under an authority to provide for the inspection of milk, a municipality may require the vendors of milk to register in one of the offices, or in the office of the health commissioner, and pay a fee — as one dollar — for registration; for the fact that the selling of milk is a lawful trade or business does not exempt it from reasonable police regulations. So power conferred upon a municipality to make provision for the in- spection of milk, and to license occupations, authorizes it to license milk vendors as distinguished from general mer- 1 People V. Vandecarr, 175 N. Y. ledo, 23 Ohio Cir Ct. Eep. 547; 440, 67 N. E. 913, 108 Am. St. 781, Birmingham v. Goldstein, 151 Ala. affirming 81 N. Y. App. Div. 128, 473, 44 So. 113,, 125 Am. St. 33; 80 N. Y. Supp. 1108, and affirmed Salt Lake City v. Howe (Utah, 106 199 U. S. 552, 26 Sup. Ct. 144, 50 Pao. 705; In re Watson 17 S. D. L. Ed. 305. See also Walton v. To- 486, 97 N. W. 463. §41] LAW OP PURE FOOD AND DEUGS. 78 chants.^ "The provision requiring vendors of cream andiailk to register with the health commissioner and pay a registra- tion fee," said the court, "was clearly a valid police regula- tion, looking to the protection of the health and administer- ing to the welfare of the public, and came strictly within the charter powers of the city of St. Louis, giving authority for the inspection of milk, and license from the inspector is a guaranty to the community that they can with safety pur- chase milk from the dealer thios registered and licensed. This provision was clearly not a tax, but merely as an inspec- tion fee, designed as a compensation for the service ren- dered. The fact that the selling of milk is a lawful trade or business does not exempt it from reasonable police regu- lations. In Gundling v. Chicago^ the Supreme Court of the United States tersely stated the recognized rule on this sub- ject : Regulations respecting the pursuit of a lawful business or trade are of very frequent occurrence in the various cities of the country, and what such regulations shall be, and to what particular trade, business or occupation they shall ap- ply, are questions for the city to determine, and their deter- mination comes within the proper exercise of the police power of the city ; and unless the regulations are so contrary, unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are unnecessarily and in a manner wholly arbitrary interfered with or destroyed without due process of law, they do not 1 St. Louis V. Grafeman Dairy W. 828 ; St. Louis v. Polinsky, Co., 190 Mo. 492, 89 S. W. 617, 1 190 Mo. 516, 89 S. W. 625; St. L. R. A. (N. S.) 937; citing St. Louis v. Schuler, 190 Mo. 524, 89 Louis V. Fischer, 167 Mo. 654, 67 S. W. 621, 1 L. R. A. (N. fe.) 928. S. W. 872, 64 L. R. A. 679, 99 In St. Louis v. Grafeman Dairy Am. Rep. 614; affirmed 194 U. S. Co., supra, it was also held that a 362, 24 Sup. Ct. 673, 48 L. Ed. provision in the ordinance requir- 1018; NorfolK v. Flynn, 101 Va. ing payment of a fee to the "city 473, 44 S. W. 717, 99 Am. St. collector" was not void, the statute 918, 62 L. R. A. 771; Gundling v. designating the one who is to re- Chicago, 177 U. S. 183, 20 Sup. Ct. ceive it or the "license collector." 633, 44 L. Ed. 725; State v. McKin- 2 177 U. S. 183, 20 Sup. Ct. 633, ney, 29 Mont. 375, 74 Pac. 1095; 44 L. Ed. 725. State V. Bixman, 162 Mo. 1, 62 S. 79 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 41 extend beyond the power of the State to pass. When it is considered that no article of food is more universally used by the public, and that no other article is perhaps so sensi- tive to atmosphere and vegetable influences as milk, and that it is within a common knowledge that impure milk is a fruit- ful source of disease and disorders, especially among chil- dren, it needs no discussion to show that the milk business is one which particularly falls within the power of the State and its municipality to regulate, and that the imposition of one dollar a year for registration is in no sense an onerous or unjust burden, and is intended as a pure police measure to cover in part the cost of inspection of milk and cream, is too plain for discussion."^ A statute which requires a registration with the live stock sanitary board of all herds or cattle of persons selling milk for consumption in municipalities is a valid exercise of the police power of the State, and it does not deprive milk deal- ers of their property without due process of law. If it ap- plies to all persons so supplying milk it is valid, even though it does not apply to every person who may occasionally sell milk in the country. And, as has been said before, a statute which prohibits the sale and shipment of milk to supply municipalities from premises found in an unsanitary condi- tion, until they conform to reasonable sanitary regulations is a valid exercise of the State's police power, although it interferes to some extent with property rights.* 3 St. Louis V. Grafeman Dairy to the mayor of a city to issue li- Co., 190 Mo. 492, 89 S. W. 617, 1 censes to sell milk to suoli persons L. E. A. (K. S.) 938. as he thought proper is valid. Licenses for the sale of milk People v. Mulholland 19 Hun 548. have been upheld in other states. But an ordinance exacting a, li- Littlefleld v. State, 42 Neb. 223, cense to sell milk except from tie 60 N. W. 724, 47 Am. St. 697, 28 owner of two cows only, peddling L. R. A. 588 ; Chicago v. Bartee, milk by hand, has been held invalid. 100 111. 57; Norfolk v. Flynn, 101 Pierce v. Aurora, 81 111. App. 674. Va. 473, 44 S. E. 717, 62 L. R. A. * State v. Broadbelt, 89 Md. 565, 771, 99 Am. St. 918; State v. Nel- 43 Atl. 771, 45 L. R. A. 433, 45 son, 66 Minn. 166, 68 N. W. 1066, Am. Rep. 433; State v. Nelson, 66 34 L. R. A. 318, 61 Am. St. 399. Minn. 166, 68 N. W. 1066, 34 L. An ordinance granting the power R. A. 318, 61 Am. St. 359. §42] LAW OF PURE FOOD AND DEUGS. 80 §42. License Tax on Dairy Business Measured by Number of Cows Kept or Wagons Used in Business. It is not only permissible to exact a license of dairymen sell- ing milk within a municipality, but the amount of the tax may be measured by the number of cows he employs in his business. In one particular case the tax was fifty cents per cow; and this tax was imposed by an ordinance. A power given a municipality to license, tax and regulate all kinds of business, and providing that this power "may be used in the €xercise of the police powers as well as for the purpose of raising reveoiuie, one or botih, ' ' authorizes the adoption of su'clh regulations. Such an imposition is a license tax on the oc- cupation of carrying on a dairy and not on the property vested in the business. Such a tax is not unreasonable, and it is uniform in its operation. It is a proper classification.^ 1 Birmingham v. Goldstein, 151 Ala. 473, 44 So. 113, 125 Am. St. 33, 12 L. E. A. (N. S.) 568; Nor- folk V. Flynn, 101 Va. 473, 44 S. E. 717, 99 Am. St. 918, 62 L. E. A. 771. An ordinance imposing a license fee upon every livery stable keeper in proportion to the number of horses or carriages kept is valid. How- land V. Chicago, 108 111. 496; Wil- son V. Lexington, 105 Ky. 765, 49 S. W. 806, 50 S. W. 834, 20 Ky. L. Eep. 1593, 1980; Smith v. Louis- ville, 9 Ky. L. Eep. 779, 6 S. W. 911; Johnston v. Macon, 62 Ga. '645; Burlington v. Unterkircher, 99 Iowa 404, 68 N. W. 795; Brown v. Galveston, 97 Tex. 1, 75 S. W. 488; Oibson V. Coraopolis, 22 Pittsb. L. J. (N. S.) 64. Contra Cullinan v. New Orleans, 28 La. 102; Williams V. Garignes, 30 La. 1094. A license fee on each room of a hotel or boarding house or a parlor or bedroom is valid. St. Louis v. Birches, 76 Mo. 431, aifirming 7 Mo. App. 169. So is one of $60 on every billiard table kept for hire. Meriam v. New Orleans, 14 La. Ann. 318 {Contra Knox City V. Thompson, 19 Mo. 523, and State v. Endom, 23 La. Ann. 663) ; or $25 for each cab or hack using a portion of the city streets as a private hack stand. New lork v. Eeesing, 77 N. Y. App. Div. 417, 79 N. Y. Supp. 331, affirming 38 N. Y. Miac. 129, 77 N. Y. Supp. 82. So a license is valid that imposes a license fee of so much per boat or skiff kept for him. Poyer v. Des- plaines, 22 111. App. 576, and so is one in proportion to the number of wagons used in handling oil. Spiegler v. Chicago, 216 111. Il4, 74 N. E. 718, and one based upon the number of sheep or lambs kept by those engaged in grazing, herd- ing and pasturing, usually being a stated sum per hundred or thou- sand head. Plumas County v. 81 CONSTITUTIONALITY OP STATUTES AND ORDINANCES. [§ 43 So an ordinance imposing a license fee of fifty cents on each cow a dairyman has who sells milk within a municipality and two dollars on each milk stand he maintains therein is valid, even though the ordinance imposing it provides that the amount thus secured shall be used to pay the salary of a milk inspector. Nor is it any objection to such an ordinance that the cows are kept without the municipality, if he sells milk within its limits. "The means adopted seem to us to be reasonable. It was necessary to the end in view that there should be an inspector, that he should have the power to take samples of the milk and have them analyzed, and his duties involved expenses which it was proper that those en- gaged in the sale of milk should bear. A license from the in- spector was evidence to the community that they could with safety purchase milk from the dealer to whom it was issued. He who is licensed should not complain, because he derives a direct and important benefit from it, for which he is required to pay a reasonable compensation. The dealer discovered in improper practices in the effort to foist upon the community milk unfit for use has no right to complain if he has been detected in such practices. What the dealers are required to pay by the ordinance is not for the purpose of revenue, and Wheeler, 149 Ca,l. 758, 89 Pao. ington, etc., E. Co., 89 Ky. 29, 11 909; affirmed 196 U. S. 562, 25 Sup. 8. W. 9S4, 11 Ky. L. Rep. 319; New Ct. 316, 49 L. Ed. 509; Sierra York v. Third Ave. E. Co., 42 N. County V. Flanigaji, 149 Cal. 769, Y. Misc. 599, 87 N. Y. Supp. 584, 87 Pac. 913. Ex parte Miranda, 73 affirmed without an opinion, 115 Cal. 365, 14 Pac. 888. Contra N. Y. App. Div. 899, 101 N. Y. Cache County v. Jensen, 21 Utah Supp. 1116; State v. Hilbert, 72 207, 61 Pac. 303.) So is a license Wis. 184, 39 N. W. 326; New York fee imposed on a street railway v. Forty-second, etc., K. Co., 52 company in proportion to the num- How. Pr. 106; Union Pass. E. Co. ber of cars they may operate. v. Philadelphia, 83 Pa. 429; New Byrne v. Chicago General E. Co., York v. Third Ave. E. Co., 117 N. 169 111. 75, 48 N. E. 703, affirming Y. 406, 22 N. E. 755; Harrisburg 63 111. App. 438; Cincinnati St. E. v. East Harrisburg Pass. E. Co., 4 Co. V. Cincinnati, 8 Ohio N. P. 80; Pa. Dist. E. 683; New York v. Cincinnati Inclined Plane E. Co. Broadway & 8th Ave. E. Co., 97 N. V. Cincinnati, 52 Ohio St. 609, 44 Y. 275; Harrisburg v. Citizens' N. E. 327; Newport v. South Cov- Pass. E. Co., 4 Pa. Dist. E. 687. PUEE Food — 6. § 43] LAW OF PUEE FOOD AND DRUGS. 82 is not a tax, but is an inspection fee, designed as a compen- sation for the service rendered."^ All the eases, however, do not agree with those just cited. Thus where an ordinance provided that every dairy keeper within certain designated limits of a municipality should pay an annual tax of two dollars for each cow he employed in his dairy business, it was held that it was void, because It was a tax on property and not a license tax; and also be- cause it did not apply equally to all those engaged in the dairy business within the limits of the municipality.^ So where an ordinance for the licensing of milkmen fixed the amount to be paid for the license, and then added fifty cents for each additional cow added to the licensee's stable, it was held void on the ground that the fee imposed for each addi- tional cow exceeded the amount permitted by the municipal charter to be charged as a license fee.* § 43. Inspection of Dairies. A State has power to require vendors of milk to submit to an inspection of their dairies by an official inspector before selling the milk ; and if they are not up to a fixed standard which insures the purity of the milk there produced, to pro- hibit its sale. And a city, under its usual powers to require an inspection of milk, may adopt an ordinance requiring all vendors of milk within a city not only to submit their milk to an inspection, but also their dairies, even though such dairies lie beyond the city limits. Such an ordinance is 2 Norfolk V. Flynn, 101 Va. 473, Reading v. Bitting, 167 Pa. 21, 31 44 S. E. 717, 62 L. E. A. 771, 99 Atl. 359. But they have been held Am. St. 918. valid vrhere the charter authorized s Orleans Parish v. Nougues, 11 their adoption. Walton v. Toledo, La. Ann. 739. 23 Ohio C. C. 547; People v. Mul- *In re Taylor, 11 Manitoba L. holland, 19 Hun 548; affirmed 82 E. 420. N. Y. 324, 37 Am. Rep. 568. Municipal ordinances imposing a A fee of one dollar per year on license fee for every wagon used by each vragon used is a reasonable milkmen in retailing milk have amount. Walton v. Toledo, 23 Ohio been held void where the charter Cir. Ct. Rep. 547. did not warrant their adoption. 83 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 44 valid.^ This phase of the question can be reached by re- quiring a license to sell milk and exacting of the dairyman 'that he will consent to an inspection of his premises.^ §44. Destroying Impure Milk and Food. A statute or ordinance may authorize an inspector, on finding the milk offered, or intended to be offered, for sale is below the standard it fixes, or is impure, to destroy it. Such a statute or ordinance is within the police power of the State; and it may be exercised for the protection of the pub- lic. The destruction of the milk is necessary to prevent danger to life and health which woidd result from the use of it iu an impure condition.^ So likewise impure food offered for sale, or even intended for sale, on the market may be seized and destroyed.^ "The right to so seize is based upon the right and duty of the State to protect and guard, as far as possible, the lives and health of its inhabitants, and that it is proper to provide that food which is unfit for human consumption shall be summarily seized and destroyed to prevent the danger which would arise from eating it. The right to seize and destroy is, of course, based upon the fact that the food is not fit to be eaten. Food that is in such a condition, if kept for sale or in danger of being sold, is in itself a nuisance of the most dangerous kind, involving, as it does, the health, if not the lives, of persons who may eat it.* 1 Norfolk V. Flyiin, 101 Va. 473, 30 Atl. 648, 26 L. E. A. 541, 45 44 S. E. 717, 99 Am. St. 918, 6? Am. St. 339; State v. Newton, 45 L. E. A. 771; State v. Nelson, 66 N. J. L. 469; Williams v. Riven- Minn. 166, 68 N. W. 1066, 34 L. E. burg (N. Y. App. Div.), 129 N. A. 318, 61 Am. St. 399; State v. Y. Supp. 473. Broadbelt, 89 Md. 565, 43 Atl. 771, 2 Ex parte Hayden, 147 Cal. 45 L. R. A. 433, 73 Am. St. 201; 649, 82 Pac. 315, 1 L. E. A. (N. S.) Walton V. Toledo, 23 Ohio Cir. Ct. 184; Armour Packing Co. v. Sny- Rep. 547; Adams v. Milwaukee der, 84 Fed. 136. 144 Wis. 371, 129 N. W. 518. 3 North American Storage Co. v. 2 State V. Nelson, supra. Chicago, 211 U. S. 306, 29 Sup. Ct. iBIazier v. Miller, 10 Hun 435; 101, 53 L. Ed. — . Deems v. Baltimore, 80 Md. 164, § 45] LAW OF PURE FOOD AND DRUGS. 84 §45. Revocation of Permit to Sell Milk— Notice. A statute in force in New York City provided that "No , milk shall be received, held, kept, offered for sale, or de- livered, in the city of New York without a permit, in writ- ing, from the Board of Health, and subject to the conditions thereof." Under this statute it was held that the Board of Health had power to revoke permits to sell milk, notwith- standing no ordinance had been adopted by the board au- thorizing such revocation.^ The permit contained a clause that it was "revocable at the pleasure of the Board" of Health. It was contended that the board could not revoke the permit, and the only recourse was to have the person to whom it was issued fined for selling impure milk, when it was sought to revoke his license for that reason. To this the court answered: "The sole authority that the health board would have, if this contention was correct, would be to pros- ecute the person selling the poisonous article in the shape of milk, fine him, and in the meantime such person could go on poisoning the people under a permit or license from the health authorities, a proposition which is so unreasonable that a mere statement is sufficient to refute it. There is nothing in either the Penal Code or the charter that makes such a permit irrevocable. The permit itself provides that it is revocable at the pleasure of the board, and the plain- tiff accepted it with that condition. There is nothing unrea- sonable in this condition; and, irrespective of the general power of the board of health to revoke a permit which is being abused and under which the person accepting it and using it is persistently violating the law, it is certainly not an unreasonable condition to insert into such a permit a pro- vision that it is revocable by the board that issues it. To hold that such a permit once granted is irrevocable would be to totally defeat the object of the statute in requiring such a permit before a person should engage in the business of supplying to the inhabitants of a city food."^ 1 Mietropolitan Milk & Cream Co. without an opinion, 186 N. Y. 533, V. New York, 113 N. Y. App. Div. 78 N. E. 1107. 377, 98 N. Y. Supp. 894; affirmed 2 gge also State v. Milwaukee, 140 Wis. 38, 121 N. W. 658. 85 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 46 §46. Revocation of Permit to Sell Milk Without Notice Given. — Remedy by Mandamus. A statute relating to New York City provided that "No milk shall be received, held, kept, offered for sale, or deliv- ered, in the city of New York without a permit, in writing, from the Board of Health, and subject to the conditions thereof." In issuing a permit under this section the Board of Health inserted a provision in it that it was "revocable at the pleasure of the Board." This was held to be a valid provision.^ The board revoked six peirmits, having this clause in them, without notice to the licensee; and it was denied that its action was illegal. The revocation was made because the licensee had sold impure milk. : The licensee con- tended the revocation was void because it destroyed a large business which he had for years been building up, and that such a business was property which could not be taken from him without due process of law. "But the good will of his business," said the court, "so established, must not be con- founded with the permits granted to him to engage in that business. He was never licensed to sell impure and adulter- ated milk, and, after he had obtained his permit to sell, and undertook the securing of customers, he knew that he was engaged in a business which must be conducted under the supervision of the board of health of the city subject to the police powers of the State, and that such permits were sub- ject to revocation. He knew that the permits contained no contract between the State or the board of health and him- self, giving him any vested right to continue the business, and that it would become the duty of the board to revoke his license in case he violated the statute on the conditions under which it was granted. Milk is an article of food ex- tensively used by our inhabitants, and is chiefly relied upon to support the lives of infant children. If impure and adul- terated, or polluted with germs or infectious diseases, its use becomes highly dangerous, and the health and welfare of the- 1 Metropolitan Milk & Gream Co. without an opinion, 186 N. Y. 533,. V. New York, 113 N. Y. App. Div. 78 N. E. 1107. 377, 98 N. Y. Supp. 894; affirmed § 46] LAW OF PUEB POOD AND DEUGS. 86 public demand speedy, and, in some eases, instant preven- tion of its distribution to the people. While it is the duty of the board of health to watch and, through its inspectors, detect violations of the statute and the conditions imposed by it, it has been given no . judicial power to hear, try and' determine such violations, but must act upon the information obtained by it through its own channels of inquiry."^ The court then discusses the nature of a license, holding that it is not a contract but a mere permission, making this quota- tion: "Licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitu- tion of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. They have neither the quality of a contract, nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law."' The court then con- tinues as follows: "The powers of the members of the board of health being administrative merely, they can issue or re- voke permits to sell milk in the exercise of their best judg- ment, upon or without notice based upon such information as they may obtain through their own agencies; and their action is not subject to review either by appeal or certiorari.* If, however, their action is arbitrary, tyrannical and un- reasonable, or is based upon false information, the relator may have a remedy through mandamus to right the wrong which he has suffered. If the relator can show that he and 2 The court reviews at some Mich. 406, 20 Am. Eep. 654; Corn- length Crowley v. Christensen, 137 monwealth v. Kinsley, 133 Mass. U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 578; Voight v. Excise Commrs., 59 620; Dent v. West Virginia, 129 N. J. L. 358, 36 Atl. 686, 37 L. E. U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. A. 292. 623 ; Metropolitan Board v. Barrie, s Mietropolitan Board v. Barrie, 34 N. Y. 667; Metropolitan Board 34 N. Y. 667. V. Heister, 37 N. Y. 661 ; People v. * Citing Childs v. Bemus, 17 R. I. Board of Health, 140 N. Y. 1, 35 230, 21 Atl. 539, 12 L. E. A. 57; N. E. 320, 23 L. E. A. 481, 37 Am. State v. Doyle, 40 Wis. 230; Wal- St. 522, distinguishes In re Ley- bee v. Eeno, 27 Nev. 71, 73 Pac. man, 160 N. Y. 96, 64 N. E. 57, 528, 103 Am. St. 747, 63 L. E. A. and cites Youngblood v. Sexton, 32 337. 87 CONSTITUTIONALITY OP STATUTES AND ORDINANCES. [§ 46 those acting for him have not been convicted of violating the statute and the conditions imposed in the granting of the permits, and that, consequently, he is a fit and proper per- son to engage in the sale and distribution of milk among the inhabitants of the city, then he would be entitled to the re- lief asked for. But if he desired to submit such evidence, he should have asked for an alternative, rather than a per- emptory, writ. If, however, the charge of the board is true that he has been convicted of the offense charged the num- ber of times stated, the conclusion is irresistible that he was an improper person to be intrusted with the permit of the city to dispense to the inhabitants of the city a food product that was liable, if adulterated, to endanger the health of the people."^ There are a number of cases which support this case on the power of a board of health to revoke a license or permit without first giving notice to the licensee. If a statute pro- vides for notice and hearing, then, of course, notice must be given in order to sustain the validity of the proceedings. But if it is expressly provided that no notice is necessary, 5 People V. Health Department, anywhere to require them to give 189 N. Y. 187, 82 N. E. 187, 13 L. a hearing to any person before they E. A. (N. S.) 894. The court dis- can exercise their jurisdiction for cusses at length the question the public welfare. The public whether or not the members of the health might suffer or be imperiled board of health are judicial officers, if their action could be delayed un- and reaches the conclusion that til a protracted hearing could be they are not. brought to a determination. There "There is no provision for a hear- is no provision in the acts for call- ing before the board on the part of ing or swearing witnesses, and any person who is charged with there is no general law giving them maintaining a nuisance upon his power to do so." It was eonse- premises. The right to such a quently held that the determination hearing is not expressly given, and of the board of health as to the ex- eannot be implied from any Ian- istence of a nuisance was not re- guage found in either Act, or from viewable by certiorari. People v. the nature of the subject dealt Board of Health, 140 N. Y. 1, 35 with in the acts. Boards of health N. E. 320, 37 Am. St. 522, 23 L. and other like boards act sum- E. A. 481. marily, and it has not been usual § 47] LAW OF PUKE FOOD AND DKUGS. 88 the licensee accepts the license bound by and subject to this condition.' In a number of instances where the statute was silent upon the question of notice, the revocation of a license has been upheld;'^ and in other instances notice has been held neces- sary.^ § 47. Destruction of Unwholesome Food Without Notice or Hearing — Right of Action for Value of Food. No't only may unwholesome or impure food be destroyed by the State or municipal authorities, but it may be de- stroyed, if the statute or ordinance so provide, without notice or hearing given to the owner. A provision for a hearing before seizure and condemnation and destruction of food which is unwholesome and unfit for use, is not necessary. A right of action against the party destroying it to recover its value is a suiBcient remedy for the owner; and does not change the rule "that some value may remain for certain purposes in food that is unfit for human consumption." "The small value that might remain in the food is a mere incident, 6 Commonwealth v. Kinsley, 133 59 Wis. 425, 18 N. W. 324 (by Mass. 578; Sprayberry v. Atlanta, statute); People v. Flynn, 110 N. 87 Ga. 120, 13 S. B. 197; Martin Y. App. Div. 279, 96 N. Y. Supp. V. State, 23 Neb. 371, 36 N. W. 655; affirmed 184 N. Y. 579, 77 N. 554; affirmed on rehearing in 27 E. 1194 (license assignable) ; In Neb. 325, 43 N. W. 108 ; Londry's re McGinley's license, 32 Pa. Super. Appeal, 79 Conn. 1, 63 Atl. Eep. Ct. 324; In re Cullinan, 94 N. Y. 293; State v. Milwaukee, 140 Wis. App. Div. 445, 88 N. Y. Supp. 164 38, 121 N. W. 658. (license in hands of assignee) ; ' Wallace v. Reno, 27 Nev. 71, Plummer v. Commonwealth, 1 Bush 73 Pac. 528, 103 Am. St. 747, 63 26 (by statute). Notice to one of L. R. A. 337; Child v. Bemus, 17 two joint licensees is notice to both. R. I. 230, 21 Atl. 539, 12 L. R. A. Commonwealth v. Bearce, 150 Mass. 57; Carr v. Augusta, 124 Ga. 116, 389, 23 N. E. 99. Notice to person S2 S. E. 300; Young v. Blaisdell, holding the license as collateral 138 Mass. 344; State v. Milwaukee, (where it is assignable) is not nec- 140 Wis. 38, 121 N. W. 658. essary, if notice be given to the 8 StSte V. Rahway, 58 N. J. L. licensee. In re Lyman, 26 N. Y. 578, 34 Atl. 5; Giertner v. Fond du J.'iisc. 300, 56 N. Y. Supp. 1020. Lac, 34 Wis. 49V; Oshkosh v. State, 89 CONSTITUTIONALITY OF STATUTES AND OEDINANCES. [§ 47 and furnishes no defense to its destruction when it is plainly- kept to be sold at some time as food." "Complainant, however, contends," said the court, "that there was no emergency requiring speedy action for the de- struction of the poultry in order to protect the public health from danger resulting from consumption of such poultry. It is said that the food was in cold storage, and that it would continue in the same condition it then was for three months, if properly stored, and that therefore the defendants had ample time in which to give notice to complainant or the owner and have a hearing of the question as to the condition of the poultry, and as the ordinance provided for no hearing, it was void. But we think this is not required. The power of the Legislature to enact laws in relation to the public health being conceded, as it must be, it is to a great extent within the legislative discretion as to whether any hearing need be given before the destruction of unwholesome food which is unfit for human consumption. If a hearing were to be always necessary, even under the circumstances of this case, the question at once arises as to what is to be done with the food in the meantime. Is it to remain with the cold storage company, and, if so, under what security that it will not be removed? To be sure that it will not be removed dur- ing the time necessary for the hearing, which frequently might be indefinitely prolonged, some guard probably would have to placed over the subject matter of investigation, which would involve expense, and might not even then prove efl:ectual. What is the emergency which would render a hearing unnecessary? We think, when the question is one regarding the destruction of food which is not fit for human use, the emergency must be one which would fairly appeal to the reasonable discretion of the Legislature as to the necessity for a prior hearing, and in that case its decision would not be a subject for review by the courts. As the owner of the food or its custodian is amply protected against the party seizing the food, who must, in a subsequent action against him, show as a fact that it was within the statute, we think that due process of law is not denied the owner or §48] IfAM OF PURE FOOD AND DRUGS. 90 custodian, by the destruction of the food alleged to be un- wholesome and unfit for human food, without a preliminary hearing."^ §48. Vinegar, Artificially Coloring. In New York where it is held that the sale of oleomargar- ine can not be prohibited;^ and that the sale of milk or but- ter in which a harmless preservative has been used can not be prevented;^ although the manufacture and sale of a prod- uct so compounded as to imitate butter may be prohibited;^ and a statute defining what shall be deemed unwholesome or adulterated milk, and prohibiting its sale is valid,* it has been held to be a constitutional exercise of power on the part of the Legislature to prohibit the artificial coloring of vine- gar so that the public would not be deceived thereby.^ From these several cases these rules have been deduced by the Court of Appeals of that State: "(1) That the Legislature can not forbid or wholly prevent the sale of a wholesome 1 North American Cold Storage Co. V. Chicago, 2X1 U. S. 706, 29 Sup. Ct. 101, 53 L. Ed. — ; citing Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. — , affirming 119 N. Y. 226, 23 N. E. 878, 16 Am. St. 813; American Print Works V. Lawrence, 21 N. J. L. 248; People v. Board, 140 N. Y. 1, 37 Am. St. 522, 35 N. E. 320, 23 L. R. A. 481; Salem v. Eastern R. Co., 98 Mass. 43 1^ 96 Am. Dec. 650; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 Am. St. 850, 10 L. R. A. 116; Stone v. Heath, 179 Mass. 385, 60 N. E. 975; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 102 Am. St. 983, 66 L. R. A. 907; Pearson v. Zehr, 138 ill. 48, 29 N. E. 854, 32 Am. St. 113; State V. Main, 69 Conn. 123, 37 N. E. 80, 36 L. R. A. 623, 61 Am. St. 203; Gaines v. Waters, 64 Ark. 609, 44 S. W. 353; Withams V. Rivenberg, 129 N. Y. Supp. 473. A statute authorizing the fish commission to seize and sell sum- marily fish sold and held without a statutory permit is valid. Ray- mond V. Kibbe, 43 Tex. Civ. App. 209, 95 S. W. 727. 1 People V. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29. 2 People V. Biesecker, 169 N. Y. 53, 61 N. E. 990, 88 Am. St. 534, 57 L. R. A. 178. s People V. Arensberg, 105 N. Y. 123, 59 Am. Rep. 483, 11 N. E. 277. 4 People V. Kilber, 106 N. Y. 321, 12 N. E. 795. B People V. Girard, 145 N. Y. 105, 39 N. E. 823, 45 Am. St. 595, af- firming 73 Hun 457, 26 N. Y. Supp. 272, 75 Hun 213, 27 N. Y. Supp. 1118. 91 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 48 article of food. (2) That legislation intended and reason- ably adapted to prevent an article being manufactured in imitation or semblance of a well-known article in common use, and thus imposing upon consumers or purchasers, is valid. (3) That, in the interest of public health, the Legis- lature may declare articles of food not complying with a specified standard unwholesome, and forbid their sale." And the court adds: "Though those principles, like most legal principles, are true only within limits, there would not seem much chance of conflict in their practical application, except between the first and last."' So a statute imposing a pen- alty for the manufacture, marking or sale as cider vinegar of any adulterated vinegar, or any product which is not cider vinegar, was held to prevent cheating and deception, and for the preservation of health, and was valid.' But a statute which defines adulterated vinegar as a vinegar con- taining aaiy proportion of lead, or which has not an acidity equivalent to the presence of at least four and one-half per- cent, by weight, of absolute acetic acid, yet declaring that cider vinegar made by a farmer within the State, exclusively from apples grown on his own ground, or their equivalent in cider taken in exchange therefor, shall not be deemed adul- terated if it contain two percent solids and sufficient alco- hol to develop the required amount of acid, is unconstitu- tional, because it contains an unlawful discrimination in favor of farmers and purchasers of cider vinegar from them.* s People V. Biesecker, 169 N. Y. This statute is strictly con- 53, 61 N. E. 990, 57 L. E. A. 178, strued, because in derogation of the 88 Am. St. 534; People v. Worden common law right to have on sale Grocer Co., 118 Mich. 604, 77 N. vinegar of any standard the owner W. 315. pleases, not shown to be detrimen- 7 People V. Niagara Fruit Co., tal to the public health. People v. 173 N. Y. 629, 66 N. E. 1114; af- Braested, 30 N. Y. App. 401, 51 Arming 75 N. Y. App. Div. 11, 75 N. Y. Supp. 824. N. Y. Supp. 805. The Ohio statute preventing the 8 People V. Windholz, 92 N. Y. artificial coloring of vinegar ia App. Div. 569, 86 N. Y. Supp. 1015. valid. Weller v. State, 53 Ohio St. The part invalid, however, was held 77, 40 N. E. 1001; Williams v. Mc- not to drag down the remaining Neal, 7 Ohio Cir. Ct. Hep. 280. So part of the statute. the Missouri statute, even though §§ 49, 50] LAW OF PURE FOOD AND DRUGS. 92 §49. Impure Water in the MaJdng of Bread, Prohibiting. The State may empower a municipality to adopt such or- dinances and regulations as shall be necessary or expedient for the protection of health, and to prevent the spread of disease, and to maintain good sanitary conditions in its streets, public places and buildings, and on all private prem- ises, and to prevent the sale of adulterated or decayed food. Under such powers a municipality may prevent the use of unwholesome well water in the making of bread for public distribution and consumption, and, as a means to that end, it may require the filling up of wells on premises where such bread is made. "If bakers, who either do not believe well water to be injurious, or who do not care whether it is in- jurious or not, have wells upon their premises, they are likely to use it. Such is the actual ease of defendant. He has the well, and he uses the water in making his bread. There is no other way of preventing its use so efficient as to suppress the well. Leave the well, and nothing less than the constant presence of a guard would secure any certainty of its nonuse. Fill up the well, and it is very certain that he will not use the water any more. True, he may possibly get equally objectionable water from wells on other prem- ises; but that may be more inconvenient or troublesome than to find a more wholesome water supply. At all events, the filling of the well has a tendency, and is indeed likely, to accomplish the purpose, and is one means appropriate thereto, and without which it certainly could not be surely accom- plished. Far from being unwarranted or unnecessary, it is absolutely essential in order to carry out the end designed."^ § 50. Baking Powder, Prohibiting Sale of, when Containing Alum. It is a dispute among experts whether baking powder con- taining alum is wholesome or unwholesome; and, therefore, a label be required on it having on i State v. Schlemmer, 42 La. it the word "colored." State v. 1166, 8 So. 307, 10 L. R. A. 135. Earl, 152 Mo. App. 235, 133 S. W. 402. 93 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 50 if the Legislature takes the view that such a powder is un- wholesome, and prevents its sale, the courts can not reverse its decision. "How can we say, in view of the contradictory- evidence as to the effect on the health of bread made with alum powders, that the Legislature, beyond a reasonable doubt, transcended its constitutional right in prohibiting the use of alum in bread? We are not authorized to do so. . . . It may be that, in the small quantities now used in these alum powders generally, it can not be shown that any par- ticular person has ever lost his health from their use. But that the Legislature deemed their use deleterious can not be denied, and there is no such conclusive evidence to the con- trary as to justify this court in holding that this Act, in- tended for the benefit of the public health, is void. The mere wisdom or unwisdom of the Act is not for us to decide."^ 1 State V. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. E. A. 163, 83 Am. St. 487. "The evidence shows," said the court, "that the trade in alum bak- ing powders, as a. trade, has given entire satisfaction to the people. Alum baking powders are nearly as standard an article as flour or sugar. They are to be found upon the shelves of every grocery store, not only in Missouri, but in the United States. They were first in- troduced about 1870. In spite of the fiercest competition and most hostile rivalry upon the part of the manufacturers of cream of tartar powders, who, the evidence shows, have made every effort to prejudice the minds of the public by every manner of advertisement, and rep- resentations, the trade rapidly ex- panded, until it has now reached vast proportions. The evidence tended to show that alum baking powder sold in the United States last year [1900] amounted to not fewer than 120,000,00"0 pounds, and involved an enormous expendi- ture in its manufacture and distri- bution. The defendant's evidence also tended to show that not only was it a particular can of baking powder, known as "Layton's Health Food," for the sale of which he was prosecuted, but also all alum bak- ing powders in general are, and al- ways have been, healthful and wholesome adjuncts in the prepara- tion of human food. The evidence tends to show that no one had either heard or had known of a single case where the health of a single human being had been in- jured or had been supposed to have been Injured by the use of alum bak- ing powder in the preparation of food, and that the trade in alum bak- ing powder, as a trade prior to the passage of this law, was an honest and lawful business in a generally harmless and useful preparation, and as an adjunct in the cooking of food. The manufacturers and § 51] LAW OF PDBE FOOD AND DRUGS. 94 An early statute of Parliament^ absolutely forbade the use of alum in the making of bread. And, irrespective of the statute, it was held indictable to use it in large quantities. Such, an act is a common law offense.^ So a statute which requires baking powder to be so labeled as to show the use of alum in it, if such is the case, is valid,* even though it does not require baking powder containing no alum to be labeled.® §51. Patented Food. Many articles of food have been patented, so as to secure to the patentee the exclusive right to manufacture it; and efforts have been made to sell such food notwithstanding it was such food as a State statute forbade the sale thereof. But such efforts have been unavailing. "The fact that com- plainants produced Ariosa under a process protected by let- ters patent of the United States does not prevent it froin coming within the operation of laws passed in the exercise of the police power of the State. The enactment of laws for the protection of health and to prevent imposition in the sale of food products is within this power, and the fact that the process by which it is made is protected by a patent, while it may prevent others from using it during the life of the sellers of both such powders — Cowp. 12, 15 E. R. 381. In this cream of tartar and aliun — ^have ease a baker was convicted who been engaged in competition with supplied children at an asylum each other in furnishing to the peo- with bread, into which his servants, pie, from bicarbonate of soda, a to his knowledge, had introduced leavening agent for cooking bread, alum. See also Eegina v. Stevens on cake, etc. They differ only in the 3 F. & F. 106, and Burnby v. Bollet, non-essential manner of freeing the 16 M. & W. 644, 17 L. J. ExcE! gas. That the trade in cream of 190, 11 Jur. (O. S.) 827. tartar powder has been practically * Stolz v. Thompson, 44 Minn, monopolized by the Royal Baking 271, 46 N. W. 410; State v. Sherod, Powder Company, which controls 89 Minn. 446, 83 N. W. 417, 50 L. the cream of tartar market." R. A. 660. 2 37 Geo. in. Chap. 98, § 21. s Stolz v. Thompson, supra. 8 Rex V. Dixon, 3 M. & S. 11, 4 95 CONSTITUTIONALITY OJ STATUTES AND ORDINANCES. [§§53, 53 patent, does not deprive the State of this power of regula- tion for the general good."^ § 52. Colored Netting Over Fruit or Vegetables. The city of Chicago prohibited the use of a colored netting to cover any box, basket, or any other package or parcel of fruit, berries or vegetables of any kind; and the ordinance was held invalid, because it was vexatious and unreasonable interference with and restriction upon the rights of dealers in fruits and vegetables. "It was shown," said the court, "and is a matter of common knowledge, that much fruit is shipped and sold wrapped up in tissue paper and in tinfoil, and in packages and baskets covered with wood, all of which material effectually conceals the 'true color and quality' of the fruit until removed. It would be as reasonable to pro- hibit the one as the other. Fruit dealers would be subject to unjust and offensive discrimination by the enforcement of such an ordinance. Being unreasonable and oppressive in character, the ordinance is void."^ § 53. Restricting Sale of Fresh Pork During Summer. Under a power "to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety, or calculated to promote dishon- esty or crime," a municipality can not adopt an ordinance forbidding the sale of fresh pork during the warm season of the year, or between June 1 and October 1. Such an ordi- nance is unreasonable and void, since, it is said, it violates the inalienable right of man to procure food. "Presh pork is an article of food for general consumption, ' ' said the court, "and when sound and free from disease is useful and nu- tritious. Like all other food, it may become unwholesome when eaten to excess. The quantity eaten, under ordinary circumstances, produces the sickness when it proves unwhole- 1 Arbuckle v. Blackburn, 51 C. C. i Frost v. Cihicago, 178 111. 250, A. 122, 113 Fed. 616, 65 L. R. A. 52 N. E. 869, 49 L. E. A. 657, 69 864. Am. St. 301. § 54] LAW OE PURE POOD AND DRUGS. 96 some. Any food is calculated to produce that effect when eaten, in the same manner. The mere sale of it is not detri- mental to the public health. The fact that individuals may- be made sick by it when imprudently eaten does not justify a city council prohibiting the sale of it. For the same reason it could prohibit the sale of any or all other food. The most delicious food — that which is most liable to be eaten to excess — would be subject to interdiction. If it be eon- ceded that the city council may prohibit the sale of any article of food, the wrongful use of which will or may injure the health of the consumer, then they can prescribe what the citizens of that city shall eat by prohibiting the sale of all other food. The Legislature or any of its creatures has no such power. The exercise of such power, we have seen, would be a violation of the inalienable right of man to pro- cure healthy and nutritious food, by which life may be pre- served and enjoyed. It would be an interference with the liberty of the citizen, which is not necessary to the protection of others or the public health, — would be an invasion of his personal rights."^ §54. Requiring Fresh Meats to be Sold ini Markets. A municipality has power to forbid the sale of fresh meats elsewhere than at market houses established by it where its charter empowers it to establish market houses, designate, control and regulate market places, and regulate the vending of fresh meats; and the fact that the city has licensed a person to keep a private meat market for several years does not compel the municipality to continue granting a license, 1 Helena v. Dwyer, 64 Ark. 424, People v. Dennis, — N. Y. — , 114 42 S. W. 1071, 39 L. R. A. 266, 62 N. Y. Supp. 7; People v. Jackson, Am. St. 206. The court quotes at 36 N. Y. Misc. Eep. 282, 73 N. Y. length Professor Tiedeman's work on Supp. 461; Williams v. Rivenburg, Limitations of Police Power, pp. 129 N. Y. Supp. 473. So one requir- 294, 295. ing the meat of calves to be tagged A statute may prevent the sale with the owner's name, and ad- of the meat of calves slaughtered dress. People v. Bishopp, 44 N. Y. before they are four weeks old. Misc. Rep 12, 89 N. Y. Supp. 709. 97 CONSTITUTIONALITY OF STATUTES AND OEDINANCBS. [§ 55 or to prohibit keeping a market within the district where it is situated. Such a person is not deprived of his property without due process of law. The denial of the privilege to sell meats in a municipality except at certain places is not void as in restraint of trade. "Such a power is most neces- sary for the protection of the health of a city, and has often been recognized."^ § 55. State Prohibiting Importation of Food — Interstate Commerce. A State can not exclude from its markets pure food from other States. Thus the State of Minnesota adopted a statute the effect of which was to exclude from the markets all fresh beef, veal, mutton, lamb or pork, ia whatever form, and al- though entirely sound, healthy and fit for human food, taken from animals slaughtered in other States. This statute tended to restrict the slaughtering of animals whose meat was to be sold in that State, to those engaged in such busi- ness in Minnesota. "If the object of the statute," said the Supreme Court of the United States, "had been to deny alto- gether to the citizens of other States the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, veal, mutton, lamb or pork, from animals slaughtered outside of the State, and to compel the people of Minnesota, wishing to buy such meats, either to purchase those taken from animals inspected and slaughtered in the State, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the State, the object is 1 Newson v. Galveston, 76 Tex. Mich. 351 ; Le Claire v. Daven- 559, 13 S. W. 368, 7 L. E. A. 797; port, 13 Iowa 210; Palestine v. Buffalo V. Webster, 10 Wend. 100; Barnes, 50 Tex. 538; Jacksonville Bueh V. Seabury, 8 Johns, 418; v. Ledwith, 26 Fla. 163, 7 So. 885, Winnsboro v. Smart, 11 Rich. L. 9 L. E. A. 69; Ex parte Canto, 21 (S. C.) 552; Bowling Green v. Tex. App. 61; State v. Schmidt, Carson, 10 Bush 65; New Orleans 41 La. Ann. 27, 6 So. 530; State v. V. Stafford, 27 La. Ann. 417, 21 Barth, 41 La. Ann. 46, 6 So. 531; Am. Eep. 563; St. Louis v. Weber, State v. Natal, 41 La. Ann. 887, 6 44 Mb. 549; Wartman v. Philadel- So. 722; State v. Sarradat, 46 La. phia, 33 Pa. 209; Ash v. People, 11 700, 15 So. 87, 24 L. E. A. 584. Ptjbe Food — 7. § 55] LAW OF PURE FOOD AND DRUGS. 98 attained by the Act in question. Our duty to maintain the Constitution will not permit us to shut our eyes to these obvious and necessary results of the Minnesota statute. If this legislation does not make such discrimination against the products of other States in favor of the products and business of Minnesota as interferes with and burdens com- merce among the several States, it would be difficult to enact legislation that would have that result."^ A statute of Vir- ginia, by its necessary operation, prohibited the sale in that state of beef, veal or mutton, although entirely wholesome, if taken from animals slaughtered one hundred miles or over from the place of sale. The court said, in holding the Act unconstitutional: "Undoubtedly, the State may establish reg- ulations for the protection of the people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the Constitution upon Con- gress, or infringe rights granted or secured by that instru- ment. But it may not, under the guise of exerting its police power, or of enacting inspection laws, make discriminations against the products and industries of some of the States in favor of the products and industries of its own or of other States. The OAvner of the meats here in question, although they were from animals slaughtered in Illinois, had the right, under the Constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats from animals slaughtered in Virginia or elsewhere within one hun- dred miles from the place of sale. Any local regulation which, in terms or by necessary operation, denies this equal- ity in the markets of the State is, when applied to the people and products or industries of other States, a direct burden upon commerce among the States, and, therefore, void."^ 1 Minnesota v. Barber, 136 U. S. L. R. A. 839, 30 N. E. 1127; Cross- 313, 10 Sup. Ct. 862, 341 L. Ed. man v. Lurman, 192 U. S. 189, 24 455, affirming 39 Fed. 641 ; Railroad Sup. Ct. 234, 48 L. Ed. 401, affirm- Co. V. Husen, 95 U. S. 465, 24 L. ing 171 N. Y. 329, 63 N. E. 1097, Ed. 527, reversing 60 Mo. 226; 98 Am. St. 599. Pliunley v. Miassaohusetts, 155 U. 2 Brimmer v. Rebman, 138 U. 8. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 78, 11 Sup. Ct. 213, 34 L. Ed. 862, 223, affirming 156 Mass. 236, 15 affirming 41 Fed. 867. 99 CONSTITUTIONALITY 01" STATUTES AND ORDINANCES. [§ 55 So a statute which required flour brought into a State to be inspected, but did not require inspection of flour ground within the State, was held invalid, on the ground that it was undue discrimination against the products of these States and in favor of the products of the State enacting the stat- ute.^ But it naust not be inferred from these remarks and quotations that a State can not protect its inhabitants against fraud and deception in the sale of food products brought from other States as well as from those grown within its own limits, even though the legislation for that purpose indirectly or incidentally affects trade in the products trans- ported from one State to another.* "In conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislation on all subjects relating to the health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the coun- try. Legislation, in a great variety of ways, may affect com- merce and persons engaged in it without constituting a reg- ulation of it within the meaning of the Constitution. . . . And it may be. said generally, that the legislation of a State, not directed against commerce or any of its regulations, but relating to the rights, duties and liabilities of citizens, and only direfetly and remotely affecting the operations of com- merce, is of obligatory force upon citizens within its terri- torial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit.'" A State can not prohibit the sale of oleomargarine in orig- inal packages where it has been imported from another State,^ unless a Federal statute grant it permission so to do.' aVoight V. Wight, 141 U. S. 62, S. 100, 10 Sup. Ct. 681, 34 L. 11 Sup. Ct. 855, 35 Fed. 638. Ed. 128, reversing 78 Iowa 286, 43 *Plumley v. Massacliusetts, 155 N. W. 188; In re Brundage, 96 Fed. U. S. 461, 15 Sup. Ct. 154, 39 L. 963. Ed. 223, affirming 156 Mass. 236, i In re Eaher, 140 U. S. 545, 11 30 N. E. 1127, 15 L. E. A. 839. Sup. Ct. 865, 35 L. Ed. 572, re- 5 Sherlock v. Ailing, 93 U. S. versing 43 Fed. 556; /ra re Spickler, 99, 23 L. Ed. 819, affirming 44 43 Fed. 653, 10 L. E. A. 451; In re Ind. 184. Van Vliet, 43 Fed. 761; State v. 6 2w re Gooch, 42 Fed. 276, 10 L. Fraser, 1 N. D. 425, 48 N. W. 343. E. A. 830; Leisy v. Hardin, 135 U. § 56] LAW OF PURE POOD AND DEUGS. 100 §56. Statute Excluding Importation of Oleomargarine from One State Into Another State. Oleomargarine has been so long recognized as an article of food and commerce, and has been recognized as such by- Congress in its Act of 1886, that it can not now be wholly- excluded from importation into a State from another State where it is manufactured. But that does not mean that the State into which it is introduced may not so regulate its introduction so as Itio insure its purity. A State can not pro- hibit the introduction from another State and sale of oleo- margarine within its boundaries in the original package, un- less Congress gives its consent.^ Thus the State of Pennsylvania provided that no person, firm or corporate body should manufacture out of any ole- aginous substance or any compound of it, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation or unadulterated butter or cheese, nor should sell or offer for sale, or have in his, her or their possession with intent to sell it as an article of food. This, of course, applied to the sale and possession of original packages of oleomargarine imported into a State and held for sale. The Supreme Court of that State held this statute valid ;^ but on appeal to the Supreme Court of the United States the statute was held to be invalid. The court first in- quires whether oleomargarine is an article of commerce, and finds that it is. It then discusses its composition,' and then uses the following language: 1 Congress has given its consent Sup. Ct. 154, 39 L. Ed. 223 ; Emert that a. State may prohibit the sale v. Missouri, 156 U. S. 296, 15 Sup. of intoxicating liquors in the ofi- Ct. 367, 39 L. Ed. 223. ginal package when brought from 2 Commonwealth v. Paul, 170 Pa. another State, and this act on its 284, 33 Atl. 85, 50 Am. St. 776. part has been held constitutional. a Citing the Encyclopedia Britan- 26 U. S. Stat, at Large, 313 Ch. nica, vol. 17, title "Oleomargarine," 728; In re RaJier, 140 U. S. 545, Ex parte Scott, 66 Fed. 45; People 11 Sup. Ct. 865, 35 L. E. 572, re- v. Marx, 99 N. Y. 381, and Act of versing 43 Fed. 556; Plumley v. Congress of 1886, 24 U. S. Stat, at Massachusetts, 155 U. S. 461, 15 Large 209. 101 CONSTITUTIONALITY OF STATUTES AND OEDINANCES. [§ 56 "We do not think the fact that the article is subject to be adulterated by dishonest persons, in the course of its man- ufacture, with other substances, which it is claimed may in some instances become deleterious to health, creates the right in any State through its Legislature to forbid the introduc- tion of the unadulterated article into the State. The fact that the article is liable to adulteration in the course of manufacture, and that the articles with which it may be mixed may possibly and under some circumstances be dele- terious to the health of those who consume it, is known to us by means of various references to the subject in books and encyclopedias, but there was no affirmative evidence offered on the trial to prove the fact. From these sources of infor- mation it may be admitted that oleomargarine in the course of its manufacture may sometimes be adulterated by dishon- est manufacturers with articles that possibly may become injurious to health. Conceding the fact, we yet deny the right of a State to absolutely prohibit the introduction within its . borders of an article of commerce, which is not adulter- ated, and which in its pure state is healthful, simply because such an article in the course of its manufacture may be adul- terated by dishonest manufacturers for purposes of fraud or illegal gains. The bad article may be prohibited, but not the pure and healthy one. In the execution of its police powers we admit the right of the State to enact such legislation as it may deem proper, even in regard to articles of interstate commerce, for the pur- pose of preventing fraud or deception in the sale of any commodity and to the extent that it may be fairly necessary to prevent the introduction or sale of an adulterated article within the limits of the State. But in carrying out its pur- poses the State can not absolutely prohibit the introduction within the State of an article of commerce like pure oleo- margarine. It has ceased to be what counsel for the Com- monwealth has termed it — a newly discovered food product. An article that has been openly manufactured for nearly a quarter of a century, where the ingredients of the pure ar- ticle are perfectly well known, and have been known for a § 56] LAW OF PUKE FOOD AND DRUGS. 102 number of years, and where the general process of manu- facture has been known for an equal period, can not truth- fully be said to be a newly discovered product within the proper meaning of the term as here used. The time when a newly discovered article ceases to be such can not always be definitely stated, but all will admit that there does come a period when the article can not so be described. In this par- ticular ease we have no difficulty in holding that oleomar- garine has so far ceased to be a newly discovered article as that its nature, mode of manufacture, ingredients, and effect upon the health are and have been for many years as well known as almost any article of food in daily use. There- fore, if we admit that a newly discovered article of food might be wholly prohibited from being introduced within the limits of a State, while its properties, whether healthful or not, were still unknown, or in regard to which there might still be doubt, yet this is not the case with oleomargarine. If properly and honestly manufactured, it is conceded to be a healthful and nutritious article of food. The fact that it may be adulterated does not afford a foundation to abso- lutely prohibit its introduction into the State. Although the adulterated article may possibly in some cases be injurious to the health of the public, yet that does not furnish a jus- tification for an absolute prohibition. A law which does thus prohibit the introduction of an article like oleomargarine within the State is not a law which regulates or restricts the sale of articles deemed injurious to the health of the com- munity, but is one which prevents the introduction of a per- fectly healthy commodity merely for the purpose of in that way more easily preventing an adulterated and possibly in- jurious article from being introduced. "We do not think this is a fair exercise of legislative discretion when applied to the article in question."* * Schollenberger v. Pennsylvania, Ct. Rep. 196, 10 Pa. Co. Ct. Rep. 171 U. S. 1, 18 Sup. Ct. 757, 43 332, and distinguishing Common- L. Ed. 49, reversing Commonwealth wealth v. Schollenberger, 156 Pa. V. Paul, 170 Pa. 284, 33 Atl. 85, 30 201, 27 Atl. 30, 22 L. R. A. 155, L. E. A. 356, reversing 9 Pa. Co. 4 Inters. Com. Rep. 488. To same 103 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 57 § 57. Interstate Oommerce, Prohibiting Sale of Adulterated Food and Drugs — Original Packages. A statute which prohibits the sale of adulterated food and drugs, is not repugnant to the commeiree clause of the Fed- eral Constitution, but is a valid exercise of the police power of the State. The State may prohibit the sale of such food or drugs, although it be offered for sale in the original pack- age. It never was the intention of the interstate commerce clause that under its shield food and drugs detrimental to the health of the inhabitants of a State might be introduced and sold, and thus escape the provisions of State laws pro- hibiting the sale of like food and drugs which had been produced within the State. ^ "And yet it is supposed that the owners of a compound which has been put in a condition to cheat the public into believing that it is a particular food effect Collins v. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 li. Ed. 60, reversing 67 N. H. 540, 42 Atl. 51; People v. Simpson- Crawford Co., 62 N. Y. Supp. 240, 114 N. Y. Supp. 945; In re Scheit- lin, 99 Fed. 272; McAllister v. State, 94 Md. 290, 50 Atl. 1046; Waterbury v. Egan, 3 N. Y. Misc. Eep. 355, 23 N. Y. Supp. 115; In re Worthen, 58 Fed. 467; State v. ■Gooch, 44 Fed. 276; In re McAl- ister, 51 Fed. 282; In re Minor, '69 Fed. 233; Ex parte Scott, 66 Fed. 45; United States v. Sixty- five Casks, 170 Fed. 449 (A ship- ment in carload lots, the cask be- ing the "original package.") . A statute making it punishable to keep with intent to ship out of the state for food purposes the flesh of a calf which is less than four weeks old, or weighs less than 50 pounds, dressed weight, when Tcilled, is invalid, as an interfer- ence with interstate commerce. State V. Peet, 80 Vt. 449, 68 Atl. 661; In re Brundage, 96 Fed. 963, cannot be regarded as sound. Article I, § 10 of the Federal Constitution providing that "no state shall, without the consent of Congress lay any import or duty on any imports or exports, except as may be absolutely necessary for executing its inspection laws," ap- plies only to articles imported from foreign countries, or exported to them, and not to articles of inter- state commerce. Red C. Oil Mfg. Co. V. Board, 172 Fed. 695. 1 Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 236, 30 N. E. 1127, 15 L. E. A. 899; Crossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401, af- firming 171 N. Y. 329, 83 N. E. 1097; Borden's Condensed Milk Co. V. Montclair (N. J. L.), 80 Atl. 30. § 57] LAW OF PUBE FOOD AND DRUGS. 104 in daily use and eagerly sought by people in every condition of life, is protected by the Oonstitutdon in making a sale of it against the will of the State in which it is offered for sale, because of the circumstances that it is an original package, and has become a subject of ordinary traffic. We are unwilling to accept this view. We are of the opinion that it is within the power of the State to exclude from its markets any compound manufactured in another State, which has been artificially colored or adulterated so as to cause it to look like an article of food in general use, and the sale of which may, by reason of such coloration or adulteration, cheat the general public into purchasing that which they may not intend to buy. The Constitution of the United States does not secure to any one the privilege of defrauding the public."^ The Act of Congress of 1890,^ prohibiting the im- portation into the United States of adulterated and un- wholesome food is not such action on the part of Congress on the subject as deprives the States of their police power to legislate for the prevention of the sale of articles of food so adulterated as to come within valid prohibitions of their statutes.* The fact that a demand exists for articles of food so adulterated by fraud and deception as to come within the prohibitions of a State statute does not bring the right to deal therein under the interstate commerce of the Federal Constitution so that such dealings can not be controlled by the State in the valid exercise of its police power.^ A statute intended to prevent the coloring, coating or polishing of an article of intended food, whereby damage or inferiority is concealed, is not in conflict with the power of Congress to regulate commerce, even if applied to articles sold in the original packages imported from other States.' 2 Plumley v. Massachusetts, 155 s 26 U. S. Stat, at Large 414. U. S. 461, 15 Sup. Ct. 154, 39 L. * Grossman v. Lurman, 192 U. S. Ed. 223, quoted in Grossman v. 189, 24 Sup. Ct. 234, 48 L. Ed. Lurman, 192 U.S. 189, 24 Sup. Ct. 401, affirming 171 N. Y. 329, 63 N. 234, 48 L. Ed. 401, when discussing E. 1097. the sale of imported impure food, 5 Grossman v. Lurman, supra, and in affirming 171 N. Y. 329, 83 This was a sale of colored coffee. N. E. 1097. 6 Arbuckle v. Blackburn, 51 C. 105 CONSTITUTIONALITY OF STATUTES AND OEDINANOES. [§ 58 §58. Forbidding Exportation of Food. Where a State statute made it a misdemeanor to keep, with intent to ship out of the State for food purposes, the flesh of a calf which was less than four weeks old when killed, or C. A. 122, 113 Fed. 616, 65 L. R. A. 864; State v. Rogers, 95 Me. 94, 49 Atl. 564; People v. Meyer, 89 N. Y. App. Div. 185, 85 N. Y. Supp. 834; In re Scheitlin, 99 Fed. 272; (Contra. In re Brundage, 96 Fed. 963) ; Commonwealth v. Van Dyke, 9 Pa. Dist. Rep. 41; Com- monwealth V. Van Dyke, 13 Pa. Super. Ct. 484; Commonwealth v. McCann, 14 Pa. Super. Ct. 221; MieCann v. Commonwealth, 198 Pa. 509, 48 Atl. 470; Armour Packing Co. V. Snyder, 84 Fed. 136; Patap- 860 Guano Co. v. Board, 171 U. S. 345, 18 Sup. a. 757, 43 L. Ed. 191, affirming 53 Fed. 690; Red C. Oil Mfg. Co. V. Board, 172 Fed. 695; Evans v. Chicago & N. W. Ry. Co., 109 Minn. 64, 122 N. W. 876; State V. Peet, 80 Vt. 449, 68 Atl. 661, 130 Am. St. 998 ; In re Brosnahan, 18 Fed. 62. Regulations for the protection of the public health are within the po- lice power of the State, and are not an illegal interference with inter- state commerce, if they have a real substantial relation to a public ob- ject which government can accom- plish, and are not arbitrary and un- reasonable and beyond the neces- sities of the case. Consequently an ordinance providing that "no milk shall be sold or oflfered for sale or distributed in the town of Mont- clair except from cows in good health, nor unless the cows from which it is obtained have within one year been examined by a vet- erinarian whose competency is vouched for by the State Veterin- ary Association of the state in which the herd is located, and a certificate signed by a veterinarian has been filed with the board of health, stating the number of cows in each herd which are free from disease," providing that the exami- nation must include the tuberculin test, and charts showing the reac- tion of each individual cow must be filed with the board, and also providing that all cows which react must be removed from the prem- ises at once if the sale of milk is continued, and no cows can be added to a herd until certificate of satisfactory tuberculin tests of the cows have also been filed with the board, and stiU further providing that "no cream shall be sold, ex- posed for sale or delivered within the town of Montelair, unless it be produced and handled in accord- ance with the regulations," above set forth for the production and handling of milk, is valid, al- though it has the eflfect to pro- hibit the introduction of milk into Montelair from another state, where the dairymen producing the milk refuse or fail to comply with the provisions of these require- ments. Borden's Condensed Milk Co. V. Montelair (N. J. L.), 80 Atl. 30. A vendor of milk who invokes § 59] LAW OF PURE FOOD AND DRUGS. 106 weighed less than fifty pounds dressed, and also made it an offense to have the flesh of such calves "with intent to sell for food purposes," it was held that an indictment based upon this statute charging the accused with having had such meat in his possession with intent to ship it out of the State for food purposes was bad; because the Federal Act ex- cludes a State from making any regulation upon the subject affecting such meat when it was a subject of interstate com- merce; but that part of the indictment based upon a section of the statute making it an offense to have in possession the meat of such calves with intent to sell it for food purposes was valid, because that part of the statute must be construed to relate to sales within the State which would be within the power of the Legislature to regulate. Under the Federal Act the Secretary of Agriculture had issued regulations requiring carcasses of calves under three weeks of age to be con- demned.^ But where one section of a statute prohibited the sale as an article of food of veal from a calf under four weeks old when killed; and another section required all veal shipped to have annexed to it a tag stating the name of the person who raised the calf, the name of the shipper, the points of shipping, and the destination and age of the calf, it was held that the latter section was evidently passed to secure the enforcement of the provisions of the former sec- tion, and was clearly, as was such former section, within the police power of the State - § 59. Sale of Adulterated Articles to Citizens of Another State^ — ^Interstate Commerce. A statute which defines what constitutes adulterated food, the interstate commerce clause as a 2 People v. Bishopp, 106 N. Y. defense must clearly show that his App. Div. 266, 94 N. Y. Supp. 773, acts come within its provisions. affirming 44 N. Y. Misc. Rep. 12, St. Louis V. Niehaus (Mo.), 139 89 N. Y. Supp. 709; People v. S. W. 450. Dennis (N. Y. App.), 114 N. Y. 1 State V. Peet, 80 Vt. 449, 68 Supp. 7 ; People v. Jackson, 36 N. Atl. 661, 130 Am. St. 998, 14 L. Y. Misc. Rep. 282, 73 N. Y. Supp. R. A. (N. S.) 678. 461. 107 CONSTITUTIONALITY OF STATUTES AND OEDINANCES. [§§60, 61 if atilierwiise eomstitutional, miist be held invialid' on th,e ground that it is a regulation of interstate commerce and prevents its manufacture and sale to the inhabitants of other States.^ § 60. Inspection of Foods and Drugs. A State has full power to provide for inspection of foods and drugs, in order to secure their purity. This has been elsewhere discussed sufficiently under other heads not to re- quire here the citation of authorities. It may provide for the inspection of foods imported into the State, as well as animals.^ Such a statute must, however, operate alike upon imported as well as upon exported and domestic articles.^ Thus a statute requiring all beer manufactured in the State to be inspected is valid; notwithstanding the doctrine that an inspection law oan ndt be legitimately employed to yield a revenue beyond the cost of inspection. Such a doctria© has no application tO' such a law, since tlhe manufacture and sale of beer miay be prdhibited.^ The fee exacted for inspection can not be held invalid, unless so unreasonable and disproportionate to the service rendered as to impeach the good faith of the law.* A statute which empowers a municipality "to do all acts and make regulations which may be necessary or expedient for the promotion of health or the suppression of disease," confers power upon it to establish a public slaughter house for the purpose of securing proper inspection of fresh meats.^ § 61. Inspection Laws Preventing Importation. While a State may enact laws for the inspection of foods, 1 People V. Niagara Fruit Co., 171 U. S. 345, 18 Sup. Ct. 862, 43 173 N. Y. 629, 66 N. E. 1114, af- L. Ed. 191, affirming 53 Fed. 690. firming 75 N. Y. App. Div. 11, 77 a State v. Bixman, 162 Mo. 1, 62 N. Y. Supp. 805. S. W. 828. 1 Evans v. Chicago & N. W. Ry. * Red C. Oil Mfg. Co. v. Board, Co., 109 Minn. 64, 122 N. W. 876; 172 Fed. 695. State V. Bixman, 162 Mo. 1, 62 S. s Huesing v. Rock Island, 128 111. W. 828. 465, 21 N. E. 558, 15 Am. St. 129, 2 Patapsco Guano Co. v. Board, reversing 25 111. App. 600. § 61] LAW OF PUEE FOOD AND DEU6S. 108 it cannot enact such severe laws as will amount to a prohibi- tion of importation of foods from another State. "The gen- eral rule to be deduced from the decisions of this court," said the Supreme Court of the United States, "is that a law- ful article of commerce can not wholly be excluded from im- portation into a State from another State where it was manu- factured or grown. A State has power to regulate the in- troduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food. ' '^ If the inspection law relating to an article of food be not a rightful exercise of the police power of the State so that the inspection prescribed is of such a character, or if it be burdened with such conditions as to wholly prevent the introduction of the sound article from other States, it is invalid.^ "Whatever our individual views may be," said the Supreme Court of the United States in a case involving intox- icating liquors, "as to the deleterious or dangerous qualities of particular articles, we can not hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or whatever are thus recognized can be controlled by State laws amounting to regulations while they retain that character, although, at the same time, if directly dan- gerous in themselves, the State may take appropriate meas- ures to guard against injury before it obtains complete juris- diction over them. To concede to a State power to exclude, directly or indirectly, articles so situated, without Congres- sional permission, is to concede to a majority of the people of a State, represented in the State Legislature, the power to regulate commercial intercourse between the States by deter- mining what shall be its subjects, when that power was dis- tinctly granted to be exercised by the people of the United 1 Schollenberger v. Pennsylvania, 455, aflSrming 39 Fed. 641 ; Brim- 171 U. S. 1, 18 Sup. Ct. 757, 43 mer v. Rebmsun, 138 U. S. 78, 11 L. Ea. 49, reversing 170 Pa. 284, Sup. Ct. 213, 34 L. Ed. 862, affirm- 33 Atl. 85, 30 L. R. A. 396. ing 43 Fed. 638; Soott v. Donald, 2 Minnesota v. Barber, 136 U. S. 165 U. S. 58, 17 Sup. Ct. 265, 41 313, 10 Sup. Ct. 862, 34 L. Ed. L. Ed. 632. 109 OONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 62 States represented in Congress, and its provision by the lat- ter was considered essential to that more perfect union which the Constitution was adopted to create."^ § 62. Discrimination in the Inspection of Domestic and Imported Food. In Georgia, an ordinance of the city of Augusta created a packing house inspector to inspect all meats shipped into the city, or brought from outside the county in which it was situated and offered for food. It was made his duty to visit all packing houses daily and all other places of importers of meat stuffs not otherwise provided for, and secure from them their bills of lading, for the purpose of determining whether or not the shipments had made proper time, and whether the cars containing the meat stuff had been properly iced during transit. It was made his duty to open the cars, and, by proper inspection, ascertain whether the meat stuffs con- tained in the cars were in a healthful condition for sale; and "all meats and other foodstuffs found not to be in a healthful condition" were to be condemned and ordered out of the city as condemned meat at the expense of the packer. The inspector was allowed to charge the following fees: "Bach beef carcass 20 cents, each calf carcass 10 cents, each sheep carcass 10 cents, each hog carcass 10 cents, all cuts of fresh meat, sausage, poultry, game, and fish, per hundred- weight, 10 cents." The ordinance imposed no such charge on others engaged in like business. It was held to be an unlawful interference with interstate commerce, discrimina- tory in character, and invalid. "Discrimination against products of other States," said the court, "can not be al- lowed, nor can a municipal ordinance undertake to regulate interstate commerce. Inspection laws must be confined to their legitimate purpose, and municipal ordinances must be reasonable. In the ordinance under consideration a special packing house inspector was created, and it was provided sLeisy v. Hardin, 135 U. S. 100, 465, 24 L. E. — ; Red C. Oil Mfg. 10 Sup. Ct. 681, 34 L. Ed. 128; Rail- Co. v. Board, 172 Fed. 695. road Company v. Husen, 95 U. S. § 63] LAW OF PUKE FOOD AND DRUGS. 110 that he should visit all packing houses daily, and all other places of importers of meat stuff not otherwise provided for, and secure from them their bills of lading, 'for the purpose of determining whether or not such shipments have made proper time, and whether the ears containing said meat stuff have been properly iced during transit.' These are matters of regulation of commerce, and the municipal authorities had no power to deal with them. Fees were also provided to be paid for the inspection of articles thus received by packing houses or similar establishments to which meat was imported from without the State, but no similar fees or charges were provided as to other establishments selling meat. As to the administration of the ordinance, while it was denied that any discrimination was intended, it was admitted that the defendants considered that the. abattoir just outside the city line, and inspected thoroughly by Federal inspection before slaughtering, occupied a much different position from a packer who had his product shipped thousands of miles aiter it was inspected. This ordinance before us exceeds the authority of the municipality, undertakes to deal with regula- tions of interstate commerce, is discriminatory in character, and void."^ § 63. State Inspection Law in Contravention of Federal Meat Inspection Law of 1906. The Act of Congress of 1906 for the inspection of meat^ in so far as it relates to the inspection of animals slaugh- tered and meats prepared by packing houses for interstate or foreign commerce, does not entirely exclude the States, or municipalities under their authority, from enacting proper inspection laws to prevent meat which has become unfit for 1 Armour & Co. v. Augusta, 134 unconstitutional in Louisiana. Ga. 178, 67 8. E. 417, 27 L. R. A. Carter v. Green, 127 La. 490, 53 So. (N. S.) 677. See also Evans v. 729, 31 L. E. A. (N. S.) 1055. Chicago, etc. R. Co., 109 Minn. 64, 1 34 U. S. Stat, at Large 669, 122 N. W. 876, 26 L. R. A. (N. S.) 674. See Appendix for this stat- 279, note. ute. A less stringent law was held Ill CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 63 food by reason of decay or similar cause from being dis- tributed or sold, to the injury of the health of its citizens. "It will not be presumed," said the court, "that Congress intended to abrogate the power of the State to have meat or food inspected for the protection of its citizens, except in a plain case, certainly it will not be assumed that they in- tended to delegate such power to an administrative officer, or a bureau, or a meat inspector. An examination of that por- tion of the Act of Congress of 1906 referring to the Bureau of Animal Industry will show that it dealt principally with the inspection of cattle, sheep, swine and goats before being slaughtered, of carcasses or parts of carcasses after being slaughtered, and of meat products at packing houses and similar establishments where they were prepared for inter- state commerce. Persons, firms and corporations were pro- hibited from transporting or offering for transportation, and carriers of interstate or foreign commerce were prohibited from transporting or receiving for transportation in inter- state or foreign commerce, any carcass, meat or meat food products thereof which had not been inspected, examined and marked as required by the Act. The Act did not under- take wholly to destroy the right of local inspection by a State or a municipality under its authority after the meat had been shipped to a warehouse or branch agency located in a State other than that where the packing house was, and where it was kept for distribution and sale. It by no means follows because meat has been inspected in Chicago, and found to be in oondition suitable for shipment, that, after being shipped into Georgia and there held, it still remains suitable for sale and use as food. The conferring of au- thority on the Secretary of Agriculture to make rules and regulations necessary for the efficient execution of the Act of Congress did not authorize him to go further and' to deny to the States their inherent right of passing legitimate in- spection laws. Nor will a regulation by him directing in- spectors to notify municipal authorities, and on request to ad- vise with such authorities with a view of preventing the entry into the local market of diseased animal or other prod- §§ 64, 65] LAW OF PURE FOOD AND DEtTGS. 112 ucts, and providing that the details of any proposed co-op- erative arrangement must first be submitted to and approved by the Chief of the Bureau of Animal Industry, be treated as an effort to exclude the State or its subordinate municipali- ties from exacting proper laws. "We can not sustain the broad position that States and municipalities are wholly prohibited from enacting inspection laws touching meats slaughtered or prepared in packing houses located in other States. "2 §64. Labeling Impure Food. Since a State may entirely prohibit the sale of impure or unhealthful food, so it may permit the sale of such food, but require it to be so labeled as to indicate to the purchasers that it is impure. Such a regulation clearly falls within a State's police power to protect the health of its inhabitants. Speaking of an Act which required all fruit packed for shipment to be marked with the locality in which it was grown, and in holding it invalid, it was said: "If it is a question of the shipping of diseased apples, it would be simple enough for the Legislature, and quite within its power, to regulate or prohibit the transportation of such diseased fruit. If it were a question merely of deception in the label, the direct and efficacious method would be for the Legisla- ture to prohibit false labeling."^ §65. Labeling to Prevent Deception — Baking Powders. In order to protect the public from deception, there is no doubt that the Legislature has ample power to require labels 2 Armour & Co. v. Augusta, 134 81 Iowa 642, 47 N. W. 777, 11 L. Ga. 178, 67 S. E. 417, 27 L. R. A. E. A. 355; Pierce v. State, 63 Md. 677. But see Savage v. Scovel, 171 592; Sterner v. Ray, 84 Ala. 93, 4 Fed. 566. So. 172, 5 Am. St. 332 (fertilizers). 1 Ex parte Hayden, 147 Cal. No one can insist upon his right 649, 82 Pac. 315, 11 L. R. A. (N. to sell impure food merely because S.) 184, 109 Am. St. 183; State he has placed upon it a label that V. Hammond Packing Co., 105 Minn. it is impure. State v. Earl, 152 359, 117 N. W. 606; State v. Snow, Mo. App. 235, 133 S. W. 402. 113 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 65 to be placed upon packages of goods wherein is specified in detail the ingredients of which it is composed; and if pre- servatives have been used in it, though they be perfectly harmless, to require that fact and the name of the preserva- tives to be given. "Doubtless the Legislature could provide that the packages [of butter] should be clearly marked with a label stating such fact [that a particular pre- servative had been used], and it might require any notice adopted to inform the public of the nature and treatment of the article offered for sale."^ And it may be remarked that the Federal Pure Food Act requires a label whereon is stated the ingredients of the package; and no one seriously doubts its validity. A State statute requiring a label to be placed on all compounds intended to be used as a baking powder containing the legend: "This baking powder is composed of the following ingredients, and none other," and then the ingredients set out, with the manufacturer's name, is valid. It is no argument that the public will not be benefited by such a requirement; that the purchasers do not know the meaning of the term used on the labels; that it is unjust to cause a manufacturer or dealer in pure powders to submit to such a law, for the purpose of exposing those who make or deal in a harmful article; that if such a law can be im- posed against baking powders, without reference to their purity, then pure sugar, pure flour, and other pure staple articles of food may be likewise brought under similar re- strictions, and to single out baking powder in such manner is class legislation. "There is nothing in all these objec- tions."^ The use of baking powder in compounds has be- come common; being a compound, the people should know the contents that they may judge of the quality before purchasing, and the people are less easily imposed upon 1 People V. Biesecker, 169 N. Y. 43 Pac. 1047 ; State v. Aslesen, 50 53, 61 N. E. 990, 57 L. R. A. 178, Minn. 5, 52 N. W. 220; Common- 88 Am. St. 534; State v. Snow, 81 wealth v. Seller, 20 Pa. Super. Ct. Iowa 642, 47 N. W. 777, 11 L. R. 260. A. 355 ; State v. Hanson, 84 Minn. 2 State v. Sherod, SO Minn. 446, 42, 86 N. W. 768, 54 L. R. A. 468; 83 N. W. 417, 50 L. R. A. 661, 81 Haines v. People, 7 Colo. App. 467, Am. St. 268. PuBE Pood — 8. § 65] LAW OF PURE FOOD AND DETJGS. 114 when the contents are made known by a label on the powder offered than by the vendor. "The owner of such property may be legally required, as a matter of proper police regu- lation for the benefit of the people in general, to sell for what it actually is, from its own merits, and is not entitled, as a matter of constitutional right, to the benefit of any ad- ditional market value which he may secure by concealing its character. "3 A statute which only requires baking powder containing alum to be labeled, and does not require a label for powder containing no alum is valid, and is not prohibited by class legislation.* So where a statute required any pack- age of lard containing any ingredient except pure fat of healthy swine to be labeled "Compound Lard" in letters one- half inch in length, and plainly exposed to view, and the name and proportion, in pounds and fractions thereof, of each ingredient contained in the compound, it was upheld. "The Act is," it was said, "a mere regulation by which the public may know by inspection of the package the ingre- dients used in its preparation. If it resemble lard, it is surely no infringement of any right of the grocery-man or dealer to require him to make known to the public, in a proper manner, the constituent parts of the article which he offers for sale."^ In an instance of a sale of the meat of a calf under four weeks old when killed, a statute requiring such meat when shipped to be tagged, whereon is stated the name of tlie person 3 Stolz V. Thompson, 44 Minii. purchase he may deal in it with 271, 46 N. W. 410. impunity. This much the law- i Stolz V. Thompson, supra. making power may demand of him 5 State V. Snow, 81 Iowa 642, 47 without impairing any right of N. W. 777, 11 L. E. A. 355. property, or the exercise of any law- Speaking of this statute the ful business." court said: "If a dealer offers for The fact that the legitimate as sale an article intended to be used well as the illegitimate article is for lard, he must label it so that required to be tagged does not af- the public may not be deceived and feet the necessity of reasonable- defrauded by paying the value of ness. People v. Bishopp, 106 If. pure lard for a cheaper article. If Y. App. Div. 266, 94 N. Y. Supp. the dealer will label the article so 773, affirming 44 N. Y. Misc. Eep. that the people may know what they 12, 89 N. Y. Supp. 709. 115 CONSTITUTIONALITY OP STATUTES AND OEDINANCES. [§ 66 who raised the calf, the name of the shipper, the points of shipping, and the destination and age of the calf, has been held valid." §66. La.beling Small Packages Taken from Original Packages. As the object of the statute requiring labels to contain a statement of the ingredients composing the contents of the packages is to protect the consumer rather than the dealer, it is necessary that the package the consumer receives when he makes a purchase shall be labeled so as to show the sev- eral parts of its contents in order to protect him rather than it should be placed merely upon a large package composed of such small packages. The consumer does not see the orig- inal large package, and although told that the small package he is purchasing comes from it, yet he may not know that such is the fact, or he may be deceived by an untruthful statement. It is, therefore, the better construction of those statutes requiring labels that the package the consumer pur- chases must be labeled rather than the original package from which it is taken. "If the domestic dealer were to sell an original package labeled as above to the consumer, such sale would be valid, because the label complies with the law, and notifies the purchaser that the article is not a sausage of meat alone, but a sausage composed of meat and meal." But the court considered that if the original package was composed of many small packages, it being the intention to retail such small packages to would-be consumers, then each smaU package should be so labeled as to show the ingre- dients composing it.^ 6 People V. Bishopp, 106 N. Y. 107, which held to the contrary, App. Div. 266, 94 N. Y. Supp. 773, saying that that decision was aflSrming 44 N. Y. Misc. 12, 89 N. based on a penal statute which Y. Supp. 709. must be strictly construed. 1 Armour & Go. v. State Dairy, etc. In some states the statute ex- Co., 159 Mich. 1, 123 N. W. pressly requires small packages 580, 25 L. R. A. (N. S.) 616. The taken from the original large pack- court refused to follow State v. ages to be labeled. People v. Mack, Neslund, 141 Iowa 461, 120 N. W. 97 N. Y. App. Div. 474, 89 N. Y. ^.§ 66] LAW OP PUEK FOOD AND DETJGS. 116 In the Iowa ease just cited a pound of lard was sold from a fifty-pound package properly labeled with its constitutent parts, and it was held that the dealer was not required to label the small packages sold. This Iowa case is somewhat in harmony with several English cases. A statute of that country requires that "every package, whether open or closed, and containing margarine, shall be branded or dur- ably marked 'Margarine* on the top, bottom and sides, in printed capital letters, not less than three-quarters of an inch square; and if such margarine be exposed for sale, by retail, there shall be attached to each parcel thereof so ex- posed, and in such maimer as to be clearly visible to the purchaser, a label marked in printed capital letters not less than one and a half inches square 'Margarine;' and every person selling margarine by retail, save in a package duly branded or durably marked as aforesaid, shall in every case deliver the same to the purchaser [or with] a paper wrap- per, on which shall be printed in capital letters [not less than a quarter of an inch square] 'Margarine'."^ Under the statute it was held that a tub of margarine standing at the back of a counter, from which margarine was scooped and supplied to a customer was a package and must be labeled.' In another case six pieces of margarine of one pound each, and each partly wrapped in paper, were piled up on each othfir in a pyramid in a shop window. One margarine label was put upon the whole heap (on the bottom pieces). An in- . apector bought the top piece. It was held that the six pieces formed one "parcel," and that the parcel was properly labeled.* Supp. 1004; People v. Walters, 114 2 50 and 51 Vict., c. 29, §6. N. Y. App. Div. 669, 100 N. Y. Supp. s MeNair v. Horan, 68 J. P. 518, 177; affirmed, 188 N. Y. 632, 81 91 L. T. 555, 20 Cox C. C. 729, 2 N. E. 1171 (renovated butter) ; L. G. R. 1239. A like decision was Commonwealth v. Bean, 148 Mass. made in an Irish case. Maguire 172, 19 N. E. 163; State v. New- v. Porter [1905], 2 I. R. 147. ton, 50 N. J. L. 549, 18 Atl. 77; * Parkinson v. McNair, 69 J. P. State V. Capitol City Dairy Co., 399, 93 L. T. 553, 21 Cox C. C. 62 Ohio St. 350, 57 L. R. A. 62, 57 42, 3 L. G. R. 982. See also Wheat L. R. A. 181 (oleomargarine). v. Brown [1892], 1 Q. R. 418, 56 117 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 67 § 67. Branding Fruit for Shipment to Show Locality Where Grown. A statute which requires fruit packed for shipment to be branded so as to show the locality where it is grown is un- constitutional. Such an act is not designed to prevent either' false labeling or the shipping of diseased fruit. It is calcu- lated to secure to fruit growers of some well advertised and favored localities an advantage in the disposition of their fruit. It is an improper use of the police power, or, rather, the police power does not authorize its enactment.^ In the California case the court sadd: "It [the statute] re- quires merely that every shipment of every paebage of fruit, whether it be from the small farmers with a few trees or vines, or whether it be from the large producer, must ia every instance bear a label naming the county and immedi- ate locality in which the fruit was grown. It is a matter of common knowledge that this requirement would work the absolute destruction of certain important branches of in- dustry. Dried fruit, such as prunes, peaches, apricots, are gathered in establishments, in enormous quantities, from the State over. These fruits, when dried, are assorted by grade and quality, and, thus assorted and packed, are shipped to the uttermost parts of the earth. It would absolutely pro- hibit this industry, if these fruit driers were compelled to label each package with the names of the localities from which the fruit came, and, if it did not absolutely prohibit it, it would render their business so onerous, complicated, and expensive, as seriously to imperil its existence. It is plain, therefore, that the Act was not designed to prevent either false labeling or the shipping of diseased fruit, and, if so designed, it is both meaningless for this purpose and burdensome for all others. It seems apparent that the true purpose of the act was to obtain for the fruit raisers of some well advertised and favored localities an advantage in the disposition of their own fruit. But this, for the reasons well J. P. 153, 61 L. J. M. C. 94, 66 L. T. lEx parte Hayden, 147 Cal. 649, 464, 40 W. E. 462, and Collett v. 82 Pac. 315, 1 L. E. A. (N. S.) Walker, 59 J. P. 600. 184, 109 Am. St. 183. ; §§ 68, 69] lAVf OF PURE FOOD AND DRUGS. 118 and elaborately set forth in People v. Hawkins,^ forms no part of the police power, and is wholly beyond the preroga- tive of the Legislature."* §68. Official Certification that Article has been Inspected — Stamping. In the ease of fertilizers a statute requiring them to be inspected, certified to and stamped has been upheld.^ This was held true even as to fertilizer imported into the State. So a statute has been held valid which required that there shall be attached to each package of fertilizer a tag, to be furnished by the agricultural commissioners of the State.^ How far the State may go in requiring food to be both in- spected and certified to as to its purity or impurity, does not clearly appear. That it may require it to be inspected, is very clear; and that is for the purpose of determining whether or not it is fit for food. As the State may require food offered on the market to be inspected, there is no reason why it may not require a certificate of its purity or impurity to accompany the inspection.* §69. Marking Weight of Packages on Label. Statutes requiring the weight of a package to be marked on its cover or label have been held both valid and invalid. 3 157 N. Y. 1, 51 N. E. 257, 68 had been convicted of selling a Am. St. 736, 42 L. E. A. 490. brush in the State of New York * Ex parte Hayden, 147 Cal. which had been made by convict 649, 82 Pac. 315, 1 L. E. A. (N. S.) labor in another State, and which 184, 109 Am. St. 183. had not been marked "Convict So where a statute was held in- Made" as tsxe statute required. va,lid which required goods manu- i Woods v. Armstrong, 54 Ala. factured in a state penitentiary to 150, 25 Am. Eep. 671; Eenfro v. be marked "Convict Made." People Lloyd, 64 Ala. — . V. Hawkins, 157 N. Y. 1, 51 N. E. 2 Campbell v. Segars, 81 Ala. 259, 257, 68 Am. St. 736, 42 L. 1 So. 714. K. A. 490. But this statute s See Turner v. Maryland, 107 U. was held invalid on the ground S. 38, 2 Sup. Ct. 44, 27 L. Ed. that it was an interference with in- 370, affirming 55 Md. 240. terstate commerce. The defendant 119 CONSTITUTIONALITY OF STATUTES AND OKDINANCES. [§ 69 Thus one requiring the marking of small packages of butter intended for sale with their weight in figures not less than a quarter of an inch high was held invalid, because an inter- ference with liberty and property rights, and not a legitimate exercise of the police power. "The Act in question here is not for the purpose of preventing the sale of impure food, or the adulteration of food, or selling one kind of food under the name of another. The offense which it endeavors to create is not that of marking in the exact manner prescribed by the Act. And the manner is certainly a most onerous one. Indeed, it would scarcely be practicable to comply literally with the requirement, and an approximate compli- ance would be exceedingly expensive and burdensome. The Act does not come within the legitimate scope of the police power as described in the cases above cited,^ and seems to be an unwarranted restriction on the citizen's constitutional right to his property and to his privilege of freely following a legitimate business, and not required by any public neces- sity."^ But a statute which required tobacco to be packed in hogsheads of stated dimensions, and then to be weighed, numbered and marked with the name and address of the owner, is valid. This is based on the power of the State to inspect tobacco. "Fixing the identity and weight of tobacco alleged to have been grown in the State, and thus preserving the reputation of the article in markets outside of the State, is a legitimate part of inspection laws; and the means pre- scribed therefor in the statute in question naturally conduces to that end. Such provisions, as parts of inspection laws, are as proper as provisions for inspecting quality; and it iThey are Ex parte Drexel, 147 44 Pac. 803, 32 L. R. A. 664; In re Cal. 763, 82 Pac. 429, 2 L. K. A. Kelso, 147 Cal. 609, 82 Pac. 241, 2 (N. S.) 588; Ex parte Hayden, 147 L. E. A. (N. S.) 796, 109 Am. St. Cal. 649, 82 Pao. 315, 1 L. E. A. 178; Ex parte Whitwell, 98 Cal. 73, (N. S.) 184, 109 Am. St. 183; Ex 32 Pac. 870, 19 L. E. A. 727, 35 parte Dickey, 144 Cal. 234, 77 Pac. Am. St. 152. 924, 66 L. E. A. 928, 103 Am. St. 2 Ex parte Dietrick, 149 Cal. 82; State v. Snow, 81 Iowa 642, 104; 84 Pac. 770, 5 L. E. A. 47 N. W. 777, 11 li. E. A. 355; (N. S.) 873. Ex parte Jentzseh, 112 Cal. 468, § 70] LAW OF PITEE POOD AND DKUGS. 130 cannot be said that the absence of the latter provision, in re- spect to any particular class of tobacco, necessarily causes the laws containing the former provision to cease to be inspec- tion laws."^ So, notwithstanding what has been previously said, it has been held in Nebraska that a statute requiring packages of food to be marked with their weight, was valid.* §70. Weight of Loaves of Bread. A statute empowering a municipality "to direct and regu- late the weight and quality of bread, the size of the loaf, and the inspecting thereof," has been held valid, and author- izes its council to adopt an ordinance carrying out the powers it grants. The court thus discusses the question: 'It is claimed by defendants that, in order to get a pound of baked bread, they are compelled to put into the oven more than a pound of dough, and that the process of baking reduces the weight, and, when asked what it is that evap- orates, they reply 'water.' But they say the process of bak- ing is not always uniform. The oven may be too hot. In such case, the bread crusts or skins quickly, retaining its moisture. And, again, it may be too cold; in which case the bread dries up rather than bakes, and, in order to insure a pound loaf, the latter contingency must be provided against, and the weight of the dough must always be regulated ac- cordingly. That fermentation is not always regular, and, when it reaches a certain point, the dough must be put into the oven, without reference to the condition of the oven. That the cutting up of the dough, the weighing of it, and its transfer to the oven is necessarily hurried, and the scales are liable to become clogged or affected by dust. Notwith- standing all the difficulties suggested by respondents, the evidence shows that the bread inspector has been diligent in the performance of his duties; had frequently visited the several bakeries of defendants, and but one of these defend- ants has, before this time, been complained of, and that was 8 Turner v. Maryland, 107 U. S. * Frederick v. State (Neb.), 131 38, 2 Sup. a. 44, 27 L. Ed. 370, N. W. 618; Liohtersteiger v. State affirming 55 Md. 240. (Neb.), 131 N. W. 623. 121 CONSTITUTIONALITY OF STATUTES AND OEDINANOES. [§ 70 fifteen years ago ; and it is admitted by defendants, not ojoly that the ordinance may be complied with, but that the short- weight bread discovered by the inspector was made for the very purpose of testing the validity of this ordinance; and, after the authorities had caused complaint to be made against defendants, they resumed the former manner of doing busi- ness, and made their bread in accordance with the provisions of the ordinance. Again it is claimed that a barrel of flour will make two hundred and fifty loaves of bread, and that it is impossible to distribute an ordinary advance in price of flour over this product; in other words, that the price of a loaf of bread can not be advanced a fraction of a cent. This difficulty affects the retail dealer more than the whole- saler. It has to be met in the sale of a pound of nails, of a dozen buttons, or of a paper of needles, as well as in the sale of a loaf of bread. The ordinance does not attempt to regulate the price of the commodity. That is not necessarily fixed with reference to flour at its cheapest price, so that, until the price of flour is reduced until it reaches a point where the reduction may be distributed, the dealer gets the advantage of the reduction, and when it advances above the standard the consumer gets the advantage, until a point is reached where the advance may be added. This fluctuation and these results are ordinary incidents of trade. The State may institute any reasonable preventive remedy when the frequency of the frauds, or the difficulty experienced by in- dividuals in circumventing them, is so great that no other means will prove efficacious. Bread is an article of general consumption. It is usually sold by the loaf, and the indi- vidual consumer, in the majority of eases, buys a single loaf. Each transaction involves but a few pennies, although the number of individual transactions in a large city reaches each day into the thousands, and the opportunities for fraud are frequent. It would be practically impossible to prevent fraud in the sale of short-weight loaves, if the matter was left to the ordinary legal remedy afforded the individual consumer for fraud or deceit. The amount involved would not justify a resort to litigation. Sales are invariably made § 70] LAW OF PUKE FOOD AND DKUGS. 133 in loaves of the size of one, two or four pound packages, and the ordinance simply takes the usual and ordinary packages or loaves into which bread is made, and fixes the standard of weight of each package. It does not prohibit the sale of bread by weight if it overruns, as it is claimed that it some- times does, nor does it prohibit the exaction of an increased price by reason of the additional weight. It does not pro- hibit the sale of a half or a quarter or any other fraction of a loaf. Our statutes not only fix the number of pounds of each of the various commodities that shall constitute a bushel, but they also provide that a "box" or a "basket" of peaches shall contain one-third of a bushel, and they fix the size of a "barrel" of fruit, roots, or vegetables, and they may, with equal propriety, fix the weight of a package or loaf of bread. The police power of a State is not confined to regulations looking to the preservation of life, health and good order and decency. Laws providing for the detection and prevention of imposition and fraud, as a general propo- sition, are free from constitutional objection."^ A statute may be enacted requiring that bread should be sold only in loaves of certain weights, and that they should bear a label showing the weight and address of the maker.^ An ordinance based on such a statute authorizing its en- actment is not void as unreasonable on the ground that it attempts to regulate the price of bread, and the elements entering into the composition of bread may so fluctuate in value as to necessitate a change in the price of the loaves. Nor is it invalid on the ground that it can not be complied with without great loss to the baker, as the evaporation of the weight of a loaf changes after leaving the oven, and that to comply with the ordinance the loaf must weigh over a prescribed weight on leaving it. Nor is it void because of the limitation of loaves to certain weights; nor that it did not permit loaves to be sold by special contract other 1 People V. Wagner, 86 Mich. lU. 167, 90 N. E. 369, 372. This 594, 49 N. W. 609, 13 L. E. A. was an ordinance authorized by a 286, 24 Am. St. Eep. 141. statute. 2 Chicago V. Schmidinger, 243 133 CONSTITUTIONALITT OF STATUTES AND OEDINANOES. [§ 71 than those of the weights fixed, though there be a demand in the municipality adopting such ordinance for loaves of other weights.' §71. Marking Capacity of Bottle Containing Liquid. The Legislature may require a dealer in bottled or canned goods to indicate the amount contained in the bottle or can, or to state the capacity of such bottle or can. It may even require that statement to be blown in the bottle, although thereby the bottles on hand when the statute is enacted are rendered useless for the purpose to which they were then devoted. Such a statute is not the taking of property with- out just compensation. Thus a statute of Illinois required every milk bottle in which milk was offered for sale to have blown in its side its capacity. This was held to be a valid statute; and a dealer who sold milk in a bottle of less capac- ity than that marked upon it was liable, even though he did not know it was below the capacity marked. The State may delegate this power to a municipality to exert. Such legisla- tion is not special legislation, although it does not apply to all milk dealers or to all persons who vend substances in liquid form. "IVKlk or cream are articles of general con- sumption. They are usually sold by the pint or quart, and, while such transaction involves but a few cents, the number of such transactions in a large city like Chicago reaches a large sum. The opportunities for fraud in their sales are great, and the ordinary legal remedy afforded the individual consumer to protect himself against fraud or deceit is wholly inadequate. Clearly, therefore, an ordinance like the one under consideration is valid, and it is not obnoxious to any of the provisions of the State or national Constitution. Nor does the fact, we think, that the ordinance does not apply to all persons who vend substances in liquid form, or to all persons who engage in the business of selling milk or cream in the city of Chicago, make the ordinance void as special legislation. The ordinance, so framed, applies tio all persons 8 Chicago V. Sohmidinger, supra. §§ 73, 73] LAW OF PURE FOOD AND DRUGS. 124 who sell milk or cream in bottles or glass jars in the city of Chicago, and in the fullest sense is general in its teraas."^ §72. Destruction of Property Devoted to Manufacture of Oleomargarine Before Enactment of Statute. A statute Which prohibits the manufacture of oleomarga- rine is not invalid because it prevents the use of property for that purpose which was in such use when it was enacted^ It is not the depriving one "of his property without that compensation required by law."^ In this respect the manu- facturer of oleomargarine (and perhaps other substances) stands upon the same ground as the manufacturer of beer.^ §73. Rate of Taxation, Declaring Illegal — Federal Oleo- margarine Statute. The courts can not declare that the rate of taxation im- posed upon a product — ^as upon oleomargarine — is illegal be- cause too high, even if it prohibit the manufacture of the article taxed. It is for the Legislature to determine what tax shall be imposed, and Avith that determination the courts can not interfere. The courts are without authority to avoid an Act of the Legislature lawfully exerting the taxing power, even in an instance when to the judicial mind it seems that the Legislature had, in putting the power in mo- tion, abused its lawful authority by levying a tax which was oppressive an)d unwise, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to or possessed by the Legislature; nor can the courts inquire into the purpose or motive of the Legisla- ture in adopting a statute levying a tax within its constitu- tional power. In the case of Congress, neither the Fifth nor the Tenth Amendment to the Federal Constitution operates 1 Chicago V. Bowman Dairy Co., U. S. 678, 8 Sup. Ct. 992, 1257, 32 234 111. 294, 84 N. B. 913, 17 L. E. L. Ed. 253. See a.lso § 74. A. (N. S.) 684, 123 Am. St. 100. 2 Mugler v. Kansas, 123 U. S. 1 Powell V. Commonwealth, 127 623, 8 Sup. Ct. 273, 31 L. Ed. 205. 125 CONSTITUTIONALITY OF STATUTES AND OEDINANOBS. [§ 73 to take away the grant of power to tax conferred upon it by the Constitution; and that power being unrestrained except as limited! by the Constitution, Congress may select the ob- jects upon which the tax shall be levied, and in exerting the power no want of due process of law can possibly result, and the courts can not usurp the functions of Congress in order to control that branch of the government in exercising its lawful functions. Therefore the Act of Congress of 1886,^ as amended in 1902, imposing a tax of one-quarter of one percent on oleomargarine not artificially colored any shade of yellow, so as to look like butter, and ten cents a pound if so colored, levies an excise tax, and is not unconstitutional as outside the powers of Congress, or an interference with the powers accorded to the States; nor can the courts declare the tax void because it is too high, nor because it am'ounts to destruction of the business of the manufacturer of oleomarga- rine, nor because it discriminates against oleomargarine and in favor of butter.^ 1 32 U. S. Stat, at Large 93. See Appendix. 2M)eCrary v. United States, 195 U: S. 27, 24 Sup. Ot. 769, 49 L. Ed. 78, citing Patton v. Brady, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713; Knowlton v. Moore, 178 U. S. 41, 20 Sup. a. 747, 44 L. Ed. 969; Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 622, 43 L. Ed. 786, af- firming 89 Fed. 144; In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813; Kilbourn V. Thompson, 103 U. S. 168, 26 L. Ed. 377; Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492; License Tax Cases, 5 How. 462, 12 L. Ed. 256, affirming 24 Pick. 374, 1 E. I. 193, 13 N. H. 536; Pacific Insurance Co. v. Soule, 7 Wall. 433, 19 L. Ed. 95; Ausin V. Boston, 7 Wall. 694, 19 L. Ed. 224, affirming 14 Allen 359; Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ot. 921, 31 L. Ed. 763; Treat v. White, 181 U. S. 264, 21 Sup. Ct. 611, 45 L. Ed. 853; Capitol City Dairy Co. T. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, -46 L. Ed. 171, affirming 62 Ohio St. 350, 57 L. E. A. 181, 57 N. E. 62. In the case following a like rul- ing was made. Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99. U. S. Supp. Eev. St., p. 505, ch. 840, imposing a tax on manufactur- ers and dealers in oleomargarine, and regulating the sale of such ar- ticles is valid. United States v. Dougherty, 101 Fed. 439. § 74] LAW OF PDEE FOOD AND DRUGS. 136 § 74, Amount of Tax, Validity of Statute. The amount of tax to be levied upon an article of food so as to restrict its sale is a question for the Legislature and not for the courts. This was held in the case of oleomarga- rine where the effect of the Federal statute, it was claimed, was to prohibit its manufacture. "As we have said," said the Supreme Court of the United States, "it has been con- clusively settled by this court that the tendency of that arti- cle to deceive the pnblic into buying it for butter is such that the States may, in the exertion of their police powers, without violating the due process clause of the Fourteenth Amendment, absolutely prohibit the manufacture of the arti- cle. It hence results that, even though it be true that the effect of the tax in question is to repress the manufacture of artificially colored oleomargarine, it can not be said that such repression destroys rights which no free government could destroy, and, therefore, no ground exists to sustain the proposition that the judiciary may invoke an implied pro- hibition, upon the theory that to do so is essential to save such rights from destruction. And the same considerations dispose of the contention based upon the due process clause of the Fifth Amendment. That provision, as we have pre- viously said, does not draw or expressly limit the grant of power to tax conferred upon Congress by the Constitution. From this it follows, as we have also previously declared, that the judiciary is without authority to avoid an Act of Congress exerting the taxing power, even in a case where to the judicial mind it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress. Let us concede that if a case was presented where the abuse of the taxing power was so extreme as to be beyond the principles which we have previously stated, and where it was plain to the judicial mind that the power had been called into play, not for revenue, but solely for the purpose of destroying rights 127 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§§75, 76 which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Oonstitu- tion rests, that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred. This concession, however, like the one previously made, must be without influence upon the decision of this cause for the reasons previously stated; that is, that the manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights."^ §75. Injoining Violations of Pure Food Statute. The Legislature may confer upon a court jurisdiction to injoin the violation of the pure food laws. Such a statute is valid.^ So the legality of the acts of a pure food officer, and the question whether he is exceeding his powers, may be tested in an action to enjoin him from the commission of acts alleged to be without authority.^ § 76. Injoining Void Statute or Ordinance Regulating Sale or Manufacture of Food. If an ordinance or statute regulating the sale or manufac- ture of food be void, then its enforcement may be enjoined by a court of equity, and so may all those seeking to enforce it. But the statute or ordinance must involve something more than a penalty if it be violated. If enforced, it must mean the destruction of the complainant's business.^ But if the statute be valid, its enforcement can not be injoined by a iMeCrary v. United States, 195 341, 126 N. W. 324, 27 L. R. A. U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. (N. S.) 1150; Austin v. Austin 78; Schick v. United States, 195 City Cemetery Asso., 87 Tex. 330, U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 28 S. W. 528, 47 Am. St. 114; Ew- 99; Red C. Oil Mfg. Co. v. Board, ing v. Webster City, 103 Iowa 226, 172 Fed. 695. 72 N. W. 511; Armour & Co. v. 1 Commonwealth v. Andrews, 24 Augusta, 134 Ga. 178, 67 S. B. Pa. Super. Ct. 571. 417, 27 L. R. A. (N. S.) 676; State 2 State V. District Court, 17 N. v. District Court, 17 N. D. 285, D. 285, 115 N. W. 675. 115 N. W. 675. 1 Bear v. Cedar Rapids, 147 Iowa § 77, 78] LAW OS PURE FOOD AND DKUGS. 128 Federal court, even though the officer enforcing it gives it an erroneous construction which results disastrously to the business of the person complaining, for to enjoin him in en- forcing it would be to enjoin the State he represents; and as the Eleventh Amendment prohibits suit being brought against a State in a Federal court, a suit to enjoin such officer would be a violation of this provision of that organic law.^ And aside from a Federal question, the fact that an article of food is widely sold throughout a State will not enlarge the jurisdiction of a court of equity to enjoin the institution of prosecutions against its sale or violation of the pure food laws.' Nor will equity enjoin an officer charged with the execution of a pure food law from publishing the opinion that a specified product is within the prohibition of the law, for the remedy of the person complaining is an action for Hbel.* §77. Injunction to Prevent Violations of Law. Statutes sometimes empower courts to issue an injunction restraining the violation of pure food laws. These statutes are valid, even though the defendant be subject to a penalty.^ §78. Title of Statute or Ordinance. Under a constitutional provision that "Every Act shall em- brace but one suibject and matter properly connected there- with, which subject shall be expressed in the title," an "Act forbidding the manufacture, sale or offering for sale, of any adulterated foods or drugs, defining foods and drugs, stating wherein adulteration of foods and drugs consists, and defin- ing the duties of the State Board of Health in relation to foods and drugs, theil" inspection, purity, adulteration, de- claring penalties for the violation of the laws, rules and ordi- 2Arbuckle v. Blackburn, 51 C. C. C. A. 122, 113 Fed. 616, 65 L. R. A. 122, 113 Fed. 616, 65 L. R. A. A. 864. 864. See also Scully v. Bird, 209 * Arbuckle v. Blackburn, 51 C. U. S. 481, 28 Sup. Ct. 597, 52 C. A. 122, 113 Fed. 616, 65 L. R. L. Ed. — . A. 864. 8 Arbuckle v. Blackburn, 51 (1. i People v. Windholz, 68 N. Y. App. Div. 552, 74 N. Y. Supp. 241. 139 CONSTITUTIONALITY OF STATUTES AND OKDINANCES. [§ 78 nances concerning foods and drugs, also liquors used or in- tended for drink," does not violate its provisions; because "forbidding the manufacture and sale of any adulterated foods, drugs or drdnks, defining prohibited foods, drugs and drinks, ajid the duties of the State Board of Health in rela^ tion to the inspection and prescribing of standards of purity of foods, drugs and drinks, and declaring penalties for the vio- lation of the law, or all matters clearly tending to a com- mon end, and which unmiBtakably disclose what that end is."^ Under a similar constitutional provision an "Act in relation to the manufacture and sale of baking powders, sugars and syrups, vinegars, lards, spirituous and malt liq- uors, to prevent fraud, and to preserve the public health," is valid. "The Act does not embrace more than one subject," said the court, "within the meaning of the constitutional prohibition. The Act may be fairly designated as one relat- ing to the adulteration of various articles of food and drink, and its provisions are properly related to the general sub- ject."^ So, under a similar provision, an ordinance to license and regulate the sale of milk and cream, to provide for their inspection, and prescribing penalties to prevent the sale and distribution of any but pure, wholesome milk and cream, and to fix the mimimum limit of its composition, and defining its quality, is valid. "All the provisions of the ordinance are germane to the one subject of regulating the business of vending milk and cream, and the generality of the title is not an objection, so long as it is not made to cover legisla- tion incongruous in itself. Sound policy and legislative con- venience dictate a liberal construction of the title and sub- ject matter of enactments to maintain their validity. There is but one subject to this ordinance, and that is clearly ex- pressed in the title. "^ A title, "To prevent fraud in the sale of lard," sufficiently expresses the subject of an Act the pro- visions of which [are] the sale of "lard or any article in- 1 Isenhour v. State, 157 Ind. 517, 3 St. Louis v. Liessing, 190 Mo. 62 N. E. 40, 87 Am. St. 228. 464, 89 S. W. 64, 1 L. R. A. (N. S.) 2Stolz V. Thompson, 44 Minn. 918, 109 Am. St. 774. 271, 46 N. W. 410. PuEE Food — 9. § 79j 80] LAW OF PUEB FOOD AND DRUGS. 130 tended for use as lard," which contains any ingredients but the pure fat of healthy swine, without 'being plainly marked as provided by statute.* § 79. Corporation, Quo Warranto. If a corporation manufacture and sell food of such a char- acter as comes within the prohibition of a statute, it may be proceeded against by quo warranto to have its charter an- nulled, and the fact that it is subject to a fine for the vio- lation of the statute is not a bar to the prosecution of the quo warranto proceedings. The writ of quo warranto may be invoked to stop the violation of the law on the part of the corporation, and if its acts be flagrant, then to oust the corporation from its powers.^ § 80. Municipality Delegating Power to Grant or Refuse a License to Sell Milk. Although a city have the power to grant a license to sell milk, yet it can not delegate that power to one of the officers or boards and vest him or it with absolute power to arbi- 4 State V. Snow, 81 Iowa 642, 47 Pennsylvania Act of June 26, 1895 N. W. 777, 11 L. K. A. 355. "The (P. L. 317), because it does not title of the Act is a plain state- state the subject of the Act. Com- ment that it is to prevent fraud monweaJth v. Kebort, 212 Pa. 289, in the sale of lard, and the body 61 Atl. 895, 26 Pa. Super. Ct. 584. of the Act ought not to be limited The Indiana Act, Acts 1899, p. to any technical definitions of the 189, is valid, and embraces only one word." subject. Isenhour v. State, 157 Ind. See also Commonwealth v. Caul- 517, 62 N. E. 40, 87 Am. St. 228. field, 27 Pa. Super. Ct. Eep. 279. For additional cases, see People The Missouri Act of May 11, 1899, v. Rotter, 131 Mdch. 250, 91 N. W. was unconstitutional so far as it 167, 9 Detroit L. News 284; Hath- applied to sellers who are not man- away v. McDonald, 27 Wash. 659, ufacturers. State v. Great West- 68 Pac. 376, 91 Am. St. 889; Pratt ern, etc., Co., 171 Mo. 634, 71 S. W. Food Co. v. Bird, 148 Mich. 631, 1011, 94 Am. St. "802. 112 N. W. 701, 14 Detroit Leg. N. The Nebraska Act, Comp. St. 304, 118 Am. St. 601; Grosvenor v. 1901, chap. 33, creating a food com- Duffy, 121 Mich. 220, 80 N. W. 19. mission, is unconstitutional, be- i State v. Capitol City Dairy cause it contains more than one Company, 62 Ohio St. 350, 57 N. subject. Merrill v. State, 65 Neb. E. 62, 57 L. R. A. 181. 509, 91 N. W. 418. So is the 131 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§81 trarily grant or refuse the license. "If the city had the power to license it could not delegate this power to another body, leaving to that body a discretion in the matter." AH applicants for a license must be placed on an equality.^ §81. Power of Municipality to Inspect Food— Milk— In- spection of Dairies. The State may, and often does, delegate to and empower municipalities to inspect food, and especially butter, milk and cheese, or dairy products. It is altogether permissible for the State to do this. So long as the ordinances of a munici- pality are within the power thus conferred and do not con- travene the State's laws or Constitution, or the Federal law or Constitution, they are valid. The city has the power to inspect food, and especially milk, and may not only condemn an impure article, but may destroy it. A city may condemn milk upon the spot (when offered for sale, at least, or when held with intent to s.ell it), take it into custody, and pour it upon the ground, without violating the constitutional pro- visions of due process of law. Whether or not the Legislature has given municipalities such powers must, of course, depend upon a construction of their charters or general laws under which they are organized. But the principle remains that they may be endowed with such powers.^ A statute or ordi- 1 Bear v. Cedar Eapids, 147 Iowa 30 Atl. 648, 26 L. E. A. 541, 45 341, 126 N. W. 324, 27 L. E. A. Am. St. 339; St. Louis v. Fischer, (N. S.) 1150; State Center v. 167 Mo. 654, 67 S. W. 872, 64 L. Barenstein, 66 Iowa 249, 23 N. W. E. A. 679, 99 Am. St. 614, 194 U. 652; Cicero Lumber Co. v. Cicero, S. 361, 24 Sup. Ct. 673, 48 L. Ed. 176 111. 27, 51 N. E. 764, 42 L. E. 1018; Kansas City v. Marsh, Oil A. 704, 68 Am. St. 163; Eichmond Co., 140 Mb. 458, 41 S. W. 943; V. Dudley, 129 Ind. 112, 28 N. E. St. Louis v. Grafeman Dairy Co., 312, 13 L. E. A. 587, 28 Am. St. 190 Mo. 507, 89 S. W. 628, 1 L. E, 180; Yick Wo v. Hopkins, 118 U. A. (N. S.) 926; State v. Dupa- S. 359, 6 Sup. Ct. 1064, 30 L. Ed. quier, 46 La. 577, 15 So. 502, 49 221. Am. St. 334, 26 L. E. A. 162; St. 1 St. Louis V. Liessing, 190 Mo. Louis v. Weber, 44 Mo. 547; Gund,- 464, 89 S. W. 611, 1 L. E. A. ling v. Chicago, 177 U. S. 183, 20 (N. S.) 918, 109 Am. St. 774; Sup. Ct. 633, 44 L. Ed. 725; Nor^ Deems v. Baltimore, 80 Md. 164, folk v. Flynn, 101 Va. 473, 44 S, K. §81] LAW OF PUEB FOOD AND DRUGS. 133 nance which requires all milk offered to be sold to be first inspected is valid, even as to those bringing milk into the city from the country.^ "The manifest purpose of the stat- ute," it was said in one case, "under which this ordinance was passed, was to enable the city council to adopt such rea- sonable notice regulations as would prevent the sale of un- wholesome milk within the city, and not merely to prevent the keeping of unhealthy dairy herds within the city limits. It is a matter of common knowledge that much of the milk sold in a city is produced in dairies situated outside the city limits. Any police regulations that did not provide means for insuring the wholesomeness of milk thus brought into the city for sale and consumption would provide very inadequate protection to the lives and health of the citizens. It is also a matter of common knowledge, as well as of proof in this case, that the wholesomeness of milk can not always be de- termined by an examination of the milk itself. To determine whether it does or does not contain the germs of any con- tagious or infectious disease it is necessary to inspect the ani- mals which produce it. The inspection of dairies or dairy herds outside the city limits, provided for by this ordinance, applies only to those whose milk prodnct it is proposed to sell in the city. The provisions of the ordinance in that regard go only so far as it is reasonably necessary to prevent the milk of diseased cows being sold 'within the city. The in- spection is wholly voluntary on the part of the owner of the dairy or dairy herd. If he does not choose to submit to such inspection, the result merely is that he, or the one to whom he furnishes milk, can not obtain a license to sell milk within the city. The ordinance has no , extra-territorial operation, and there has been no attempt to give it any such effect. The only subject upon which it operates is the sale of milk within the city."' Under a charter empowering a muniei- 717, 99 Am. St. 918, 62 L. R. A. 44 S. B. 417, 62 L. E. A. 771, 99 771; Weigand v. District of Co- Am. St. 918. lumbia, 22 App. D. C. 559; St. s State v. Nelson, 66 Minn. 166, liouis V. Schuler, 190 Mo. 524, 89 68 N. W. 1066, 34 L. E. A. 318, S. W. 621, 1 L. E. A. (N. S.) 928. 61 Am. St. 399, quoted in Norfolk 2 Norfolk V. Flynn, 101 Va. 473, v. Flynn, 101 Va. 473, 44 S. E. 133 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 81 pality to exact a license tax, and to regulate all kinds of business, and conferring on it full power to inspect food products and dairies, and to require the payment of reason- able charges for such inspection, it has power to enact an ordinance imposing a license tax on dairymen selling milk or butter, at the rate of fifty cents for each cow used in the pro- duction of milk or butter.* So unider its usual powers a mu- nicipality may enact an ordinance requiring milk exposed for sale to contain a certain percent of butter fat, estimated by a designated process, and provide that in a contested analysis of milk butter fat shall be estimated in a manner described. Such an ordinance is not open to the objection that it prescribes a rule of evidence, or that it is too indefinite to be enforced.^ So a municipality may exact a license for the sale of milk." So an ordinance forbidding the sale of milk containing a preservative is within the power of a mu- nicipality to enact ordinances necessary or reasonably ap- pearing to be necessary for the public health, even though a preservative not injurious to health be used.^ So under a power to inspect milk, to secure the general health, and to pass all ordinances expedient in maintaining the health and welfare of a city, its trade, commerce and manufacture, it may pass an ordinance forbidding the sale of milk and cream containing coloring matter, its purpose being to prevent de- ception on the public and unfair advantage over honest com- petitors.* So an ordinance forbidding the sale of cream con- 717, 62 L. R. A. 771, 99 Am. St. contrary to the Fourteenth Amend- 918 ; Walton v. Toledo, 23 Ohio Cir. ment. See also St. Louis v. Grafe- Ct. Rep. 547. man, 190 Mo. 507, 89 S. W. 627, 4 Birmingham v. Goldstein, 151 1 L. R. A. (N. S.) 926. Ala. 473, 44 So. 113. « People v. Gilman (N. Y.), est. Louis V. Bippen, 201 Mo. 103 N. Y. Supp. 954; St. Louis v. 528, 100 S. W. 1048; St. Louis v. Grafeman, 190 Mo. 492, 89 S. W. Klausman, 213 Mo. 119, 112 N. W. 617. 516 ; St. Louis v. Union Dairy Co., ' St. Louis v. Schuler, 190 Mo. 213 Mo. 148, 112 N. W. 525. Such 524, 89 S. W. 621, 1 L. R. A. an ordinance does not deprive the (N. S.) 928. milk seller of his liberty and prop- » St. Louis v. Polinsky, 190 Mo. erty without due process of law, 516, 89 S. W. 625. f-8I] LAW OF PUEE FOOD AND DBUGS. 134 tainihg less than twelve '■ percent of butter fat is valid. ^ Where a statute was enacted prescribing the percentage and standards of purity of dairy products fixed, with the excep- tion of one of the elements of skimmed milk, a lower stand- ard of strength and purity than that fixed by a State . stat- ute relating to- the same subject, and, in addition, requiring' certain ingredients and percentages thereof in whole milk and skimmed milk not called for by the statute, it was held that the additional requirements of the ordinance did not render it invalid or inconsistent with the statutes, except as to the skimmed milk requirement, where the additional re- quirements were not in conflict with the statutory require- ment, but were merely additional to and supplemental of the statutes in fixing the standard of purity, where the city e-harter expressly empowered the municipal council to estab- lish standards of strength and percentages of purity of dairy products and the power to provide for their inspection.^" A city may enact ordinances supplemental and in addition to the State laws relating to standards of purity in dairy prod- ucts and providing for their inspection.^* So a rule of the health department of a city requiring milk peddlers to pro- vide a special room for storing milk and for cleansing uten- sils as a condition precedent to obtaining a license to peddle milk, has been held valid." Under a power to regulate and restrain the sale of milk, to tax, license, regulate and restrain- vendors of milk, and to fix and regulate the amount of a li- cense, a municipality has power to revoke milk licenses and to vest that power in the 'health commissioner, with the right to exercise the power summarily, and even without notice." Under a charter authorizing, a municipality to regulate the '9 St. Louis V. Eeuter, 190 Mo. peler (Mo.), 139 S. W. 446; St. S14,'89 S. W. 628. Louis v. Schulte UVIo.), 135 S. W. i»St. Louis V. Klausmeier, 213 449. Mo. — , 112 S. W. 516; St. Louis n St. Louis v. Klausman, supra; v:' Uhion Dairy Co;, 213 Mo. — , St. Louis v. Union Dairy Co., Il2 S. W. 625; St. Louis V. Ameln supra. (Mo.), 139 S. W. 429; St. Louis 12 People v. Owen (N. Y.), 116 v;'Bcheer (Mo.), 139 S. W. 434; N. Y. Supp. 502. St. Louis V. Kellman (Mo.), 139 is State v. Milwaukee, 140 Wis. S. W. 443; St. Louis v. Kruem- 38, 121 N. W. 658. 135 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 81 sale of butter and all other provisions, to provide and regu- late their inspection, to secure the general health, to prevent the introduction of contagious diseases, and to pass all ordi- nances and make all regulations necessary to preserve the health of the inhabitants, such municipality may adopt an ordinance regulating the inspection and sale of milk and making it an oifense to sell milk within the city without a permit from the municipal food and dairy commissioner, not- withstanding milk is not specifically mentioned in the stat- utes as a subject of regulation, for it is included in the term "other provisions," as well as under the clause empowering the enactment of ordinances for the protection of the health of the eity.^* Under its general welfare clause a municipality may regulate the sale of milk/^ Under a power to make regulatioaiis for ithei preservation of health, a regulaitioii requiring sellers of milk to register each year before receiv- ing a license to sell milk for one year is valid.^° But when a citj' charter forbade the council to pass any ordinance on any matter regulated by a general statute, and a general statute provided full regulations concerning the adulteration of milk, it was held that an ordinance forbidding the sale of pure milk, and requiring, among other things, that all milk dealers should obtain a license, was void, because beyond the power of the council to enact.^'' Under its power to protect the public health a municipality may establish and control markets at which perishable food, such as fish, shall be sold; or it may regulate and control such markets established by private individuals and carried on as private enterprises; and it may also prevent the sale of perishable food, such as fish, except at the public markets and within certain limits about them; but it may not entirely prevent the sale of such products vdthin its limits.^' Under its general welfare clause, a municipality may prohibit the sale of ice cream which is i*Salt Lake City v. Howe, 37 affirmed 70 N. Y. App. Div. 326, Utah — , 106 Pac. 705. 75 N. Y. Supp. 245. isRigbers v. Atlanta, 7 Ga. App. instate v. Tyrrell, 73 Conn. 407, 411, 66 S. E. 991. 47 Atl. 686. 18 Gloversville v. Enos, 35 N. Y. is state v. Perry, 151 N. C. 661] Msc. Rep. 724, 72 N. Y. Supp. 398 ; 65 S. E. 915 : Ex parte' Byrd, 84 Ala. § 81] LAW OF PUEE POOD AND DRUGS. 136 adulterated or contains any deleterious substance, or is other- wise impure or unwholesome; but it can not arbitrarily pre- scribe that ice cream containing less than a certain percent- age of butter fats shall not be sold at all, if the percentage be placed so high as to be unreasonable, where it excludes ice cream which is as wholesome as that of the prescribed percentage would be." But where a statute provided that, before any person can sell oleomargarine, he shall mark the packages in bold-faced English letters, and prescribed a pun- ishment for a violation of the Act, it was held that the sale of oleomargarine in unmarked packages, being an unlawful occupation, cities having the power to license all lawful oc- cupations carried on within their limits could license and regulate the sale of oleomargarine therein irrespective of such Act.^" A statute empowering a city "to regulate the vending of meats, vegetables and fruits, pickled and other fish, and to prescribe the time and place of selling the same, and to regulate the sale of coal, and any other commodity exposed or intended to be exposed for sale in the city," does not authorize an ordinance imposing a fine for the sale of "putrid meat, poultry or other provisions. "^^ It is a valid exercise of the police power for a city to prohibit the sale of skimmed milk, though having a commercial value and not 17, 4 So. 397, 5 Am. St. 328. A garden or farm products in the pub- city can not absolutely prohibit the lie streets between the hours of sale of useful and valuable com- five in the morning and one in the modities not coming up to a pre- afternoon. BuflFalo v. Schleifer, 2 scribed standard. Rigbers v. At- N. Y. Misc. Rep. 216, 21 N. Y. lanta, 7 Ga. App. 411, 66 S. E. Supp. 913; Morano v. New Orleans, 991. 2 La. 217. i» Rigbers v. Atlanta, 7 Ga. App. A city may prohibit the sale of 411, 66 S. B. 991. and delivery of milk from vehicles 20 Haines v. People, 7 Colo. App. in the streets by unlicensed per- 467, 43 Pac. 1047. See also Wal- sons, and may declare the violation ton v. Toledo, 23 Ohio Cir. Ct. Rep. of such ordinance a misdemeanor. 547. It may even prevent a. chartered A provision in a statute author- association from so delivering milk, izing a city to regulate the sale of People v. MulhoUand, 82 N. Y. 324, meats and vegetables empowers 37 Am. Rep. 568. that city to pass an ordinance pro- 21 Rochester v. Rood, Hill & D. hibiting the peddling of fruits and 146. 137 CONSTITUTIONALITY OF STATUTES AND ORDINANCES. [§ 82 unwholesome for adults.^^ So an ordinance providing that bread shall be manufactured into loaves of one, two and four pounds, and no other, and prohibiting the sale of bread de- ficient in weight, has been upheld. ^^ A municipal charter which makes it the duty of the council to prevent the sale of adulterated food, enables it to enact an ordinance pro- hdbiiting the adulteration of milk.^* So a charter authorizing the enactment of am ordinance to preserve the heialth of the eity, and for the proper inspection of milk, anithorizes the enactment of one for tibe destruction of milk found upon ins^pection no>t to come up to the standard prescribed.^^ §82. Regulation and Sale of Drugs and Poisons. The regulation of the practice of pharmacy and of the sale of drugs and poisons comes peculiarly within the province of the police power of the State.^ 22 Kansas City v. Cook, 38 Mo. App. 660. 23 Such an ordinance does not au- thorize the seizure of shortweight bread, and the prohibition is not the taking of private property without compensation. People v. Wagner, 86 Mich. 594, 49 N. W. 609, 13 L. E. A. 286, 24 Am. St. 141. 24 State V. Stone, 46 La. Ann. 147, 15 So. 11. 25 Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 Am. St. 339. An ordinance providing for the inspection of milk coming from outside the city and requir- ing the tuberculin test and cer- tificate of freedom from disease of cows producing the milk is not in- valid because it singles out milk dealers outside the city, and does not apply to dealers within the city, where dealers within the city are subject to the supervision of its Board of Health. Adams v. Mil- waukee, 144 Wis. 371, 129 N. W. 518. A municipality may prescribe lower but not higher requirements concerning the percentage of fat in milk. St. Louis v. Schulte (Mo.), 139 S. W. 449; St. Louis v. Scheer CMo.), 139 S. W. 34. 1 State V. Kumpfert, 115 La. 950, 40 So. 365; Bertram v. Common- wealth, 108 Va. 902, 62 S. E. 969; State V. Lee, 137 Mo. 143, 38 S. W. 588 (regulating sale of opium) ; Commonwealth v. Zacharias, 5 Pa. Dist. Rep. 475; Luck v. Sears, 29 Ore. 421, 54 Am. St. 804; Charles- ton v. Werner, 46 S. C. 323, 24 S. E. 207; Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. 385; Noel V. People, 187 111. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. 238; Sadler v. People, 188 111. 243, 58 N. E. 906; State v. Abraham, 78 Vt. 53, 61 Atl. 766. LAW OF PUKE FOOD AND DRUGS. 138 Paet II FEDERAL PURE FOOD AND DRUGS ACT OF JUNE 30, 1906 CHAPTBK II. PURPOSE AND VALIDITY OF ACT OF 1906. . 83. Federal Act of June 30, 1906. 84. Purpose of statute. 85. Scope of statute territorially. 86. Commerce within a state. 87. Constitutionality of Act of 1906. 88. An original package — Broken 89. Extent of power of C^yngress over food and drugs made subject of interstate com- merce. 90. When the power of Congress to regulate the disposition of imports ceases. 91., Transportation from one State to another for manufacture and sale — Statute construed. 9?. Goods passed out of interstate commerce before proceeding in rem commenced. 93. Inspection of materials and factories. 94. District of Columbia and ter- ritories. 95. Inspection of materials and fac- tories in the District of Co- lumbia and territories. 96. Stock on hand January 1, 1907. 97. Correction of labels on hand January 1, 1907. 98. Exports to foreign countries. 99. Meat and meat products. 100. Imported food. 101. Interstate transportation of meats and meat food products. 102. Certificate for imported meats and food products. 103. Imported drugs and medi- cines. 104. Eiver border importations — Private importations. 105. Shipment beyond jurisdiction of the United States. 106. Imported teas. 107. Declaration concerning import- ed food and drugs. 108. Seizure in transit. 109. Application of regulations. 110. Alteration and amendment of regulations. 111. State legislation necessary. 139 PURPOSE AND VALIDITY OP ACT OF 1906. [§§83, 84 § 83. Federal Act of June 30, 1906. On June 30, 1906, Congress enacted a statute concerning Food and Drugs entering into Interstate Commerce that has had a far-reaching effect. Constructions by the courts have been placed upon many of the provisions of this statute, and many others have been construed by the Department of Agriculture in their practical applications to every day trans- actions. Not yet have all the pov^ers conferred by the Act been fully ascertained, determined or settled, and there prob- ■ably will be many debatable questions for many years yet to come. The statute has been attacked in many of its phases, and between the government and many manufacturers and importers much friction has arisen. The assumption of au- thority by the Department of Agriculture to condemn patent or proprietary medicines, whose proprietors claimed for them virtues or curative properties they did not possess, has met "with signal defeat at the hands of the Supreme Court of the United States, which denied that the Act covered false claims concerning their curative powers. As a rule, the Department of Agriculture has been sustained by the courts in its con- struction and efforts to enforce the Act. §84. Purpose of Statute. One needs go no farther than the title of the Federal Food and Drugs Act of 1906 to ascertain the purpose of the enact- ment of that statute. That purpose, as there declared, is to prevent "the manufacture, sale or transportation of adulter- ated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein." The words "and for other purposes" are added to this enu- meration, but they do not add to the force of the word^ that precede them. Previous to the enactment of this statute, many States had enacted laws upon its subject matter, but, owing to the dual form of government under which we live — the right to ship articles of merchandise from one State to another, and its partial immunity from the laws of the State § 84] LAW 0¥ PURE FOOD AND DRUGS. 140 to which it is shipped even on its arrival — ^these State stat- utes were found inadequate to thoroughly deal with the many questions of pure food and drugs that continually pre- sented themselves. The two great purposes of this statute are "to prevent misibranding and to prohibit adulteration."^ Upon the part of the consumers there was a demand for this legislation — a demand that constantly gained in force as the evils arising from the consumption of adulterated food and the use of adulterated dirugs beoame better known; w'hich gained impetus as the imscrupulous manufacturer, by experi- ence, gained more and more ability every day to conceal the adulterated condition of his products, and thus deceive the public. There was a demand on the part of the consumer that he be protected from the evil results arising out of the nefarious practice of adtulteration. On the part of reputable and honest manufacturers there was also a demand that their honestly made products be protected from competition of the ■adulterated and cheaper m'anufactured producte. The con- sumer did not contemplate with much complacency the pur- ■cihiase of sand in his sugar or of chicory in his cofEee, and the physician viewed with alarm the failure of the drug he pre- scribed to produce the result in his patient that his experi- ence taught him it should produce. Prom these various sources arose demands for laws that would protect the con- sumers from these harmful practices which the Legislature in time took notice of and heeded. The purpose of the stat- ute is, therefore, to secure to the consumer unadulterated food and drugs as far as it can reasonably be done.^ "Sev- 1 F. I. D. 44, N. J. 543 ; Unit- be honest in stating the truth upon' ed States v. Buffalo Cold Storage the labels put upon it. That is all Co., 179 Fed. 865, N. J. 482. there is to the Act. That is what 2 "So you will see what the pur- the act is intended to accomplish, pose of Congress was, and one who and which, if properly enforced, in is desirous of knowing what the my judgment, it will accomplish, law is in that regard may not make It is the duty of you [as jurors] any mistake about it. The law re- and of the Court to obey the law quires the manufacturer to be hon- and to enforce it; to enforce this est in his statement of the contents statute as you would enforce any of the package, it requires him to other statute. But it is not out of 141 PUEPOSE AND VALIDITY OP ACT OP 1906. l§ 84 eral 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 weU nigh intolerable that had grown up during this age of greed and avarice and eommereialism that has made money-getting the prime object of life with so many. The evils were such that much of the foods we ate, whether meats of any kind, including fish and poultry, or fruits in aH forms, and breadstuffs, were so adulterated and 'loaded' or 'doc- tored' as to deceive the consumer. And the same was true of flavors and condiments. The evil as to confectionery and flavors 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 in many other in- stances the States were powerless to work out a remedy. Thereupon Congress, 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 object of the place for me to say here, that in suffers by it." United States v. the judgment of the court, no Act Edward Weston Tea & Spice Co. of Congress has been passed in re- Notice of judgment, 194. cent years of more importance than "The great object of the statute this one. is to prevent injury to health and In dealing with food stuffs the deception by words or devices on seller should, and ought to know, the label which naturally lead the what he is selling, and on the other purchaser to believe that he is get- hand the buyer should know what ting one thing when in reality he he is buying. is getting another." N. J. 990. The statute is not to be evaded 3 Shawnee Milling Co. v. Temple, by mere subterfuge. It is to be en- 179 Fed. 517. Notice of Judgment forced according to its letter and its 497. spirit and when that is done no one § 85] LAW OF PURE FOOD -iJ^ID DRUGS. 142 law," said the Supreme Court of the United States, "is to keep adulterated articles out of the channels of interstate commerce, or, if they enter such commerce, to condemn them; while being transported or when they have reached their de^ination, provided they remain unloaded, unsold, or in oiriginial unbroken packages."* § 85. Scope of the Statute Territorially. By the first section of the Food and Drugs Act, it is pro- vided "that it shall be unlawful for any person to manufac- ture, within any Territory or the District of Columbia, any article of food or drug which is adulterated or misbranded, within the meaning of this Act," and by the twelfth section it is declared "that the term 'Territory' as used in the Act shall include the insular possessions of the United States." These clauses relate only to the mamufacture of adulterated or misbranded food and drugs within any Territory or the District of Columbia or any of the insular possessions. They do not relate to the manufacture or misbranding of adulter- ated food or drugs within a State. In these clauses Congress recognizes its limitations and lack of power to legislate con- cerning the manufacture and misbranding of food and drugs within a State. That is a matter of legislation for the State, * "Hipolite Egg Co. v. United ated or misbranded is declared to States, 219 U. S. — , 31 Sup. Ct. be forfeited as an offending thing 364, 55 L. Ed. — . which threatens the health of the "The Food and Drugs Act is one citizen and therefore subject to of the most beneficent legislative seizure without regard to the acts enactments of recent times, and its or knowledge of the owners or provisions must be observed. — ^N. J. claimants.'' United States v. Five 823. Boxes of Assafoetida, 181 Fed. 561. "The purpose of this Act is to "The great object of the statute conserve the public health by pre- is to prevent injury to health' and venting interstate commerce in poi- deception by words or devices on sonous or deleterious foods and the label which may naturally lead drugs, and, in order that this may its purchaser to believe that he is. be affected, it is not only made a getting one thing when in reality misdemeanor under the Act, but he is getting another." N. J. 990 in the article of food or drug adulter- Appendix C. 143 PURPOSE AND VALIDITY OF ACT OF 1906. [ § 86 not for the Federal government. In the third section there is a further recognition of this limitation, w^herein it is made an offense to "sell or offer for sale in the District of Colum- bia or the Territories of the United States any such adulter- ated or misbranded foods or drugs, or export or offer to ex- port the same to any foreign country." This clause, of course, covers the insular possessions. Within these districts Congress is supreme — more so tlhian a Legislature is within the boundaa-ies of the State for wMeh it legis'laites — for sudh Leg- islaiture is limited in a way by the Constitution of the United States, while Congress, in respect to the insular possessions, is unlimited. Congress has legislated concerning distilled and fermented liquors, oleomargarine, renovated butter and filled cheese, and has regulated their manufacture, but the legisla- tion is only concerning Federal taxation, and the regulation of the manufacture is only incidental to such taxation. § 86. Commerce Within a State. Section two of the Food and Drugs Act is very carefully drawn, so as to limit its application within a State to the strict line of foreign and interstate commerce. To constitute an act an offense under this section, it must relate to the introduction into the State, aside from the introduction into the District of Columbia or into a Territory, of an adulter- ated or misbranded article of food or a drug "from any other State or Territory or the District of Columbia, or from any foreign country." This is prohibited. This section also for- bids the shipment or delivery "for shipment from any State or Territory, or the District of Columbia, to any other State or Territory or the District of Colum/bia, or to a foreign country," any adulterated or misbranded food or drug, and it inflicts a penalty upon any one "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 for- eign countries, 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- § 87] LAW OF PUKE FOOD AND DRUGS. 144 branded." If a person purchase and receive within the State adulterated or misbranded food or drugs, and deliver it or them, whether in original or broken packages, to another person or dealer within the State, he commits no offense un- der this statute. But if he has received such food or drugs from without the State, and delivered dt or them, even in the original packages, to a person or dealer within the State, he will be liable if the delivery be in the original package. If the package be broken, then it falls within the mass of State property, and becomes subject to the State's laws. ' The mere receipt of an adulterated or misbranded drug or food does not constitute an offense in the person receiving them if he has not delivered or offered to deliver the drug or food in unbroken packages. Nor is it an offense in the receiver if he has received adulterated or misbranded food or drugs and, having opened the original packages and tested their contents, he then properly brands them and then offers them for sale, and such food or drugs are not liable to forfeiture if he has done this before their seizure."^ § 87. Constitutionality of Act of 1906. It has been held that the Food and Drugs Act of June 30, 1906, is constitutional. A milling company of the State of Kansas brought a bill in equity to restrain the District At- torney and United States Marshal for the District of Kansas seizing certain sacks of bleached flour, charging that this statute was unconstitutional, and that they were, therefore, proceeding without warrant of authority. The court stated the question thus: "In the one case 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 cause submitted to the court with or without injury for a hearing on its merits, the gov- ernment dismissed the cause, after the flour thus seized had deteriorated in quality and value. In the cause now before the court, as property rights are involved, bills in equity will 1 United States v. Five Boxes of Assafoetida, 181 Fed. 561. 145 PURPOSE AND VALIDITY OF ACT OF 1906. [§87 be entertained, provided the statute under which the govern- ment claims the right 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 witttidn the comanerce clause of the Constitution, or is it a mere police regulation errone- ously garbed and cloaked as a regulation of commerce?" "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 antag- onized oftener than any other provision of the Constitution by those whose shield of defense is articles 9 and 10 of the amendments, as to the resei^ed power of the States." "It 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 com- merce, that 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, Legis- latures claiming that they alone could determine when and to what extent police regulations should be carried, the Su- preme Court decided that suoh inspections also infringed upon the rights of commerce and were therefore void.^ "It will serve no purpose to discuss the principle upheld in "Wilson V. Blackbird Creek Company,^ that the State can reg- ulate certain interstate commerce of a local character, if Congress had not acted, nor of that other principle upheld 1 Citing MSnnesota v. Barber, 136 11 Sup. Ct. 213, 34 L. Ed. 862, af- U. S. 313, 10 Sup. Ct. 862, 34 L. firming 41 Fed. 867. Ed. 455, affirming 39 Fed. 641 ; 2 Pet. 245, 7 L. Ed. — . Brimmer v. Eebman, 138 U. S. 78, PuBE Food — 10. §. 87] LAW OF PURE FOOD AND DEUGS. 146 by Congress that the State can legislate with reference to liability, when doing an interstate business when Congress has not acted.^ "The oomplete answer to those suggestions is that in the matter now before the court, Congress has acted. The ques- tion now for eonsideTation is not as to the power of thei Btates relating to commerce, as held in Smith v. Alabama,* uphold- ing 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 ar- ticles of interstate commerce, even though- such articles in the end become subject to State statutes. No one doubts but that wheat and flour, as well, as all articles of food, are subjects of commerce, and when carried over and across State lines, are subject to be regulated by Congress. And it is no answer to say, that when adulterated, or wrongly la- beled, because in the end they will fall under a State statute, that they when being shipped can not be covered by a Con- gressional enactment. The liquor eases illustrate this. Be- cause of all the subjects of commerce there is no one thing more peculiarly and distinctly 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 provided that when liquors arrived in a State they should be subject to State laws. This statute was upheld in the case of In re Rahrer,' thereby modifying the practical effect of the hold- ing in Leisy v. Hardin,' that the State cordd not interfere by s Sherlock v. Ailing, 93 U. S. 99, States. It deals with articles of 23 L. Ed. 819, affirming 44 Ind. 184. food which enter into interstate < 124 U. S. 463, 31 L. Ed. 508, commerce." N. J. 990. 8 Sup. Ct. 564, aflarming 76 Ala. 69. e 140 U. S. 545, 11 Sup. Ct. 865, 5 "The power of Congress to pass 55 L. Ed. 572, reversing 43 Fed. the statute is derived solely from 566, 10 L. E. A. 555. its authority to regulate com- ' 135 U. S. 100, 10 Sup. Ct. 681, merce, and it must have uniform 34 L. Ed. 128, reversing 78 Iowa operation throughout the United 286, 43 N. W. 188. ■147 PUEPOSE AND VALIDITY OF ACT OF 1906. [§ ST legislation as to liquors shipped interstate as long as the liquors were in the original packages. . While in Rhodes v- Iowa,* it was held that the liquors must be in fact and; ac- tually delivered to the purchaser before the State laws be- came effective as to such interstate shipment. No one should • doubt but that legislation by Congress casa control the inter- state 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 aud 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 Con- gress provided in addition 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.' But little need be said of that case. It was argued by counsel of great emi- nence. It was argued upon two separate occasions. It re- ceived the fullest consideration by the Supreme Court. Ap- parently no other case that was ever before that court re- ceived more attention and fuller consideration. Counsel for complainants 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 8 170 U. S. 412, 18 Sup. Ct. 664, s 188 U. S. 321, 23 Sup. Ct. 321, 42 L. Ed. 1088, reversing 99 Iowa 47 L. Ed. 492. 496, 58 N. W. 887, 24 L. R. A. 245. § 87] LAW OF PUEE FOOD AND DKUGS. 148 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 com- mencing with Gibbons v. Ogden,^" and then to date, could be reviewed. The question could be illustrated in many ways. But all that would be to no purpose: it would be academic. Congress has enacted a safety appliance law for the preser- vation of life and limb. Congress has enacted the anti-trust statute to prevent immorality in contracts and business af- fairs. "Congress has enacted the live sit'ock sanitation Act to pre- vent cruelty to animals. "Congress has enacted the cattle contagious disease Act to more effectively suppress and prevent the spread of conta- gious and infectious diseases of live stock. "Congress has enacted a statute to enable the Secretary of Agriculture to establish and maintain quarantine districts. "Congress has enacted the meat inspection Act. "Comgress has enacted the employers' 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 prohibit- ing 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 m'any respects, are alike in principle to the Act of June 30, 1906, under consid- eration. Can it be possible they are all void? This statute by its title, and by its very 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 sitandard has been fixed. That argument is made 10 9 Wheat. 1 6 L. Ed. 23, reversing 17 Johns 488. 149 PURPOSE AND VALIDITY OP ACT OF 1906. [§ 87 because drugs are fixed by a standard recognized by the United States Pharmacopoeia or National Formulary, and as to confectionery a standard is fixed by declaring what con- fectionery shall not contain. Whereas as to foods nio' stand- ard has been fixed. It is a fact most obvious that no stand- ard 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 substance shall not be sub- stituted wholly or in part for the article. Another provision is that no valuable constitutent of the article shall be ab- stracted. Another provision is that it shall not be mixed, colored, 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 anoither provision is that fiMhy, 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. "^^ Section 9 of the Act concerning guaranty of food products is not unconstitutional as applied to a wholesaler who sells adulterated or misbranded goods within the State to a dealer under a guaranty of conformity to the pure food and drug statute, with knowledge that such guaranty is exacted to fur- ther the sale of goods in interstate commerce, they having been actually shipped out of the State by the dealer relying on the guaranty.^^ 11 Shawnee Milling Co. v. Temple, United States v. Four hundred and 179 Fed. 517; Notice of Judgment Twenty Sacks of Flour, 180 Fed. 497; United States v. Seventy-four 518; United States v. Two Barrels Cases of Grrapejuice, 181 Fed. 629. of Dessicated Eggs, 185 Fed. 302. See also The Lottery Cases, 188 On the point in this note see also U. S. 321, 23 Sup. Ct. 321, 47 L. Kench v. O'SuUivan, 20 N. S. W. Ed. 492. L. E. 353, 16 W. N. (N. S. W.) The statute is not void becaiise 137. no standard of food is fixed by it. 12 United States v. Charles L. That is left to the courts under Heine Specialty Co., 175 Fed. 299. proper pleading and the evidence. There is a mere allusion to the § 88] LAW OF PUEE FOOD AND DEUGS. ISO §88. An Original Package — Broken Package, To constitute an offense under this statute, so far as re- lates to an offense committed within a State, the adulterated or misbranded food or drug must be delivered to another peraon in the original unbroken package as it came from an- other State or Territory or District of Columbia, or from a foreign country.. If the package be broken, and tbeta a part of its contents be delivered to anothier person, no offense is com- mitted against the provisions of this Federal statute. It then becomes important to inquire "what is an original unbroken package?" The question has been answered by No. 2 of the rules and regulations for the enforcement of this Act, adopted by the Secretary of the Treasury, the Secretary of Agricul- ture and the Secretarj^ of Commerce and Labor, which is as follows: "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 manu- facturer, 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." It may be noted that witihin tlhe second section of the Act the term ' ' original unbroken package ' ' is used, while in the third section the term used is "unbroken package." For the purpose of determining what is an "original un- broken package" or an "unbroken package" we can not resort to the common and popular understanding of these words, for the reason that they have received a special mean- ing and import when applied to the state of interstate and constitutionality of a proposed and the extent to which they had change of the statute with respect bepn used in the enactment of the to a rule prohibiting dishonest Pure Food and Drugs Act of June puffing of the curative properties 30, 1906. of medicines in Hipolite Egg Co. v. That the Act of 1903 authorizing United States, 219 U. S. — , 31 the Secretary of Agriculture to Sup. Ct. 364, 55 L. Ed. — -, and adopt, standards of food is consti- Judge. Phillips has also spoken of tutionsil, see opinion of Judge Hol- the. limit of Congressional powers lister. N. J. 823. 151 PURPOSE AND VALIDITY OP ACT OF 1906. [§88 foreign commerce through numerous judicial decisions upon the commerce clause of the Federal Gonsititution. In that special sense they were employed in this statute. As used in this connection they are of restricted import. The word "original package" was used for the first time in 1827. In many subsequent cases no modification was made in the term. But in the statute under discussion the word "un- broken" has been added in sections two and ten; and in section three this word has been substituted for the word "original," without qualifying effect, just as the courts have used the words "unbroken" and "original" as synonymous. It may therefore be considered that their combination or substitution effects no change in significance.^ The National Board of Pood and Drug Inspection, in a lengthy opinion, which has been approved by the Secretary of Agriculture, and in which many cases have been exam- ined, restrict these words as used in this Act "to such a package containing the food and drug product as has been prepared for shipment or transportation and shipped or transported, as an entirety or unit, from a State, Territory, or the District of Columbia, or a foreign country, into an- other State, Territory, or the District of Columbia, and de- livered to the consignee, remaining his property in the iden- tical form and condition in which it was shipped or trans- ported. After arrival in a State," it is said, "and delivery to the consignee, if any part of the contents of the package be removed, or if the package be opened and commingled with other property, or if the package be transferred by the consignee, it is no longer an original package. The retail package is not an original package unless it bears the char- acteristics set forth above. "^ The Supreme Court of the 1 Consult Low V. Austin, 13 Wall. ute has done so, and the Depart- ^9, 20 L. Ed. 517, and United ment disclaims any attempt to do States V. Fox, Fed. Case No. 15155. so in its construction of the terms. 2 F. I. D. 86. "It is not prae- The question must be determined lieable to form a universally ac- largely upon each case as it arises, curate and satisfactory definition with the guidance of the authorita- of an 'original package.' No stat- tive decisions of the courts." § 88] LAW OF PURE FOOD AND DRUGS. 153 United States has held that "original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealer residing in different States."^ This is that court's first definition of an original package. It is scarcely an accurate test to determine what is an original package in every case; and certainly does not restrict that term as used in the food and drugs Act to transactions wholly between the manufacturer and whole- sale dealer. If this be so, then the plain intent of the Act could be very easily defeated in the case of sales by import- ers in original packages. Take as an illustration the ship- ment of a can of corn by a person in no way connected with the manufacture or preparation of canned com, from one State to a person in another State in no way engaged in the general sale of such commodities. This is a shipment and receipt of an original package; and if the recipient dis- poses of it in any way, in the form in which it comes to him, be has violated the food and drugs Act, although the definition quoted above does not fully cover such a trans- action. A more accurate definition is one given by one of the Circuit Courts. "An original package," said the court, "within the meaning of the law of interstate commerce, is the package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped. ' '* The size of the package has little to do with the question, and in one ca«e it was said that "It is not perceived why, in the absence of a regulation by Congress to the contrary, the importer may not determine for himself the form and size of the package he puts up for export."* 3 Austin V. Tennessee, 179 U. S. ute prohibited such sale, although 343, 21 Sup. Ct. 132, 45 L, Ed. 244 a State statute attempted to do so, affirming 101 Tenn. 563, 50 L. R. the Supreme Court has said: "The A. 478, 70 Am. St. 703, 48 So. 305. right of the importer to sell can * Guckenheimer v. Sellers, 81 Fed. not depend upon whether the orig- 997. inal package is suitable for retail B In re Seine, 42 Fed. 545. trade or not. His right to sell is In speaking of the right of an the same whether to consumers or importer to sell foods in the orig- to wholesale dealers in the article, inal package when no Federal stat- provided he sells them in the orig- 153 PURPOSE AND VALIDITY OF ACT OF 1906. [§88 Let us take some concrete examples of original packages, as they Lave come under the consideration of the Federal Courts. Thus it has been held that a barrel of gin shipped from one State to another is an original package ;° so a barrel of beer-/ one-fourth barrel of beer; one-eighth barrel of beer; a sealed case of beer;' ten and forty pound tubs of oleomargarine;® a box of liquors;^" a box, case or bale in which were enclosed separate bundles and packages of dry goods ;^^ a large open basket in which were shipped numerous paslteboard boxes each containing ten cigarettes ;^^ a ten-pound package of oleomargarine;^^ a single bottle of beer or whisky, packed, sealed and nailed up in a pasteboard or wooden box;^* a ten-pound tub of oleomargarine even though its lid had been removed to allow its inspection by the purchaser ;^^ a small wooden box containing twelve and a half ounces of oil, even though its top had been removed by the seller to permit the purchaser to inspect the contents;^" a single bottle of beer if shipped singly. Several bottles of beer fastened to:gether and so shipped constitute one package; if several bottles be inclosed in one box, barrel, crate, or other receptacle, the inal packages." Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, reversing 170 Pa. 284, 30 L. K. A. 396, 33 Atl. 82, 5 Inters. Com. E«p. 506, 170 Pa. 296, 33 Atl. 85. 6 Peirce v. New Hampshire 5 How. 504, 12 L. Ed. 256, affirming 13 N. H. 536, 1 R. J. 193, 24 Pick. 374. ' Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700. sLeisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, re versing 78 Iowa 286, 43 N. W. 188, 8 Schollenberger v. Pennsylvania; supra. 10 Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088 reversing 90 Iowa 496, 24 L. R. A. 245, 58 N. W. 887. 11 May v. New Orleans, 178 U. S. 496, 20 Sup. Ct. 976, 44 L. Ed. 1165, affirming 51 La. Ann. 1064, 25 So. 959. 12 Austin V. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, affirming 101 Tenn. 563, 50 L. E. A. 478, 70 Am. St. 703, 48 S. W. 305. 13 Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 226, 15 L. R. A. 839, 30 N. E. 1127. 14 In re Beine, 42 Fed. 545. 15 In re McAllister, 51 Fed. 282. i« United States v. Pox, Fed. Case No. 15155. § 88] LAW OF PUEE FOOD AND DEUGS. 154 box, barrel, crate, or other receptacle is the original pack- age." Where each bottle of whisky was wrapped in paper and sealed, and then a number of them were closely packed in uncovered wooden boxes furnished by an express com- pany, and these boxes were marked "to be returned," and in that condition were shipped from one State to another, it was held that the boxes and not the bottles were the "orig- inal packages."^* It makes no difference in such an instance that each bottle is labeled an "original package. "^^ Where bottles were each labeled "original package," and in that condition delivered to the carrier, and the carrier without the shipper's knowledge, put the bottles into a box and then shipped them, it was held that each bottle was an original package and not the box.^° Where beer and wihisky were put up in sealed bottles in one State and shipped im boxes and barrels for convenience by the owner to its agent in another State to sell; and he removed the bottles and sold them singly, without breaking the seals, to customers who were not allowed to open them and drink the contents on the premises, it was held that each bottle was an original package. ^^ But this decision was distinguished by a State court in a case where a saloon keeper thus imported liquors in bottles, sold the bottles over his bar to his customers who 1' Guckenheimer v. Sellers, 81 10 Sup. Ct. 681, 34 L. Ed. 128. Fed. 997. See also State v. Coonan, 82 Iowa 18 In re Harmon, 43 Fed. 372. 400, 48 N. W. 921 ; Collins v. Hills, See also Keith v. State, 91 Ala 2, 8 77 Iowa 181, 41 N. W. 571, 3 L. K. So. 353, 10 L. R. A. 430; Harrison A. 110; State v. Winters, 44 Kan. V. State, 91 Ala. 62, 10 So. 30; 723, 25 Pao. 235, 10 L. R. A. 616 Haley v. State, 42 Neb. 556, 60 N. (this case overrules State v. W. 962, 47 Am. St. 718; State v. Fulker, 43 Kan. 237, 22 Pac. 1020, Chapman, 1 S. D. 414, 47 N.W,411, 7 L. R. A. 183) ; May v. Orleans, 10 L. R. A. 432; State v. Parsons, 178 U. S. 496, 20 Sup. Ct. 976, 44 124 Mo. 436, 27 S. W, 1162, 42 L. Ed. 1165, affirming 51 La. Ann. Am. St. 457. 1064, 25 So. 959; State v. Miller, 19 Keith V. State, 91 Ala. 2,. 8 So. 86 Io>va 638, 53 N. W. 330. The 353, 10 L. R. A. 430. ' ■ case of Smith v. State, 54 Ark. 248, 20 Tinker v. State, 96 Ala. 115, 11 15 S. W. 882, in view of Leisy v. So. 383. Hardin, supra, is not an authority. 21 Leisy v. Hardin, 135 U. S. 100, 155 PUBPOSE_ AND VALIDITY OF ACT OP 1906. ['§88 ■destroyed the seals, drew the corks, poured the contents into glasses on the bar furnished by him, drank the contents of the glass and left the bottle on the bar. This was held not a sale of an original paekage.^^ Yet in a subsequent case in the same State it was held that where a person receiving the bottles was the agent of the shipper, and he removed the bottles from the boxes, delivered them with a corkscrew and glasses to the purchasers, and allowed them to open the bot- tles and drink the contents on the premises, the transaction was a sale of an original package, and not a violation of the State laws.^^ The right to draw the bung of the cask •and sample the contents to see if it corresponds with the representation, amid to return, the cask if it does not, will not destroy the cask as an original package.^* "Where dry goods were imported into New Orleans from a foreign country in boxes, bales and cases, each containing separate bundles of merchandise, separately marked, which were so exposed for •sale or taken out of the boxes, bales' and eases and sold, it was held tlhat the boxes, bales and cases were the original packages, and when the separate bundles were removed or ex- posed for sale they were not original packages.^^ The Legislature of Tennessee in 1897 passed an Act to prohibit the sale of any cigarettes or introduction of them into the State for that purpose. Austin was a merchant in the State and in the course of his business purchased from a factory in North Carolina a number of packages of cig- .arettes put up in small boxes, containing ten cigarettes each, ■ 22 Hopkins V. Lewis, 84 Iowa 690, of Assafoetida, 181 Fed. 561; Me- 51 N. W. 255, 15 L. R. A. 397, dis- Carty v. Gordon, 16 Kan. 35; tinguishing Collins v. Hills, 77 Schlesinger v. Stratton, 9 E. I. 578; Iowa 181, 41 N- W. 571, 3 L. R. A. Mach v. Lee, 13 E. I. 293; Gill v. 110. See also State v. Parson, 102 Kaufman, 16 Kan. 571; Snider v. Mb.' 436, 27 N. W. 1102, 46 Am. Koeller, 17 Kan. 422, supra. Was- St. 457. serboehr v. Boulier, 84 Me. 165, 24 ., 23 State V. Miller, 86 Iowa 638, Atl. .808, 30 Am. St. 344. ^3 N. W. 3^0. ■ 2s May v. New Orleans, 17:8 U. 24 Wind V. Her & Co., 93 Iowa S^ 496, 20 Sup. Ct. 976, 44 .L. Ed., 316, 61 N. W. 1001, 27 L. R. A. 1165, affirming 51 La. Ann. 1064, 219; United States v. Five Boxes 25 So. 959. § 88] LAW OF PUEE FOOD AND DRUGS. 156 there being securely pasted over the end of each box a United Statesi revenue stamp. When the order was received by the North 'Carolina factory, the packages above described vsrere placed in a pile on the floor of their warehouse and the agent of the Southern Express Company notified to come for them. An employee of the company brought with him a laj-ge basket without cover, belonging to his company, in which he gathered the individual boxes and took them to the station for carriage to Austin, in Tennessee. When the basket containing the packages reached its destination in Tennessee, the agent of the company there took it to Aus- tin's store and emptied the packages on the counter of the store and took the basket away with him. Austin imme- diately exposed the cigarettes for sale and sold one package to a customer. He was indicted, tried and convicted for this sale. His defense was that the package sold was an original package, and that the law of the State so far as applicable to this transaction was unconstitutional as an interference with interstate commerce. Upon appeal to the Supreme Court of the State the conviction was affirmed. He then sued out a writ of error to the Supreme Court of the United States. A majority of the Justices held that the original package in this case was the basket in which the packages were transported, and not the package sold. They there- fore affirmed the judgment of the State court. The results of the conclusions reached are expressed in the syllabus, as follows : ' ' Original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealers residing in different States. Where the size of the package is such as to indicate that it was pre- pared for the purpose of evading the law of the State to which it is sent, it will not be protected as an original pack- age against the police laws of that State." The court rested its decision in this case more upon the palpable fraud upon the laws of Tenmessee than upon any attempt to analyze the definition of an original package, and held the package of cigarettes not an original package. So in Cook v. Mar- 157 PURPOSE AND VALIDITY OF ACT OF 1906. [§ 88 shall County,^^ the boxes of cigarettes in the same form as in the Austin case were shoveled into the ear in Missouri and delivered to Cook in Iowa in that condition. They were not inclosed in any receptacle, but shipped in bulk. The State imposed a tax of $300 on the business of selling cigar- ettes. Cook resisted the payment upon the ground that he sold only in original packages and was therefore protected by the interstate commerce clause of the Constitution. Hav- ing lost in the State courts, he prosecuted a writ of error to the Supreme Court of the United States, where it was held that Cook was not exempt from the tax; that the man- ner of dealing disclosed by the facts in the ease was a gross fraud upon the laws of Iowa, and the court would not lend its aid to such a proceeding. The question of what was an original package in the case was a matter of minor import- ance, though the court said the term original package did not include packages which could not be commercially trans- ported from one State to another. The syllabus contains the law, as follows: "The term original package is not de- fined by statute, and while it may be impossible to judicially determine its size or shape, under the principle upon which its exemption while an article of interstate commerce is founded, the term does not include packages which can not be commercially transported from one State to another. While a perfectly lawful act may not be impugned by the fact that the person doing it was impelled thereto by a bad motive, where the lawfulness or unlawfulness of the act is made an issue, the intent of the actor may be material in characterizing the transaction, and where a party, in trans- porting goods from one State to another, selects an unusual method for the express purpose of evading or defying the police laws of the latter State the commerce clause of the Federal Constitution can not be invoked as a cover for fraud- ulent dealing. This court adheres to its decision in Austin V. Tennessee,^' that small pasteboard boxes each containing 28 196 U. S. 261, 25 Sup. Ct. 233, 2? 179 U. S. 343, 21 Sup. Ct. 132, 49 L. Ed. 471, affirming 119 Iowa 45 L. Ed. 224. 384, 104 Am. St. 283, 93 N. W. 372. § 88] LAW OF PtIEE FOOD AND DRUGS. : 15& ten ■ cigarettes, and. sealed and stamped with the revenue stamp,, whether shipped in a basket or loosely, -not boxed, baled or attached together, and not separately or otherwise addressed but for which the express company has given a. receipt and agreement to deliver them to a person named therein in another State, are not original packages and are not protected under the commerce clause of the Federal Constitution from regulation liy the police power of th& State." From a consideration of all the decisions and upon the basis of common understanding of the words, it seems- that an original package within the meaning of the food and drugs Act is the unit, complete in itself, delivered by the shipper to the carrier, addressed to the consignee, and received by him in the identical condition in which it was sent, without separation of the contents in any manner. This unit may be a hogshead containing 500 bottles of wine, or a single can of tomatoes, or it is a small ounce phial of some drug if shipped to the consignee in that form; and if the consignee sells or gives away any one of the three in the unaltered condition in which he received it, if the contents be adulterated or misbranded, he has violated the Act. This presentation of the decisions of the courts would not be complete, and certainly not satisfactory, if some reference were not made to three very important decisions, two of the Supreme Court of the United States,''* and one of the Circuit Court of Appeals of the Sixth Circuit.^" But they are re- ferred to here simply to show that, so far as the food and drugs Act of June 30, 1906, is concerned, they are in a sense obsolete. These decisions were rendered prior to the passage of the aforesaid Act, and asserted the right of the States ■to prohibit the sale and trafSc in adulterated and misbranded foods and drugs even in original packages. They were ren- dered in the absence of Congressional action covering the 28Plumley v. Massachusetts, 155 24 Sup. Ct. 234, 48 L. Ed. 40, af- U. S. 461, 15 Sup. Ct. 154, 39 L. firming 171 N. Y. 329, 98 Am. St. Ed. 223, affirming 156 Mass; 236, 599, 63 In. E. 1097. 15 L. R. A. 839, 30 N. E. 1127; 29 Arbuckle Bros. v. Blackburn Grossman v. Lurman, 192 U.S. 189, Dairy Food Co., 113 Fed. 616. 159 PURPOSE AND VALIDITY OF ACT OP 1906. [§ 88 entire subject matter of interstate commerce in foods and drugs. Since then Congress has assumed its full authority over the subject by the piassage of tihe Act of June 30, 1906. The decisions proceeded upon the well recognized principle that in the absence of complete Federal regulation of inter- state and foreign commerce effect will be given to the legiti- mate exercise of the police powers of the States, even though incidentally affecting that commerce. There can scarcely be a doubt that since the enactment of the food and drugs Act lall power of the States over interstate' oommeirce in' foods and drugs, including the regulation of importations and sales in original packages, has been abrogated, and the subject is entirely and exclusively under the control of the Federal government. That such is the state of the law is clearly and succinctly shown by the following quotation from the opiaion of Justice Harlan in the case of Reid v. Colorado:^" "It is quite true, as urged on behalf 'of the defendant, that the transportation of live stock from State to State is a branch of interstate commerce and that any specified rule or regulation in respect of such transportation, which Congress may lawfully prescribe or authorize and which may properly be deemed a regulation of such commerce, is paramount throughout the Union. So that when the entire subject of the transportation of live stock from one State to another is taken under direct national supervision and a system de- vised by which diseased stock may be excluded from inter- state commerce, all local or State regulations in respect of such matters and covering the same ground will cease to have any force, whether formally abrogated or not; and such rules and regulations as Congress may lawfully prescribe or authorize will alone control. . . . The power which the States might thus exercise may in this way be suspended until national control is abandoned and the subject be thereby left under the police power of the States." This case, in- volved the validity of a certain Act of the State of Colorado designed to prevent the introduction of infectious and con- sols? U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92. § 88] LAW OF PURE FOOD AND DRUGS. 160 tagious diseases among the cattle of the State. The defend- ant eontended that the Act was void as an ioiterference with interstate commerce, and because the subject matter had already been covered by an Act of Congress. The Supreme Court sustained the validity of the act of Colorado, because a legitimate exercise of the police power in the absence of complete regulation by Congress covering the matter. The Act in force at that time did not attempt a full and complete regulation of interstate transportation of animals. In a re- cent case the United States District Court for the Northern District of "West Virginia considered at some length the meaning of the words "original package." The defendant was a corporation and had its warehouse and laboratory and finishing department at Wheeling in the State of "West Vir- ginia. It was the proprietary of a preparation for the hair which it marketed in bottles of three, six and twelve ounces, under the trade name' of "Danderine," the formula of which was a trade secret and comprised liquid extracts and other ingredients. Manufacturing pharmacists at Detroit, Michi- gan, contracted with the defendant to compound this for- mula and to cause it to be transported and delivered in bulk in carloads at the corporation's warehouse in "West Virginia. The liquid was put in casks made of wood bound with iron hoops. Bach cask held fifty gaUons of liquid, land when emptied were returned to the pharmacists to be^ again refilled and re- shipped as before. There were sixty-five of them. All of these casks were marked in the same manner, with the ex- ception that the figures, some of which showed the number of gallons contained therein, and others of the number of casks, were marked in the same manner when shipped, and were marked wholly upon one end of the cask. There were no other marks on them. It was claimed that the car in which these casks were shipped was the "original package," and not each cask. But the court held that each cask was an original package, saying: "The term 'original package' as employed by law, admits of no precise definition applica- ble to all. Generally it is said to be a parcel, bundle, bale, box, or can made up of or packed with some commodity with 16] PtTtPOSE AND VALIDITY OF ACT OF 1906. [§89 a view to its safety and convenient handling and transpor- tation. It does not necessarily mean that goods shall be inclosed in a tight or sealed receptacle. It relates wholly to goods as prepared for transportation, and has no necessary reference 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 manner than in the car or vessel in which they are transported, such, for instance, as steel beams, threshing machines, and other bulky articles. ^^ This definition has been quoted as being the most favorable I have found to the contention of respondent in this case.^^ Without prolonging the discussion, it seems to me clear that in this case the cask is the 'original package,' for the very simple reason that the ear was wholly incompetent to 'package' the liquid itself; the cask was a complete entity of itself, not connected or bound up with any other article, but capable of and in fact containing some fifty gallons of this liquid, an amount capable thereby of being safely and conveniently handled and transported; each cask was marked to the consignee, and if separated from the ear was capable of shipment independ- ent thereof without either loss or iaconvenience ; the casks were shipped independently from Detroit to Sandusky by vessel, and then transferred to the car for shipment to "Wheeling, their final destination."^' § 89. Extent of Power of Congress over Pood and Drugs Made Subjects of Interstate Commerce. It is advisable here to consider the extent of the power of 31 Citing Cook v. Marshall Coun- 33 United States v. Knowlton ty, 119 Iowa 384, 93 N. W. 372, Danderine Co., 170 Fed. 449 (F. I. 104 Am. St. 283. D.) But see United States v. Hip- 32 "Many others have been care- olite Egg Co., N. J. 508. fully collected in 6 Words and To open a package in order to Phrases 5059, and the terms have test its contents does not destroy been fully discussed in Austin v. it as an original package. United Tennessee, 179 U. S. 343, 21 Sup. States v. Five Boxes of Assafoetida, Ct. 132, 45 L. Ed. 224." 181 Fed. 561. Puke Food^II. § 89] LAW OP PURE FOOD AND DKUGS. 162 Congress over food and drugs transported into a State from another State or Territory, the District of Columbia, or a foreign country, and those remaining. And it may be stated that the control of Congress over food and drugs, so trans- ported, continues, after their arrival in the State, so long as they are in the original package. In Brown v. Maryland' it was decided that the law of Maryland imposing a license tax upon all importers of for- eign articles, dry goods, and merchandise by bale or package, and upon other persons selling the same, was unconstitutional so far as it undertook to require such license tax from an importer of goods from a foreign country for the sale thereof ' in the original packages in which they were imported; and that such a tax was an interference with foreign commerce, which, under the Constitution of the United States, was com- mitted to Congress to regulate. The conclusion of the court is contained in the following syllabus: "An Act of a State Legislature, requiring all importers of foreign goods by the bale or package, etc., and other persons selling the same by wholesale, bale, or package, etc., to take out a license, for which they shall pay $50, and in case of neglect or refusal to take out such license, subjecting them to certain forfeit- ures and penalties, is repugnant to that provision of the Con- stitution of the United Stat'es. which declares that 'no State shall, without the consent of Congress, lay any impost or duty on imports or exports, except what may be absolutely necessary for executing its inspection laws;' and to that which declares that Congress shall have power 'to regulate commerce with foreign nations, among the several States, and with the Indian tribes.' " The goods in this case were im- ported from a foreign country, but the court said: "It may be proper to add, that we suppose the principles laid down in this case, to apply equally to importations from a sister State." This dictum was afterwards affirmed as law in the case of Leisy v. Hardin,^ decided in 1899, which overruled Pierce v. 1 12 Wheat. 419, 6 L. Ed. 678. 34 L. Ed. 128, reversing 78 Iowa 2 135 U. S. 100, 10 Sup. Ct. 681, 286, 43 N. W. 188. 163 PURPOSE AND VALIDITY OF ACT OF 1906. [ § 89 New Hampsliire,* decided subsequently to Brown v. Mary- land. In Peirce v. New Hampshire it was held that a barrel of gin shipped from Massachusetts to New Hampshire was subject to the law of New Hampshire prohibiting the sale of gin, so as to render the seller amenable to the law for the sale of the barrel in the exact condition in which he received it. In the case of "Waring v. The Mayor,* decided in 1868, the Supreme Court held that sacks of salt brought into Mo- bile Bay from England and sold to a merchant in Mobile City after arrival of the vessel in the bay, twenty-five miles from the city, and transported by the merchant's lighters to Mo- bile, were subject to taxation by the city. The sacks had been sold by the importer after their arrival in Alabama, and hence were merged in the general mass of property in the State and were no longer under the shelter of the commerce clause of the Constitution when taxed by the city of Mobile. In 1871 the question of taxation of imports from foreign countries in the original packages came again before the Supreme Court in the case of Low v. Austin,' land it was there held: "Goods imported from a foreign country, upon which the duties and charges at the custom house have been paid, are not subject to State taxation whilst remaining in the orig- inal cases, unbroken and unsold, in the hands of the importer, whether the tax be imposed upon the goods as imports, or upon the goods as part of the general property of the citizens of the State, which is subjected to an ad valorem tax." It will be seen that the court here uses the expression "orig- inal eases, unbroken and unsold." In Cook v. Pennsylvania," decided in 1878, the same court held a tax imposed by the law of the State upon every auctioneer on the amount of his sales invalid when applied to the sale of imported goods in original packages. It also held that: "The statute of Penn- sylvania of May 20, 1853, modified by that of April 9, 1859, requiring every auctioneer to collect and pay into the State 3 5 How. 504, 12 L. Ed. 256, af- *8 Wall 110, 19 L. Ed. 342, af- firming 24 Pick. 374, 1 K. I. 193, firming 41 Ala. 139. 13 N. H. 536. 5 80 U. S. 29, 43 L. Ed. 1181. 8 97 U. S. 566, 24 L. Ed. 1015, § 89] LAW OF PUKE FOOB AND DRUGS. 164 treasury a tax on Ms sales, is, when applied to imported goods in the original packages, by him sold for the importer, in conflict with sections 8 and 10 of article 1 of the Consti- tution of the United States, and therefore void, as laying a duty on imports and being a regulation of commerce." In SchoUenberger v. Pennsylvania,' an Act of the State of Penn- sylvania prohibiting the sale of any oleaginous substance or compound of the same designed to take the place of butter was held unconstitutional so far as attempted to be enforced in the case of a sale of a forty-pound tub of oleomargarine imported from E-bode Island and sold as oleomargarine in the identical condition in which imported. The law of the case is contained in the following syllabus: "Act No. 21 of the Legislature of Pennsylvania, enacted May 21, 1885, enact- ing that 'no person, firm or corporate body shall manufac- ture out of any oleaginous substance, or any compound of the sajne, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or ei-eam from the same, or of any imitation or adulter- ated butter or cheese, nor shall se]l or offer for sale, or have in his, her or their possession with intent to sell the same as an article of food,' and making such act a misdemeanor, punishable by fine and imprisonment, is invalid to the extent that it prohibits the introduction of oleomargarine from an- other State, and its sale in the original package." The right of a State to prohibit the importation of a recognized article of commerce was distinctly denied by the Supreme Court in the case of Bowman v. Chicago and Northwestern Eailway Company,^- decided in 1887. In that case the court declared invalid the statute of Iowa forbidding any railway company from bringing into the State intoxicating liquors unless pre- viously furnished with a certificate from the county auditor that the consignee was authorized to sell them. It was held T171 U. S. 1, 18 Sup. Ct. 757, 5 Inters. Com. Rep. 506, 170 Pa. 43 L. Ed. 49, reversing 170 Pa. 296, 33 Atl. 85. 284, 30 L. R. A. 396, 33 Atl. 82, 8 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700. 165 PURPOSE AND VALIDITY OF ACT OF 1906. [§89 that "A State can not, for the purpose of protecting its people against the evils of intemperance, enact laws which regulate commerce between its people and those of other States of the Union, unless the consent of Congress, express or implied, is first obtained. Section 1553 of the Code of the State of Iowa, as amended by C. 143 of the Acts of the Twentieth General Assembly in 1886 (forbidding common carriers to bring intoxicating liquors into the State from any other State or Territoiry, without being first furnished with a certificate, under the seal of the auditor of the county to which it is to be transported or consigned, certifying that the consignee or person to whom it is to be transported or delivered is authorized to sell intoxicating liquors in the county), although adopted without a purpose of affecting interstate commerce, but as a part of a general system de- signed to protect the health and morals of the people against the evils resulting from the unrestricted manufacture and sale of intoxicating liquors within the State, is neither an inspection law, nor a quarantine law, but is essentially a regulation of commerce among the States, afCecting inter- state commerce in an essential and vital part, and, not being sanctioned by the authority, express or implied, of Congress, is repugnant to the Constitution of the United States." It will be seen from the above that in this ease the ques- tion of the right of the importer to sell the article so im- ported in the original package was not decided. Two years later the question just stated was squarely pre- sented to the court in the case of Leisy v. Hardin,' where it was held that the statute of Iowa prohibiting &e sale of intoxi- cating liquors, except for certain prescribed purposes, was, as applied to the sale by the importer, in original packages or kegs, unbroken and unopened, of liquors manufactured in and brought from another State, unconstitutional and void, as repugnant to the Constitution of the United States 9 135 U. S. 100, 10 Sup. Ct. 681, 5 How. 504, 12 L. Ed. 256, affirm- 34 L. Ed. 128, reversing 78 Iowa ing 24 Pick. 374, 1 E. I. 193, 13 286, 43 N. W. 188. This case over- N. H. 536. rules Pierce v. New Hampshire, 5 § 89] LAW OF PUEE FOOD AND DRUGS. 166 granting to Congress the power to regulate commerce among the States. The law of the case was stated in the following syllabus: "A statute of a State, prohibiting the sale of any intoxicating liquors, except for pharmaceutical, medicinal, chemical or sacramental purposes, and under a license from a county court of the State, is, as applied to a sale by the importer, and in the original packages or kegs, unbroken and unopened, of such liquors manufactured in and brought from another State, unconstitutional and void, as repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the sev- eral States." In Vance v. Vandercook Co.,^° the court reaffirmed its prior decisions upon the subject. The law of interstate com- merce and the relation of the original package thereto is suc- cinctly stated in the following syllabus to the opinion : ' ' That the right to send liquors from one State into another, and the act of sending the same, is interstate commerce, the regu- lation whereof has been committed by the Constitution of the United States to Congress, and hence, that a State law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the United States. That the power to ship merchandise from one State into another carries with it, as an incident, the right in the receiver of the goods to sell them in the original packages, and State regulation to the contrary notwithsitand- ing ; that is to say, that the goods received by interstate com- merce remain under the shelter of the interstate commerce clause of the Constitution, until by a sale in the original package they have been commingled with the general mass of property ill the State." These decisions settled the re- spective rights of the Federal and State governments over ■ 10 170 U. S. 438, 18 Sup. Ct. 674, over interstate shipments of adul- 42 L. Ed. 1111. See also United terated food continues while the States V. Knowlton Danderine Co., food remains in the original 170 Fed. 449, and Hipolite Egg Co. unbroken packages at the point of V. United States, 219 U. S. — , 31 destination. United States v. Two Sup. Ct. 364, 55 L. Ed. — . The Barrels of Dessicated Eggs, 185 jurisdiction of the United States Fed. 302. 167 PURPOSE AND VALIDITY OF ACT OF 1906. [§90 goods moving in interstate and foreign eommerce. It was determined that a State could not prevent the introduction into its territory of a recognized article of oomm«roe; that it could not prevent the disposition by the importer in the original package of an article of commerce brought into its territory; and that Congress alone could regulate interstate commerce in such goods and the disposition of them in the original package by the importer. This is now the settled law. Hence the Food and Drugs Act asserts the right of the United States to prohibit the sale or disposition of adulter- ated and misbranded food and drugs imported into a State and remaining in the original package. §90. When the Power of Congress to Regulate the Disposition of Imports Ceases. At what time in the existence of imports does the power of Congress to regulate their disposition cease ? Stated other- wise, When does an original package cease to be such and the regulation of its disposition pass beyond the jurisdiction of the Federal government? This question was answered in general terms by the Supreme Court in Brown v. Maryland,"^ heretofore mentioned, as follows: "It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorpo- rated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State." In the ease of Low v. Austin,^ decided in 1871, it was held that "Goods imported do not lose their character as im- ports, and become incorporated into the mass of property of the State until they have passed from the control of the importer, or been broken up by him from their original cases." Again in Vance v. Vandercook Co.,^ it was held that "Goods received by interstate commerce remain under the 1 12 Wheat. 419, 6 L. Ed. 678. s 170 U. S. 238, 18 Sup. Ct. 674, 2 13 Wall. 29, 20 L. Ed. 517. 42 L. Ed. 1111. § 90] LAW OF PURE FOOD AND DKUGS. 168 shelter of the interstate ciommerce clause of the Ck>iiBtiitiition., until by a sale in the original packages they have been com- mingled with the general mass of property in the State." In the case of Heyman v. Southern Railway Company* it was said: "In the absence of Congressional legislation goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package." From these decisions it will be seen that merchandise brought into a State is protected from State interference only so long as it remains in the original package, unbroken, and in the hands of the importer. If the importer sells the article in the identical oondition and form in which impoa-ted, or if he breaks the package, it is no longer an original package, but has become merged in the mass of property in the State and subject to its laws. Let these decisions be applied to a hypo- thetical case under the food and drugs Act: A, a wholesale dealer in New York City, ships by express to B, in Hoboken, N. J., a box containing one dozen cans of adulterated con- densed milk. B receives them into his store and shortly thereafter sells the box, just as received, to C. B in this example would be liable to the penalties prescribed by the Act, because he is the importer and sold the original pack- age. But, should C, in due course, sell this identical box to D in Hoboken, he could not be successfully prosecuted under the Act because he is not the importer. "When the box was sold by B it lost the character of an original pack- age and became merged in the property of the State, and the State can only regulate its disposition by C. Suppose B, after receipt of the box, opens it and removes a can of the milk, which he sells to C. B is exempt from prosecution under the food and drugs Act for the sale of this can or for a subsequent sale of the remaining eleven, even though he sells the eleven in the box. By this act of removing one can he has broken the original package and in consequence de- stroyed the jurisdiction of the United States over it and over him. But suppose B simply removes the top of the box to *203 U. S. 270, 27 Siip. Ct. 104, 51 L. Ed. 178, reversing 122 Ga. 608, 50 S. E. 342. 169 PURPOSE AND VALIDITY OF ACT OF 1906. [§ 90 permit inspection, in no way disturbing the contents, replaces the top, and sells box and milk to C. Has B incurred the penalties prescribed by the food and drugs Act? Such a question has not been presented to the Supreme Court, but two cases very similar have been decided by the lower Fed- eral Courts. The first case. United States v. Fox,^. decided in 1869, was a suit by the United States under the internal revenue Act of July 13, 1866 (14 Stat., 144), to recover the penalties therein prescribed for the sale of perfumiery with- out affixing a proper stamp thereon. A proviso in the Act prescribed that when imported perfumery was sold in the original and unbroken package in which the bottle or other inclosure was packed by the manufacturer the person so selling should not be liable to the aforesaid penalty. Fox sold one small box containing twelve one and a half ounce bottles of hair oil and a similar but larger box containing twelve bottles of pomade. He opened both boxes so that the purchaser might examine the contents. The top of the smaller box was put on again before delivery without change of the contents. In the larger box, containing pomade. Pox, at the request of the purchaser, substituted three smaller bottles taken from the shelf of the store, and nailed up the box. In respect to the smaller box of oil the court said: "Although the top of this box was taken off by the defend- ant Fox, it was only for the purpose of enabling the witness Quivey to ascertain the kind and quality of its contents, and before the sale and, delivery to him it was put on again, with the contents unchanged in kind or quantity. Under these circumstances the defendant must be considered as selling an unbroken package, the contents of which were not then required to be stamped." But as to the sale of the box of pomade, the aourit said: "The package was opened, and three bottles being taken out of it, it was sold with only the remaining nine bottles in it. This was a broken package, and so the court instructed the jury." The verdict of the jury in favor of the defendant Fox, was set aside on motion of the United States upon the ground that the package of 5 Fed. Case No. 15155. § 90] LAW OF PUKE FOOD AND DRUGS. 170 pomade was not an original package, the court holding: "Goods are sold 'in the original and unbroken package' within the meaning of the act of July 13, 1866 (14 Stat., 144), although the package is opened for inspection, if closed 'agiain before delivery without its oontenits being changed." In the other case, In re McAllister,^ decided in 1892, the facts were these: Two men, emissaries of a butter dealer in Baltimore, went to the store of MicAUister, a dealer in oleo- margarine, and sought to buy butter. McAllister stated that he had none, but could supply oleomargarine. They re- quested him to remove the lid from the tub of oleomargarine that they might look at it. He did so, stating that he could not sell less than ten pounds, as it reached him in the tub from Chicago. They purchased the tub and forthwith in- formed on him. He was duly tried in the State court and convicted. The State Court of Appeals affirmed the con- viction, and McAllister applied to the Circuit Court of the United States for a writ of habeas icorpuis, on the ground that the sale of the tub of oleomargarine was a sale of an original package and beyond the power of the State to pro- hibit, which it sought to do in an Act of the Legislature. The court granted the writ and announced the proposition of law involved, in the following syllabus to the case: "Re- moving the lid of an original package of oleomargarine, so thaJt a prospective buyer may examine its contents, is not such a breaking of the package as will destroy its original character." In reaching the above conclusion the court said: "It is argued that the taking the lid from the tub containing this oleomargarine was a breaking of the package so as to destroy its original character. This in no sense did it do. The goods had in no way become commingled with his prop- erty or the general property of the State (Low v. Austin, 13 Wall., 29). Anyone calling for oleomargarine with an honest purpose would have purchased this package as an original one, even if he knew it had had its lid lifted off once to see whether or not it held another substance than it purported to hold. The laws of the United States recognize oleomar- 8 51 Fed. 282. 171 PUEPOSE ANB VALIDITY OP ACT OP 1906. [§ 91 garine as a merchantable article. Being such, while a State may perhaps regulate its sale, it can not prohibit its impor- tation. The statute in question does this, and is unconsti- tutional, and in this respect void. The petitioner is dis- ciuarged." Upon the authority of these two eases, and fol- lowing their reasoning, it must be concluded that B, in the last example (p. 8), is amenable to the penalties prescribed by the food and drugs Act. The first of these cases has an- other and important significance in connection with this de- cision, namely, the use of the word "unbroken" as synony- mous Avith "original," thus substantiating the statement in the preliminary part of this discussion that the courts used the words interchangeably. An example may be profitably introdiuced at this point to sihow how far goods moving in interstate commerce may be subjected to seizure under sec- tion 10 of the food and drug Act. A, a wholesale dealer in New York City, ships fifty barrels of flour to B in St. Louis, Mo. This flour may be seized, if adulterated or misbranded, at New York City after delivery to the carrier, or -at any point along the route, and may like- wise be seized in St. Louis in the hands of the carrier before delivery to B, regardless of the question of whether or not it still remains in original packages, which, in the illustra- tion, are the barrels. After delivery of the flour to B it may still be seized, in his hands, if it remains in the barrels (the original pack- ages) as shipped. But if B, after delivery to him, transfers the flour to five-pound sacks, or otherwise breaks the barrels and commingles the flour with his stock of goods, the orig- inal packages have been destroyed, and it is no longer sub- ject to seizure by the United States; nor are the barrels liable to seizure by the United States after B disposes of them to C in Missouri, even though no alteration is made in their condition. §91. Transported from One State to Another for Manufacturing and Sale — Statute Construed. The second section of the food and drugs Act provides that § 91] LAW OF PUKE FOOD AND DRUGS. 173 "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 from any other State or Territory or the District of Columbia, or foreign country, and having so received shall deliver, in origiual and un- broken 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 food or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misde- meanor." Section ten provides that "Any article of food, drug or liquor that is adulte,rated or misbraioded within the meaning of this Act, and is being transported from one State, Teorritory, direct or insular possession 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." In one case the defendant had a warehouse, laboratory and finishing department in West Virginia, and was the pro- prietor of a preparation for hair which it marketed in three, six and twelve-ounce bottles, under the trade name of "Dan- derine," thp formula of which was a trade secret and com- prised liquid extracts and other ingredients. Certain manu- facturing pharmacists in Detroit, Michigan, were under con- tract with the defendant to compound this formula and to cause the product to be transported and delivered in bulk in car lots to the defendant in West Virginia. No sale of the danderine was made to the public or any outside pur- chasers until the casks containing it were emptied and their contents placed in properly marked bottles. This was the practice of the defendant. Six of the casks containing the danderine were seized by the government and libel proceed- ings brought against them, for the reason that the product 173 PURPOSE AND VALIDITY OF ACT OP 1906. [§91 was misbranded in not having a statement on the casks con- taining the product of the quantity or proportion of the al- cohol contained therein. The bottles were properly labeled. It was contended that "this liquid extract was not shipped in these casks for the pm-jpose 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 packages suitable for sale," and there was therefore no violation of the statute. The court upheld this contention.^ But the Supreme Court of the United States has disapproved of it, holding that under similar circumstances there was a clear violation of the statute. In that case eggs were stored by the owner in St. Louis, Missouri. They were preserved in cans, but unfit for food. The owner was a corporation of the State of Illi- nois, having its bakery business at Peoria in that State. It procured the shipment of the eggs to itself at Peoria, and upon their receipt placed them in their store room in its bakery factory along with other bakery supplies. The eggs were intended for baking purposes, and were not intended for sale in the original unbroken packages or otherwise and were not so sold. The United States instituted libel proceed- ings against these eggs to secure their condemnation and confiscation. The Supreme Court held that there had been a violation of the statute and that the eggs were liable to oonfiseation. It carefully revievre the case cited above, but differs from it in the conclusions there reached. The eourt made the following quotation from one of the eases cited :^ "Following the words 'having been transported' is an ellipse, — an omission of words necessary to the complete construction of the sentence. Those words are found in the preceding part of the section, and, when supplied, the clause under whicli this libel is found reads and means 'any article 1 United States v. Knowlton Dan- Packages and Bags of Sugar, 183 derine Co., 170 Fed. 449, N. J. 284; Fed. 642. > affirmed 175 Fed. 1022, 99 C. C. A. 2 United States v. Forty-six 667. Packages and Bags of Sugar, 183 These two oases were followed Fed. 642. by United States v. Forty-six § 91] LAW OF PURE FOOD AND DRUGS. 17,4 of food, drug, or liquor that is adulterated or misbranded ■wiUhin the meaninig of this Act, having been transported from one State ... to anoifcher for sale, remaining unloaded, unsold, or in original unbroken packages, . . > shall be liable," etc. "It may well be considered," said the Supreme Court of the United States, "that there is no anal- ogy between an article in the hands of its owner, or moved from one place to another by him, to be used in the manur faeture of articles subject to the statute, and to be branded in compliance with it, and an adulterated article itself the subject of sale, and intended to be used as adulterated, in contravention of the purpose of the statute. A legal analogy might be insisted upon if cakes and cookies, which are the compounds of eggs amd flour, wihich several products eoul'd be branded to apprise of their ingredients like compounds of alcohol. The object of the law is to keep adulterated articles out of the channels of interstate commerce, or, if they enter into such commerce, to condemn them while being transported or when they have reached their destination, provided they remain unloaded, unsold, or in original un- broken packages. The situations are clearly separate, and we can not unite or qualify them by the purpose of the owner to be a sale. It, indeed, may be asked, in what man- ner a sale? The question suggests that we might accept the condition, and yet the instances of this record be within the statute. All articles, compound or single, intended for consumption by the producers, are designed for sale, and, because they are, it is the concern of the law to have them pure. It is, however, insisted that 'the proceeding in per- sonam authorized by thfe law was intended to, and no doubt is, capable of giving full force and effect to the law;' and, further, that a producer in a State is not interested in an article shipped from another State, which is not intended to be sold or offered for consumption until it is manufactured into something else. The argument is peculiar. It is cer- tainly to the interest of a producer or consumer that the article which he receives, no matter whence it comes, shall be pure, and the law seeks to secure that interest, not only 175 PUKPOSE AND VALIDITY OF ACT OP 1906. [§ 92 through personal penalties, but through the condemnation of the article if impure. There is nothing inconsistent in the remedies, nor are they dependent.' The first contention of the egg company is therefore untenable."* § 92. Goods Passed out of Interstate Commerce Before Proceedings In Rem Commenced. A United States District Court has jurisdiction to proceed in rem under section ten of the food and drugs Act of 1906 against goods which have passed out of interstate commerce before the proceedings in rem have been commenced. Such is the decision of the Supreme Court of the United States, and in rendering its decision it used the following lan- guage : "The statute declares that it is one 'for preventing . . . the transportation of adulterated . . . foods . . . and for regulating traffic therein;' and, as we have seen, section two makes the shipper of them criminal, and section ten subjects them to confiscation, and, in some case, to destruc- tion, so careful is the statute to prevent a defeat of its pur- pose. In other words, transportation in interstate commerce is forbidden to them, and, in a sense, they are made culpable as well as their shipper. It is clearly the purpose of the statute that they shall not be stealthily put into interstate commerce and be stealthily taken out again on arriving at their destination, and be given asylum in the mass of prop- erty of the State. Certainly not, when they are yet in the condition in which they were transported to the State, or, to use the words of the statute, while they remain 'in the original, unbroken packages.' In that condition they carry their own identification as contraband of law. Whether they might be pursued beyond the original package we are not called upon to say. That far ithe statute pursues them, and, we think, legally pursues them, and to demonstrate this 3 Citing The Three Friends, 166 States, 219 U. S. — , 31 Sup. Ct. U. S. 1, 41 L. Ed. 897, 17 Sup. Ct. 364, 55 L. Ed. — ; United States 495. V. Two Barrels of Eggs, 185 Fed. 4Hipolite Egg Co. v. United 302. § 93] LAW OF PURE FOOD AND DKUGS. 176 but little discussion is necessary. The statute rests, of course, upon tlie power of Congress to regulate interstate commerce; and, defining tliat power, we have said that no trade can be carried on between the States to which it does not extend, and have further said that it is complete in itself, subject to no limitations except those found in the Constitution. We are dealing, it must be remembered, with illicit articles, — articles which the law seeks to keep out of commerce because they are debased by adulteration, and which punishes them (if we may so express ourselves) and the shippers of them. There is no denial that such is the purpose of the law, and the only limitation of the power to execute such purpose which is urged is that the articles must be apprehended in transit, or before they have become a part of the general mass of property of the State. In other words, the contention attempts to apply to articles of ille- gitimate commerce the rule which marks the line between the exercise of Federal power and State power over articles of legitimate commerce. The contention misses thie question in the case. There is here no conflict of natliO'nal and State jurisdictions over property legally articles of trade. The question here is whether articles which are outlaws of com- merce may be seized wherever found; and it certainly will not be contended that they are outside of the jurisdiction of the national government when they are within the borders of a State. The question in the case, therefore, is: "What power has Congress over such articles? Can they escape the consequences of their illegal transportation by being mingled at the place of destination with other property? To give them such immunity would defeat, in many eases, the provision for their confiscation, and their confiscation or destruction is the especial concern of the law. The power to do so is certainly appropriate to the right to bar them from interstate commerce, and completes its purpose, which is not to prevent merely the physical movement of adulter- ated articles, but the use of them, or rather to prevent trade in them between the States by denying to them the facilities of interstate commerce. And appropriate means to that end. 177 PUKPOSE AND VALIDITY OF ACT OF 1906. [§ 93 which we have seen is legitimate, are the seizure and con- demnation of the articles at their point of destination in the original unbroken packages. The selection of such means is certainly within that breadth of discretion which we have said Congress possesses in the execution of the powers con- ferred upon it by the Constitution. "^ § 93. Inspection of Materials and Factories. Eegulation sixteen provides that "The Secretary of Agri- culture, when he deems it necessary, shall examine the raw materials used in the manufacture of food and drug prod- ucts, and determine whether any iilthy, decomposed, or pu- trid substance is used in their preparation." He can make this inspection as often as he may deem necessary. Regu- lation eight . provides that "The factories in which proprie- tary foods are made shall be open at all reasonable times to the inspection provided for in regulation sixteen." These provisions rest upon a narrow base. Nowhere in the pure food and drugs Act is specific power conferred to make such inspection as these provisions provide for. And it may well be doubted if Congress could confer such power, unless it be limited to food or drugs intended for interstate or foreign comme.rce. Congress has no power over food and drugs manufactured and sold in the State of their manufacture; and any rule or regulation concerning the inspection of such food or drugs is not only unauthorized but void. But where it is the intention to put the food or drugs into interstate or foreign commerce a difiEerent aspect of this question is presented. If Congress has the power to authorize the analy- sis of food and drugs that have actually entered into inter- state or foreign commerce, may it not provide for their anal- ysis before entering into such commerce, if it is the intention of the owner to thus handle them? The difference between an analysis and an inspection, so far as the question of 1 Hipolite Egg Co. v. United States v. 'iwo Barrels of Eggs, 185 States, 219 U. S. — . 31 Sup. Ct. Fed. 302. 364, 55 L. Ed. — . See also United PuEB Food — 12. § 94] LAW OF PUKE FOOD AND DEUGS. 178 power is concemed, is trifling. It seems reasonable that Congress may confer the power to analyze food and drugs intended for interstate and foreign commerce, and to inspect raw materials to be used in the manufacture of such food and drugs. If such food and drugs or the raw materials intended for their manufacture may be inspected, it would seem that Congress may authorize the inspection of the fac- tories in which such food and drugs are prepared. The diffi- culty is to draw the line in the actual practice between food and drugs intended for domestic use and intended for in- terstate and foreign use; and to prevent the fraudulent sub- stitution of the products designed for domestic use for that of interstate and foreign use. Eegulation sixteen seems to be inaptly drawn. It attempts to confer on the Secretary of Agriculture power to "examine the raw materials used in the manufacture of food and drug products.-" When ma- terials have "been used in the manufacture of food and drug products" they are no longer "raw materials;" so that this provision if literally interpreted can not be executed. It should read that "The Secretary of Agriculture, when he deems it necessary, may examine the raw materials being or to be or intended to be used in the manufacture of food and drug products." And it may be noted that the only factories to be inspected under regulation eight are only those "in which proprietary foods are made." The word "proprietary" has a distinct and well recognized meaning, and upon this question no difficulty ought to arise. The regulation, it may be noted, does not extend to the examina- tion of pharmacies or factories where drugs are manufac- tured or compounded. But we repeat that no clause in the pnre food and danigs Act specifically lauthorizeis the adoption of those parts of these two rules discussed in this section. § 94. District of Columbia and Territories. The term "Territory" as used in the food and drugs Act includes the insular possessions of the United States, accord- ing to section twelve of that Act. There is no question that 179 PURPOSE AND VALIDITY OF ACT OF 1906. [§§95, 96 the provision of Idie Acit extends to adulterated or mis- branded food and drugs manufactured, sold, or offered for sale in the District of Columbia or in the Territories, as well as the exporting or offering to export therefrom such ar- ticles, irrespective of the question whether or not they are offered for sale or for export in oriiginal packages. Within this District and these Territories Congress is supreme, un- hampered by any constitutional provision. Any dealer, whether at retail or wholesale, within this District or these Territories who sells or offers for sale or for export adulter- ated or misbranded food or drugs, or which is offered for sale under the name of another article, is liable to the penal clauses of the Act, whether such articles be sold in original packages, in bulk or in retail. § 95. Inspection of Material and Factories in the District of Columbia and Territories. Regulations eight and sixteen provide for the inspection of raw materials to be used in the manufacture of food and drug products and of factories in which proprietary foods are made. These regulations apply to the District of Colum- bia amd the Territories; and yet there is no provision of the statute that either authorizes such inspection or the adoption of such regulations. No doubt Congress has ample power to provide for such inspection within this District and these Territories, for there it is sovereign, but it has not done so. § 96. Stock on Hand January 1, 1907. The food and drugs Act took effect January 1, 1907. It is now purely academic to discuss the effect of this Act upok adulterated food or drugs received before it went into effect, for few if any such now remain in the market. Its pro- visions apply only to adulterated foods or drugs brought into a State or Territory on or after January 1, 1907, and re- ceived by the dealer on or after that date, in original un- broken packages.^ 1 F. I. D. 43. § 97] LAW OF PUEB FOOD AND DRUGS. 180 §97. Correction of Labels on Hand , January 1, 1907. The Food and Drugs Act does not require goods or d-nigs on hand January 1, 1907, to be labeled, unless they be sent out of the State. When sent out of 'the State, if the label that had been put on the food or drugs prior to January 1, 1907, does not meet the requirements of the food and drugs Act, then a supplemental label should be used. "Any state- \ inent, however, respecting the character of the contents which is false or misleading should be corrected. The cor- . reetion should secure the obliteration of the misstatement either by placing the soapplemental label or paster over it or obliterating it in some lother way. If the goods oontaia artificial color or preservative other than ordinary condimental sub- stances (salt, sugar, vinegar, wood smoke, spices, and con- . diments ,of all kinds), that fact should appear upon the supplemental stamp or label. If any of the words required to be placed upon drugs or foods in the specific wording of the Act do not appear upon the label, such as alcohol, opium, etc., it is held that the correction must include the enumera- tion of these substances, as provided for in regulations twenty-eight and twenty-nine." "AH articles in the hands of manufacturers, jobbers, and dealers on the 1st day of January, 1907, which are sold wholly within the State in which they are found on that date are exempt from the pro- visions of the Act. Thus the use of the supplemental label, stamp, or paster is required only on those articles which on or after the 1st day of January, 1907, enter interstate com- merce or are offered for sale in the District of Columbia and the Territories. ... It will be deemed sufficient if the supplemental pasters and labels are attached at the time the goods are shipped beyond the State line ; that is, that they need not necessarily be attached to such article on the 1st day of January, 1907, but at any time thereafter when prepared for interstate commerce."^ 1 F. I. D. 43, F. I. D. 78. 181 PURPOSE AND VALIDITY OF ACT OF 1906. [§§ 98-100 §98. Exports to Foreign Countries. The food and drugs Act applies to goods exported from any part of the United States to a foreign eouutry. But there is a material qualification of the Act in section two, which is as follows: "No article shall be deemed misbranded. or adulterated within the provisions of this Act when in- tended 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 its prepara- tion or packing thereof in conflict with the laws of the for- eign 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." Apparently the purpose of this pro- viso is to permit the use in certain food products for export of preservatives which are declared deleterious under the strict rulings of the Department; of Agriculture when applied to food products intended for consumption in the United States. §99. Meat and Meat Products. The regulations adopted under the food and drugs Act do 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. But meat and meat food products imported from foreign countries, which are not provided for under the meat inspection law, are sub- ject to the provisions of the food and drugs Act.^ §100. Imported Food. Section eleven of the food and drugs Act relates to the importation of food and drugs. It is as follows: "The Sec- retary of the Treasury shall deliver to the Secretary of Agri- culture, upon his request from time to time, samples of foods 1 Regulation 39. § 100] LAW OF PUEE FOOD AND DRUGS. 182 and drugs which are being imported into the United States or offered for impont, giving notice thereof .to the owner or consignee, who may appear before the Secretary of AgricTil- ture, and have the right to introduce testimony, and if it ap- pear 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 iuto, or for- bidden to be sold or restricted in sale in the country in which it is made oi" from which it is exported, or is other- wise 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 destruc- tion of any goods refused delivery which shall not be ex- ported by the consignee within three months from the date of notice of such refusal under such regulations as the Sec- retary 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 ad- mission or delivery shall be paid by the owner or consignee, "and in default of such payment shall constitute a lien against any future importation made by such owner or consignee." Eegulatiions thirty-two to thirty-eight, inclusive, cover the provisions of this section. This statute does not in terms authorize the Secretary of the Treasury to open packages in order to take samples, but under the Act of March 2, 1901, the provisions of which have been repeated in subse- quent agricultural appropriation Acts, he is authorized to open packages and take samples. The Secretary of the 183 PURPOSE AND VALIDITT OF ACT OF 1906. [§ 100 Treasury is bound by the result of the examination of the samples delivered to the Secretary of Agriculture; and he must refuse to deliver the goods to the consignee if it ap- pears from the samples that the food or drugs are adulter- ated or misbranded or is otherwise of a character prohibited by this section. No provision is made for appeal. Under the rulings of the Department of Agriculture imports of meat and meat food products of cattle, sheep, swine and goats are subject to the same restrictions as meats of domestic origin. Such meats and meat products must be accompanied by certificates showing their freedom from disease, or entry into the United States will be denied. This certificate must be issued by an official inspector of the country, district or city in which the meat is manufactured. It must be stiated in it that the animals from which the meat or meat food prod- ucts which are covered by the certificate are derived were inspected before and after slaughter and were found to be in a healthy condition;^ that the animals furnishing the meat or meat products are cattle, sheep, swine or goats, as the case may be; and that the meat or meat food products cov- ered by the certificate have not been mixed with the meat ■of any other animal. The official inspector who signs this certificate must have his authority viseed before the United StaAes Consul for the district in which such inspector holds his office; but one authorization of this kind is sufficient for all shipments signed by the same inspector; and a new one is not necessary unless a new inspector signs the certificate. This certificate does not take the place of a port inspection concerning the condition of the shipment on arrival, whether it is fit for human food, whether it is infested with vermin, or whether it contains any substances forbidden by the regu- lations for the enforcement of the meat inspection law. This port inspection is made by the inspectors of the Bureau of Chemistry, and if the meat or meat food products be found not to conform to the law, the shipment is rejected, even if the certificate be in due form. Meat and meat food prod- Ticts of horses and dogs are not allowed entry into the United 1 Regulation 32. § 101] LAW OF PtJKB FOOD AND DKDGS. 184 States. Stearin, for mixture with domestic oils, not animal, is admitted witbout a certificate, if tihe importer executes a penal bond conditioned upon the subsequent export of all stearin thus imported.^ Imported meats and meat products, which have not been mixed or compounded with or added to domestic meats may be transported by any common car- rier from one State or Territory or the District of Columbia to any other State or Territory if the packages containing- them be marked "Inspected under the Food and Drugs Act,. June 30, 1906," if so marked when received for trans- portation. The interstate transportation of domestic meats and meat food products or of imported meats and meat food products which have been mixed or compounded with or added to domestic meats subjects both the shipper and the carrier to heavy penalties.^ If the sample on analysis or- examination be found not to comply with the law, the im- porter is notified of the nature of the violation, the time and place at which final aetion will be taken upon the ques- tion of the exclusion of the shipment, and that he may be present, and submit evidence, which evidence, with a sample of the article, is forwarded to the Bureau of Chemisittry at Washington, accompanied by the appropriate report card.* § 101. Interstate Transportation of Meat and Meat-Food Products. "Eegulation 64 of the Regulations Governing the Meat Inspection of the United States Department of Agriculture (Amendment No. 10 to B. A. I. Order No. 137) provides as follows : Imported meats and meat-food products which have not been mixed or compounded with or added to domestic meats may be transported by any common carrier from one State or Territory or the District of Columbia to any other State or Territory if the packages containing them shall be marked "Inspected under the Food and Drugs Act, June 30, 1906," and are marked when received for transportation.' 2 F. I. D. 74. For a form of declaration for the- 3 F. I. D. 73. shipper, see Regulation 33. * Eegulation 36. 185 PURPOSE AND VALIDITY OP ACT OF 1906. [§ 103 "It is held that packing cases, boxes, or other coverings containing imported meats or meat-food products in the orig- inal true containers which have not been mixed or com- pounded with or added to domestic meats may be marked with the legend 'Inspected under the Food and Drugs Act, June 30, 1906,' by the shipper. The interstate transporta- tion under this legend of domestic meats and meat-food prod- ucts or of imported m«ats and meat-food products which have been mixed or compounded with or added to domestic meats will subject both the shipper and the carrier to heavy penalties. ' '^ §102. Certificate for Imported Meats and Meat Food Products. The following inquiry has been received regarding certifi- cates for imported meats required by Regulation 32: " 'We respectfully beg to submit a letter from Messrs of , from whom we have been importing small quantities of canned meats, consisting principally of meat balls, preserved game in cans, etc. " 'There being no inspector who could certify invoices for canned meats, we, of course can not import these goods any more. We would respectfully ask if a certificate as to purity, by the manufacturer, would not answer the purpose in this special case, there being no one in to ofB- cially certify.' "The meat-inspection law of June 30, 1906, forbids the transportation in interstate or foreign commerce of the meat or meat-food products of cattle, sheep, swine and goats which are diseased, unsound, unhealthful, unwholesome, or other- wise unfit for human food. Meat or meat-food products of those animals, to which has been added any substance which lessens wholesomeness, or any drug, chemical or harmful dye or preservative, other than common salt, sugar, wood smoke, vinegar, pure spices and saltpeter, may not be trans- ported in interstate or foreign commerce. The law further requires the ante-mortem and post-mortem inspection of the animals which furnish meat and meat-food products for inter- 1 F. I. D. 73. § 102] LAW OF PUEB FOOD AND DEU6S. 186 state or foreign commerce. All these requirements are based on the principle that uninspected meats of this character may be dangerous to health. "The Pood and Drugs Act of June 30, 1906, provides that a product which does not comply with the provisions of the Act 'or is otherwise dangerous to health' shall be denied the right of importation. It is held, therefore, that, except as hereinafter provided, imports of meat or meat-food products of cattle, sheep, swine and goats shall be subject to the same restrictions as meats of domestic origin. Such meats and meat-food products shall be accompanied by certificates showing their freedom from disease, or entry into the United States will be denied. For entry of meat or meat-food prod- ucts of ^nimals other than cattle, §heep, swine and goats, in- cluding fish, only the declaration required for foods other than meats is necessary. "The certificate shall be that of an official inspector of the country, district or city in which the meat is manufactured. It shall be specified in the certificate that the animals from which the meat or meat-food products which are covered by the certificate are derived were inspected before and after slaughter, and were found to be in a healthy condition (see Regulation 32) ; that the animals furnishing the meat or meat-food products are cattle, sheep, swine or goats, as the case may be, and that the meat or meat-food products cov- ered by the certificate have been mixed with the' meat of no other animal. "The official inspector who signs the certificate shall have his authority viseed before the United States consul. One authorization of this kind Tvill be sufficient for all shipments signed by the same inspector, and it will not be necessary to furnish a new authorization unless a new inspector signs the certificate. ' ' The following are acceptable forms of certificates : " '1. I hereby certify that the shipment of [kind of meat] consigned by to ajid designated by [distinguishing marks] is the product of [kind of animals] which by ante-mortem, and post-mortem veterinary inspection were shown to be free from disease and suitable for 187 PURPOSE AND VALIDITY OF ACT OF 1906. [§ 103 food, and that the meat has not been treated with chemical preservatives or other foreign substance injurious to health. " '2. I hereby certify that the meat-product factory of the firm of .'. is located in the meat-inspection district of the province of ; that the animals killed in that establishment are subjected to competent official veterinary ante-mortem and post-mortem Inspections; that all of the meat sold by that firm is the product of animals free from disease; and that all meat and meat food products of that firm are free from chemical preservatives or other foreign substances injurious to health.' "The certificate mentioned above will not take the place of port inspection as to the condition of the shipment on ar- rival, whether it is fit for human food, whether it is infected with vermin, or whether it contains any of the substances forbidden by the regulations for the enforcement of the meat- inspection law. This port inspection will be made by the in- spectors of the Bureau of Chemistry, and if the meat or meat- food product be found not to conform to the law, the ship- ment will be rejected even if the certificate be in due form. "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. "Meat and meat-food products of horses and dogs will not be allowed entry into the United States."^ §103. Imported Drugs and Medicines. Imported drugs and medicines must bear the true name of the manufacturer and the place where they are prepared. Entry to all drugs and medicines which are so far adulterated as to render them inferior in strength and purity to the standard established by the United States and certain phar- macopoeias, is refused. This is by reason of certain sections of the Revised Statutes,^ which are still in force.^ 1 y I D. 74. 2 See Appendix. 1 Sections 2933 to 2938 inclusive, are still in force. § 104] LAW OF PURE FOOD AND DRUGS. 18S § 104. Minor Border Importations — Private Importations. "Inquiry has frequently been made regarding the applica- tion of Regulation 33^ (requiring a declaration to be attached to the invoice) to foods and drugs brought into the United States in small quantities by farmers living near the bor- ders. One correspondent says: 'Farmers along the borders are in the .habit of occasionally bringing in, in their own teams, maple sugar in small quantities, also butter and like articles of food products of their own raising, and offering the same for entry at the different offices on the frontier. . . . The main question is as to whether or not the affida- vits and other proof required by the pure food law shall be required in these instances of minor importations of this class of articles.' Considering the nature of these importations, it is held that Regulation 33 does not apply to them, and that they may be imported without the declaration. Such prod- ucts are subject to inspection, however, and if found to be in violation of the law will be excluded."^ "Recently certain shipments of foods and of drugs have been offered for entry into the United States, and an examination has disclosed the fact that they were adulterated or misbranded under the food and drugs Act. The shipments were refused entry into the United States, whereupon representations were made to the department that the materials were for consumption by im- porters or for free distribution among the friends or em- ployees of the importers, and not for trading purposes, and the department was requested on this account to allow the entry of the misbranded or adulterated food or drug. "The provisions of the Pood and Drugs Act make no dis- tinction between foods and drugs imported for consumption or free distribution by the importer and foods and drugs im- ported for trading purposes. The law provides that no mis- branded or adulterated foods or drugs shall be admitted. "Notice is given that these so-called private importations 1 Concerning invoices of foods or tion of the shippers, made before drugs shipped to the United States a United States consular officer, to have attached to them a declara- 2 F. I. D. 60. 189 PURPOSE AND VALIDITY OF ACT OF 1906. [§§ 105, 106 will be subjected to the same restrictions as ordinary im- ports."' § 105. Shipment Beyond Jurisdiction of the United States. "The time allowed the importer for representations re- gardiilg the shipment may be extended at his request to per- mit him to secure such evidence as he desires, provided that "this extension of time does not entail any expense to the De- partment of Agriculture. If at the expiration of this time, in view of the data secured in inspecting the sample and such evidence as may have been submitted by the manufacturers or importers, it appears that the shipment can not be legally imported into the United States, the Secretary of Agriculture shall request the Secretary of the Treasury to refuse to de- liver the shipment in question to the consignee, and to re- quire its reshipment beyond the jurisdiction of the United States. "1 §106. Imported Teas. By the Act of March 2, 1897^ provision is made for the in- spection of imported teas. This Act prohibits the importation of any merchandise as tea which is inferior in purity, quality and fitness for consiunption to standards established by a board appointed by the Secretary of the Treasury. Under the standards so established teas can not be colored, but there is no requirement in that Act that color must be men- tioned in the label. The importation or sale in original pack- ages of teas, whether colored or not, which are inferior to the standards established under this Act, is permitted. Colored teas, if repacked in the United States and put into interstate commerce, are subject to the provisions of the Food and Drugs Act of 1906 so far as regards the use of colors ; but un- less coloring matter is added by the person repacking teas within the United States, the matter will be made the subject 3F. I. D. 88. 129 U. S. Stat, at Large 604; 1 Regulation 38. U. S. Comp. St. 1901, p. 3194. § 107] LAW OF PUEE FOOD AND DRUGS. 190 of inquiry by the Department of Agriculture. This statute of 1907 is constitutional. It is not an unconstitutional dele- gation of power to the Secretary of the Treasury to forbid the importation of teas inferior to the government standards of purity, quality and fitness for consumption, and which au- thorizes him to establish sueh standards upon the recommen- dation of a board of tea experts. The statute merely leaves to the Secretary the executive duty to effectuate the legisla- tive policy as therein declared. No individual has such a vested right to trade with foreign nations as precludes Con- gress in the exercise oif its plenary power from prohibiting, by this Tea Inspection Act or considerations of public policy, the importation of teas inferior to the government standards, on the theory that the importer is thereby deprived of his property without due process of law. And even though the statute be construed as not affording an opportunity for the importer to have a hearing, yet it is not invalid on the ground that he is denied a hearing wthout due process of law. Nor is due process of law denied by the Act when it commands the destruction of teas not exported within six months after their final rejection as not entitled to admission into the United States because inferior to the government standards.^ The action of the board of appraisers in reject- ing impure and unwholesome tea is a decision of fact by a tribunal to which the matter is referred by law, and its de- cision can not be reviewed by the courts on the theory that their action was illegal, because no standard as to the kind of tea was established by the board of experts appointed by the Secretary of the Treasury.' §107. DeclEiratioii Coaceming Imported Pood and Drugs. The form of the declaration to be signed by the shipper, 2Buttfield V. Stranahan, 192 192 U. S. 499, 24 Sup. Ct. 356, 48 U. S. 470, 24 Sup. Ct. 349, 48 L. L. Ed. 537. Ed. 525; Buttfleld v. Bidwell, 192 s San Lung v. Jackson, 85 Fed. U. S. 498, 24 fSup. Ct. 356, 48 L. 502. Ed. 536; Buttfield v. United States, 191 PURPOSE ANB VALIDITY OP ACT OP 1906. [§§ 108-110 and which must be attached to the invoice of food or drug products, is prescribed by Regulation 33. Regulations 34 to 38 inclusive relate to the importation of food and drugs. § 108. Seizure in Transit. Section ten of the Food and Drugs Act provides for the seizure of adulterated food or drugs when in transit from one State to another, or from a Territory to a State, or to the District of Columbia, or vice versa. If the statute were construed to prohibit a United States district attorney bring- ing an action unless the Secretary of Agriculture shall first certify to him that there has been a violation of the statute as shown by an analysis in the department of foods and drugs, it is diflScult to see how this provision can be enforced. But such is not the construction placed upon it by the courts. The district attorney may file a libel against adulterated goods without having been directed to do so by the Secretary of Agriculture.^ § 109. Application of Begulations. "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. ' '^ §110. Alteration and Amendment of Regulations. "These regulations may be altered or amended at any time, without previous notice, with the concurrence of the Secre- tary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. "^ 1 United States v. Fifty Barrels 170 Fed. 449; affirmed 175 Fed. of Whisky, 165 Fed. 966; United 1022. Notice of Judgment 284. States V. Knowlton Danderine Co., i Regulation 39. 1 Regulation 40. § 111] LAW OF PUKE FOOD AND DRUGS. 193 § 111. State Legislation Necessary. Much of the food consumed never crosses the boundary of a State or Territory, and therefore is in no way afEected by the Food and Drugs Act of 1906. In fact, the great bulk of the food consumed is produced in the State of its consump- tion. It is not so much so with drugs, but still it is true with reference to quite a large percentage of them. In order, therefore, to fully protect the public from impure and adul- terated food and drugs. State legislation must supplement the Federal legislation. Happily, that in a great measure has been done. The Food and Drugs Act of 1906 has given a great impetus to State legislation, it serving as a model in a number of instances ; and in a number of instances the Fed- eral regulations have likewise served as a model. Uniformity in the laws on this subject, as well as in the regulations, is greatly to be desired, thereby preventing confusion and ren- dering trade and commerce more easy. 193 TO WHAT ARTICLES STATUTE APPLIES. [§ 112 CHAPTER III. TO WHAT ARTICLES STATUTE APPLIES. SEC. SEC. 112. Foods. 113. Drugs. § 112. Foods. Section six declares that "The term 'food', as used herein [in the Act] shall include all articles used for food, drink, confectionery or condiment by man or other animals, whether simple, mixed or compounded." This is broad enough to cover hay, grain or other food for animals; but food for poultry is not included, for the very obvious reason that "poultry" is not covered by the word "animals." It in- cludes meats and meat products of all kinds. But it may well be doubted if it covers horse meat, for horse meat has never been recognized as an article of food in this country; and it would be a stretch of the imagination to hold it covers dog meat. It, however, covers the meat of cattle, sheep, goats, swine, deer, elk, antelope, bujBfalo, bear and squirrels. It also covers poultry meat, of whatever kind, including the meat of wild turkeys, quail or partridges, wild chickens, and all feath- ered wild game. Likewise it covers fish and all sea-food, such as oysters and clams. The regulations, however, provided that they "shall not apply to domestic meat and meat-food prod- ucts 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 there- under."^ The statute covers salt, sugar and spices; but, if used as medicine or in connection with medicine, then they must comply with the requirements for drugs. Coffee and tea are foods, so are liquors, wines, beers and all beverages. So it includes mineral water and all drinking waters. Of course, lEegulation 39. Pttbe Food — 13. § 113] LAW OF PURE FOOD AND DRUGS. 194 it includes milk. Flavoring extracts are foods, unless used as medicines, when compliance must be made with the drug reg- ulations. Of course, confectionery is included, and chewing gum, perhaps, comes under this classification, though under the English statute, which defines food to "include every article used for food or drink 'by man, and any article which ordinarily enters into or is used in the composition or prepa^ ration of human food," as well as "flavoring matters and condiments,"^ chewing gum is not included, not being an "article used for food" within the meaning of that Act.^ An earlier Act defined food to "include every article used for food or drink by man, other than drugs or water,"* and this was held not to cover baking powder made up of twenty percent of bicarbonate of soda, forty percent of alum, and forty percent of ground rice.° § 113. Drags. The statute provides "That 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 substances intended to be used for the cure, mitigation or prevention of disease of either men or other animals."^ This, of course, includes all "patent" or proprietary medi- cines, whether for man or animals. It includes all pharma- ceutical preparations, as generally understood, plasters, com cures, salves, ointments, liniments, mediciiial soaps, hair tonics, cold cream or massage cream, talc powder, per- fumes, toilet preparations, tooth powders, liquid dentrifices and stock foods of all kinds. It does not include disinfectants, and possibly not bay rum, face powder or smelling salts. The line between a drug and a food is often very thin. Thus sugar, salt and spices, if- used as medicine or in connection 2 62 and 63 Vict., eh. 51, § 26. * 38 and 39 Vict., ch. 63, § 2. sShortt V. Smith, 11 T. L. E. 5 James v. Jones, 58 J. P. 230; 325; Bennett v. Tyler, 64 J. P. 119, Warren v. Phillips, 44 J. P. 61. 81 L. T. 787, 19 Cox C. C. 434. i Section 6. 195 TO WHAT AETIOLES STATUTE APPLIES. [§ 113 with medicine, are drugs ; but if used as a food, or in connec- tion with food, then it is a food and not a drug. So turpen- tine or castor oil, if used as a medicine, is subject to the re- quirements of the statute, but if the former be used in con- nection with paint, or the latter used for leather dressing, it will not be subject to the provisions of this statute. The English statute provides that "the term 'drug' shall include medicine for internal and external use."^ Under this statute it was held that beeswax adulterated with fifty percent of pajraffin was not a drug, although it is used in the preparation of medicines, and is included in. the British Pharmacopoeia. In this case the sale was by a grocer, but one of the judges thought if the sale had been by a chemist — the English term for a druggist — the result would have been different. The test seems to be in that country whether the article be sold for medicinal use or for food.^ Arsenical soap containing no arsenic has been held not to be a drug.* 2 38 and 39 Vict., ch. 63, § 2. Under the English statute an 8 Fowle V. Fowls, 60 J. P. 758, author of repute has suggested that 75 L. T. 514, 18 Cox C. C. 462. sulphur, carbolic acid and sulphur * Houghton V. Taplin, 13 T. L. acid are not drugs. Bell's Sale of R. 386. Food and Drugs Act, p. 4. § 114] LAW OF PURE FOOD AND DRUGS. 196 CHAPTER IV. ADULTERATION OF FOODS— UNFIT FOODS. Art. I. General Provisions. Art. II. Specific Articles of Food. ART. I.— GENERAL PROVISIONS. 8EC. SEC. 114. Adulteration defined. 122. Pood standards. 115. Putrid — ^Decomposed. 123. Confectionery — Liquors — Nar- 116. Products not specifically named cotic drugs. in Act. 124. Confectionery, use of shellsyC 117. Character of raw materials. and other gums. 118. Colors and preservatives. 125. Food containing filthy, de- 119. Coloring, powdering, coating composed or putrid matter — and staining. Animals unfit for food — Stat- 120. Abstraction of valuable con- ute. stituents. 126. "Filthy,'' "decomposed" and 121. Admixture of inferior ingredi- "putrid" defined. ents. § 114. Adulteration Defined. The lexicographical definition of "adulteration" is "the act of adulterating, or corrupting by the admixture of foreign and base elements, especially for fraudulent purposes; de- basement; as, the adulteration of tea or coffee."^ The Food and Drugs Act of 1906, however, assigns a broader meaning to this term. Thus section seven declares "That, for the pur- poses of this Act, an article shall be deemed to be adulter- ated ... 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 and strength. Second. If any substance has been substituted wholly or in part for the article. 1 Standard Dictionary, "Adulteration." 197 ADULTERATION OF FOODS UNFIT FOODS. [§ 115 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 any manner whereby damage or inferiority are 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 any external ap- plication 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 preserva- tive shall be printed in the covering or the package, the pro- visions 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, de- composed 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 othervrase than by slaughter. "- § 115. Putrid — Decomposed. "What is charged in this information, and what is there- fore on trial before you, is composed of two parts; that is, 2 "Now the word 'adulterated' is sists in whole or in any part of a of course one of very wide, or filthy, decomposed or putrid ani- rather uncertain meaning, and mal or vegetable substance. therefore for the purpose of this "The Act then continues, al- Act it is defined with great par- though the rest of this section ticularity as meaning in the case does not, I think, relate to this case, of food, two things which are rele- but it shows the general scope of vant to this trial: An article of the Act, 'or if it consists of any food is adulterated if it contains portion of an animal unfit for any added poisonous or other add- food, whether manufactured or not, ed deleterious ingredient which or if it is the product of a dis- may render such article injurious eased animal, or one that had died to health. It is also for the pur- otherwise than by slaughter.' I pose of this Act deemed adulterated have read that merely to show the (although the word can not be used general scope of the legislation in in that sense ordinarily), if it con- this regard." N. J. 825. § 116] LAW OV PUKE FOOD AND DRUGS. 198 the charge is of two parts. The first is that these eggs which are the subject of investigation 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, probably 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 re- duced 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 concluded, 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 some- thing be added thereto which renders it dirty,, noisome or nasty. "^ § 116. Products not Specifically Named in Act. In an instance of a product not specifically named in the Pure Food and Drugs Act, they must be such as to either de- ceive the public or be detrimental to health; and the govern- ment must show that the product in question was either de- ceptive or injurious before it can insist upon a conviction. In an instance, of course, where the product is specifically denounced by the statute, it is not necessary to show either that it is deceptive or injurious to health.^ iN. J. 825. See Section 126. ed States v. Buffalo Cold Storage 1 French Silver Dragee Co. v. Co., 179 Fed. 865. United States, 179 Fed. 824; Uni<> 199 ADULTERATION OF FOODS UNFIT FOODS. [§§ 117, 118 §117. Character of Raw Materials. If food ' ' 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," then it is deemed to be adul- terated.^ The regulations provide that "The Secretary of Agriculture, when he deems it necessary, shall examine the raw materials used in the manufacture of food and drug products, and determine whether any filthy, decomposed or putrid substance is used in their preparation," and that he "shall make such inspections as often as he may deem neces- sary."^ Of course, this section of the statute and this regu- lation cover milk which is unfit for use as food because of filth, or which is the product of diseased cows. If mineral or other drinking water is unfit for use because of the presence of filth or decomposed animal or vegetable substance, it is de- nounced by this statute. So it covers any filthy, decomposed or putrid vegetable substance intended or prepared as food which is unfit for use as food because of such condition. § 118. Colors and Preservatives. Under section seven of the Act an article of food is deemed to be adulterated "if it contains any added poisonous or other added deleterious ingredient which may render" it "injurious to health." An exception is made in the statute "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 di- rections for the removal of said preservative shall be printed on the package," the provisions of the Act "shall be con- strued as applying only when said products are ready for 1 Section 7 of Food and Drugs visions of these regulations — at Act of 1906. least state courts can not. St. 2 Regulation 16. Courts cannot Louis v. Kruempeler (Mo.), 139 take judicial notice of the pro- S. W. 446. § 118] LAW OF PUKE FOOD AND DEUGS. 300 consumption."^ It will be observed that this clause applies only to poisonous or other added deleterious ingredients which may render the article of food injurious to health. If the material, though poisonous, is naturally present in the food, it does not render it adulterated. This distinction must be borne carefully in mind, for otherwise many fruits, such as peaches or cranberries, would be excluded from the mar- kets by reason of the acids they contain, which would be poisonous or deleterious if used in concentrated form, though not poisonous if consumed merely on eating the fruit in its normal condition. But colors or preservatives that are harm- less may be used if they do not conceal the damage to or in- feriority of the food. If the coloring or preservative is pois- onous, then it does not matter how small is the amount used, even though its poisonous effect upon the person consuming it may not be noticeable or, in fact, not produce any result. The Act does not undertake to prescribe what colors and preservatives are and what are not poisonous. Under section three, giving the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor power to make rules and regulations for carrying the Act into force, such secretaries have delegated to the Secretary of Agricul- ture the power and duty to "determine from chemical or other examinations . . . the names of those substances which are permitted or inhibited in food products."^ He is also empowered to determine "the principles which shall guide the use of colors, preservatives, and other substances added to foods. "^ When these findings 'are approved by the other two Secretaries they become a part of the regulations. But these findings, though duly approved, are not binding upon the courts, although they carry great weight. It should also be observed that no manufacturer will be prosecuted if he uses only those colors and preservatives the findings con- cerning which have been approved by the two Secretaries, for the Secretary of Agriculture in no instance would certify 1 Section 7. s Regulation 15. 2 Regulation 15. 201 ADULTERATION OF FOODS UNFIT FOODS. [§ 119 to a district attorney that there had been a violation of the Act when only one of such colors or preservatives had been used, and without such certification there would be no prose- cution, unless it be to libel and destroy the food colored or in which the preservative has been used. The regulations adopted under this Act of 1906 do "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 regulations of the Secretary of Agricul- ture made thereunder, ' '* but under Regulation 39 of the Regu- lations Governing the Meat Inspection of the United States Department of Agriculture certain preservatives can be used in meat or meat products. They are "common salt, sugar, wood smoke, vinegar, pure spices and saltpeter. No colors may be used in meats or meat products except such as may be approved by the Secretary of Agriculture." § 119. Coloring, Powdering, Coating and Staining. Clause four of section seven provides that food shall be deemed adulterated "If it be mixed, colored, powdered, coated or stained in a manner whereby damage or inferiority is concealed." The regulations provide that: (a) "Only harmless colors may be used in food prodticts. (b) "The reduction of a substance to a powder to conceal inferiority of character is prohibited. (e) "The term 'powder' 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 sub- stance to the exterior portion of a food product. (e) "The term 'stain' includes any change produced by the addition of any substance to the exterior portion of foods which in any way alters their natural tint."^ The word "mixed" refers to the mixing of different sub- stances to form the mixtures, blends and compounds referred to in section eight. It is very clear that the mixture of a * Regulation 39. i Regulation 12. § 130] LAW OF PURE FOOD AND DEUGS. 202 substance which has been damaged or is inferior in such pro- portions, and in such manner with other substances so as to conceal its damaged condition or inferiority, is forbidden by the statute. Even harmless coloring matter is forbidden if its effect is to conceal a damaged condition or inferiority. If the coloring matter is harmless, and it does not conceal a damaged condition or inferiority, then its use is not forbid- den. But this statute does not prohibit the coloring of but- ter, which is permitted by the Act of August 2, 1886,^ nor the coloring of cheese, which is also permitted by the Act of June 6, 1896.^ The reduction of a substance to a powder in order to conceal its inferiority in character is forbidden. So an article of food to the exterior of which any powdered substance is applied with the effect of concealing damage or its inferiority in character or quality, is deemed an adultera- tion. To apply a coating of any substance to the exterior portion of any food product is an adulteration, and, accord- ing to the terms of the statute, it is not necessary that the coating conceal its damaged character or inferiority, though probably the courts will be inclined to hold that it must have that effect. To slain tihe exterior portion of food in any way which alters its natural tint is also an aidulteration under this Act. The intent with which these several violations of the statute is done is immaterial. There may be no intention to violate the statute, yet if the act produces the result for- bidden by the statute an offense has been committed. §120. Abstraction of Vanlable Constituent. The statute provides that an article of food shall be deemed adulterated "if any valuable constituent of the article has been wholly or in part abstracted" from it.^ But an article from which a valuable part of it has been abstracted may be sold if the package is so labeled or accompanied by a state- ment to show that fact, if it be wholesome. Thus regulation 2 24 U. S. Stat, at Large 209, s 29 U. 8. Stat, at Large 253, § 1. See Appendix. § 1. See Appendix. 1 Section 7. 303 ADULTERATION OP FOODS — UNFIT FOODS. [§ 121 twenty-six provides that, "When an article is made up of refuse materials, fragments or trimmings, the use of the name of the substance from which they are derived, unless accom- panied by a statement to that effect, shall be deemed a mis- branding. Packages of such materials may be labeled 'pieces,' 'stems,' 'trimmings,' or with some similar appella- tion." This does not prevent the sale of skimmed milk if it be sold as skimmed milk and not as whole milk. §121. Admixture of Inferior Ingredients— Compound— -Dis- tinctive Name. Under section seven it is provided that "an article shall be deemed adulterated ... in the ease of food, if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength," or "if any .substance has been substituted wholly or in part for the article." This is the common form of adulteration. Under the first clause, if the substance "mixed and packed with it does not reduce or lower or injuriously affect its quality or strength," there is no adulteration. Under the second any substitution, "wholly or in part for the article," is an adul- teration. The adulteration may be carried so far as to com- pletely substitute one substance for another that is the pure article. This would be covered by the first clause. But if not carried to that extent — ^to the extent of complete substi- tution — then both clauses cover it. The second clause covers such substitution whether or not the quality or strength be reduced or lowered or injuriously affected. It matters not that the product resulting from the admixture of another sub- stance is better or more wholesome than the pure article. Such a claim is no defense. The purchaser has a right to the very substance which he calls for when making the purchase, and it does not lie in the vendor's mouth to say that, although one substance had been substituted in whole or part for an- other, the substituted article is better than the substance it displaces.^ The question of "misbranding" is intimately iBut suppose the purchaser and a higher or better grade of calls for a certain grade of sugar, sugar has been substituted in part § 121] LAW OF PUEB FOOD AND DEUGS. 204 connected with the question involved in this paragraph. If adulterated food is sold unbranded, or without a label show- ing its adulteration, an offense is committed. If the label truly state the several substances entering into the food, then such food may be sold and no offense committed.^ It is mixed or blended or compound food. Regulation eleven pro- vides that "No substance may be mixed or packed with a food product which shall reduce or lower its quality or strength. Not excluded under this provision are substances properly used in the preparation of food products for clarifi- cation or refining, and eliminated in the process of manufac- ture.'" Taking into consideration section eight, on the sub- ject of misbranding, it appears that an admixture with or substitution in an article of food of any miaeral substance, or any inert substance, is prohibited. The admixture of any other substance is permitted if the resulting product is plainly stated on the label to be a mixture, compound or blend, and the name of the added substance is also stated. So proprietary foods are exempt from the charge of adultera- tion if "known as articles of food, under their own distinc- tive names, and not an imitation of or offered for sale under the distinctive name of another article."* Of course, the name of such a food must "be accompanied, on the same label or brand, with a statement of the place where" it had been manufactured or produced. So adulterated imitation food may be sold if it "is plainly stated on the package in which it is offered for sale" that it is an imitation. Under regula- tion eleven, above quoted, the only food that can be made the basis for proceedings under the Food and Drugs Act because of adulteration is the finished product which contains an adulterant or other prohibited substance. The addition of for that removed. Has an oflfense tion. But a request for "milk" been committed? Clearly no; for means pure milk and not adulterat- the purchase was of sugar, and the ed milk. Kench v. O'SuUivan, 10 purchaser received pure sugar. But N. S. W. L. R. 605, 27 W. N. if a lower grade was substituted (N. S. W.) 137. for a higher "so as to reduce or 2 Section 8 of Act of 1906. lower . . . its quality or strength" s Regulation 11. then there would be an adultera- * Section 8 of Act of 1906. 205 ADULTERATION OF FOODS UNFIT FOODS. [§ 121 water or other proper diluent is not prohibited whenever it is necessary to reduce an article above standard strength to that of standard strength. An instance of this kind would be that of putting water in whisky which is above the standard strength. That is expressly permitted by the Act of March 3, 1897.= The effect of blending articles of food has been care- fully oonsiidere.d by Justice Jones, of the Disttritet Court for the Middle District of Alabama, and the Department of Ag- riculture has accepted his interpretation as correct. "The manufacturer," says he, "without violating any of the pro- visions of the statute against adulteration, may mix any num- ber of constituents in his compound, so long as these con- stituents are not poisonous or deleterious to health, and he gives the compound a distinctive name and states where it is manufactured. The matter thus produced is 'the article of food' whose quality and strength the statute seeks to pre- serve, and the nature of the product in these respects is fixed and determined by the elements which enter into it. How is it possible, chemically, or in the eye of the law, to 'lower or injuriously affect' the quality or strength of the particular 'article of food' whose characteristics are thus produced, and safeguarded by the law as thus produced, under its own dis- tinctive name, by mixing in the compound anything which may be lawfully incorporated therein? Putting in a mixture of things which may be lawfully blended therein can not amount to adulteration of the blend, since, other things aside, the statute declares, the other conditions being complied with, the blend shall not thereby 'be deemed to be adulterated'.'" 5 29 U. S. Stat, at Large 627, is manufactured and it is not an § 2. imitation sold under the distinc- 6 N. J. 990. "Other observation tive name of another article. The seems pertinent. Under the statute manufacturer here would have fully compounds known as articles obeyed the statute if he had put of food can be sold under nothing on his product but the their own distinctive names, so name 'Como Horse and Mule Feed,' long as no deleterious matter complying with its requirements in is jput in the product and other respects." N. J. 990. the label states where the product § 122] LAW OF PUEE FOOD AUD DEtTGS. 306 §122. Food Standards. Under the Agricultural Appropriation Act of March 3, 1903,^ provision is made for the investigation of the adultera- tion of foods, condiments, beverages and drugs, and also "to enable the Secretary of Agriculture in collaboration with the Association of Official Agricultural Chemists, and such other experts as he may deem necessary, to establish standards for food products and to determine what are regarded as adul- terations therein." In accordance with the provisions of this Act the Department of Agriculture has published a cir- cular, found in the appendix, of standards of purity for a large number of food products.^ The standard of food thus adopted under the Act of 1903 has become the standard of food under Food and Drugs Act of 1906. In a case it was charged that terpeneless lemon extract was adulterated and was also misbranded, because the substance offered for sale and misbranded as terpeneless lemon extract was not such as complied with the standard established by the Secretary of Agriculture in collaboration with the Association of Official Agricultural Chemists under the Act of 1903; and this was held to be a good charge. After quoting several of the pro- visions of the Act of 1906 concerning adulteration and mis- branding, the court said: "The defendants believing, as admitted in open court, that only a nominal fine would be imposed upon a plea of guilty as for a technical violation of the Pure Pood Law, pleaded guilty. "The defendants having, within some six or seven months prior to the filing of this information, pleaded guilty to two so-called technical violations of the Pure Pood Law, and be- ing thereupon fined only in nominal amounts, the court on 1 32 U. S. Stat, at Large 1158. ture had the constitutional power 2 This is Circular 19. The courts under the Act of 1903 to establish can not take judicial notice of this standards for purity ot food prod- circular. N. J. 301. St. Louis V, ucts is not disputed, nor could it Kruempeler, (Mo.), 139 S. W. be under the decision of the Su- 446. preme Court of the United States." "That the Secretary of Agricul- N. J. 823. 207 ADULTEHATION OF FOODS — UNFIT FOODS. [§ 133 this plea imposed a fine of $200. Thereupon the defendants, deeming themselves aggrieved, and upon the urgent solicita- tion of their counsel, the court permitted counsel to file a brief in support of the proposition that no offense in fact had been committed under the laws of the United States. Coun- sel for the defendants submitted an elaborate brief, to which the district attorney filed a brief in answer. "Upon consideration of these, the court is of opinion that there is an offense against the laws of the United States charged in this information, and sees no reason why, under the circumstances of the case, the fine imposed was too large. "On March 3, 1903, the Congress appropriated a sum of money to the Department of Agriculture for the fiscal year ending June 30, 1904, for the purpose, among others, 'to en- able the Secretary of Agriculture, in collaboration with the Association of Official Agricultural Chemists, and such other experts as he may deem necessary, to establish standards of purity for food products and to determine what are regarded as adulterations therein, for the guidance of the ofiicials of the various States and of the courts of justice. . . .' "The information alleges that the standard of purity for terpeneless lemom extract was established by the Secretary of Agriculture, and it appears aliunde that in the publication of Department of Agriculture, Circular No. 19, the following : ' Terpeneless extract of lemon is the flavoring extract prepared by shaking the oil of lemon with dilute alcohol, or by dissolv- ing terpeneless oil of lemon in dilute alcohol, and contains not less than two-tenths (0.2) percent by weight of citral de- rived from oil of lemon.' "That the Secretary of Agriculture had the constitutional power under the Act of 1903 to establish standards for purity of food products is not disputed, nor could it be under the decisions of the Supreme Court of the United States. He adopted the standard for the article of food in question as alleged in the information. The allegation in the information is that the standard so established was existent at the time of the filing of the information. § 133] LAW OF PURE FOOD AND DRUGS. 308 "Oa June 30, 1906,^ the Oongress provided!: 'That the in- troidiuetion into any State . . . fnom any other State . . . any article of food . . . which is adulterated or misbranded' (within the meaning of this Act), 'is hereby pro- hibited.' And the offender '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 sub- sequent offense not exceeding three hundred dollars, or be imprisoned not exceeding one year, or both, in the discretion of the court.' "The claim of the defendants is that the statute does not distinctly incorporate the standards fixed by the Secretary of Agriculture within the provisions of the Food Law, and it does not therefore define a criminal offense. "The answer to this is that if the Secretary of Agriculture had the power to fix standards, and did fix a standard of this food product, which standard was in existence at the time the Food Law was passed, and the information charges wherein the article was adulterated and misbranded with respect to this standard, there seems to be no room for doubt that if, upon proof that the article did not conform to the require- ments of the standard of purity established by the Secretary of Agriculture, then an offense had been charged under the laws of the United States. "The defendants claim that the Act of 1903 was a mere appropriation law, but it would seem that a law appropriat- ing a certain sum of money to the Secretary of Agriculture for the purpose of doing certain things which he could con- stitutionally do for the purpose of fixing standards of purity of food, and that he did so fix them, carries with it a neces- sary implication that he could do that for which the money was appropriated to him for the purpose of doing, and when he fixed the standards, then those standards prevailed, unless they have been changed since. It does not appear that tliey have been changed. "The defendants claim that as the Act of 1906 does not in- 3 34 Stat, at Large 768. 309 ADULTERATION OF FOODS UNFIT FOODS. [§ 123 corporate the standards fixed by the Secretary of Agriculture, the act of the Secretary was legislative in character, and hence no criminal offense could be predicated upon it. It is also claimed that since the Act of 1906, in describing drugs, refers to the Pharmacopoeia or National Formulary, and in describing what food is refers to no standard at all. Congress has not fixed any standard for food. Both of these claims are based on a misapprehension. Section 6 of the Act of 1906 provides : " 'That 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 ex- ternal use, and any substance or mixture of substances in- tended to be used for the cure, mitigation or prevention of diseases 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.' "These are mere terms of description. If the Pharmaco- poeia or National Formulary says something is a drug, it is a drug under the meaning of the Act. Or if it comes under the other description of what a drug is, it is a drug, and so food also is described. There are no standards fixed in either case, for if any substance or mixture is intended to be used for the cure, mitigation or prevention of disease of either man or other animals, it is nevertheless a drug, whether it is recog- nized in the Pharmacopoeia or National Formulary or not. The standard for food was fixed by the Department of Agri- culture under the Act of 1903. If one in the business of making food products would look for the standard he would find it in the promulgations of the Secretary of Agriculture made under direct authority of Congress. The Act of 1903 does not describe any offense, but the Act of 1906 says that if any article of food adulterated or misbranded is manufac- tured or transported so as to become the subject of interstate commerce, the maker, transporter, etc., shall be guilty of an offense. How shall it be known whether he is guilty of an of- fense or not? The answer is clear, by referring to the stand- PuEE Food — 14. § 132] LAW OF PURE FOOD AND DKUGS. 310 ards which have been established tuider the authority of Con- gress. "The Secretary of Agriculture, under authority of Con- gress, fixed the standards of purity for certain foods. This is a fact upon which the law of 1906 operates. It is not a law. The law of 1906, under which the offense is charged to have been committed, says what food is. The offense charged is that the defendant transported a food, and that it was adul- terated and misbranded. How is this to be ascertained? By looking to the standard as a fact. "The question is dealt with in Coopersville Co-operative Creamery Oo. v. L&mlon.* It appears tha/t the Oleomargarine Act, May 19, 1902, U. S. Comp. Stat. Sup., 1907, page 637, provides : That ' any butter in the manufacture or manipula- tion of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk or cream,' shall be deemed 'adulterated butter,' and authorizes the Commissioner of Internal Revenue to de- cide what substances are taxable thereunder. It also author- izes him, with the approval of the Secretary of the Treasury, to make all needful regulations for carrying the Act into ef- fect. It was held that such a regulation, providing that but- ter containing sixteen percent or more of water, milk or cream, should be classified as 'adulterated butter' under the Act, was within the authority so granted, and was valid, be- ing neither an exercise of legislative or judicial power, but merely a determination as a question of fact of what consti- tutes an 'abnormal' quantity of water, etc., upon which the application of the statute is made to depend. "Judge Lurton, speaking for the Circuit Court of Appeals, says: 'The contention that the delegation of authority to promulgate such a regulation is to delegate either legislative or judicial power to an executive officer is founded upon a misapprehensioni of the 'char-aeter of the authority delegated. That Congress can not delegate legislative authority or power to any executive official or board of officials is elementary. *163 Fed. 145. 211 ADULTERATION OF FOODS UNFIT FOODS. [§ 133 To do SO would be destructive to our whole system and aoheme of govermmeut." Th,at the delegation of authority to add to or take from a law would be to delegate legislative power must also be conceded. But that Congress may enact a law and delegate the power of finding some fact or state of things upon which the operation of the law is made to de- pend is equialLy cleiar." The authority to make all needful regulations not inconsistent with law is not a delegation of power to add something to an incomplete law nor a grant of judicial power. It is only an authority to determine the fact upon which the operation of the law is made to depend. Congress might have made the necessary tests, and might have acquired the knowledge of the butter-making art to enable it to have enacted that adulterated butter should con- sist of butter having a moisture content of sixteen percent or more. But that would have been an unnecessary detail, for it was altogether competent to declare that butter which contained an abnormal quantity of water, milk or cream, should be classified as adulterated butter, and that the fact as to that was, in dairy butter, an abnormal proportion of water, milk or cream, should be determined by a regulation of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury.' "It surely can make no difference that the authority to es- tablish the standard was not in the Act itself creating the of- fense as in the Oleomargarine Law. It may be well said that the Food and Drugs Act of 1906 was made with special refer- ence to the standards of food fixed by the Secretary of Agri- culture under prior authority of Congress. "It is true that the unreported case of the United States v. St. Louis Coffee and Spice Mills, decided May 22, 1909, in the District Court for the Eastern District of Missouri, bears out the contention of the defendant, but in a subsequent case, 5 Citing Field v. Clark, 143 U. S. 17 Sup. Ct. 444, 41 L. Ed. 525, and 649, 12 Sup. Ct. 495, 36 L. Ed. 294. Union Bridge Co. v. United States, 8 Citing Field v. Clark, 143 U. 204 U. S. 364, 27 Sup. a. 367, 51 S. 649, 12 Sup. Ct. 495, 36 L. Ed. L. Ed. 523. 294; In re KoUock, 165 U. S. 526, § 133] LAW OF PURE FOOD AND DKTJGS. 213 United States v. Edward "Weston Tea and Spice Company, de- cided November 30, 1909, the same court submitted to the jury a case necessarily involving the same question. If he at that time entertained the opinion expressed in the other case, he would not have permitted the ease to go to the jury. "The court is of opinion that the information charges an offense. There is some doubt in the court's mind as to the propriety of passing upon this question of law at all. The defendant, before pleading guilty, had the opportunity to de- mur to the information, and, having many months in which to make up his mind what to do, pleaded guilty. Not until the imposition of a fine unexpectedly large did he raise the question here discussed. It is probable that, the fine having been imposed on the plea of guilty, the matter has passed from the power of the court to the pardoning power. The court has no intention of making this case a precedent which may be followed in similar cases. If persons charged with an offense against the laws of the United States, with ample time to prepare their defense, assisted by able counsel, never- theless pleaded guilty, and a fine was imposed, it is difficult to see upon what ground they have right to appeal to the court by an attack upon the legality of the proceeding. "The court has only looked into the subject lest some injury has come to the defendants through their own plea of guilty. "The Food and Drugs Act is one of the most beneficent legislative enactments of recent times, and its provisions must be obse'Tved."'' § 123. Confectionery — Liquors — Narcotic Drugs. Section seven of the Food and Drugs Act of 1906 provides: "That for the purposes of this Act an article shall be deemed to be adulterated ... in the ease of 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."^ ' United States v. Clark; N. J. i Section 7. 823. 313 ADULTERATION OF FOODS UNFIT FOODS. [§ 133 The regulation based upon this provision of the statute is as follows : "(a) Mineral substances of all kinds (except as otherwise provided in regulation fifteen),^ are specifically forbidden in confectionery whether they be poisonous or not. " (b) Only harmless colors or flavors shall be added to con- fectionery. "(c) The term 'narcotic drugs' includes all the drugs mentioned in section eight, Food and Drugs Act, June 30, 1906, relating to foods, their derivatives and preparations, and all other drugs of a narcotic nature."^ In the Official Bulletin on Pood Standiards oandly is defined 'as "a product made from a saccharine substance or substances with or without the addition of harmless coloring, flavoring or filling materials, and contains no terra alba, barytes, tale, chrome yellow, or other mineral substances, or poisonous colors or flavors, or other ingredients detrimental to health, or any vinous, malt or spirituous liquor or compound, or narcotic drug."* No definition is embraced in the statute. Possibly ice cream comes within this clause of the statute, though it would seem that it is nearer a food than confectionery; but it is clear that chewing gum belongs to this classification of products. Any mineral substance placed in candy is an adul- teration of it, and the same is true of paraffin and all mineral colors. Vegetable colors and flavors, if harmless, may be used in confectionery, but saccharine may not be used. Gelatin, if it does not contain bisulphates or other deleterious sub- stances, may not be used in it; nor can glucose, if it contains like substances. Bleachers or hardeners containing bisulphates can not be used. For the purpose of glossing candy, shellac may be used if the alcohol in which it be dissolved is so completely evaporated as to leave no trace on or in the candy. Harmless fats and oils and vaseline may be used for finishing candy. Paraffin or chicle may be used in chewing gum if the soluble ingredients, sugar, color and fiavor, conform to the 2 This Regulation relates to color * Official Bulletin No. 19. In and preservatives. Appendix. 3 Regulation 10. § 133] LAW OF PUKE rOOD AND DRUGS. 314 requiremenits of the statute. Neither vinious', mialt nor spirit- uous liquors or compounds can be used in candy. But this does not exclude the use of flavoring extracts, nor the use of vinous, malt or spirituous liquors or compounds for flavoring merely, if there be no trace of alcohol in the finished product. A drug of a narcotic nature can not be used in confectionery. Not only all the drugs mentioned in section eight of the Food and Drugs Act are prohibited, but also their derivatives, as stated in Eegulation 28, as well as all other drugs of a nar- cotic nature. When the charge was that confectionery was adulterated with "Silver Dragee" — an article not specifically named in the statute — it was held that the government must show that it was either calculated to deceive the public or was poisonous, and in passing on the ease the court said: "In interpreting the provisions of the Act now in ques- tion — 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 intended to be remedied by it. If we go outside the Act itself and consider the circumstances surrounding its adoption, we find a Congressional committee report urging that the objects of the bill were : " '(1) To protect the purchaser of food products from be- ing deceived and cheated by having inferior and different articles passed off upon him in place of those which he desired to obtain; " 'To protect such purchaser from injury by prohibiting the addition of foods of foreign substances poisonous or dele- terious 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 indicates its purposes. It is entitled 'An Act for pre- venting the manufacture, sale or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medi- cines and liquors.' And, examining the particular section now in question, we find the purpose all through it to pro- tect the public from deceit and injury. Drugs are declared 215 ADULTERATION OF FOODS UNFIT FOODS. [§ 123 to be adulterated if their strength or purity fall below cer- tain standards. The intent to prevent both deceit and injury- is here apparent. So food is deemed to be adultemated : "(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 inferior- ity is concealed; "(5) If poisonous ingredients or ingredients making the article injurious to health are added; "(6) If the article consists of decomposed or putrid animal or vegetable 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,' 'dele- terious,' appear in many places. Indeed, a careful examina- tion of the whole Act clearly shows that its object is, as al- ready 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-section 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 pub- lic from deceit or injury, and would merely stop trafflc 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. The language of the Supreme Court of the United States in Church of Holy Trin- ity V. United States,* is most pertinent : 5 143 U. S. 457, 12 Sup. Ct. 571, 36 L. Ed. 226, reversing 36 Fed. 303. § 133] LAW OF PURE POOD AND DKUGS. 216 " 'It is a familiar rule, that a thing may be within the let- ter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports aye full of eases il- lustrating 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 surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreason- able to believe that the legislator intended to include the par- ticular 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. The defendant, on the other hand, contends that the different clauses of the sub-section in question should be construed together, and that so con- strued they embrace only those substances which are decep- tive or are detrimental to health. "Interpreting the provision as embracing in the phrase 'or other mineral substances' all mineral substances whatsoever, it is apparent that the use of the mineral substances salt, sul- phur and baking soda, in the manufacture of confectionery — and it appears that they are so used — would render the prod- uct adulterated within the meaning 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 un- healthful 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. Unless the language of the statute 217 ADULTERATION OP FOODS — UNFIT FOODS. [§ 123 imperatively requires such construction it should not be adopted by the courts. "The construction of the provision contended for by the defendant is in accordance with the ejusdem generis doc- trine. The rule that when general words follow the enumera- tion 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 Gundling v. City of Chicago,^ the court said: " 'The articles, meats, poultry, fish, butter and lard, which are expressly enumerated 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 con- struction, 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 objects as are of the same kind as those specially enumerated." ' "We think the ejusdem generis rule especially applicable in this ease for the reason — as already pointed out — that any broad construction would arbitrarily interfere with legiti- mate 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 controvert the proposition that the ejusdem generis rule should be applied. 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 substances which precede itr "Now it appears that terra alba, barytes and tale are used to mix with confectionery and cheapen it. There is nothing in the record to show that they are injurious to health. They 6 176 ni. 340, 52 N. E. 44, 48 L. R. A. 230. § 133] LAW OF PUKE FOOD AND DEUGS. 218 are well-known adulterants — ^using that term in its ordinary sense. They increase bulk and weight at the expense of quality. Confectionery containing them is really sold under false pretenses. Chrome yellow is a cheap coloring matter, and is poisonous. Silver, as used in these dragees and as con- sidered in connection with this statute, is not the same kind of mineral substance as terra alba, barytes or tale. It is used to attract 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 yel- low. Unlike that mineral substance, it is not poisonous. "In our opinion the clauses 'or other mineral substance or poisonous 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 eonfectioneiy of terra alba, barytes, talc, or any other mineral substance, whether injurious to health or not, for purposes of deception, makes it unlawfully adulterated ; "(2) That the use in confectionery of chrome yellow or other poisonous mineral substance or poisonous color or flavor, makes it unlawfully adulterated; "It is true that under this construction the third class of eases would include the second. 'Any ingredient detrimental to health' undoubtedly includes all poisonous substances. But the clauses do not conflict, and redundancy is not un- usual in statutory provisions. "Stated in another way, we think that the history of the Act, the objects to be accomplished by it and the language of all its provisions, require that it should be so interpreted that in the case of confectionery, as in the cases of food and drugs, the government should establish, with respect to prod- ucts not specifically named, that they either deceive the pub- lic or are detrimental to health. And as no proof was offered in this case tending to show that the confectionery in question 219 ADULTERATION OF FOODS — UNFIT FOODS. [§123 was either deceptive or injurious, the defendant was improp- erly convicted."^ T French Silver Dragee Co. v. United States, 179 Fed. 824, F. I. D. 543. "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 na- ture of the substances declared adulterants by statute. They are all undoubtedly mineral sub- stances; — ^they are not all poison- ous, 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 confec- tionery. "There being no punctuation be- tween the phrase 'or other mineral substances' and the phrase 'or poi- sonous color or flavor,' the word 'other' must be held to apply to 'mineral substance' and 'poisonous color or flavor.' But the enumera- tion of terra alba et al. gives an illustration (so to speak) of 'min- eral substances' and of 'poisonous color' (i. e., chrome yellow), but so far as I unoerstand the nature of the articles enumerated it does not give an instance of a poisonous flavor as distinguished from poison- ous color. "Let therefore the rule so insist- ed upon by the defendant be ap- plied and the Act be limited to mineral substances, poisonous colors and poisonous flavors ejus- dem generis with the articles enum- erated; — and it must then follow that while the proscribed poison- ous color or flavor must be a min- eral substance, it does not follow that every mineral substance to be proscribed must possess either poi- sonous color or poisonous flavor. "The Act is imdoubtedly 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 confec- tionery of all mineral substances of the same nature as those enum- erated, and of those enimierated some are well known to be merely inert, possessing no poisonous quali- ties 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." N. J. 249 (silver dragee). French Silver Dragee Co. V. United States, 179 Fed. 543. "The material part» of the Act pertinent to the present contro- versy, 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 confectionery if it contains terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleter- ious or detrimental to health, or any vinous, malt, or spirituous liq- §124] LAW OV PUEE FOOD AND DRUGS. 330 §124. Confectionery, Use of Shellac and Other Gums. "The Board of Food and Drug Inspection has carefully considered the evidence which has been presented at various uor 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 specitically mentioned in the Act; that the information does not allege that the adulterant, to wit, silver, is an ingredient del- eterious or detrimental to health, or that the strength or purity of the confectionery falls below the professed quality or standard under which it is sold. As I construe the section in question so far as it re- lates to the confectionery, it con- tains five classes of prohibited ar- ticles; the introduction of any des- ignated ingredient of either of which violates the act; that is to say, the Act would be violated if the confectionery contained terra alba, barytes, talc, chrome yellow or other mineral substance, if it contained any poisonous color or flavor, or if it contained any other ingredient deleterious or detrimen- tal 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 quali- fy that word only, and not any pre- 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 judg- ment, therefore prohibited irrespec- tive of the presence of the absence of any poisonous, deleterious or detrimental quality; they are pro- hibited because they are adulter- ants, and for that reason only. Coloring or flavoring matter how- ever, may be introduced, provided it is not poisonous, but any other ingredient, although not thereto- fore specified or classified, which is deleterious or detrimental to health, is prohibited. Certain spe- cified articles are, by the first clause quoted, inferentially denomi- nated minerals, and their use is thus prohibited, is added 'or any other mineral substance.' The in- formation in brief, alleges that con- fectionery was shipped to the de- fendant and delivered in interstate commerce; that such confectionery was adulterated by having in it as one of its constituent parts sil- ver, which is alleged to be a min- eral substance. Assuming, because it is admitted by the demurrer, that silver is a mineral substance, its introduction into confectionery as an ingredient, which is also ad- mitted, brought the confectionery within the prohibition of the stat- 321 ADULTEEATIOISr OJ FOODS UNFIT FOODS. [§m times respecting the practice of coating chocolates and other confections with shellac and other gums. "The Board is of the opinion that it is not a proper pro- ceeding under the provisions of the Food and Drugs Act. It is evident that such coating will not only conceal inferior- ity, but it appears further that as a rule the gums are dis- solved 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 ute, once it was shipped in inter- state commerce. It is urged, how- ever, that silver is not of the class of the specified mineral substance, 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 confectionery is one. Silver is a mineral incapable of assimilation through the stom- ach. It will not yield to the pro- cesses of digestion. One of the main purposes of the Act is to pre- vent the introduction of such sub- stances into food products. The title of the Act embraces adulter- ated foods as completely as it em- braces misbranded foods, or poi- sonous foods, or deleterious foods. It refers to each class separately and in the alternative, and the Act deals with each class. Technical rules of construction must give way to the avowed purpose and in- tention of an Act. If it be that an Act admits of more than one con struction, then that one will be adopted which best serves to carry out the purpose of the Act. Hence I do not feel warranted in permit- ting the doctrine of ejusdem generis or other technical rule of construc- tion 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 coun- sel would open the door for the emasculation of the Act. As to the contention that it is necessary to allege that by the use of the silver the strength and purity of the con- fectionery 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 deal- ing 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." N. J. 176. §§ 125, 136] LAW OF PaEE FOOD AND DRUGS. 223 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 al- cohol, 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 em- ployed this method or have discontinued it, and that goods can be, and are, made and sold in all quantities with no dif- ficulty 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 ex- posure of confections for a long while before use is not ad- visable nor desirable."^ §125. Food Containing Filthy, Decomposed or Putrid Mat- ter — ^Animal Unfit for Food — Statute. The sixth clause of section seven of the Pure Food and Drugs Act provides that a food shall be deemed adulterated "if it consists in whole or in part of filthy, decomposed or putrid animal or vegetable substances, 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." §126. "FUthy," "Decomposed" and "Putrid" Defined— Eggs. In a charge to the jury Judge McPherson defined these words in this language : "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 arti- cles in question were both filthy and decomposed. We will leave the word 'putrid' out of the case. There is no aver- 1 F. I. D. 117. 233 ADULTEEATION OF FOODS UNFIT FOODS. [§ 136 ment that they were putrid. If the government has offered evidence which satisfies you that they were either filthy or decomposed, the ease 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 requires 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. Eight there we are confronted with the difficulty that so often eon- fronts 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 con- fronts 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 an- other. 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 meaning, or, at all events, a somewhat different meaning, when applied to another subject. "You must bear in mind that these two words, 'filthy' and 'decomposed,' 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, be- cause it is quite clear that a situation 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 de- composed. § 136] LAW OF PURE FOOD AOT) DRUGS. 324 "Now the word 'filthy' is capable of a variety of mean- ings. I suppose it is not unfair to say that it is the super- lative degree of such a condition as we refer to as 'soiled.' When we speak of an article as soiled, that would be a suffi- ciently 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 farther than that. An article can hardly be said to be filthy unless it has gone somewhat farther 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 ex- creta 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 attention to what any particular witness may have said. You have heard the evidence and you must determine what the facts were, to what extent worms, or 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 arti- cle, it begins to decompose. Take sugar, for example. The moment sugar begins to change its character — and it may change into a good many substances — it begins that moment to decompose, to break down, to form other combinations, and that is seientifleally 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- 225 ADULTERATION OF FOODS UNFIT FOODS. [§ 136 ing; that it should mean simply a change of the chemical constituents of a substance. It is allied, if I may use a gen- eral word, to the idea that it is connoted by the word 'rot- ten.' '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 far- ther, would bring you to the state of a particular 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 applied to food — and that is the subject, I call your at- tention 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 dif- ferent one in another. Take, certain cheeses which are used extensively as articles of food. I think on some of them — I shall not name them — 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 un- doubtedly decomposed. 'High,' as you know, is often used for game when it reaches a certain 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, speak- ing generally, is to have the ordinary and general meaning which is given to it in common speech. Statutes, speaking generally, you know, are addressed 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. Pure Food — 15. § 136] LAW OF PUKE FOOD AND DRUGS. 326 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 meaning are to be determined as applied to the subject matter of this 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 ap- plicable to them; if they are filthy or decomposed, then the government has made out its case." In another case, Judge McPherson, in charging the jury,, said: "I dare say you all have some general idea, at all events, about the Pure Food Act, although you may not have come in contact with it quite as closely as you have the last day.. This proceeding is somewhat unusual. It is not a suit against any particular person, although, in substance, in one of its aspects, it amounts to that ; but it is directly a proceed- ing against a particular article of goods for the purpose of forfeiting it — for the purpose of condemning it. The United 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, con- demned 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 en- forced — 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 crim- inal trial, strictly speaking, because there is nobody charged with crime, but it is a suit to enforce a penalty, 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. 337 ADtJLTEEATION OF FOODS UNFIT FOODS. [§ 126 of proof such as exists in a civil suit between two individ- uals. In that ease, 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 de- gree of proof is not required in this case, either — proof be- yond 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 sat- isfactory evidence, that its case has been made out. These terms are necessarily 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 determina- tion. 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, decom- posed 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 sub- stance, as I understand. There is no evidence that there is any admixture, so that we may assume that it is wholly com- posed of animal substance. Now is it, therefore, filthy, de- composed or putrid? Either one of these adjectives, if ap- plied 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 dif- ferent circumstances, and that is true about a great many words. "Without troubling you longer with general remarks. § 126] LAW OP PURE FOOD AND DKUGS. 328 it is certainly true with regard to these particular words, filthy, decomposed or putrid. Now, if anyone 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 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 de- scribe an article as dirty, within which it may be properly described as dirty. Then when you say it is filthy, you are at once conscious that you 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, so that there should be no doubt at all about the limits you have. "And take the two words that I will speak of together, decomposed 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 experience 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 mean- ings, may 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 proc- ess of decomposition. If fermentation goes on long enough, the article falls to pieces. Sugar, when it is fermented, be- gins to break up; and decomposition means, of course, to break up; to decompose, to resolve into its elements. So that when fermentation has proceeded far enough it becomes de- composed, and to say just precisely where fermentation ceases 229 ^UJULTERATION OF FOODS^ — UNFIT FOODS. [§ 126 and decomposition begins would be a very difficult task. I have been speaking to you 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 every- day meaning which language in given in its common use, among men. Laws are addressed to the community, and, therefore, they properly are construed in accordance with the sense which their language bears among the people that com- pose the community. Therefore I say, as I have just said, I think you will have very little trouble in assigning a suffi- ciently accurate meaning to these words. Filthy and decom- posed and putrid, I think you will agree, convey a sufficiently definite meaning to the ordinary mind, and particularly — and that 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 because it is filthy, decomposed or putrid, necessarily those words are to be ap- plied 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 at- tempt 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 properly, in the ordinary use of these words, be condemned as filthy, or would it prop- erly 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 ordinary 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 stat- ute. The government's case, as I understand it, depends § 136] LAW OF PUKE FOOD AND DRUGS. 230 solely upon the presence of these minute vegetable existences in the product. I am right about that, am I not?" "Mr. Dougiass: '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. Shern: '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 or- ganisms on which the government relies.' "Mr. Douglass: 'Yes, sir.' "The Court: Now, you have heard a good deal of testi- mony 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 comparatively 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 testi- mony to you for your careful consideration. We are, neces- sarily, in a subject like this, obliged to rely upon the testi- mony of expert witnesses, and their tfestimony 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 conclu- sion 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 conclusion that ought to be drawn. That is not at all an uncommon situation, 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 comparatively common, I may say, to speak of expert testi- mony 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 gentlemen are, there is no pos- sible reason to doubt — ^I am not speaking especially about the witnesses in this case, but expert witnesses generally — 331 ADULTERATION OP FOODS — UNFIT FOODS. [§ 136 they are almost always entirely honest, and desirous, to the last degree, to give the best evidence they can upon the sub- jects concerning which they are asked questions, but they are human, like other people. They have their own theories. They sometimes have their own biases and prejudices, which color their views, and in that subject, like the one that is be- fore us, you can see there is a great deal of room for differ- ence of opinion. The subject matter is one that is difficult to have accurate information on, although you may have ap- proximate information that is substantially sufficient; and then, besides, in an examination of these substances, if a sample were taken from one part of this large package, it might be one of quality, and then besides that there may be a sample that would be of a very different quality, so that, one witness examining one sample, and one examining an- other, 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 testimony. Counsel have already done that sufficiently, and besides, their testimony was not diffi- cult 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 intended 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 or- ganisms in it— but whether it was at that time of that de- scription, because it is to that time that the government nec- essarily is confined. "Now that is the ease, 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 for you to determine very largely, or in § 126] LAW OF PUHE FOOD AND DRUGS. 233 large part, by the aid. of your common sense and common knowledge with regard to the meaning of these words. I can not 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 addressed. . They have not, as I con- ceive in this> statute, a precise and scientific definition. Their meaning must be determined by a consideration of the sub- ject matter about which they are dealing, namely, pure food — as pure food as possible — and in that light the jury, with the instructions I have given them, must determine the ques- tion. 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.' "Mr. Shern: 'Will Tour Honor allow me to make a sug- gestion? Of course, the jury know better, but the news- papers have been full of this case, and I would like the jury to govern themselves by what they have heard in court, and not be actuated by any other comment.' "The Court: 'Not all the newspapers were full of it, for I have not seen a word about it ; but there may have been some, as there doubtless are, if Mr. Shern 's information is accurate. Doubtless some may have had comments about it. I do not know whether the jury have seen them. However, if they have, I am sUre they will dismiss it from their minds, and decide the case upon the evidence and the instructions of the court.' "= ART. II.— SPECIFIC ARTICLES OF FOOD. SEC. SEC. 127. Ale. 131. Apple jelly. 128. Almond extract. 132. Banana extract. 129. Annatto. 133. Berry preserves. 130. Apples, evaporated. 133a. Blackberry cordial. 2 See also Section 115 fpr a definition of "decomposed." 233 ADULTERATION OF FOODS UNFIT FOODS. SEC. SEC. 134. Bone grits. 174. Macaroni. 135. Boric aeid. 175. Maple syrup. 136. Brandy. 176. Meat-Fish. 137. Buckwheat flour. 177. Milk and cream. 138. Butter. 178. Milk, evaporated. 139. Calcium acid phosphate. 179. Mince meat. 140. Com syrup. 180. Mineral oil. 141. Canned corn. 181. Mineral water. 142. Cereal. 182. Molasses. 143. Cheese. 182a. Mustard, Cherlock as a Sub- 144. Cherry syrup. stitute for. 145. Cider. 183. Oats. 145a. Chocolate cremolin. 184. Olives. 146. Cloves. 185. Olive oil. 147. Coffee. 186. Oysters— Shellfish. 148. Copper salts used to green 186a. Peaches. vegetables. 187. Peach butter. 149. Corn cob. 188. Peach extract. 150. Corn flour and meal. 189. Peanuts. 151. Cotton seed meal. 190. Pepper. 152. Currants. 191. Phosphate, apple. 153. Custard. 192. Phosphoric acid. 154. Eggs. 193. Pineapple extract. 155. Essence of wintergreen. 194. Poison. 156. Figs. 195. Prunes. 157. Fish. 196. Raisins. 158. Flour. 197. Rice. 159. Flavoring extracts. 198. Eoeocola. 160. Formaldehyde. 199. Saccharin in food. 161. Fruits and vegetales. 200. Sago and tapioca. 162. Gin. 201. Salts of tin. 163. Glucose. 202. Shellac and other gums ! for 163a. Hominy. coating chocolates and other 164. Honey. confection. 165. Hydrocyanic acid. 202a. Soda water — Syrup cola. 166. Ice. 203. Stock feed. 167. Ice cream. 204. Sugar in canned fruits and 167a. Jamaica Ginger. vegetables. 168. Jam compound — Jelly. 205. Tea. 169. Kola-Ade. 206. Tomato catsup, paste and pulp. 170. Koca-Nola. 206a. Turmeric. 171. Kos-Kola. 207. Vanilla and caramel. 172. Lemon and orange flavoring. 207a. Vani-Kola. 173. Lemon oil. 208. Vinegar. §§ 127-131] LAW OF PURE FOOD AND DRUGS. 334 SEC. SEC. 209. Waffles. 211. Wine. 210. Whisky. §127. Ale. To substitute fermented beer for cream ale in part is to adulterate the latter. '^ §128. Almond Extract. Almiond extract, or flavor, as recognized by reliable manu- facturers and dealers, is the flavoring extract as prepared from oil of bitter almonds, free from hydrocyanic acid, and contains not less than one percent by volume of oil of bitter almonds. Hydrocyanic acid, therefore, used in it is an adul- terant.^ § 129. Annatto. Annatto used in milk to give it color is an offense.^ § 130. Apples, Evaporated. To sell moldy and rotten portions of apples, worms, seeds, and general apple waste product for "choice evaporated apples" is a violation of the statute.^ To soak evaporated apples in water is to adulterate them.^ §131. Apple Jelly. Glucose used for sugar in apple jelly adulterates it.^ So apple jelly containing free sulphuric acid is adulterated.^ IN. J. 834. 2N. J. 504. See N. J. 87; N. J. iN. J. 142. See also Wiley, 89; N. J. 36; N. J. 57; N. J. 64; Food Adulteration 396, and Leach N. J. 457. Evaporated apples are on Pood Analysis 873. apples aried by artificial means, iN. J. 586. How detected, Wiley, Pood Adulteration 335. Leach on Food 175. iN. J. 238; N. J. 811. IN. J. 519; N. J. 457; N. J. 2N. J. 811. 367; N. J. 255; N. J. 949; N. J. 976; N. J. 978. 235 ADULTERATION OF FOODS UNFIT FOODS. [§§ 133-137 § 132. Banana Extract. Selling an imitation of banana extract as pure banana ex- tract is an oflense.'^ § 133. Berry Preserves. Logan berry preserves substituted for blackberry preserves is an adulterant.^ § 133a. Blackberry Cordial. To use glucose, saccharin, benzoic acid, and artificial color- ing matter in the form of a deal tar dye, in the making of blackberry cordial is to produce an adulterated article.^ § 134. Bone Grits. Imitation of bone grits that does not contain any bone is an adulterated product.^ §135. Boric Acid. Boric acid used in biscuits is a violation of the statute, being an adulterant.^ So boric acid and its salts used in ice cream cones and ice cream clams is an adulterant, subjecting it and them to forfeiture.^ Boric acid used in eggs is an adulterant.'' § 136. Brandy. Imitation brandy put into cognac is an adulterant.^ §137. Buckwheat Flour. To mix rye and wheat flours with buckwheat flour is to 1 N. J. 405. Imitation banana i N. J. 696. essence is made up of a mixture of 2 N. J. tf72 ; N. J. 669 ; N. J. amyl acetate and butyric ether, 668. Leach on Food Analysis 884. 3 N. J. 657 ; N. J. 508 ; N. J. iN. J. 701; N. J. 509. 790. How detected in foods, Leach iN. J. 926. on Food Analysis 182, 822. iN. J. 625 (Hen-e-ta Bone iN. J. 683. Grits). §§ 138-142] LA-9V OP PURE POOD AND DRUGS. 336 adulterate the latter,^ and so to mix com meal with the buckwheat flour.^ § 138. Butter. The coloring of butter is not unlawful, that course being distinctly allowed by >the Act of August 2, 1886.^ Butter containing filthy, decomposed and putrid animal and vege- table substances is adulterated.^ So is butter that contains an excessive amount of water.^ § 139. Calcium Acid Phosphate. Corn starch used in calcium acid phosphaite does not ren- der the mixture deleterious or in any way dangerous to the health of the person eating the mixture.^ § 140. Cane Syrup. To mix corn syrup or glucose with cane syrup is to adul- terate the latter.^ §141. Canned Corn. Canned com that consists in part of filthy, decomposed, and putrid vegetable substances is denounced by the statute.^ § 142. Cereal. Cereal made out of oats is adulterated if wheat flour is mixed with it.^ iN. J. 481; N. J. 317; N. J. 60; a N. J. 836. N. J. 118; N. J. 129. IN. J. 300; N. J. 656. 2N. J. 31; N. J. 60; N. J. 124. i N. J. 324; N. J. 106. Composi- See Wiley, Food Adulterations 221. tion, Wiley, Food Adulteratioia Composition, Leach on Food Analy- 476, Leaoh on Food Analysis 566. sis 271. iN. J. 471. See Wiley, Food 1 24 U. S. Stat, at Large 209. Adulteration 228. Antiseptics in, See Wiley, Food Adulteration 185. Leach on Food Analysis 903. 2N. J. 812. IN. J. 105; N. J. 96. 337 ADULTERATION OF FOODS UNFIT FOODS. [§§ 143-147 § 143. Cheese. To use starch in cheese is to adulterate it.^ Neufchatel cheese made out of skimmed milk is adulterated.^ Under Act of June 6, 1896,' cheese may be colored with a harmless coloring matter.* To use boric acid or borate in cheese is to adulterate it.^ §144. Cherry Syrup. Cherry syrup so colored as to hide its adulteration and inferiority may not be so sold.^ § 145. Cider. To mix siacehairin, benzoic acid, dye and waiter with cider is to adulterate it.^ § 145a. Chocolate Cremolin. A product purporting to contain "powdered cocoa and a little harmless coloring" is adulterated if it contains 5.96 percent of ferric oxide and twelve parts of arsenic per million.^ § 146. Cloves. To abstract oil from cloves and then to color, coat or stain them so as to deceive the purchaser as to their true condition is condemned by the statute.^ § 147. Coffee. Coffee coated with lead chromate is forbidden by the Pood 1 N. J. 344. 1 N. J. 549 ; N. J. 372. 2 N. J. 291. 1 N. J. 615. Adulteration, Leach, 3 29 U. S. Stat, at Large 253. Food Inspection 682. See Appendix. i N. J. 989. Adulteration, Leach, 4 F. I. D. 51. Food Inspection 402. 6N. J. 790. See Wiley on Food i N. J. 529; N. J. 888. Adulter- Adulteration 190, and Leach on ation, Leach, Food Inspection 418. Food Analysis 201, for disserta- tion on cheese and its adulteration. § 148] LAW OF PUEE FOOD AND DEUOS. 338 and Drugs Act.^ To use chicory- in coffee is to adulterate it.'' Filthy coffee can not be sold.^ Maracaibo coffee mixed with Java and Mocha adulterates them;* and so if coated with lead chromate.'" Java coffee containing South Ameri- can coffee is adulterated;" or Dutch East India coffee, known as Padang.' § 148. Copper Salts to Green Vegetables. "Until further notice, vegetables greened with copper salts,^ but which do not contain an excessive amount of copper and which are otherwise suitable for food, will be allowed entry into the United States, if the entry bears the statement that sulphate of copper or other copper salts have been used to color the vegetables.^ "The aibbemiAon of the Boiard of Pood and Drug Inspection has been directed to the shipment in interstate commerce of green, immature citrus fruits, particularly oranges, which have been artificially colored by holding in a warm, moisit 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 in acid content. Further, there is evidence to show that the consumption of such immature oranges, especially by children, is apt to be attended by serious disturbancesi of the digestive system. "Under the Food and Drugs Act of June 30, 1906, an ar- ticle of food is adulterated 'if it be mixed, colored, pow- dered, 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 IN. J. 563; F. I. D. 80. sN. J. 841. 2N. J. 530; N. J. 407; N. J. TN. J. 841. Adulteration, Leach, 714. Food Inspection 384. sN. J. 383; N. J. 714. i F. I. D. 102, issued December « N. J. 215, 951. _ 26, 1908. This decision practical- 5N. J. 50. ly supersedes F. I. D. 92. 239 ADULTERATION OP lOODS UNFIT FOODS. [§§ 149-153 whereby inferiority is concealed and are, therefore, adul- terated. "The board recognizes the fact that certain varieties of oranges attain maturity as to size, sweetness and acidity be- fore the color changes from green to yellow, and this de- cision is not intended to interfere with the marketing of such oranges."^ §149. Corn Cob. Five percent of com cob used in a food is an adulterant.^ So is ten percent used in middlings.^ §150. Com, Flour or Meal. To offer for sale corn flour or meal that is in a filthy con- dition and infested with worms and other animal matter is an offense.^ §151. Cottonseed Meal. Cottonseed hulls mixed with cottonseed meal adulterates it.^ § 152. Currants. The sale of currants which are filthy, decomposed and in a putrid condition is forbidden by the statute.^ § 153. Custard. Custard can not be made without eggs ; and to substitute corn starch will result in an adulterated product.^ 2F. I. D. 133. Use in canned i N. J. 109; N. J. 179; N. J. peas, Wiley, Food Adulteration 759; N. J. 794. Nature and Com- 313. CJoal-tar colors allowed, position, Leach, Food Adultera- Leach, Food Inspection 792. tion 516. IN. J. 315; F. I. D. 119. i N. J. 531; N. J. 188. 2N. J. 314. IN. J. 166. Custard Powders, 1 N. J. 396. Preparation of corn Leach, Food Inspection 269. meal, Wiley, Food Adulteration 230. § 154] LAW OF PUKE FOOD AND DRUGS. 340 § 154. Eggs. Filthy, decomposed, or putrid animal or vegetable sub-f stance used in desiccated eggs is an adulterant.^ Desiccated egg product which contains an excessive number of bacterial organisms, of which many are of a gas-producing type, and also containing streptococci, and is composed of filthy and decomposed matter, is unfit for food.^ Boric acid used in eggs is an adulterant.' Formaldehyde put in canned liquid eggs is an adulterant.* Where "egg noodles" were worm eaten, and contained cast skins of larvae, excreta, a few dead worms, aind sieveral large beetles, thiey were ordered de- stroyed.^ In a case where the information charged that the eggs contained formaldehyde, were adulterated, filthy, de- composed and frozen the court charged the jury as follows : "Gentlemen, the Act of Congress under which this infor- mation is brought, and about which so much is heard nowa- days, 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 an- other (and person 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 pur- pose of this Act is defined with great particularity as mean- ing 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 deleterious ingredient IN. J. 682; N. J. 686; N. J. 676; N. J. 938; N. J. 969; N. J. 970; N. J. 618; N. J. 614; N. J. 537 N. J. 974; N. J. 1027. (frozen); N. J. 486 (frozen); N. 2 N. J. 665; N. J. 613; N. J. J. 462 (frozen); N. J. 377 (froz- 747. en) ; N. J. 362; N. J. 359; N. J. 3 N. J. 657; N. J. 508. 305; N. J. 295; N. J. 292; N. J. United States v. Buffalo Cold. 227; N. J. 46; N. J. 103; N. J. Storage Co., 179 Fed. 865; N. J. 782 (frozen) ; N. J. 736 (frozen) ; 482. N. J. 1005; N. J. 878; N. J. 890; * N. J. 224. 5N. J. 734. 241 ADULTERATION OF FOODS — UNFIT FOODS. [§ 154 whieli may render such article injurious to health. It is also for the purpose of .this Act deemed adulterated (although the word can not be used in that sense ordinarily), if it con- sists in whole or in any part of a filthy, decomposed or pu- trid 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 ani- mal unfit for food, whether manufactured or not, or if it is the prodiueit of a diseased animial, or one that had died other- wise than by slaughter.' I have read that merely to show the general scope of legislation in this regard. ''What is charged in this information and what is there- fore 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 investigation contained formalde- hyde, and it is said that formaldehyde is a deleterious ingre- dient 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, probably there is nothing so difficult in the world as a defi- nition; sometime 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 decomposed is an organic body (as are eggs), re- duced or being reduced to a state of dissolution by the proc- esses 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 concluded and so inetniet 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 some- PUBE Food — 16. § 154] LAW OF PUEE FOOD AND DRUGS. 342 thing be added thereto wMch renders it dirty, noisome or nasty. "There is no evidence in this case that the eggs which are the subject 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 formal- dehyde 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 a statement of defendant's president, that he is the manager of the business, and that in that business, the de- fendant so far as he knew, never bought any formaldehyde since it was in operation. 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 consideration alone. "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 the 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 dis- coverable odor and was an ingredient so deleterious, that it might render the eggs injurious to health, then the govern- ment 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 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 de- 243 ADULTEKATION OF FOODS UNFIT FOODS. [§154: composition of these eggs had progressed so far that the eggs were in common parlance rotten. "Now, to approach this question, as in an every day busi- ness manner; it is perfectly fair to ascertain what it is, that you would have asked for, if you wanted to buy the article that "Worischeck bought? The trade name by all the evi- dence 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 sure strained through a sievcnlike article j and the inquiry is perfectly natural: why are they strained? In the next place the whites and yolks are mixed. Again the inquiry, why? "When the product, strained and mixed, was collected in the month of February, 1910, the trade price at which those articles were sold, was eighteen cents per pound, which according to the witnesses who averaged nine eggs to the pound, makes twenty-four cents per dozen; and tanner's 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 preservative 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 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 preservative is ex- hausted, decomposition will reassert itself, and progress even more rapidly than before. "The question, therefore, would seem to be perfectly fair, § 154]- LAW OF PURE FOOD AND DEUGS. 244 ean a person who deals in frozen eggs, or other articles that may be preserved by cold or otherwise from the process of decay, such preservation being temporary only, rely upon instant use? What is reasonbly 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 insertion into such articles of their product as may require eggs. ' ' So, according to my understanding, when those eggs went to "Washington 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 tood consumption, unless they were to be eaten, absolutely frozen. "Now, so far as the scientific knowledge which has been exposed 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 can not be de- composition without the presence of bacilli or bacteria. De- composition when carried far enough will usually result in organic bodies in putrefaction, whieh is an advanced stage of decomposition, with a fetid odor; the odor of putrefaction can be temporarily concealed by certain chemicals, of which formaldehyde is one. "Now, says the government, from the quantity and kind of bacteria discernible in this particular shipment of eggs, — ^it is for you to say whether at a time, and in a condition tliat might reasonably have been expected as the time and condi- tion of consumption, — do the eggs show such an advanced stage of decomposition as to bring them under the condem- nation of the Act, which I interpret, to the best of my knowl- edge, to mean that those eggs were in common parlance rot- ten eggs. "This, gentlemen, I believe to be the whole case. Return- ing again to the two propositions, which I have before indi- 245 ADULTERATION OP FOODS UNFIT FOODS. [§154 cated; if you are of the opinion that formaldehyde was pres- ent in the shipment in question, if you are further of the opinion that formaldehyde is a deleterious ingredient, that may render the article containing it injurious to human health, HbM, aione is suffi'cient to warrant a verdieit of guilty. If you are of the opinion that there was no formal- dehyde, and if you are further of the opinion that the eggs were not in such a state of decomposition as to entitle them to be termed rotten, then you should bring in a verdict of not guilty. "In this ease, no matter whether the person or party pro- ceeded 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 prosecution 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." iN. J. 825. sugar was a part of that article. Eggs unfit for use shipped by That is not a case of misbranding, their owner from Missouri to 111- The article is made under a patent, nois to be there used in his own or at least a similar article is pat- bakery in cakes may be condemned. ented — and I do not think the in- United States V. Two Barrels of troduction of sugar under the cir- Eggs, 185 Fed. 702. cumstances disclosed, adulterates In one case the court said: the article within the meaning of "Under the second clause of the the Act. It is made just as it was seventh section, I shall dismiss the ordered and as it was directed to be government's charge at once. I do made; that being so it is not clear not think under the evidence in the why sugar adulterates the article ease, that that clause has been vio- any more than the putting of salt lated; that is, I do not think that and pepper into canned soup would the egg product in question is adul- adulterate that article, assuming terated within the meaning of the that the soup was to be seasoned." second subdivision of section seven. N. J. 1027. Nature and Composi- It is the very article that it was tion of Eggs, Leach, Food Inspec- intended to be — the very article tion 261; Wiley, Food Adultera- that was intended to be made and tion 112. §§ 155-158] LAW OF PURE FOOD AND DEUGS. 346 § 155. Essence of Wiutergreen. A dilute essence of wintergreen containing less than one- half the necessary amount of 'wintergreen, and artificially colored in imitation of essence of wintergreen of full strength, is forbidden by the statute.^ § 156. Figs. Pigs that are filthy, moldy and decomposed are adulter- ated.^ §157. Fish. To offer for sale fish — as sardines — that consists in part of a filthy, decomposed and putrid animal substance, is an of- fense.^ § 158. Flour. To use wheat flour in rye flour is to adulterate the latter.^ To bleach flour by mixing with it bleaching gas and by the use of electricity, whereby an inferior flour is made to ap- pear as one of superior quality, is forbidden by the statute.^ Flour bleached with nitrogen peroxid is adulterated.^ In one case, where flour had been treated by the Alsop process, the court made the following finding, and ordered 1,200 sacks of flour destroyed: (a) Certain substances known as nitrites, nitrite reacting material, and nitrogen peroxid gas had been mixed and packed with said flour so as to reduce, lower and injuriously affect its quality and strength in these respects, viz., that the capacity of said flour to change and improve as it would have changed and improved if aged and conditioned by natu- iN. J. 293; N. J. 936. Adul- Wiley, Food Adulteration 152; teration; Leach, Food Inspection Leach, Food Inspection 255. 878. IN. J. 354; N. J. 497; F. I. D. IN. J. 813. 42. IN. J. 395; N. J. 282; N. J. 2 N. J. 382 (the Alsop process). 257 (herring) ; N. J. 1021 (shad in sN. J. 100. cold storage) . On adulteration see 347 ADULTERATION OF FOODS — UNFIT FOODS. [§ 159 ral processes, had been destroyed; that the elasticity of the gluten content of said flour had been lessened and impaired and other ingredients of said flour had been injuriously af- fected so as to reduce, lower and impair its bread-making qualities ; (b) Said flour had been and was mixed, colored and stained in a manner whereby damage and inferiority was concealed in these respects, among others, viz., that the inferiority or freshness or newness, an inferiority which is present in flour made from new wheat or in flour freshly milled from wheat that is either old or new, and an inferiority which manifests itself, among other things, in color, elasticity of gluten, and the quality of other ingredients which affect its value for bread-making purposes, had been and was concealed, and said flour had been caused to simulate the appearance of flour made from wheat properly aged and conditioned by natural processes and of flour which had been properly aged and conditioned by natural processes after being milled, and that said treatment by the Alsop process concealed the in- feriority of said flour by giving it the appearance of a better grade of flour than it really was; (c) Said flour had been caused to contain and did contain added poisonous or other added deleterious ingredients, to wit, nitrites, nitrite reacting material and nitrogen peroxid gas. which may render said flour injurious to health.* § 159. Flavoring Extracts. An ajrtificial compound,^ made out of laJlcohol and other chemicals to imitate the flavor of strawberry, substituted wholly for the genuine article, and artificially colored to con- ceal its inferiority, can not be sold without a violation of the statute.^ 4N. J. 722. On bleeching and 2 N. J. 339; N. J. 246; N. J. adulteration see Wiley, Food Adul- 218; N. J. 122; N. J. 143; N. J. teration 247, 248; Leach, Food In- 892; N. J. 939; N. J. 1029. Leach, spection 315, 321. Food Inspection 849 to 886. 1 See Lemon and Orange Flavor- ing. §§ 160-163] LAW OF PURE rOOD AND DRUGS. 248 § 160. Formaldehyde. Formaldehyde put in cream (or any other food) to pre- serve it is both an adulteration of it and the adding to it of a poison.^ § 161. Fruits aaid Vegetables. To ofEer for sale or sell filthy, decomposed and putrid" vege- tables is an offense.^ So any article of food made out of filthy, decomposed and puitrid vegetables is liable to seizur& and destruction, such as catsup,^ or canned tomatoes,' or peaches that are decayed, filthy and covered with mold.* § 162. Gin. Salicylic acid, brucine and strychnine, put in gin, adul- terates it.^ § 163. Glucose. To use in preserves a greater percent of glucose than the label specifies the article of food on which it is placed con- tains, is an adulteration, and renders the manufacturer liable to a penalty.^ Commercial glucose of 4.9 percent used in apple-butter is an adulterant,^ or 65.8 percent, instead of 50' percent, in corn syrup and sorghum compound.' Glucose used in a jam compound for sugar is an adulterant of it,* and so in peach butter, although not used as a substitute for sugar,'' or in alleged pure maple syrup." Glucose used in cane syrup is an adulterant.^ IN. J. 513; N. J. 224. See also iN. J. 703. N. J. 825. 2N. J. 702. IN. J. 701 (berries); N. J. 695 3N. J. 699. (pineapples) ; N. J. 599; N. J. 813. ^N. J. 602. 2N. J. 670; N. J. 622; N. J. 5N. J. 592. 604; N. J. 388; N. J. 156. e N. J. 384. 3 N. J. 671; N. J. 555. 7N. J. 324. «N. J. 153. adulteration. IN. J. 245 (damiana gin). Com- teration 480; position. Leach, Food Inspection tion 575. 744. Use of glucose for Wiley, Food Adul- Leach, Food Inspee- 249 ADULTERATION OF FOODS UNFIT FOODS. [§§ 1633-167 §163a. Hominy. Hominy having in it filthy and decomposed vegetable mat- ter is adulterated.^ § 164. Honey. To use in honey invert sugar and glucose, even in small quantities, is to adulterate it.^ §165. Hydrocyanic Acid. Hydrocyanic acid used in vanilla is an adulterant.^ §166. Ice. A filthy and deleterious ingredient, consisting wholly or in part of a filthy, decomposed and putrid animal and vegetable substance, in ice, adulterates it.^ §167. Ice Cream. — Homogenized Butter and Skimmed Milk. Ice cream made of gelatin and milk is adulterated.^ Ice cream from which the butter fat has been extracted is adul- terated.^ To use boric acid in ice cream cones is to violate the statute.^ "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 homogenized does not permit the separa- tion of the cream through the ordinary 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. 1 N. J. 923. 1 N. J. 299. IF. I. D. 18; F. I. D. 20; F. I. i N. J. 438; N. J. 213. D. 21. See N. J. 269 and N. J. 2 N. J. 430; N. J. 425. 352. Adulteration. Wiley, Food 3 N. J. 724; N. J. 725; N. J. 814;. Adulteration 493. N. J. 831; N". J. 899; N. J. 911. 1 N. J. 142. Detection. Leach, Food Inspection 877. §§ 167a-169] LAW of pure food and drugs. 350 "Investigations have further shown that butter and skim- med mUk 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 boand is of tbe opinion thlat sMmimed' milk ajid butter fat in appropriate proportions passed through the homogenizer are not entitled to the name of 'mUk' or the name of 'cream,' as the case may be, according to the quan- tity of fat which is present. The board is further of the opinion that the product made from a homogenized butter or skimmed milk can not be properly called 'ice cream.' "* §167a. Jamaica Ginger. Jamaica ginger not over one half the standard of that ar- ticle is adulterated.^ § 168. Jam Compound — Jelly. To substitute in a jam compound glucose for sugar is to adulterate it.^ A jam that is "infiltrated with yeast, and mold with a few mites and eel larvae present, the yeast odor pronounced," or one containing "yeast spores and mold abun- dantly," or one containing an abundance of mold with a con- siderable number of mites and a great abundance of spores present, indicating that smut-infected figs were used, is adulterated and unfit for food.^ A substance labeled "jelly," containing free sulphuriic aoid and benzoaAe of soda, and not a jelly, but a viscous syrup with a fruit flavor, is adulter- ated.' §169. Kola-Ade. Oocainie and cocai-leaf albalodds used in a soft drink are forbidden by the statute.^ *F. I. D. 132. Leach Food In- sN. J. 811. See Wiley, Food spection 198. Adulteration 375, and Leach, Food IN. J. 936; N. J. 920. Inspection 911. iN. J. 602. iN. J. 310. 2N. J. 716. 351 ADULTERATION OF FOODS — UNFIT FOODS. [§§ 170-173 § 170. Koca-Nola. Koea-Nola in which cocaine is used in an appreciable quan- tity is adulterated.^ §171. Kos-Kola. Cocaine used in Kos-Kola is forbidden by the statute.^ § 172. Lemon and Orange Flavoring. A dilute solution of alcohol used in lemon flavor is an adul- terant.^ Extract of Lemon (Baker), Soluble Terpeneless Citrol, which consists of highly dilute terpeneless extract of lemon, containing only 0.04 percent of citrol, and practically no oil of lemon, is adulterated.^ And the same is true of Ex- tract of Orange. Soluble Terpeneless.^ Lemon flavoring con- taining no oil of lemon, and containing a dye known as rxaph- thol yellow S, substituted in whole or in part for the lemon extract, is adulterated.* Substituting in terpeneless lemon ©xtiract water for citrol so as to reduce the proportion of citral in the product to one-hundredth of one percent of the total constituents in the article, is an adulteration of the lemon extract, which contains not less than one-fifth of one peroenit by weight of citrol.^ To color lemon flavoring with a coal-tar dye is an offense." §173. Lemon Oil. To mix the vegetable oil known as "sesame" oil with lemon oil is to adulterate it.^ 1 N. J. 202. 8 N. J. 585; N. J. 536; N. J. 534 IN. J. 296. N. J. 444; N. J. 408; N. J. 115 IN. J. 689; N. J. 444; N. J. N. J. 130; IS. J. 147; N. J. 149 313; N. J. 939. N. J. 152; N. J. 939. 2 N. J. 661; N. J. 444; N. J. 339; For a discussion of this phase of N. J. 281; N. . 279; N. J. 277. the subject, see the opinion of 3 N. J. 661 ; N. J. 339 ; N. J. 279 Judge Hollister, N. J. 823. Adul- ( orangeade ) . teration, Leach, Food Inspection 4N. J. 660; N. J. 644; N. J. 637; 862. N. J. 627; N. J. 532; N. J. 807. i N. J. 505; N. J. 259. 5N. J. 601; N. J. 807; N. J. 1029. §§ 174-177] LAW OF PUKE FOOD AND DEUGS. 25» § 174. Macaroni. Martius' yellow, used in the maniuiaciture of macajroan, is an adulteration. It is a poison which will kill.^ §175. Maple Syrup. To add water in addition to the quantity of water which is a proper constituent of maple syrup, whereby the strength of the syrup is reduced, is an adulteration.^ To mix cane- sugar syrup with maple syrup is an adulteration of the lat- ter 5^ so of glucose mixed with maple syrup.^ § 176. Meat— Fish. It is a violation of the Pure Food Law to sell filthy, decom- posed or putrid fish that is unfit for human consumption.^ §177. Milk and Cream. Water used in milk is an adulterant, and to abstract from milk butter fat is a violation of the statute.^ Milk that con- tains a filthy, decomposed and putrid animal substance, and that has been skimmed and a large portion of the fat re- 1 N . J. 658. Composition. Wiley, Food Adulteration 260. iN. J. 603 (In this case five and one-half percent of water was added). 2N. J. 591; N. J. 412; N. J. 290; F. I. D. 98; N. J. 802; N. J. 1015; N. J. 928. 3N. J. 384; N. J. 198. Compo- sition. Wiley, Food Adulteration 472. Adulteration. Leach, Food Inspection 572. IN. J. 666; N. J. 664. IN. J. 680; N. J. 674; N. J. 673; N. J. 638; N. J. 632; N. J. 629; N. J. 628; N. J. 607; N. J. 590; N. J. 588; N. J. 587; N. J. 558 (fat ab- stracted from cream) ; N. J. 557; N. J. 538; N. J. 528; N. J. 527; N. J. 526; N. J. 525; N. J. 524; N. J. 523; N. J. 522; N. J. 517; N. J.515; N. J. 514; N. J. 512; N. ■ J. 510; N. J. 503; N. J. 502; N. J. 485; N. J. 484 446 423 419 338 331 307 268 264 228 206 N. J. 460 N. J. 445 N. J. 421 N. J. 370 N. J. 336 N. J. 312 N. J. 287 N. J. 267 N. J. 241 N. J. 219 N. J. 451; N. J. N. J. 437; N. J. N. J. 420; N. J. N. J. 347; N. J. N. J. 335; N. J. N. J. 308; N. J. N. J. 285; N. J. N. J. 265; N. J. N. J. 229; N. J. N. J. 214; N. J. ]S. J. 11; N. J. 8; N. J. 81; N. J. 88; N. J. 132; N. J. 125; N. J. 185; N. J. 753; N. J. 787; N. J. 788; N. J. 719; N. J. 979. ^53 ADULTERATION OF FOODS UNFIT FOODS. [§ 178 moved from it, and is colored wilih. " aamiatto, " is adiiltei'a*ed.^ To add formaldeliyde to cream is to adulterate it.^ Powdered milk, from whieli seventy-five percent of the butter fat has been abstoaoted, is adulterated.* A milk product was labeled as follows : ' ' Country Club Brand Condensed Milk, Scio Con- densed Milk Co., Scio, Oregon. The Milk of Quality, 'Coun- try Club.' Directions. Pure High Grade Milk. Evaporated a,nd preserved by perfect sterilization. Country Club Brand. Used for every purpose that yiou would use natural milk from the cow. Give tihe same care 'and attention you would fresh milk or cream. Every precaution has been taken in the handling -of this milk to produce a food product, absolutely pure. This product complies with the Pure Food Law." Samples from this shipment were procured and analyzed by the Bureau of Chemistry, United States Department of Agriculture, and the product was found to contain water 7.67 percent, fat 7.20 percent, protein 7.46 percent, lactose 10.46 percent, ash 1.55 percent, undetermined 0.66 percent, the percent of total solids being 27.33, and the proportion of fat in said solids being 26.3 percent. This was held to show that the product was adulterated, and it was confiscated." Where powdered milk was decomposed and putrid near the end of the barrels, it was held that the charge of adulteration was sustained, be- cause the product consisted in part of a decomposed and putrid animal substance." §178. Milk, Evaporated. "For a considerable period of time the Dairy Division of the Bureau 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 manufacturers. This investigation 2N. J. 586; N. J. 521. Composition of buttennillt. Wiley, 3N. J. 513; N. J. 9. Food Adulteration 181. Coloring. *N. J. 273; N. J. 211. Leach, Food Inspection 174. Forms 5 N. J. 845. of adulteration. Leach, Food In- 6 N. J. 1033. Composition. spection 159, 161. Wiley, Food Adulteration 169. § 178] LAW OP PUEB FOOD AND DBUSS. 254 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 Pood Standards of the Association of Of&cial 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 percent. 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 percent total solids in Circular No. 19 is one not easily attained in all localities of the United States, dur- ing all seasons, by the usual methods of manufacture under ordinary working conditions, with the production of a satis- factory marketable article. "Considering the natural variations in the richness of milk from different breeds of cows and at different times of the yeftr, 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., un- sweetened condensed milk) : "(1) It should be prepared by evaporating the fresh, pure, whole milk of healthy cows, obtained by complete milking and excluding all milkings within fifteen days before calving and 7 days after calving, provided 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 not be less than 34.3 and the percentage of fat shall not be less than 7.8 percent. This allows a small reduction in total solids with increasing rich- ness of the milk in fat. "(3) It should contain no added butter or butter oil in- 255 ADULTEEATIOIT OF FOODS — UNFIT FOODS. [§§ lYQ-lSS eorporated 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 requirements as to percentage composition. This can be done without difficulty in all lo- calities and at all reasons of the year."^ § 179. Mince-Meat. Glucose used in mince-meat for sugar, which is one of the ancient and well-known and essential ingredients of mince- meat, is an adulterant.'^ To put 0.06 or 0.08 of one percent of salicylic acid in meat is to violate the statute.^ §180. Mineral Oil. Mineral oil can not be used in food. If it is, the food is adulterated."^ § 181. Mineral Water. To sell contaminated mineral water which is unfit for con- sumption is a violation of the statute.^ § 182. Molasses. "Water used in molasses^ adulterates it,^ and so to use glu- cose.^ 1 F. I. D. 131. IN. J. 41; N. J. 175; N. J. 876 iN. J. 639. (vichy water). 2 N. J. 765 ; N. J. 766. Adul- i See Corn Syrup, teration, Wiley, Pood Adultera- 2N. J. 254. tion 495. ^N. J. 22; N. J. 127. Adultera- iN. J. 539; N. J. 59. tion, Wiley, Food Adulteration 480; Leach, Food Inspection 621. §§ 182a-184] LAW of pure food and drugs. 256 §182a. Mustard, Charlock as a Substitute for, "It has come to the attention of the Board of Food and Drug Inspection 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 sub- stituted in part for mustard the label should clearly indicate this fact. A condiment prepared from mustard or mustard flour and charlock with salt, spices, and vinegar is not 'Pre- pared Mustard,' but, provided a greater quantity of mustard than of charlock is used, it should be called 'Prepared Mus- tard and Charlock."^ § 183. Oats. A mixture of oats, wheat, barley and other seeds, sold as ■"white oats," is a violation of the statute.^ Barley substi- tuted for oats is an adulteration of the oats.^ So if it contains weed seed.' § 184. Olives. A sale of filthy, putrid and decaying olives is a violation of the statute.^ Olives of which 30.2 percent contains worms and pupae, 35.2 percent are worm-eaten, and 6.7 percent are partly decayed, may not be sold.^ Worm-eaten and decayed olives are adulterated.' 1 F. I. D. 137.. 752. Analysis. Leach, Food In- iN. J. 650; N. J. 582; N. J. speotion 271. 409; N. J. 650; N. J. 759. i N. J. 649; N. J. 648; N. J. 647; 2N. J. 406; N. J. 385; N. J. N. J. 578; N. J. 577; N. J. 869. 381; N. J. 379; N. J. 378; N". J. 2 N. J. 560. 58; N. J. 76; N. J. 101; N. J. 3 N. J. 817; N. J. 818. Compo- 748; N. J. 749; N. J. 752. sition, Wiley, Food Adulteration sN. J. 748; N. J. 749; N. J. 234; Leach, Food Inspeiition 511. 357 ADULTERATION OF FOODS — UNFIT FOODS. [§§ 185, 186 § 185. Olive OU. Mixing cotton-seed oil with olive oil is an adulteration of the latter oil.^ § 186. Oysters— Shellfish. To sell oysters containing so large an amount of bacteria as to be unfit for food is an offense.^ In the case of "shucked" oysters, to mix water with them so as to reduce, lower and injuriously affect their quality and strength, and also to substitute water for part of their bulk, is to violate the statute.^ Upon this question the following decisions have been rendered by the Agricultural Department: "The Department has investigated the preparation and shipment of oysters, clams, and other shellfish. A public hearing on this subject was held by the Board of Food and Drug Inspection on May 20, 1909. At this hearing growers, packers, dealers and the public were afforded an opportunity to be heard. "It is unlawful to ship or to sell in interstate commerce oysters or other shellfish taken from insanitary or polluted beds. The pollution of oysters with sewage can readily be detected by bacteriological examination, and such polluted oysters or other shellfish are adulterated under section 7 of tihe Food and Drugs Aeft of June 30, 1906, in that they con- tain an added 'poisonous or other added deleterious ingredi- ent which may render such article injurious to health.' "Such articles are likewise adulterated under section 7, in the ease of foods, because they consist 'in whole or in part of a filthy, decomposed or putrid animal or vegetable sub- stance. ' "It is unlawful to ship or to sell in interstate commerce oysters or other shellfish which have become polluted be- cause of packing under unsanitary conditions or being placed 1 N. J. 617; N. J. 574; N. J. 535 N..J. 489; N. J. 453; N. J. 417 N. J. 386; N. J. 340; N. J. 247 N. J. 244; N. J. 133; N. J. 997 N. J. 953; N. J. 915; N. J. 916. 2N. J. 789 PtTEE Food — 17. Adulteration, Wiley, Food Adul- teration 402; Leach, Food Inspec- tion 512, 515. IN. J. 475; N. J. 448; M. J. 447. § 186] LAW OF PURE FOOD AND DEDGS. 258 in unclean receptacles. In order to prevent pollution during the packing or shipment of oysters, it is necessary to give proper attention to the sanitary condition of the establish- ment in which they are packed and to use only receptacles which have been thoroughly cleansed as soon as emptied. In order to prevent the possibility of contamination, it is desir- able that such containers be sterilized before using. "It is unlawful to ship or to sell in interstate commerce oysters or other shellfish which have been subjected to 'floating* or 'drinking' in brackish water, or water contain- ing less salt than that in which they are grown. Such food is adulterated under section 7 of the law because a substance 'has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.' There can be no objection to 'drinking' shellfish in unpolluted water of the same salt content as that from which they have been removed. Attention is called, however, to the dangers resulting from 'drinking' shellfish near polluted fresh- water streams and near other sources of pollution. "It is unlawful to ship or to sell in interstate commerce shucked oysters to which water has been added, either di- rectly or in the form of melted ice. Such food is adulterated under section 7 of the Act because a 'substance has been mixed and packed with it so as to reduce or lower or injuri- ously affect its quality or strength,' and also because a 'sub- stance has been substituted wholly or in part for the article.' "The packing of shellfish with ice in contact may lead to the absorption by the oyster of a portion of the water formed by the melting ice, thus leading to the adulteration, of the oysters with water. "Oniy unpolluted dold or iced wa4;er Should be employed in washing shucked shellfish, and the washing, including chill- ing, should not continue longer than the minimum time neces- sary for cleaning and chilling. "In view of the fact that the shipping season has begun and shippers will require several months to provide them- selves with suitable containers for the shipment of shellfish out of contact with ice, no prosecutions will be recommended 359 ADULTERATION OF FOODS — UNFIT FOODS. [§ 186a prior to May 1, 1910, for the shipment or sale in interstate commerce of oysters or other shellfish because of the addition of -water caused solely by shipment in contact with ice.'" This decision was amended by the following one : "Considerable evidence has been submitted to the Depart- ment since the issuance of Food Inspection Decision 110 on the practice of floating or drinking oysters in water of less saline content than that in which they were grown to ma- turity. "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 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 contain- ing 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 chaa:^cter of the waiter 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 condi- tion because of the character of the water in which they are grown or floated are adulterated under the Food and Drugs Act."* § 186a. Peaches. Evaporated peaches that are filthy, containing worms, beetles, worm excreta, sugar mites, yeast, and worm-eaten peaches, are adulterated.^ 3 F. 1. D. 110. . tioii, Wiley. Food Adulteration. *F. I. D. 121. Average composi- 164; Leach, Food Inspection 257. IN. J. 946. §§ 187-191] LAW OF PUKE FOOD AND DRUGS. 360 § 187. Peach Butter. To substitute in part, in peach butter, glucose, is an adul- teration of the butter.^ §188. Peach Extract. To sell an imitation of peach extract for peach extract is a violation of the statute.^ § 189. Peanuts. Peanuts in a filthy condition, and infected with worms and other animal matter, and so contaminated with the presence of such worms and other animal matter as to be absolutely unfit for human consumption, can not be kept for sale.^ § 190. Pepper. Sand and! ash used in pepper aidiulterate it.^ A wheat product, capsicum and fruit shells used in black pepper, adul- tenate it.^ G-rounid fruit stones and pepper shells put into pepper adulterate it.' Leguminious seed substituted in part for pepper is an adinlteration of the latter.* So where 35 peireent ini the product was ground cereal it was held thsA. the pepper was adulterated.^ A product labeled "pepper" con- taining ash 6.68 percent, ash insoluble in hydrochloric acid 1.10 percent, and crude fibre 22.42 percent, is adulterated, the percentage of ash insoluble in hydrochloric acid repre- senting the amount of sand present in it.° § 191. Phosphate, Apple. A substance labeled "Apple Phosphate" showed the fol- lowing resulitis on anialysis: Alcohol by volume 7.41 percent, IN. J. 592. 2N. J. 288; N. J. 159. IN. J. 520. 3 N. J. 210; N. J. 75; N. J. 122. IN. J. 368; N. J. 253; N. J. ■* N. J. 158. 944; N. J. 945. Composition, sN. J. 835. Wiley, Food Adulteration 420. « N. J. 1013. Adulteration, iN. J. 297; N. J. 28. Leach, Food Inspection 435. 261 ADULTEHATION OF FOODS UNFIT FOODS. [§§ 192-196 solids 3.22 percent, reducing sugars (after inversion) 1.70 percent, direct polarization +4.4°, invert polarization +4.4°, ash 0.125, alk. of sol. ash 10.9 cc, alk. insol. ash 4.0 cc, insol. ash 0.025, soluble ash by difference 0.00, F^O^ in sol. ash 3.3 mg, P2O5 in insol. ash 5.2 mg, total acidity (as malic) 0.412, volatile acid 0.022, fixed acids 0.362, reducing sugars direct 1.64. The product was condemned by the eourt.^ §192. Phosphoric Acid. Preserves in vsrhich phosphoric acid is used in 0.16 percent are adulterated.^ So where 0.24 percent is used.^ § 193. Pineapple Extract. Coloring matter added to pineapple extract so as to con- ceal its inferiority is in violation of the statute.^ § 194. Poison. Any poison used in food is a violation of the statute. The courts will not indulge "in hairsplitting 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."^ Such is formaldehyde in cream or milk or other food.^ § 195. Prunes. Prunes of which 75 percent are infested with worms crawl- ing in the crevices, and the remainder containing both ex- creta and sugar mites are adulterated.^ § 196. Raisins. To adulterate raisins so that they consist in part of a iN. J. 796. iN. J. 152. Adulteration, Wiley, iN. J. 703 (preserves). Food Adulteration 361. Imitation. 2N. J. 702 (apple butter). In Leach, Food Inspection 884, 885. beer, Leacb, Food Inspection 725 ; 1 N. J. 658. in baking chemicals, Iieach, Food 2 N. J. 513. Inspection 346. iN. J. 833; N. J. 948. ,§ 197] LAW OF PUEE FOOD AND DRUGS. 263 filthy and decomposed vegetable substance is an offense un- der the Pood and Drugs Act.^ § 197. Rice. Kice coated with glucose and talc is in violation of the statute if its inferiority is thereby concealed.^ In this in- stance the Secretary of Agriculture has said: "It has been represented to the department that it is a very common practice in this country in the preparation of rice for commerce to treat it in the following manner: '1. The rough rice Is passed through a set of stones, or shellers, which removes the hull. '2. The product is subjected to a series of scouring machines by which the bran and cuticle are removed. '3. The rice is passed through a machine that is known as the brush, which removes a portion of the flour, or more commonly known as polish. '4. The rice is introduced into a, warm revolving drum or cylinder hold- ing often as much as 4,000 pounds, and glucose and talc are added in the following manner and in about the following proportion: As the rice is fed into the drums a small proportion of glucose and tale are applied, namely, glucose one one-thousandth and talc one three-thousandth part of the whole. The object of the glucose is to form a coating by means of which a part of the talc is held on the surface of the rice.' "It is stated that the rice is coated for the following rea- sons: '1. The coating makes the rice less susceptible to dust and other foreign matter during transportation and storage. '2. It is, in a measure, a preventive against the attack of the weevils and worms which are so destructive in warm climates.' "It has also been represented that in some instances paraffin is used instead of glucose and that rice starch is sometimes used in place of talc for the purpose of finishing rice accord- ing to the method described above. "In submitting these representations it has been asked if the process above described is permitted under the Pood and Drugs Act of June 30, 1906. It is not clear to the de- iN. J. 596; N. J. 531; N. J. i F. I. D. 67; N. J. 1030. 145; N. J. 146; N. J. 162. 263 ADULTERATION OF FOODS UNFIT FOODS. [§ 198 partment that coating rice in this way protects it in any manner from dust. Evidence of an expert character is also on file in the department showing that unpolished rice is no more subject to the ravages of the weevil than the polished article. "It is the opinion of the department that no coating of any kind can be used in the manner indicated if the product "be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed." In each case whether or not such a result be secured is a question of fact to be decided by the evidence. "It is held by the department that rice treated in the man- ner indicated above with glucose and starch should be la- beled in all cases with the name of the extraneous substances, as 'Coated with Glucose and Starch.' "In such declarations all of the food substances used for coating should be mentioned. Any coloring matter or other substances that may be employed to change the tint of the rice should be declared on the label. "The question of the wholesomeness of paraffin, talc, or other nonfood substances used is to be construed in such a way as to protect the health of those most susceptible to tihair influences. Kice is a diet often prescribed for lihose suffering from impaired digestion. The use of paraffin in such cases is at least of questionable propriety, and in the opinion of the department it should be excluded from food products. Under the fifth provision of foods, section 7 of the Food and Drugs Act, June 30, 1906, and under regulation 14 the use of talc is permitted, provided that each package is plainly labeled with the name of this preservative and the proper directions for removal be given. ' ' ^ § 198. Bococola. To sell rococola, a soft drink containing caffeine and co- caine, is forbidden by the statute.^ 1 Com.position, Leach, Food In- i N. J. 466. spection 272. § 199] LAW or PUKE FOOD AND DRUGS. 364 § 199. Saccharin in Food. "At tlie request of the Secretary of Agriculture, the Eef- eree Board of Consulting Scientific Experts has conducted an investigation as to the effect on health of the use of sac- charin. The investigation has been concluded, and the Ref- eree Board reports that the continued use of saccharin for a long time in quantities over three-tenths of a gram per diay 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 recog- nized as a normal and valuable ingredient. If the use of saccharin be continued it is evident that amounts of sac- charin may readily be consumed which will, through con- tinual use, produce digestive> disturbances. In every 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 manufac- ture of food products. Under the Food and Drugs Act ar- ticles 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 adulter- ated within the meaning of the Act, if substances have been mixed and packed with the foods so as to reduce or lower or injuriously affect 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, are manufactured or offered for sale in the District of Columbia or the Terri- tories, or shipped in interstate or foreign commerce, or of- fered for importation into the United States.^ 1 P. I. D. 135. Subsequently the letin No. 19 of South Dakota. De- date was extended to January 1, teotion, Leaxjh, Food Inspeotiom 1912. F. I. D. 138. See also Bui- 843, 844. 265 ADULTEEATION OF FOODS UNFIT FOODS. [§ 200 §200. Sago and Tapioca. "It has come to the attention of the Board of Food and Drug Inspection 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 pre- pared from the starch obtained from the pith found in the stem of several species of palm trees, natives of the Bast 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 coun- tries. Both products ordinarily reach the consumer in gran- ulated form 'and are designated as 'pearl sago' and 'pearl tapioca,' respectively. While 'pearl sago' and 'pearl tapi- oca' are separate and distinct articles of commerce, each re- sembles the other closely in appearance, and fine pearl tapi- oca 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 and misleading, or if particular articles are imitations of or offered for sale under the dis- tinctive names of other articles. In the opinion of the Board the name 'sago,' or 'pearl sago,' without qualifications, means the product obtained from the pith of Bast 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 un- der the Act unless they are labeled so as to indicate plainly that they are imitation products and unless the word 'imita- tion' is also plainly stated on the packages in which imita- tion products are offered for sale. Potaibo 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 declared as plainly and conspicuously as the word 'sago.' §§ 301, 302] LAW OF PURE FOOD AND DRUGS. 266 The word 'imitation' must appear on the label, but an equiv- aiemt expressdion may be substituted for 'Made from potato starch,' which .will indicate unmistakably that the product is not made from the pith of East Indian palm trees, but is derived from a different source."^ § 201. Salts of Tin. "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 with- out 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 inter- state commerce if they do not contain more than 300 milli- grams of tin per kilogram, or salts of tin equivalent thereto. "When an 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 experi- ence little hardship in adjusting itself to this condition, as the results of examinations made by the Bureau of Chemis- try 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."^ §202. Shellac and Other Gums for Coating Chocolates and Other Confections. "The Board of Food and Drug Inspection has carefully considered the evidence respecting the practice of coating chocolates and other confections with shellac and other gums. The board is of the opinion that it is not a proper proceed- 1 F. I. D. 128. Wiley, Food i N. J. 126. Adulteration 320; Leach, Food In- spection 283. 267 ADDLTEKATION OF FOODS UNFIT FOODS. [§§ 203a, 203 ing 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 alco- holic solution of a gum a certain quantity of alcohol must necessarily permeate the product. Evidence is adduced show- ing that the product is not submitted to any subsequent proc- ess of heating whereby the traces of alcohol could be re- moved. Although only mere traces of alcohol may remain, the addition of these substances, and especially of wood al- cohol, 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 em- ployed this method or have discontinued it, and that goods can be, and are, made and sold in all quantities with no diffi- culty 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 expo- sure of confections for a long while before use is not advis- able nor desirable."^ §202a. Soda Water Syrup Cola. A product called "Soda Water Syrup Cola" contained, among other ingredients, coca leaf alkaloids, including co- caine and a minute quantity of caffein. It was held to be adulterated.^ § 203. Stock Feed. A stock food having for its basis oats, but which contains 15 percent more of oat hulls than should be normally and 5 percent of weed seeds, is adulterated.^ Weed seeds and ehaff mixed with, stock food are .aJdulterants.^ iF. I. D. 119. 2N. J. 432; N. J. 231 (rice hulls iN. J. 1031. mixed with bran) ; N. J. 171; N. J. iN. J. 533; N. J. 477 (rioe hulls 174. Musty, decomposed and and alfalfa) ; N. J. 468 (oat moldy alfalfa hay has been seized. hulls) ; N. J. 256 (rice hulls) ; N. N. J. 902. J. 230. § 204] LAW OP PURE POOD AND DRUGS. 368 §204. Sugar in Canned Fruits and Vegetables. Sugax used in canned fruits and vegetables so as to con- ceal their inferiority is a violation of the statute.^ In this de- cision the Secretary of Agriculture has said: "Numerous inquiries have been addressed to the depart- ment respecting the proper labeling of canned fruits and vegetables to which sugar has been added. Sugar is a whole- some food product, and is also condimental. It reveals its own presence by its taste. Its addition to a food product can not be objected to on the ground of injury to health. "It is held by this department that sugar can be used in the preparation of all food products where it is not used for fraudulent purposes. If sugar be added without notice to Indian corn which is not sweet, for the purpose of making it appear a sweet com, to be sold as such, it is used for a fraudulent purpose, and for this reason is prohibited by the law. "In section 7 of the law it is provided that a food is adul- terated 'if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed.' It is evident, therefore, that a food product can not be mixed with any other substance for the purpose of concealing dam- age or inferiority. A vegetable wthich is not naltlurailly sweeit could not be sold as one which is naturally sweet by mixing with sugar without violation of the law, unless the addition of sugar is plainly indicated on the label. "The addition of sugar to canned vegetables is not for preservative purposes. Added sugar increases the tendency to fermentation. It is added wholly as a condimental in- gredient. "It is held, therefore, that the addition of sugar to a sub- stance not naturally sweet, converting it into a substance which might seem naturally sweet, is justified if the label plainly indicates that this sweetening material is added. In other cases, where no deception is practiced, the mention of the preisien'ce of sugar is not required. 1 F. I. i). 66. 269 ADULTERATION OP FOODS UNFIT FOODS. [§§ 205-207 "The term 'sugar,' as used herein, is confined to sucrose (saccharose), either in a solid form or in solution." § 205. Tea. Tea that is filthy, extremely musty and moldy is adulter- ated.^ §206. Tomato Catsup, Paste and Pulp. An examination of tomato catsup showed the product con- tained 180,000,000 bacteria per cubic centimeter, 107 yeast spores per one-sixtieth cubic millimeter, and mold fila- ments in 75 percent of the microscopic fields examined. The entire product was confiscated and destroyed.^ The product was also artificially colored so as to conceal its inferiority.^ The same ruling was made with reference to tomato paste,* tomato pulp* and "Brace Up Tomato Tonic. "^ § 206a. Turmeric. A food called turmeric which conltiadms wheaA starch or wheat flour and 10.74 percent calcium sulphate is adulter- ated, the calcium sulphate being substituted in part for the article turmeric.^ §207. Vanilla and Caramel. Vanillin and caramel used in vanilla is an adulterant.^ To iN. J. 829. Adulteration. Leach, 1003; N. J. 1004; K J. 1006; N. J. Food Inspection 374. N. J. 1034. IN. J. 760; N. J. 761; N. J. sN. J. 762; N. J. 767; N. J. 762; N. J. 763; N. J. 732; N. J. 801; N. J. 803; N. J. 1001; N. J. 781; N. J. 838; IN. J. 827; N. J. 1008; N. J. 893; N. J. 894; N. J. 821; N. J. 805; N. J. 887; N. J. 973 N. J. 984. •875; N. J. 904; N. J. 921; N. J. * N. J. 717; N. J. 744; N. J. 922; N. J. 925; N. J. 937; N. J. 800; N. J. 900. ■943 ; N. J. 947 ; N. J. 950. s N. J. 999. Preaerva-tives in, 2 See also N. J. 79; N. J. Ill; Leach, Food Inspection 907, 908. N. J. 156; N. J. 388; N. J. 474; N. i N. J. 996. Leach, Food Inspec- J. 599; N. J. 604; N. J. 622; N". J. tion 452. '670; N. J. 732; N. J. 992; N. J. i N. J. 663; N. J. 659 (vanillin §§ 207a, 208] law of pure food and drugs. 270 color a dilute extract of vanilla so as to conceal its inferior- ity is an offense.^ A court can not say that "vanilla ex- tract" and "vanilla flavor," as known to the trade, is one and the same thing; and that "extract" and "flavor" are synonymous in meaning." The substitution of synthetic va- nillin for the extract of vanilla bean is an adulteration.* § 207a. Vani-Kola. A liquid labeled "Vani-Kola Compound Syrup," which con- tained eaffein and coca leaf alkaloids, including cocaine, has been condemned.^ § 208. Vinegar. A mixture of distilled vinegar and a product high in re- ducing sugars used in alleged cider vinegar is an adulterant.^ Dilute acetic acid mixed with a product high in reducing sugars used in alleged eider vinegar is an adulterant.^ Mixing wiater with vinegar so as to render the latter deficieot in aedd sibreingitlh is an aidailteration.* The following analysis shiows the vinegar analyzed as ajdiultenaited : "Solids 1.91 Reducing sugar invert 1.16 Per cent sugar in solids 60 . 8 Polarization, direct, temp. °C. 26 and 20 — 2.6 Polarization, invert, temp. °C. 26 — 2.6 alone); N. J. 662; N. J. 532; N. 653; N. J. 645; N. J. 642; N. J. J. 389; N. J. 242; N. J. 123; N. J. 626; N. J. 621; N. J. 584; N. J. 148; N. J. 151; N. J. 842; K. J. 570; N. J. 399; N. J. 398; N. J. 740; N. J. 889; N. J. 932; N. J. 394; N. J. 318; N. J. 304; N. J. 983. 289; N. J. 286; N. J. 278; N. J. 2N. J. 320. 243; N. J. 240; N. J. 232; N. J. 3N. J. 301. 23; K. J. 168; N. J. 187; N. J. *N. J. 48; N. J. 135; N. J. 139; 193; N. J. 195; N. J. 197; N. J. N. J. 1029. Adulteration. Leach, 199; N. J. 1007; N. J. 1023; N. J. Food Inspection 853. 917; N. J. 844; N. J. 867; N. J. ' IN. J. 935. 977; N. J. 985. iN. J. 690; N. J. 681. s N. J. 616; N. J. 597. 2N. J. 679; N. J. 678; N. J. I 271 ADULTERATION OF FOODS UNFIT FOODS. [§ 309 Ash 0.26 Alk. sol. ash (cc N/10 acid per 100 cc) 29.1 Sol. phos. acid (mgs. per 100 cc) 1.5 Insol. phos. acid, (mgs. per 100 cc) 11.1 Acid, as acetic (wines tartaric) 4.64 Volatile acid, as acetic 4 . 64 Fixed acid, as malic (wines, tartaric) 0.0 Lead precipitate Small. Color, degrees, brewer's scale 0.5 in 4.0 Color removed by fuller's earth (percent) 65.0 Ash in solids ( percent ) 13.9 Salicylates and benzoates Negative. P O water sol. 2 6 Ratio (percent) 11.9 P O water sol. : 5 Vinegar, cider vinegar, apple vinegar, as recognized by reliable manufacturers and dealers, is the product made by the alcoholic and subsequent acetous fermentations of the juice of apples. The analysis of the aforesaid sample dis- closed that it contained dilute acetic acid, or distilled vine- gar, and a foreign material high in reducing sugars. Hence the article was adulterated within the meaning of section 7 of the act in that a mixture of dilute acetic acid, or dis- tilled vinegar, lamd a foreign material high in reducing' sugars had been substituted wholly or in part for the vinegar which it purported to be, and was misbranded within the meaning of section 8 of the Act in that it was labeled 'Apple Cider Vinegar,' which statement was false, misleading, and decep- tive because it was not an apple cider vinegar, but a mixture of dilute acetic aoid, or disitilllied vinegar, and a foreign sub- stance high in reducing sugars."* § 209. Waffles. A product was labeled "Non plus ultra I. J. S. "Waffles." An analysis showed that it contained boric acid or its salts; and it was held that it was adulterated.^ *N. J. 189; N. J. 815; N. J. i N. J. 808. 844. Adulteration. Leach, Food Inspection 770, 776. §§ 310, 311] LAW OF PURE FOOD AND DBUGS. 373 §210. Whisky. To use coloring matter in whisky so as to conceal its in- feriority is a violation of the statute.^ The following analy- sis of whisky shows Ithat it is unlawfully colored: Proof 85.8 Grains per 100 liters of 100 proof alcohol: Total solids 291 . 9 Acids 9.8 Esters 12. 1 Aldehydes '. 1.6 Furfurol None. Fusel oil 16.0 Total color (degrees, brewer's scale) 19. 8 Color insoluble in water (percent) 0.0 Color soluble in ether (percent) 0.0 Color insoluble in amyl alcohol (percent) 73.0 Such whisky can not be sold or offered for sale without a violation of the statute.^ §211. Wine. To use artificial coloring matter in wine is to adulterate it;^ so to use glucose and benzoate of soda."* 1 F. I. D. 45. 1 N. J. 737. 2F. I. D. 15. Adulteration, 2 N. J. 824. Adulteration, Leach, Leach, Food Inspection 738. Food Inspection 691. 3'J'3 ADULTBEATION OP DRUGS. [§ 313 CHAPTEE V. ADULTERATION OF DRUGS. Aet. I. Adulteration. Art. II. Speoific Articles. AET. I.— ADULTERATION. SEC. SEC. 212. What druga deemed adulter- 214. United States Pharmacopoeia ated. and National Formulary. 213. Standard for drugs. §212. What Drugs Deemed Adulterated. Section seven of the Food and Drugs Act provides "That for the purposes of this Aet an article shall be deemed to be adulterated: "In ease of drugs: "First. If when a drug is sold under or by a name recog- nized in the United States Pharmacopoeia or National For- mulary, 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 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 For- mulary. "Second. If its strength or purity fall below the pro- fessed standard or quality under which it is sold." This section fixes what is and what is not an adulterated PuEE Food — 18. § 312] LAW OF PUEE FOOD AND DRUGS. 374 drug. We are not required to look elsewhere for a defi- nition. If the drag stands the test laid down in either the United States Pharmacopoeia or National Formulary, official at the time of the investigation, then it is not adulterated; if it falls below that test, then it is adulterated, although according to some other test it is not. A sale of a drug that is not up to the test of either of these two authorities sub- jects the seller to the penalty prescribed by the statute for a sale of an adulterated drug.^ But the Pharmacopoeia or Formulary must state clearly the composition of the article; land if it mierely gives a receipt how the article in question may be made, then it does not prescribe a test.^ It can not be shown that there is a commercial standard for the drug, as a defense, other than that of one or the other of these two authorities.' If the article sold has no recognized stand- ard of purity in these two authorities, then no offense is committed by selling an article of low quality but genuine.* Thus where marmalade was sold which contained 13 percent of glucose instead of cane or beet sugar; and there was evi- dence that for many years glucose had been used by some marmalade manufacturers, but not all, and that its use had a tendency to prevent mildew; and the Pharmacopoeia then in use did not prescribe the qualities of marmalade, it was held there could be no conviction of a sale of an adulterated article.^ But if a drug be defined by these two authorities, ye(t one of an inferior quality may be sold "if the stand'aird of strength, quality or purity be plainly stated upon the bottle, box or other container thereof." The legend on the 1 White V. Bywater, 19 Q. B. * Hoyle v. Hitchman, 4 Q. B. Div. Div. 582, 51 J. P. 821, 36 W. R. 233, 43 J. P. 431, 48 L. J. M. C. 280. 97, 40 L. T. 252, 27 W. E. 487; 2 Hudson V. Bridge, 67 J. P. 186, Davidson v. MoLeod, 42 J. P. 43, 5 19 T. L. E. 369. Eettie (J. C.) 1, 3 Coup. 511; sDiekins v. Sanderson [1901], 1 Morton v. Green, 8 Eettie (J. G.) K. B. 437, 65 J. P. 262, 70 L. J. K. 36, 4 Coup. 437. B. 344, 84 L. T. 204, 19 Cox C. C. 6 Smith v. Wisden, 66 J. P. 150, 643. But see Boots' Cash Chem- 85 L. T. 760. ists V. Cowling, 67 J. P. 195, 19 T. L. E. 370. 275 ADULTERATION OF DRUGS. [§ 313 label must be a plain one and truthful. But if the strength or purity of the drug fall below the professed standard or quality under which it is sold, then there is a sale of an adulterated drug. The first paragraph of the section above quoted relates to substances and mixtures of substances sold under or by a name recognized by the United States Phar- macopoeia or National Formulary; and the second relates to drugs generally whether named in these two authorities or not, and includies the so-caUed "patent" or proprietary medi- cines. Under this second paragraph the drug or medicine must be in strength and purity up to the professed standard or quality under which it is sold." Within the States the requirements of this section do not apply to prescriptions there compounded in which they are sold; but it does apply to prescriptions which are shipped out of the State and to drugs in original unbroken packages. If the patentee him- self, or member of his household, or the physician himself, carries the package across a State line, and such package is not subject to sale, the package or prescription need not be labeled so as to conform with the law, because the transac- tion is not one of interstate commerce.'' In the District of Columbia and in the Territories the requirements of this sec- tion apply not only to drugs im the original unbroken packages, but also to prescriptions there compounded. § 213. Stajidard for Drugs. The regulations provide as follows: "(a) A drug bearing a name recognized in the United States Pharmacopoeia or National Formulary, without any further statement respect- ing 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 Pharmacopoeia or National Formulary, official at the time."^ 8 Under this clause a sale is nee- tional Formulary says something essary to constitute the offense. is a drug, it is a, drug under the T F. I. D. 57. meaning of the Act. Or if it comes 1 Eegulation 7. under the other description [as de- "If the Pharmacopoeia or Na- fined by Section 6 of the Food and § 214] LAW OF PUKE FOOD AND DRUGS. 376 §214. United States Pharmacopoeia and National Formulary. These are the two recognized authorities in this country on the standard of drugs. Editioias from time to time of these works are issued; and it is to be observed thaA regula- tion seven requires the drug to be up to the standard pre- scribed by one or the other of these two works by the edition "official at the time" the drug is sold or offered for sale. If the drug at the time of the sale is then up to the standard prescribed by one of these authorities a subsequent edition requiring a higher standard can not turn what was an in- nocent act at the time of the sale into a criminal one. Of the National Formulary the Department of Agriculture has had this to say: "The National Formulary is one of the standards recognized under the law. The question has been asked a number of times whether the appendix of this au- thority would be construed as part and parcel of the book itself. On page IV of the preface it is distinctly stated that the formulae collected in the appendix of the National For- mulary are 'no longier designated as "N. F." preparations.' This shows that these formulae are not integral parts of the book under the law, which covers only those products of the National Formulary recognized as such by this authority. By this it is understood that if a drug product is sold under a name contained in the appendix of the National Formu- lary, it will not be necesisary for such prodiiot either to con- form to the standard indicated by the formula or to declare upon the label its own standard strength, quality, and purity if a different formula is employed in its manufacture. Such a.rticles are, however, subject to the law in every other re- spect, as is the case of other medicinal products not recog- nized by the XT. S. Pharmacopoeia or National Formulary."^ Drugs Act of 1906] of what a drug or other animals, it is neverthe- is, it is a drug, and so food also is less a drug whether it is recog- described. There are no standards nized in the Pharmacopoeia or Na- flxed in either case, for, if any sub- tional Formulary or not." Judge stance or mixture is intended to be Hollister, N. J. 823. used for the oUre, mitigation or i F. I. D. 59. prevention of disease of either man 277 ADULTERATION OF DETJGS. [§214 Of course, the courts can not take judicial knowledge of the contents of those two standard's; and it is not sufficient in a libel or indictment to aver generally that the drug drawn in question was below the standard prescribed by these two authorities. It should be averred what is the test these authorities ^require, ajid then an avierment added that the aritiale sold or offeTed for sale was below, stating in whait piaa^tidular, !t(he test thus prescribed.^ ART. II.— SPECIFIC ARTICLES. SEC. 215. Assafoetida. 216. Belladonna root. 217. Blackberry cordial. 218. Camphor. 219. Cloves — Amboyna, powders. 220. Colocynth. 221. Gentian root, powdered. 222. Gum tragacanth. 223. Henbane, powdered. 2 "There are no standards of quality laid down in the [British] Acts for drugs, and they contain no provision making the British Pharmacopoeia a standard for such drugs or medicines as are specified herein. "ITie British Pharmacopoeia, which is somewhat restricted in its scope, and is essentially intended to establish a, uniform standard of strength and composition of drugs for the use of the medical profes- sion in prescribing for their pa- tients, could not be expected to in- clude and govern the great variety of medical preparations which are prepared and sold under various names for domestic use. When, however, any British Pharmaco- poeia medicine is asked for, espe- cially in the exact terms of the de- SEC. 223a. Kamola. 224. Laudanum. 225. Peroxide of Hydrogen. 225a. Senna, ground Alex. 226. Soemnoform. 226a. Sodic Aluminio Sulphate. 226b. Tragacanth. 226c. Turpentine. scription given of the same in the Pharmacopoeia, it is usually nec- essary that the person should be supplied with the article prepared according to tlie formula given therein. Thus, if a person who asked for 'sweet spirits of nitre,' was supplied with an article not of the standard of the British Pharmacopoeia {cf. White v. By- water, 19 Q. B. Div. 582, 51 J. P. 821, 36 W. R. 280) he might fair- ly consider himself as prejudiced by the transaction. But this is not the case when the British Pharmacopoeia states exactly what the constituent parts of the article should be. (See Hudson v. Bridge, 67 J. P. 186, 19 T. L. R. 369.). And it is possible that in some cases there may be a commercial! standard for the article, differing §§ 315-219] LAW OF PUKE FOOD AKD DRUGS. 278 § 215. Assaf oetida. Assafoeitid'a that dices not contaia aA least 50 percent alco- hol, soluble material, and not more than 15 percent ash, is adulterated.^ §216. Belladonna Root. A drug product was labeled "Belladonna Root, powdered Atropia." This belladonna differed from the standard of strength and purity, as determined by the tests laid down in the United States Pharmacopoeia, official at the time of the investigation, in that it contained ground olive pits; and it was adjudged adulterated.^ §217. Blackbeny Cordial. Blackberry cordial consisting wholly or in part of the fermented solution of starch sugar, artificially colored or flavored, does not comply with the blackberry cordial recog- nized by the National Formulary, the ingredients of which are "freshly pressed blackberry juice, sugar and dilute al- cohol with cinnamon, cloves and nutmegs;" and it is an adulterated product.^ § 218. Camphor. Spirits of camphor below the grade recognized by the United States Pharmacopoeia may not be sold.^ §219. Cloves — Amboyna, Powdered. A product was labeled "Powdered Cloves — ^Amboyna." It differed from the standard of strength, quality and purity as determined by the tests laid down in the United States Pharmacopoeia, official at the time of the investigation, be- from that of the Pharmacopoeia. i N. J. 157. (See Boots v. Cowling, 67 J. P. iN. J. 754. . 195, 19 T. L. K. 370.)." Bell's Sale iN. J. 612; N. J. 926. of Food and Drugs Act (5th Ed.) iN. J. 550; N. J. 221. 250. 379 ADULTERATION OF DEUGS. [§§ 320, 331 cause it eontained from one-third to one-balf clove stalks. It was adjudged that the article was adulterated, the court saying: "I understand the defendant's statement to amount to this: That the cloves in question were made from 'a good commercial article of cloves as purchased by us in the New York market and ground by us for the trade.' Admittedly some stems are found even in medical preparations of cloves. The accusation here is that there was too much stem as evi- denced by the stone cells found in the powdered medicament. The government chemist asserts that the government by its regulations permits the presence in cloves of '5 percent of the stalks,' which percentage is greatly exceeded in the specimen submitted. It appears to me that the presence of a substantially greater percentage than 5 percent of the ground stalk in the article sold was discoverable and should have been discovered. I do not think that it is an excuse io say that a good commercial article was bought, ground and sold for medicine."^ § 220. Colocynth. To offer for sale powderedi oolocynith. from which the ■seeds had not been removed and consisting of a mixture of the pulp and seeds of colocynth apple, is an offense.^ §221. Gentian Root, Powdered. A product was labeled "Powdered Gentian Root." It dif- fered from the standard of strength, quality and purity as determined by the tests laid down in the United States Phar- macopoeia official at the time of the investigation, because it contained an unknown ground fiber which does not belong to gentian, not being one of its ingredients. It was ad- judged that there had been no violation of the statute.^ IN. J. 754. Adulteration, Leach i N. J. 390; N. J. 292; N. J. 183; Tood Inspection 418. N. J. 192; N. J. 1012. 1 N. J. 754. §§ 223-325a] law of puee pood and drugs. 380 §222. Gum Tragacanth. Gmn tragaeanth not having the strength required by the United States Pharmacopoeia or National Formulary is adul- terated.^ §223. Henbane, Powdered. A product was labeled "Powdered Henbane, U. S. P." It differed from the standards of strength and purity laid down in the United States Pharmacopoeia, offlcial at the time of investigation, because it contained hyoseyamus mu- tieus, a dangerous drug, and it was adjudged to be adulter- ated.^ § 223a. Kamola. A pro'dnieit was labeled "groumd kamola." It contiained a mixture of kamola and 40 percent of sand. To a charge of seUimg an adulterated drug the accused pleaded guilty.^ § 224. Laudanum. Laudanum that falls below the test laid down in the United States Pharmacopoeia is adulterated.^ §225. Peroxide of Hydrogen. Peroxide of hydrogen containing acetanilid is adulterated.^ §225a. Serna, Gr'd Alex. A product was labeled "strictly pure Gr'd Alex. Senna." An analysis showed it contained a mixture of senna leaves, stems, powdered sand, and other vegetable tissue, the sand being indicated by the presence of 15.7 percent of ash in- soluble in acid. It did not come up to the standard pre- scribed by the United States Pharmacopoeia, and to a charge of adulteration the defendant pleaded not guilty.^ 1 N. J. 572. 1 N. J. 459. IN. J. 754. IN. J. 575. 2N. J. 1011. 2X J. 1010. 381 ADULTERATION OF DRUGS. [§§ 226-336c § 226. Soenmof orm. The absence of bromide of ethyl from soemnoform, so that its strength falls below the professed standard of quality under which it is sold, renders it adulterated.^ § 226a. Sodic Aluminic Sulphate. An analysis of sodic aluminic sulphate showed it contained sixty milligrams of metallic arsenic per kilo. It was charged that the product was adulterated for the reason that it con- tained a poisonous and deleterious ingredient, which might render the article injurious to health; and the court sus- tained the charge.^ § 226b. Tragacanth. A product was labeled "Strictly Pure Powdered Gum Tragacanth." It was a mixture of powdered gum traga- canth and powdered gum. It differed from the standard strength, quality and purity as determined by the tests laid down in the United States Pharmacopoeia, and to the charge of adulteration in this respect the defendant pleaded guilty.* § 226c. Turpentine. Turpentine which contains mineral oil is adulterated.* IN. J. 571. 3N. J. 998. 2N. J. 1000. *N. J. 1022. § 337] LAW OF PUEE rOOD AND DBUGS. 383 CHAPTER VI. COLORING, CHEMICALS AND PRESERVATIVES. SEC. SEC. 227. Adulteration. 236. Coloring concealing inferiority. 228. External application of pre- 237. Certificate and control of dyes servatives. permissible for use in coloring 229. Wholesomeness of colors and foods and food stuffs. preservatives. 238. Certificate of straight dyes 230. Dyes — Chemicals — Preserva- and mixtures under secondary tives. certificates. 231. Prohibition of preservatives. 239. Definition of the terms 232. Sulphur fumes. "batch" and "mixtures." 233. Label to show preservatives. 240. Use of certified colors. 234. List of dyes permitted. 241. Coloring of butter and cheese. 235. Entry of vegetables greened 242. Benzoate of soda. with copper salts. 243. Meats and meat products. § 227. Adulteration. The Food and Drugs Act provides that an article of food shall be deemed adulterated "if it be mixed, colored, pow- dered, coaited, or staaned in a mianner whereby damage or inf erioirity is eioncealed. ' '^ Regulation 12 provides as follows : "(a) Only harmless colors may be used in food products. "(b) The reduction of a substance to a powder to conceal inferiority in character is prohibited. "(c) The term 'powdered' means the application of any powdered 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 sub- stance to the exterior portion of a food product. "(e) The term 'stain' includes any change produced by the addition of any soibstance to the exteriion portion of food's which in any way alters their natural tint." 1 Section 7. "283 COLORING, CHEMICALS AND PRESERVATIVES. [§§ 238, 329 Regulation 10 also provides that "only harmless colors or flavors shall be added to oonf ectionery. " §228. External Application of Preservatives. "(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 in- terior, of the product. "(b) When these products are ready for consumption, if any portion 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 regulations for food products in general. "(c) The preservative applied must be of such a charac- ter that, until removed, the food products are inedible."^ §229. Wholesomeness of Colors and Preservatives. "(a) Respecting the wholesomeness of colors, preserva- tives, and other substances which are added to foods, the Secretary of Agriculture 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 Commerce 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 substances added to foods; and when concurred in by the Secretary of the Treasury and the Secretary of Commerce and Labor, the principles so es- tablished shall become a part of these regulations. 1 Regulation 14. § 330] LAW OF PURE FOOD AND DRUGS. 384 "(e) It having been determined that benzoate of soda mixed with food is not deleterious or poisonous and is not injurious to health, no objection will be raised under the Food and Drugs Act to the use in food of benzoate of soda, provided that each oonitaineir or package of such food is plainly labeled to show the presence and amount of ben- zoate of soda. Food Inspection Decisions 76 and 89 are amended accordingly."^ § 230. Dyes — Chemicals — Preservatives. "It is provided in regulation 15 of the rules and regula- tions for the enforcement of the Food and Drugs Act, that the Secretary of Agriculture shall determine by chemical or other examination those substances which are permitted or inhibited in food products; that he shall determine from time to time the principles which shall guide the use of colors, preservatives, and other substances added to foods; and that when these findings and determinations of the Sec- retary of Agriculture are approved by the Seci-etary of the Treasury and the Secretary of Commerce and Labor, the principles so established shall become a part of the rules and regulations for the enforcement of the Food and Drugs Act. "The law provides that no food or food product intended for interstate commerce, nor any food or food product man- ufactured or sold in the District of Columbia or in any Ter- ritory of the United States, or for foreign commerce, except as thereinafter provided, shall contain substances which les- sen the wholesomeness or which add any deleterious proper- ties thereto. It has been determined that no drug, chemical, or harmful or deleterious dye or preservative may be used. 1 Regulation 15. The determina- riculture take their chance on be- tion of the Secretary of Agriculture ing prosecuted by the government, concerning the wholesomeness of while those using only those author- colors, preservatives and other sub- ized are not prosecuted. Any one stances is not binding on the courts, using unauthorized colors may though of great weight. Persons show that their use is not in vio- using colors and preservatives not lation of the statute, authorized by the Secretary of Ag- 385 COLOKINGj CHEMICALS AND PEESEEVATIVES. [§ 330 Common salt, sugar, wood smoke, potable distilled liquors, vinegar and condiments may be used. Pending further in- vestigation, the use of saltpeter is allowed. "Pending the investigation of the conditions attending processes of manufacture, and the effects upon health, of the combinations mentioned in this paragraph, the Department of Agriculture will institute no prosecution in the case of the application of fumes of burning sulphur (sulphur diox- id), as usually employed in the manufacture of those foods and food products which contain acetaldehyde, sugars, etc., with which sulphurous acid may combine, if the total amount of sulphur dioxid in the finished product does not exceed 350 milligrams per liter in wines, or 350 milligrams per kilo- gram in other food products, of which not over 70 milli- grams is in a free state. "No prosecutions will be based on the manufacture, sale, or transportation of foods and food products manufactured or packed during the season of 1907 which contain sodium benzoate in quantities not exceeding one-tenth of 1 percent, or benzoic acid equivalent thereto, provided sodium benzoate or benzoic acid has hitiherto been generally used in such food and food products. "The label of each package of sulphured foods, or of foods containing sodium benzoate or benzoic acid, shall bear a statement that the food is preserved with sulphur dioxid, or with sodium benzoate, or benzoic acid, as the case may be, and the label must not bear a serial number assigned to any guaranty filed with the Department of Agriculture nor any statement that the article is guaranteed to conform to the Food and Drugs Act. "The use of any dye, harmless or otherwise, to color or stain a food in a manner whereby damage or Inferiority is concealed is specifically prohibited by law. The use in food for any purpose of any mineral dye or any coal tar dye, except those coal tar dyes hereinafter listed, will be grounds for prosecution. Pending further investigations now under way and the announcement thereof, the coal tar dyes here- inafter named, made specifically for use in foods, and which § 330] LAW OV PUEE FOOD AND DRUGS. 28& bear a guaranty from the manufacturer that they are free from subsidiary products and represent the actual substance the name of which they bear, may be used in foods. In every case a certificate that the dye in question has been tested by competent experts and found to be free from harmful oonstituents must be filed with tihe Secretary of Agri- culture and approved by him. "The following coal tar dyes which may be used in this mianner a/re given numbers, the mimbers preceding the names referring to the number of the dye in question as listed in A. G. Green's edition of the Schultz- Julius Systematic Sur- vey of the Organic Coloring Matters, published in 1904. "The list is as follows: Red shades: 107. Amaranth. 56. Ponceau 3 R. 517. Brythrosin. Orange shade: 85. Orange I. Yellow shade: 4. Naphthol yellow S. Green shade : 435. Light green S. P. yellowish. Blue shade: 692. Indigo disulfoacid. "Each of these colors shall be free from any coloring mat- ter other than the one specified and shall not contain any contamination due to imperfect or incomplete manufacture. "The question of the entry into the United States of vege- tables greened with copper salts has not been finally deter- mined. Pending the determination and decision of this mat- ter by the Secretary of Agriculture, all vegetables greened with copper salts which do not contain an excessive amount of copper will be admitted to entry if the label bears a statement that sulphate of copper and other copper salts have been used. "This food inspection decision is to be construed in con- nection with regulations 14 and 31 of the Rules and Regu- 387 COLORING, CHEMICALS AND PRESERVATIVES. [§ 331 lations for the Enforcement of the Food and Drugs Act. Regulation 14 provides that poisonous and deleterious pre- servatives shall only be applied externally, and the preser- vatives in food products shall be of a character which shall not permit the permeation of any preservative to the interior, or any portion of the interior, of the product. It further provides that the preservative must be of such a character ithat, until removed, the food products are inedible, and that when these products are ready for consumption if any por- tion of the added preservative shall have penetrated the food product, the said food product shall then be subject to the regulations for food products in general. '■Regulation 31 provides that food products intended for export; may comtain added substawces not permitited in foods intended for interstate commerce, when the addition of such substances does not eonflicit wiitJi tihe laws of the oountry to which the food products are to be exported, and when such substances are added in accordance with the direction of the foreign purchaser or his agent. "No prosecution will be based on the sale of foods and food products manufactured or packed in the United States prior to the issuing of this decision, where the composition of su'cih foods and food products is lat vardance with tlhe re- quirements of this decision, if the nature of the variation be plainly stated on the label. In every case, however, the bur- den of proof will be on the manufacturer to show that the goods were manufactured or packed prior to the date of this decision."^ §231. Prohibition of Preservatives. "Section 7 of the Food and Drugs Act, June 30, 1906, pro- vides that, for the purposes of the Act, an article shall be deemed to be adulterated in the ease of food if it contain any added poisonous or other deleterious ingredient which may render such article injurious to health. The decision states that it has been determined that no drug, chemical, or 1 F. I. D. 76. § 231] LAW OF PURE FOOD AND DRUGS. 388 harmful or deleterious dye or preservative may be used in the preparation of food and food products. The board was influenced in framing this portion of the decision by the fol- lowing considerations: "Among those substances added in greater or less amounts to food and food products for the purpose of coloring or of inhibiting bacterial action are those chemical substances which may be classed generically as dyes and preservatives. It is clearly the intent of the Food and Drugs Act to inhibit the use of these substances as well as any others which are poisonous and deleterious to health. Whether or not dyes and preservatives are harmful is a matter which can only be determined by experimental evidence, and both classes have been subjected to investigation with the main idea of determining this point. Not only have investigations been conducted by many leading experts in this and other coun- tries, but extended investigations have been instituted by the Department of Agriculture. "The classes of substances which have been investigated by the Department of Agriculture include essentially all of the well-known preservatives, including such types as boracie acid and borax, salicylic aicid and its salits, benzoic acid and its salts, sulphurous acid and its salts, and formaldehyde. "The evidence which has accumulated as the result of all these researches conducted in the Department of Agriculture, as well as the result obtained as the outcome of other re- searches, both in the United States and abroad, points so strongly to the poisonous properties of preservatives that their use as a class should, under the Act, be inhibited in foods and food products. "In order to obtain the views of eminent physiologists and hygienists, health officers, and physicians in the United States as to the propriety of using preservatives in foods, a list of questions was sent out from the Department of Agriculture, to which a large number of replies was received. These questions and the replies have been tabulated as follows : 289 COLORING, CHEMICALS AND PRESEEVATIVES. [§ 231 1. Are preservatives, other than the usual condimental preservatives, namely, sugar, salt, alcohol, vinegar, spices, and vpood smoke, injurious to health? Afcmative 218 Negative 33 Total 251 2. Does the introduction of any of the preservatives which you deem injurious to health render the foods injurious to health? Affirmative 222 Negative 29 Total 251 3. If a substance added to food is injurious to health, does it become so when a certain quantity is present only, or is it so in any quantity what- ever? Affirmative 169 Negative 79 Total 248 4. If a substance is injurious to health, is there any special limit to the quantity which may be used which may be fixed by regulation of the law? Affirmative 68 Negative 183 Total...'. 251 5. If foods can be perfectly preserved without the addition of chemical preservatives, is their addition ever advisable? Affirmative 12 Negative 247 Total 259 "It oan be readily seen foom thoiS' tabuiiation that the o^tm- ions expressed point overwhelmingly to the fact that pre- servatives as a class are injurious to health, and hence their use is, under the Act, inhibited."^ 1 Memorandum to F. I. D. 76. PuEE Food — 19. § 232] LAW OF PUKE FOOD AND DRUGS. 290 §232. Sulphur Fumes. "The decision further provides that pending investigation of process of manoifacture and of effect upon health, the Department of Agriculture will institute no action where the fumes of burning sulphur are used in the manufacture of foods and foodstuffs containing acetaldehyde, sugars, etc., with which the sulphur dioxid may combine, but the decision limits the total amount of sulphur dioxid in a liter of wine, or a kilogram of other food products, to 350 milligrams, and further provides that only 70 milligrams of this may be in a free state; the residual sulphur dioxid must be in combina- tion with the acetaldehyde, sugars, etc. "While it is true that sulphurous acid and its salts belong to the class of preservatives which are prejudicial to health, and in consequence their use is inhibited, yet with respect to sulphur dioxid, under certain conditions of use (as in the sulphuring of wine casks in the preparation of wine, in the preparation of evaporated or dried fruits, in the manufac- ture of certain sugars, etc.), it is rendered more or less inert. There is evidence to show that when sulphur dioxid is used as above imddcated it combines, for example, with the acetal- dehyde of the wine, thus forming a compound (so-called al- dehyde sulphurous acid) which is relatively harmless. In dried fruits in the preparation of which sulphur dioxid has been used there is reason for believing that it may all be present in this so-called "combined" condition, probably to a large extent, if not wholly, in combination with the sugars present. There is also reason for believing that the sulphur dioxid may be combined with protein and cellulose, but probably all of these "combined" forms are not equally inert from a physiological point of view. "The evidence is not sufficiently conclusive to condemn at present the use of sulphur dioxid under those conditions in which it may be present in this combined form, but it is necessary to limit its presence in such cases as to avoid the presence of excessive quantities of free sulphurous acid, the toxic effect of which is marked. 391 COLOEINGj CHEMICALS AND PEESEEVATIVES. [§ 232 "The limit in food products has been set at 350 milligrams of total (that is, both free and combined) sulphur dioxid per liter, or kilogram, with an allowance of not over twenty per- cent of this amount in a free state. This standard has been reached by a study of a large number of analyses of typical samples of food products which were obtained either in the open market or at ports of entry. That the use of sulphur dioxid in the preparation of wines, evaporated fruits, mo- lasses, etc., has in some cases been greatly abused is appar- ent from a study of these analyses. To illustrate this point the following analyses of evaporated and dried fruits, pur- chased in the open market, are given: Milligrams of sulphur dioxid per kilo. Dried peaches 3,072 California apricots 2,842 Evaporated apricots , 1,792 Dried apples 1,419 Evaporated apples 1,738 "Especially is this abuse apparent when a comparison is made with other samples, likewise obtained in the open market. Milligrams of sulphur dioxid per kilo. Evaporated raisins 225 Evaporated apricots 190 Evaporated apples 4.5 Evaporated apples 3.3 California prunes 3.3 Dried apples 6.6 Dried apples 9 Fancy cleaned currants 4.5 ' "Other figures might be quoted to show that very wide variations exist in the total amount of sulphur dioxid found in this class of foods, but these few are sufficient to illus- trate the point that there is no 'commercial necessity' for the existence of sulphur dioxid in the very large amounts § 832] LAW OF PUKE FOOD AND DBUGS. 392 shown in the first set of analyses, and in order to protect the public and minimize any possible danger that might arise from undue sulphuring it is necessary to restrict the use of sulphur dioxid within the limits suggested in the accompany- ing food inspection decision. "The limit of 350 milligrams of sulphur dioxid is also ex- ceeded in a few samples of molasses on the market to-day. Miolasses has been found containing as much as 1,395 milli- grams of sulphur dioxid per kilogram. Such cases of undue sulphuring are comparatively rare, and the results of many analyses show that in this class of foodstuffs the sulphur dioxid may by care be reduced to amounts wholly within the limits set. "The following analyses show the amount of sulphur di- oxid usually found in molasses and the ordinary variations to which it is subject: Milligrams of sulphur dioxid per kilo. New Orleans molasses None. New Orleans molasses 310 New Orleans molasses 155 B. and O. brand, New Orleans molasses and corn sirup 25 Porto Eico molasses 8 New Orleans molasses 211 Magnolia brand 100 Eockwood molasses (New Orleans) 359 "In the manufacture of wines it is usually considered that the need for sulphur dioxid is greatest in the nonfortified sweet wines, and in general it may be said that the larger the amount of sugar present the greater is the amount of sulphur dioxid used, but such a rule is by no means univer- sal, illustrating the fact that in sound wines the use of sul- phur dioxid is often carelessly controlled and no special pains taken to limit the amount to the quantity necessary to achieve the purpose for which it is used, and thus avoid un- necessary amounts. "An examination of the wines las they are found to-day on the market shows that it is desirable to restrict the amount 293 COLOEING, CHEMICALS AND PRESERVATIVES. [§ S33 of sulphur dioxid to 350 milligrams per liter. "Wines have been offered for import, for example, containing much more than this amount of total sulphur dioxid, but there is every reason to believe that this excessive amount is due to lack of careful control. As the sulphured wine ages the sulphur dioxid, as such, gradually disappears, either by combination with the constituents of the wine or by oxidation. "A limit must likewise be placed on the free sulphur di- oxid. An examination of a large number of sauternes has siiiown th'at the amounit of free sulphur dioxid wihiich tflbiey oon- taiii is needlessly hdgb.; in some instances tflids amount has ex- ceeded 200 milligrams per liter, and about 20 percent of all the wines examined exceeded the limit set by this decision. If the amount of free sulphur dioxid in wines is placed at 70 milligrams per liter it is certain that the wines prepared for consumption can be produced ia a sound condition, not only well within the maximum set for the free sulphur di- oxid but for the total as well. It is absolutely necessary to restrict in some manner the sulphur dioxid in cases in which it is used under conditions such that it may enter into com- bination with aeetaldehyde, sugars, etc., present in food products, and it is believed that under the restrictions sug- gested the public will be protected from products unduly sulphured during the period which must elapse before ex- perimental evidence can be obtained as to whether a total restriction in the use of sulphur dioxid under all the condi- tions mentioned is necessary on account of the toxic proper- ties possessed by sulphur dioxid in the combined form. "^ §233. Label to Show Preservatives. "The decision^ provides that the label of each package of preserved foods, or of foods containing benzoate of soda or benzoic acid, shall bear a statement that the food is pre- served with sulphur dioxid or with sodium' benzoate, or ben- zoic acid, as the ease may be, and the label must not bear a serial number assigned to any guaranty filed with the De- 1 Memorandum to F. I. D. 76. i Memorandum to F. I. D. 76. § 234] LAW OF PUEE FOOD AND DEUGS. 294 partment of Agriculture or any statement that the article is guaranteed to conform to the Food and Drugs Act. "The necessifty for these requirem'eoitis is obvious. Where presfeirvatives are used the labels should inform the consumers of that fact, and it is the opinion of the board that the pre- served food does not comply with the law and that it is un- fair to the consumer to allow a statement to be made upon the label that the preserved food is guaranteed under the Food and Drugs Act, for the consumer may interpret this statement as tio a gmaapanity that thie food is pure."^ § 234. List of Dyes Permitted. "The following list of dyes has been recommended in the decision for use in foods and foodstuffs, pending further in- vestigation and announcement of its results: Red 3hades: 107. Amarantlh. 56. Ponceau 3 E. 517. Erythrosin. Orange shades : 85. Orange 1. Yellow shades: 4. Naphthol yellow S. Green shades: 435. Light green S. F. yellowish. Blue shades: 692. Indigo disulfoaeid. "The decision further states that these coal tar dyes must be made specifically for use in foods and bear a guarantee from the manufacturer that they are free from subsidiary products and represent the actual compound whose name they bear. "The following statement is necessary in order to illustrate the principles guiding the Department of Agriculture in framing this portion of the decision: "An extended study of the large number of so-called coal 2 Memorandum to F. I. D. 76. 295 COLORING, CHEMICALS AND PEESEEVATIVES. [§ 234 tar dyes which are now in use for the coloring of foods and foodstuffs has been necessary to arrive at a conclusion con- cerning the restriction, if any, which may be placed on their use, and the department acknowledges the very efficient aid rendered during the course of this study by Dr. Bernhard C. Hesse, of New York City. Dr. Hesse has had an extended experience in this subject through his long association with the leading dyestuff manufacturers in Germany. Since sev- ering his conneotion with them he has given his time largely to expert work along this line. 'The literature on the subject is very unsatisfactory as to what coal tar products are used, and it is not to be de- pended upon, because of the equivocal nature of the termin- ology employed. It is impossible to reduce this terminology to an unequivocal and definite basis for the great majority of such coal tar colors. "It was impracticable to go to all those in the United States who use coal tar dyes in food products and obtain specimens of the eoal tao* colors so used. This is true not only because of the large number of such users and their wide geographical distribution, but also because of tlie re- luctance which would undoubtedly be encountered among many such users to disclose the nature of the products em- ployed by them. "The sources of coal tar materials are limited in number, however. By reference to the book entitled "A Systematic Survey of the Organic Coloring Maititers," by Arthur G. Green, published in 1904, on pages 9 and 10 thereof, it will be seen that there are thirty-seven different concerns in the world engaged in the manufacture of coal tar materials. "Therefore a canvass of these sources for such eoal tar coloring matters as, in their judgment, or in their business practice, they regard as proper for use in food products, seemed the best mode of obtaining a knowledge of the field of the coal tar colors here in question. "Communication was had, therefore, with thirteen manu- facturers of coal tar colors in an endeavor to obtain from them a list of such coal tar colors as, in their judgment or § 334] LAW OV PTJKB FOOD AND DBUGS. 396 business practice, were deemed suitable for use in food prod- ucts. "When this cooperation was established, request was also made for information as to the composition of the coal tar samples submitted, and in order to avoid confusion sam- ples were to be idemtiified by reference to the ' Sysitematie Sur- vey of the Organic Coloring Matters,' by Green, in which each coal tar color has its own number. This information is necessary to ■ reduce the terminology to a common and un- equivocal basis. The thirteen manufacturers, or their ac- credited agents, with whom communication was held prob- ably represent from 85 to 90 percent of the total dyestuff output of the world. "In order to make provision for the twenty-four makers on the list in the Green tables, and not included in the thir- teen makers consulted, a request for samples was made from two New York City houses, who themselves import coal tar colors from sources other than the above, for use in food pnoducts. Their products must fairly represent amy auitput not represented by the thirteen makers above mentioned. "The question of the choice of dyes for the coloring of foodstuffs has been decided on the basis of those dyes which have been submitted by the manufacturers or their accred- ited agents, but it wa-s impossdble to consider any diyes when the manufacturer or the accredited selling agent was un- willing to state unequivocally what the dyes submitted were, so that they could be identified chemically. "When those interested in placing dyestuff s on the mar- ket for the coloring of food have shown unwillingness to give information of this kind, as to what they sell, and by thus selling, recommend, the burden of proof as to the harmless- ness of such dyes lies with them, and until such proofs are adduced, the use of such dyes should be inhibited. "With this knowledge of the specific nature of the dyes recommended, the department has made a study of those concerning which there has been tihe greatest umianimbity of opinion among the manufacturers or their agents as to their fitness; and in the cases where such dyes have been studied as to their physiological action, and the reports have been 291! COLORING, CHEMICALS AND PKBSEKVATI¥ES. [§ 235 favorable, they have been included in the tentative list pro- I>osed in the food inspection decision herewith. "This tentative list of dyes includes a wide range of col- ors sufficient for all legitimate purposes. Among them are none which are patented, so that their manufacture is open to all interested in the dye industry. ■'One point must be particularly emphasized regarding the use of these dyes, namely, the need for the manufacturer's guarantee of purity. It is the manufacturer above all who knows the exact nature of his dyestuffs, and if he is willing to sell his colors for use in food stuffs he should be willing to guarantee that the dyes really are what they are repre- sented to be, that they are not mixtures, and that they do not contain harmful impurities. "In order to further minimize the possibility of harmful impurities exisitiitig in Itihese dyes it has been tihougihit neces- sary to require a further examination by competent experts, a certificate from whom is necessary, stating that the dyes in question are what they are represented to be."^ §235. Entry of Vegetables Greened with Copper Salts. "The decision [F. I. D. 76] states: The question of the entry into the United States of vegetables greened with copper salts has not been finally determined. Pending the determina- tion and decision of this matter by the Secretary of Agriculture all vege- tables greened with copper salts which do not contain an excessive amount of copper will be admitted to entry if the label bears a statement that sulphate of copper or other copper salts have been used.' The greening of vegetables vnth copper sulphate is prac- ticed to a large extent in some foreign countries, and vege- tables so treated are imported into the United States. Be- fore the passage of the Food and Drugs Act the Depart- ment of Agricidture, under authority of the yearly appropri- ation acts, controlled the import of foods. It has been the practice to admit vegetables which did not contain an ex- cessive quantity of copper salts if the artificial color were 1 Memorandum to F. I. D. 76. §§ 236, 337] LAW OF puke food and drugs. 298 plainly declared on the label. It is the opinion of the board that copper sulphate is injurious and should be prohibited eventually, but it would work a great injury to American importers to put this ruling into effect at once. It is be- lieved that the use of copper sulphate or of other salts of copper in restricted quantities for greening vegetables should be permitted for the pack of the present year, but for no longer."^ Vegetables greened with copper salts but which do not contain an excessive amount of copper and which are other- wise suitable for food are allowed entry into the United States, if the label bears the statement that sulphate of cop- per or other copper salts have been used to color the vege- tables.^ §236. Coloring Concealing Inferiority. To use coloring matter in a prodlict, so as to change its natural color, is an offense; as the use of annatto in milk,^ or a coal tar dye in lemon extract so as to conceal its in- feriority,^ or cherry syrup,^ or olive oil,* or lemon flavoring.'' §237. Certificate and Control of Dyes Pennissible for Use in Coloring Foods and Foodstuffs. '■'The Department of Agriculture is in receipt of a large number of inquiries concerning the interpretation to be put on that portion of F. I. D. 76 which refers to coal tar dyes not inhibited for use in coloring foods and foodstuffs. "The term 'manufacturer,' as used in F. I. D. 76 and in the present decision, applies to a person or company respon- sible for the purification of the crude or raw dye for the purpose of placing it in a condition fit for use in foods and foodstuffs; or to the accredited selling agent in the United 1 Memorandum to F. I. D. 76. i N. J. 586. But see now F. I. D. 102, where 2N. J. 585; F. I. D. 536. this ruling as to the use of salts s N. J. 549. of copper Is modified. * N. J. 453. 2 F. I. D. 102, amending F. I. D. 6 N. J. 444. 92. 299 COLORING, CHEMICALS AND PRESERVATIVES. [§ 337 States of such person or company. Such accredited agent must file, on behalf of his foreign principal, if the latter does not file it, a manufacturer's certificate, and it will be considered that the responsibility of such certificate will rest upon the accredited agent and not upon the foreign prin- cipal. "For each permitted dye two certificates must be filed by the manufacturer, the first to be known as the 'Foundation certificate,' the second known as the 'Manufacturer's certifi- cate.' It is suggested that the foundation certificate be in the folio wing form: FOUNDATION CEBTITICATE. I, , the undersigned, residing at ( Street address. ) in the city of , county of , State of , hereby certify under oath that I have personally ex- amined and tested for , of , county (Full name of concern.) (City.) of , State of , the material known as , which corresponds to the coloring material num- bered in A. G. Green's Edition [ICM] of the Schultz-Julius "System- atic Survey of the Organic Coloring Matters," and of which a one (1) pound sample marked is herewith submitted. I have found the said material to consist of that coloring matter only, to be free from harmful constituents, and not to contain any contamination due to imperfect or incomplete manufacture. (Here insert a complete statement of all the tests applied to determine: A. Identity. B. Absence of a. Mineral or metallic poisons. b. Harmful organic constituents. c. Contamination due to improper or incomplete manufacture.) Special attention should be given to setting forth fully the quantities or volume of each material and reagent employed, its strength or concentra- tion, temperature, duration of treatment, limits of delicacy of tests em- ployed, and any other information that is necessary to enable others to repeat accurately and correctly all the work herein referred to and thus arrive at identical results. For each test performed, state what conclu- sions are drawn from it and why. (Signature of chemist making the examination.) §237] Law OF PURE FOOD AND DBUGS. 300 Cektipioation. "For the manufacturer's certificate the following form is suggested : manutactueeb's ceemfioate. I, , the undersigned, a resident of the United States, doing business at , in the city of , (Street address.) county of , State of , under the style of , do hereby certify under oath that I am the manu- ( Full name of concern. ) f acturer of the material known as , which corresponds to the coloring matter numbered in the 1904 Green Editon of the Schultz- Julius Tables, of which the accompanying foundation certificate, signed by , the examining chemist, is the report of an analysis of a fair, average sample drawn from a total batch of pounds. (Signature of manufacturer. ) Certification. "The foundation certificate must be filed with the Secre- tary of Agriculture at the time the first request is made of the Secretary to use any or all of the permitted dyes for coloring foods and foodstuffs. "The following form of supplemental certificate is sug- gested in those cases where a manufacturer desires to apply for permission to place on the market a new batch of a coal tar dye, which dye has already had a foundation certificate and a manufacturer's certificate filed for it. supplementai, cebttficate. I , the undersigned, residing at ( Street address. ) in the city of , county of , State of , hereby certify under oatb, that I have personally ex- amined and tested for , of , county of (Full name of concern.) (City.) , State of the material known as , which corresponds to the coloring matter numbered in A. G. Green's Edition [1904] of the Sohultz- Julius "Systematic Survey of the Organic Coloring Matters," of which a one ( 1 ) pound sample 301 COLOKING, CHEMICALS AND PRESERVATIVES. [§ '237 marked is herewith submitted, and I have found it to consist of that coloring matter only and to be free from harmful constituents and not to contain any contamination due to imperfect or incomplete manufacture. This examination was conducted in strict accordance with the detailed scheme of examination fully set forth in the foundation certificate filed (Date.) (Signature of chemist.) Ceetieication. "This supplemental certificate should likewise be accom- panied by the same type of manufacturer's certificate as is described above. "When the certificates filed with the Department of Agri- culture are found to be satisfactory, a 'lot number' will be assigned to each batch, which lot number shall apply to that batch alone and to no other batch of the same color. "According to F. I. D. 76, the seven permitted coal tar dyes therein named, made specifically for use in foods, may be used in foods provided they bear a guaranty from the manufacturer that they are free from subsidiary products and represent the actual substance the name of which they bear. The guaranty herein considered shall be applied as follows : "Each package sold by the manufacturer should bear the legend 'Part of Certified Lot Number ' The founda- tion certifieaAie, as well as the corresponding supplemental certificate, does nott apply to any certified dye beyond the package originally prepared by the one establishing this cer- tificate. If such a package be broken and the dye therein contained be repacked, the repacked dye, except as herein- after provided, becomes an uncertified dye, and as such is inhibited. "There is no objection on the part of the Depiartment of Agriculture to mixture^ made from these permitteid and cer- tified dyes, by those who have filed certificates with the de- partment, but one (1) pound samples of such mixtures, and the trade name under which each mixture is sold, must be 1 See Section 239 for definition. § 237] LAW OP PUEE SOOD AND DBUG8. 302 sent to the Secretary of Agriculture, and no such trade name or keyed modification thereof may be used for any other mixture. "The exact formula — ^that is, the true names as well as the numbers assigned to the original package and the pro- portions of the ingredients used — should be deposited with the Secretary of Agriculture, but such formula need not ap- pear on the label; in lieu of which may appear the legend, 'Made from Certified Lots Number and Number , ' etc. If the packages of these mixtures bearing this legend be broken and repacked, the mixture becomes, ex- cept as herednafber provided, an uncertified ome, and hence its. use is inhibited; that is, the guaranty of the manufacturer shall extend only to the packages prepared by himself and only for so long as they remain in the unbroken form. When- ever new lots of previously established mixtures are made, making use of new certified straight dyes itiherein, thus necessitating a change in the label, one-pound samples of the new mixtures should be sent to the Secretary of Agricul- ture. "The term 'competent experts' as used in F. I. D. 76 ap- plies to those who, by reason of their training and experi- ence, are able to examine coal tar coloring matter to ascer- tain its identity and to determine the absence of foreign mat- ter not properly belonging to the product, which, if present, renders the substance unfit for use in food products. "The term 'batoh'^ m used above is sudh a quantity of the product as has undergone the same treatment at the same time and the same place as a unit and not otherwise — that is, the lot for one purification. "Those to whom certification is given with respect to their dyes and a lot number assigned should control the sale of such batches so that they may account to the Department of Agriculture by inspection of their books or otherwise for the destination and disposal of each batch. "Those using these certified dyes in the preparation of 2 See Section 299 for definition. 303 COLOEINCt, CHEMICALS AND PEESERVATIVES. [§ 237 foods and foodstuffs imist be in a position to substantiate the fact that the dyes so used were of a properly certified character. "There is no guaranty on the part of the Department of Agriculture that because the tests described in any founda- tion certificate have once been accepted, the permanency of such acceptance is assured. "In those cases where a package of a straight dye or a mixture of such dyes, bearing proper labels to the effect that they are of a certified lot or lots, is broken and repacked in still smaller lots, or treated with solvents, mixed, etc., the person or company so treating these dyes must stand spon- sor for their integrity. This may be accomplished by sub- , mitting a statement to the Secretary of Agriculture as fol- lows: SECONDABT CEETIFICATB. I, , residing at , do hereby certify (Full address.) under oath that I have repacked lbs. of certified lot ( or lota ) purchased from , of This repacking has been accomplished in the following fashion : (Full description of what has been done with the lot or lots.) (Name.) Certification. On presentation of this certified form, properly filled out, to the Secretary of Agriculture, a lot number will be as- signed, which number should be used in labeling according to the methods already described. If, for example, a portion of lot number '127' is repacked in smaller packages, the lot number '127 A' will be assigned to this repacked dye, to enable the department to follow this into consumption if necessary and still trace it back to the person by whom the dye was originally certified. >>3 3 F. I. D. 76. § 238] LAW OF PUKE FOOD AND DEUQS. 304 238. Certification of Straight Dyes and Mixtures Under Secondary Certificates. "In Food Inspection Decision 77 provision is made for the recertification of straight dyes (i. e., the seven accepted dyes of F. I. D. 76) and mixtures thereof, with or without other harmless ingredients. "Douht has been expressed as to whether the require- ments of F. I. D. 77, with respect to certification, are the same for those who are not manufacturers as they are for manufacturers. This amendment is issued relative to recer- tification in order to remove uncertainty and to indicate the scope of F. I. D. 77. "All persons, manufacturers or others, requesting certifica- tion of mixtures and recertification of straight dyes, or of mixtures or combinations thereof, shall submit the following form of secondary certificate to the Secretary of Agriculture: SBCONDABY 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 'mixture' 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 305 COLORING^ CHEMICALS AND PKESEKVATIVBS. [§ 238 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 prod- ucts; 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.' i ''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 (%) pound samples must be submitted with the secondary certificate. If larger sam- ples are needed in individual cases the department will ask for them. "Only tihose mixSbuTies will be certified which contain no other dyes than coal tar dyes previously certified. Mixtures containing animal or vegetable dyes are not subject to cer- tification. "The above form for secondary certificates varies but slightly from that given in Food Inspection Decision No. 77. It contains the addition '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 par- ticular 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. 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 com- pleted legend is the one to be used in marketing the prod- ucts thus submitted under the secondary certificate. Noti- fication will be given of the acceptance or rejection of the 1 F. I. D. 106. PuBE Food — ^20. § 339] LAW OF PUKE FOOD AND DRUGS. 30& certificate when investigation of the product has been com- pleted. "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 any other mix- ture 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."^ §239. Definition of the Terms "Batch" and "Mixtures." "The definition of the term 'batch' as given on page 4, lines 12 to 14 of Food Inspection Decision 77, is hereby ex- tended to include also the contents of one package, cask, or other container holding 500 pounds or less of dye, even though the contents of such package, cask or container has not undergone the same treatment at the same time and the same place as a unit. "The word 'mixtures' as used on page 3, line 15 from the bottom, and foUoAving, of Food Inspection Decision 77, is hereby declared to mean not only such mixtures as consist wholly of certified coal tar dyes, but also those which con- tain one or more certifieJd coial tar dyes (and no other coal tar dye or dyes) in combination with other components, con- stituents, or ingredients not coal tar dyes, which other com- ponents, 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 com- ponents, constituents, or ingredients, or other parts of the mixture, together with a statement of the total weight of mixture so made, must be deposited with the Secretary of Agriculture and a one (1) pound sample thereof must be sent to the Secretary of Agriculture, but such formula need not appear on the label; in lieu of which may appear the 2 F. I. D. 129. 307 COLOPJlvti, CHEMICALS AND PRESERVATIVES. [§ 340 legend, ' Made from certified lots Number and Num- ber , etc., ' and no mention need be made of any con- stituent or constituents other than the certified coal tar dyes employed. ' '^ § 240. Use of Certified Colors. "Food Inspection Decision No. 76, published July 13, 1907, gives a list of seven coal tar dyes, which may, without ob- jection from the Department of Agriculture, be used in foods until further notice. Food Inspection Decision No. 77, published September 25, 1907, provides for the certification of dyes. Food Inspection Decision No. 77 was amended March 25, 1909, by Food Inspection Decision No. 106. Some manufaetiu'es 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 Depart- ment of Agriculture, provided the use of the dye in food does not conceal damage or inferiority. If damage or in- feriority be concealed by the use of the dye, the food is adulterated. "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 whiph contain either arsenic or other poisonous or deleterious ingredient which may render such foods in- jurious to health, the eases will be reported to the Depart- ment 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 con- tain excessive quantities of arsenic, heavy metals and con- taminations due to imperfect or incomplete manufacture. While the department has raised no objection to the use of iP. I. D. 106. I §§ 341, 343] LAW OF PUKE FOOD AND DRUGS. 308 vegetable eoloirs, per se, ydt the use of colors even of vege- table origin, open to the objection of excessive arsenic, etc., should not be used for coloring food products."^ §241. Coloring of Butter and Cheese. "Numerous inquiries, of which the following is an illus- tration, have been received by the department: 'Will you kindly inform me concerning the coloring of butter and cheese under the pure food law? Would it be unlawful to color butter and cheese as now practiced?' "The coloring matter of butter is specifically permitted in the law of August 2, 1886 (24 Stat., 209), and the coloring of cheese in the law of June 6, 1896 (29 Stat., 253). It is held by the department thM the Food and Drugs Act does not repeal 'the provisions of the Acts referred to above and the addition of harmless color to these substances may be practiced as therein provided, and that the presence of a coloring matter specifically recognized by Acts of Congress as a constituent is not required to be declared on the label. "^ §242. Benzoate of Soda,. The Eeferee Board of Consulting Scientific Experts in February, 1909, made the following report, as the result of their investigation, on the use of benzoate of soda in food: (1) "Does a food to which there has been added benzoic acid, or any of its salts, contain any added poisonous or other added deleterious ingredients which may render the said food injurious to health? (a) In large quantities? (b) In small quantities? " (2) If benzoic acid or any of its salts be mixed or packed with a food, is the quality or strength of said food thereby reduced, lowered, or injuriously affected? (a) In large quantities? (b) In small quantities? "To obtain satisfactory answers to these questions the board has felt it necessary to carry through a careful inves- 1 F. I. D. 117. 1 F. I. D. 51. 309 COLOEINGj CHEMICALS AND PEESERVATIVES. [§ 242 tigation of the effect of benzoic acid or some one of its salts on the nutrition and general health of man. A thorough study on the literature giving the results of work done by various investigators on the physiological effects of benzoi(; acid and its salts, together with a study of reported clinical and medical observations, therapeutic usage, etc., have made it apparent that additional work was needed to render pos- sible a ooaidlusive answer to the above questions. "With a view to limiting the scope of tih'e work, while at the same time m^eeting all practical requirements, our inves^ ■ tigation, with the consent of the Secretary of Agriculture, has been confined to a study of the effect of the sodium salt of benzoic acid, viz., sodium benzoate. "To make this experimental inquiry as thorough as pos- sible, and to minimize the personal equation, three independ- ent investigations have been carried out — one at the medical school of Northwestern University, in Chicago, under the charge of Prof. John H. Long, of that institution; a second at the private laboratory of Prof. Christian A. Herter, of Columbia University, New York City; and the third at the Sheffield Scientific School of Yale University, in charge of Prof. Russell H. Chittenden. "The same general plan of procedure was followed in all three experiments. A certain number of healthy young men were selected as subjects, and during a period of four months these men, under definite conditions of diet, etc., with and without sodium benzoate, were subjected to thorough clinical and medical observation, while the daily food and excretions were carefully analyzed, and otherwise studied, and compar- ison made of the clinical, chemical, bacteriological, and other data collected. (For details, see the individual reports.) In this mannier matesrial has been brought together w'hich makes possible conclusions regarding the effects of small and large doses of sodium benzoate upon the human system. "In fixing upon the amount of sodium benzoate that should constitute a 'small dose,' we have adopted 0.3 gram of the salt per day. Manufactureirs of food products, which in. their view require the use of a preservative, are in general § 343] LAW OF PUEB FOOD AND DRUGS. 310 content with 0.1 percent of sodium benzoate. This would mean that in the eating of such a preserved food the con- sumer would need to take 300 grams per day, or nearly two- thirds of a pound of preserved food to ingest an amount of benzoate equal to our minimal daily dosage. Looked at from this point of view, our dosage of 0.3 gram per day seemed a fair amount for a 'small dose,' one that would clearly sufSee to show any effect that small doses of the salt might exert, especially if continued for a considerable length of time. In all these four experimenits thiis daily dosage was continued for a period of about two months. Under 'large dose' was included quantities of sodium benzoiate ranging from 0.6 gram to 4 grams per day. Such a daily dosage was continued for a period of one month. In a few instances somewhat larger doses were employed. "As the amount and character of the daily diet exert a weU-knovm influence upon many of the metabolic or nutri- tive changes of the body, as well as upon the bacterial flora of the intestines, attention is called to the fact that the three investigations differed from each other in the amount of pro- tein food consumed daily, thereby introducing a distinctive feature which tends to broaden the conditions under which the experiments were conducted. "The conclusions reached as a result of the individual investigations are given at length in the separate reports herewilih presented, together with all of the data upon which these conclusions are based. "The fact should be emphasized that the results obtained from these three separate investigations are in close agree- ment in all essential features. "The main general oonclusionis reached by the Eeferee Board are as follows: "First. — Sodium benzoate in small doses (under 0.5 gram per day) mixed with the food is without deleterious or poi- sonous action and is not injurious to healtK.^" "Second. — Sodium benzoate in large doses (up to 4 grams per day) mixed with the food has not been found to exert iany deleterious effect on the general health, nor to act as a 311 COLORING, CHEMICALS A]SiD PEBSEKVATIVES. [§ 243 poison in the general acceptance of the term. In some direc- tions these were slight modifioations in certain phyBiiological processes, the exact significance of which modifications is not known. "Third. — The a'dtaixture of sodium benzoate with food in small or large doses has not been found to injuriously affect or impair the quality or nutritive value of such food."^ §243. Meats and Meat Products. The regulations adopted under the Food and Drugs Act do "not apply to domestic meat and meat-food products which are prepared, transported or sold in interstate or for- eign commerce under the meat-inspection law and the regu- lations of the Secretary of Agriculture made thereunder."' The regulations governing the meat inspection by the United States Department of Agriculture permit in meat and meat products the use of "common salt, sugar, wood smoke, vine- gar, pure spices," and saltpeter. No eoloirs oan be used ex- cept such as are approved by the Secretary of Agriculture. The use of colors and preservatives permitted by the Meat Inspection Act^ is permitted under the Food and Drugs Act. iP. I. D. 104, amending F. I. D. accordingly follows the suggestions 76 and F. I. D. 89. See F. I. D. of this report. 89, F. I. D. 101. 1 Regulation 39. The Department of Agriculture 2 gee Appendix. LAW OP PURE FOOD AND DRUGS. 313 CHAPTER Vn. MISBRANDING. Aet. I, Food. Aet. II. Pood Decisions. Akt. III. Dkugs and Medicines. Art. IV. Drug and Medicine Decisions. Art. V. Weights and Measures. SEC. 244. Food— statute. 245. Labels. 246. Name and address of manu- facturer. 247. Character of name. 248. Distinctive name. 249. Compounds, imitations or blends without distinctive name. 250. Articles without a label. 251. Proper blending not a com- plete guaranty. 252. Incompleteness of blending. 253. Substitute. 254. Waste materials. 255. Mixtures or comipounds with distinctive names. 256. Substances named in drugs or foods. 257. Misbranding defined — Stat- ute. 258. Unintentional misbranding. 259. Trade marks. 260. Package of food need not be labeled. 261. Failure to brand drug is to misbrand it — Label defined. 262. Form of label. 263. The package to be labeled. 264. Approval of labels. 265. Substances named on label not the leading one in article. 266. Distinctive names of foods.. 267. Use of different kinds of types to deceive purchaser. 268. Waste material in foods. 269. "Manufactured for," "Pre- pared for," "Distributed by" used on labels. 270. Imitations of foods — Intent — Mistake. 271. Mixtures or compounds of foods — ^Distinctive name. 272. Blends of foods. 273. Proprietary foods — Formula. 274. Fictitious names. 275. Name of manufacturer. 276. Deceptive labeling of foods — Foreign labels. 277. False or misleading label — Design or device. 278. False indication of origin. 279. Sugar in canned foods. 280. Substances used in prepara- tion of foods. 313 MISBEANDING. [§ 24A § 244. Food— Statute. "That for the purposes of this Act an article shall be deemed misbranded, 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 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 eu- caine, chloroform, cannabis indica, chloral hydrate, or ace- tanilide, or any derivative or preparation of any of such sub- stances contained therein. "Third. If in package form, and the contents are stated in terms of weight or measure, they are not plainly and cor- rectly 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 substances contained therein, which statement, design or device shall be false or misleading in any particular : Pro- vided, 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 eases : "First. In the ease 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 imita- tion of or offered for sale under the distinctive name of an- other 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 "compound," "imitation," or "blend," as the case may be, is plainly stated on the package § 245] LAW OF PURE FOOD AND DRUGS. 314 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 in- gredients 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 manufac- turers 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."^ § 245. Labels. "(a) The term 'label' applies to any printed, pictorial or other matter upon or attached to any package of a food or drug product, or any container thereof subject to the pro- visions of this Act. "(b) The principal label shall consist, first, of all informa- tion which the Food and Drugs Act, June 30, 1906, specific- ally 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, mixtures or blends; the words 'compound,' 'mix- ture,' 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, &nd should have no intervening descrip- tive or explanatory reading matter. Second, if the name of the manufacturer and place of manufacture are given, they 1 Section 8. Sixty-five Casks Liquid Extracts, The product shipped in interstate 170 Fed. 449. commerce must not be misbranded, "The purpose was to protect the but it must be labeled with labels public against deception in the conforming to the requirements of purchase of drugs and food by pun- the statute. The statute requires a ishing adulteration and misbrand- descriptive paper afllxed to the ing as therein defined." United package, which must include the States v. American Druggists' Syn- statement of how much alcohol, dicate, 186 Fed. 387; United States etc., is contained in the package, in v. Johnson, 177 Fed. 313. case of drugs. United States v. 315 MISBRANDING. [§ 345 should also appear upon the principal label. Third, prefer- ably upon the principal label, in conjunction with the name of the substance, such phrases as 'artificially colored,' 'col- ored 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 statement should appear upon the principal label, and must be couched in plain terms, as required by Regula- tion 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. Be- sides the principal label in the language of the country of production, there may be also one or more other labels, if de- sired, 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 8-point (brevier) capi- tals : 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 therein, or quality there- of, 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. "(e) An article containing more than one food product or active medicinal agent is misbranded if named after a single constituent. In the case of drugs the nomenclature employed by the United States Pharmacopoeia and the National Formulary shall obtain. ' ' (f ) The use of any false or misleading statement, design, § 246J LAW OF PUKE FOOD AND DBUGS. 316 or device appearing on any part of the label shall not be jus- tified by any statement given as the opinion of an expert or other person, nor by any descriptive matter explaining the use of the false or misleading statement given as the opinion of an expert or other person, nor by any descriptive matter explaining the use of the false or misleadiag statement, de- sign or device."^ §246. Name and Address of Manufacturer. "(a) The name of the manufacturer or producer, or the place where mianufetured, except in ease of mixtures and compounds having a distinctive name, need not be given upon the label, but if given, must be the true name and the true place. The words 'packed for ,' 'distributed by ,' or some equivalent phrase, shall be added to the label in case the niamje which appears upon the label is not that of the actual manufacturer or producer, or the name of the place not the actual place of manufacture or production. "(b) When a person, firm or corporation actually manu- factures or produces an article of food or drug in two or more places, the actual place of manufacture or production of each particular package need not be stated on the label except when in the opinion of the Secretary of Agriculture 1 Regulation 17. closed with an article inside the "The terms 'brand' and 'label' as carton in which it is offered for used in this connection are perfect- sale neither induces the sale nor ly clear and definite. They indi- deceives the prospective purchaser, cate a statement, design, or device and is not within the purview of affixed to an article." "The plain the Act." United States v. Ameri- sense of the language in question can Druggists' Syndicate, 186 Fed. is that it embraces any statement, 387. design, or device regarding the ar- "It would be unthinkable that tide, which appears on the outside Congress intended that a product of the package in which the drug could be seized in one district and is offered for sale, whether such not in another for a misleading statement be printed upon or oth- brand, according or not as the gen- erwise affixed to the package itself erality of persons in those districts or impressed upon a separate label understood or were deceived by the which is then affixed to the pack- brand on the particular product." age. An advertising circular en- N. J. 990. 317 MISBBANDING. [§ 347 the mention of any such place, to the exclusion of the others, misleads the public."^ §247. Chaxacter of Name. "(a) A simple or unmixed food or drug product not bear- ing a distinctive name should be designated by its common name in the English language; or if a drug, by any name recognized in the United States Pharmacopoeia or National Formulary. No further description of the components or qualities is required, except as to content of alcohol, mor- phine, etc. "(b) The use of a geographical name shall not be per- mitted in connection with a food or drug product not manu- factured or produced in that place, when such name indicates that the article was manufactured or produced in that place. "(e) 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 a style, type or brand ; but in all such eases 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 under the name of a foreign article."^ 1 Begulation 18. describes the elements of his prod- 1 Regulation 19. uct by the use of common nouns "The great object of the statute which fairly describe the things is to prevent injury to health and which enter into it, according to deception by words or devices on the English vocabulary and adds, the label which may naturally lead as he is not required to do by the the purchaser to believe that he is Federal statutes, an analysis of getting one thing when in reality the life-giving properties of the dif- he is getting another. Certainly ferent elements, thus affording ad- the manufacturer meets all these ditional means of judging of the requirements when he truthfully real value of the blend for cattle §§ 348, 249] LAW OF puee food and drugs. 318 §248. Distinctive Name. "(a) A 'distinctive name' is a trade, arbitrary, or fancy name which clearly distinguishes a food product, mixture or compound from any other food product, mixture or com- pound. "(b) A distinctive name shall not be one representing any single constituent of a mixture or compound. "(c) A distinctive name shall not misrepresent any prop- erty or quality of a mixture or compound. "(d) A distinctive name shall give no false indication of origin, character or place of manufacture, nor lead the pur- chaser to suppose that it is any other food or drug prodiict."^ §249. Compounds, Imitations or Blends without Distinctive Name. "(a) The term 'blend' applies to a mixture of like sub- stances, not excluding harmless coloring or flavoring ingre- dients used for the purpose of coloring and flavoring only. "(b) If any age is stated, it shall not be that of a single one of its constituents, but shall be the average of all constit- uents in their respective proportions. "(c) Coloring and flavoring can not be used for increasing the weight or bulk of a blend. "(d) In order that colors or flavors may not increase the volume or weight of a blend, they are not to be used in quan- tities exceeding 1 pound to 800 pounds of the blend. "(e) A color or flavor can not be employed to imitate any natural product or any other product of recognized name and quality. "(f) The term 'imitation' applies to any mixture or com- pound which is a counterfeit or fraudulent simulation of any article of food or drug."^ food, the use for which it is man- The first clause in this regula- ufaetured and put upon the mar- tion is founded upon the first pro- ket." N. J. 990. viso in Section 8, which is as fol- 1 Regulation 20. See N. J. 990. lows: "The term blend as used 1 Regulation 21. ' herein shall be construed to mean 319 MISBRANDING. [§ 25,0 §250. Articles Without a Label. "It is prohibited to sell or offer for sale a food or drug product bearing no label upon the package or no descriptive matter whatever connected with it, either by design, device a mixture of like substances, not in- cluding harmless coloring or flavor- ing ingredients used for the pur- pose of coloring and flavoring only." In one case the court said: "If the substances so blended are not harmless, the statement on the la- bel that they are blended is not sufficient to secure immunity. The defendants contend that this re- strictive proviso applies only where the blend is claimed without dis- closure of ingredients, and has no application where, as here, the com- ponent parts of the blend are dis- closed. This construction seems to be too"- narrow. One prime object of the legislation is to prevent the public from being misled or de- ceived. In view of the language of the Act we are justified in saying that the term "blend,' as here dis- played on the label, is an assur- ance to the public that the mix- ture consists of like substances, and in the present case it is an assur- ance that 'Saratoga Brand Vinegar' consists of two like substances, that is, distilled vinegar and a vine- gar derived from apple cider. In this regard the label is false and misleading. We have seen how nat- urally the buyer might be misled by a casual examination of the label. The use of the term 'label' coupled with a specific reference to the pure product, is well calcu- lated to confirm such mistake, in view of the guaranty that the vine- gar sold under this brand meets the requirements of the national pure food law. Special significance is thus given to the statutory defi- nition of the term 'blend.' It is true that boiled apple cider might be used as a harmless agent to give color or flavor to the distilled vine- gar, but in such a case the boiled cider would be an infusion as dis- tinguished from a 'blend,' and the public would be entitled to notice of its use for that qualified pur- pose. Here it is presented to the public as a blend, which is false- ly misleading, because it is conced- ed that no vinegar whatever is con- tained in these packages." The label was as follows: SARATOGA BRAND VINEGAR, a blend of PuBE Boiled Appij! Cideb and Distilled Vinegar. The court held that the product was improperly labeled. United States V. Ten Barrels of Vinegar, 186 Fed. 399, .and in doing so dis- tinguished the following cases where it was held that the law had not been violated: In re Wil- son, 168 Fed. 566; United States V. Bockmann, 176 Fed. 382 ("Com- pound." "Pure Comb and Strained Honey and Corn Syrup") ; United States V. Sixty-eight Cases of Syr- up, 172 Fed. 782 (extract of maple and refined corn sugar). §§ 351-354] LAW OF PUKJfi FOOD AND DBUGS. 330 or otherwise, if said product be an imitation of or offered for sale under the name of another article."^ §251. Proper Branding not a Complete Guaranty. "Packages which are correctly branded as to character of contents, place of manufacture, name of manufacturer or otherwise, may be adulterated, and hence not entitled to en- ter into interstate commerce."^ § 252. Incompleteness of Branding. "A compound shall be deemed misbranded if the label be incomplete as to the names of the required ingredients. A simple product does not require any further statement than the name or distinctive name thereof, except as provided in Regulations 19(a) and 28."^ § 253. Substitutions. "(a) When a substance of a recognized quality commonly used in the preparation of a food or drug product is replaced by another substance not injurious or deleterious to health, the name of the substituted substance shall appear upon the label. "(b) When any substance which does not reduce, lower or injuriously affect its quality or strength, is added to a food or drug product, other than that necessary to its manufacture or refining the label shall bear a statement to that effect."^ §254. Waste Materials. "When an article is made up of refuse materials, frag- ments or trimmings, the use of the name of the substance from which they are derived, unless accompanied by a state- ment to that effect, shall be deemed a misbranding. Packages of such materials may be labeled 'pieces,' 'stems,' 'trim- mings,' or with some similar appellation."^ 1 Begulation 27. i Eegulation 25. 1 Regulation 23. i Regulation 26. ''■ Regulation 24. 321 MISBRANDING [§§ 355, 256 §255. Mixtures or Compounds with Distinctive Names. "(a) The terms 'mixtures' and 'compounds' are inter- changeable, and indicate the results of putting together two or more food products. ' ' (b) These mixtures or compounds shall not be imitations of other articles, whether simple, mixt, or compound, or of- fered for sale under the name of other articles. They shall bear a distinctive name and the name of the place where the mixture or compound has been manufactured or produced. "(c) If the name of the place be one which is found in different States, Territories or countries, the name of the State, Territory or country, as well as the name of the place, must be stated."^ §256. Substances Named in Drugs or Foods. "(a) The term 'alcohol' is defined to mean common or ethyl alcohol. No other kind of alcohol is permissible in the manufacture of drugs except as specified in the United States Pharmacopoeia or National Formulary. "(b) The words alcohol, morphine, opium, etc., and the quantities and proportions thereof, shall be printed in letters corresponding in size with those prescribed in Regulation 17, paragraph (e). "(c) A drug, or food product except in respect of alcohol, is misbranded in case it fails to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, heroin, cocaine, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate or acetanilide; or any deriva- tive or preparation of any such substances contained therein. "(d) A statement of the maximum quantity or proportion of any such substances present will meet the requirements, provided the maximum stated does not vary materially from the average quantity or proportion. "(e) In ease the actual quantity or proportion is stated, it shall be the average quantity or proportion with the varia- tions noted in Regulation 29." 1 Regulation 27. See N. J. 900. PxjBE Food — 21. § 256] LAW 03? PURE FOOD AND DEUGS. 322 "(f) The following are the principal derivatives and prep- arations made from the articles which are required to be named upon the label: "Alcohol, Ethyl: (Cologne spirits, grain alcohol, rectified spirits, spirits and spirits of wine.) Derivatives — Aldehyde, ether, ethyl acetate, ethyl nitrite, and paraldehyde. Preparations containing alcohol — Bitters, brandies, cordials, elixirs, essences, fluid-extracts, spirits, syrups, tinctures, tonics, whiskies, and wines. MoEPHiNE, Alkaloid: Derivatives — Apomorphine, dionine, peronine, morphine acetate, hydrochloride, sulphate, and other salts of morphine. Preparations containing morphine or derivatives of morphine — Bougies, catarrh snuflF, chlorodyne, compound powder of morphine, crayons, elixirs, ■ granules, pills, solutions, syrups, suppositories, tablets, triturates, and troches. Opium, Gum: Preparations of Opium — Extracts, denarcotized opium, granulated opium and powdered opium, bougies, brown mixture, carminative mixtures, crayons, Dover's powder, elixirs, liniments, ointments, paregoric, pills, plasters, syrups, suppositories, tablets, tinctures, troches, vine- gars, and wines. Derivatives — Codeine, alkaloid, hydrochloride, phosphate, sulphate, and other salts of codeine. Preparations containing codeine or its salts — Elixirs, pills, syrups, and tablets. Cocaine, Alkaloid : Derivatives — Cocaine hydrochloride, oleate, and other salts. Preparations containing cocaine or salts of cocaine — Coca leaves, catarrh powders, elixirs, extracts, infusion of coca, oint- ments, paste pencils, pills, solutions, syrups, tablets, tinctures, troches, and wines. Hbboin : Prepartions containing heroin — Syrups, elixirs, pills, and tablets. Sec. 256a. A label need not state the name of the parent drug from which the article is derived. So much of Regulation 28 as requires the label to give the name of the parent drug from which the article is derived has been held to exceed the power of the three secretaries to adopt; that in doing so they attempted to add something to the statute ; and that the provision of this regulation in that respect is void. Under this decision, when the article is a derivative, carrying its own distinctive name, the name of the parent drug from which it was derived need not he given. Thus, a label contained a statement that the article upon which it was placed contained "Acetphenet- idine, " but did not state that " Acetphenetidine " was a deriva- tive of " Acetanilide, " which, in fact, was the parent drug. It was held that the article \^-as properly labeled ; that the label need not contain a statement that "Acetphenetiden" was a derivative of "Acetanilide," and that so much of Regulation 28 as attempted to require the name of the parent drug to be given in case of derivatives was void. This is a decision of the Court of Appeals of the District of Columbia, rendered on May 28, 1911, not published by the Department of Agriculture until after this work went to press. (United States v. Antikamnia Chemical Co., N. of J. 10.56; 34 Wash L. Rep. 48; affirmed 37 App. D. C. .) 323 MISBRANDING. [§ 257 Alpha and Beta Eucaine: Preparations — Mixtures, ointments, powders, and solutions. Chloeofobm : Preparations containing chloroform — Chloranodyne, elixirs, emulsions, liniments, mixtures, spirits, and syrups. Cannabis Indica: Prepcurations of cannabis indica — Corn remedies, extracts, mixtures, pills, powders, tablets, and tinc- tures. Chlobal Hydeate (Chloral, U. S. Pharmacopoeia, 1890) : Derivatives — Chloral aoetopheuouoxim, chloral alcoholate, chloralamide, chloral orthoform, chloralose, dormiol, hypnal, and uraline. Preparations containing chloral hydrate or its derivatives — Chloral camphorate, elixirs, liniments, mixtures, ointments, supposi- tories, syrups, and tablets. Acbtaniude {Antifehrine, Phenylacetamide) : Derivatives — Acetphenetidine, citrophen, diacetanilide, lactophenin, methoxy-ace- tanilide, methylacetanilide, para-iodoacetanilide, and phenaeetine. Preparations containing acetanilide or derivatives — Analgesics, antineuralgics, antirheumatics, cachets, capsules, cold remedies, elixirs, granular effervescing salts, headache powders, mixtures, pain remedies, pills, and tablets." i §257. Misbranding Defined— Statute. The Food and Drugs Act of 1906 provides: "That the term ' misbranded, ' as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composi- tion of food, the package or label of which shall bear any statement, design, or device regarding such article, or the in- gredients 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 misbranded : 1 Regulation 28. § 258] LAW OF PUEE FOOD AND DEUGS. 334 "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 indiea, chloral hydrate, or acetanilide, or any derivative or prepara- tion of any such substances contained therein."^ §258. Unintentional Misbranding. The statute makes no distinction between an intentional and an unintentional misbranding. The object of the statute is to protect the public against imposition, and unintentional 1 Section 8. "To fully inform you as to what is meant by the law by 'misbrand- ed,' I will state what the law re- quires, because the law uses the word 'misbranding* and then de- fines it, and the court and jury are bound by the definition of mis- branding 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 de- vice regarding such article or the ingredients or substances contained therein which shall be false or mis- leading in any particular.' You will notice how broad the law is in its definition. If it is found from the evidence that in any par- ticular this drug known as 'Har- per's Cuforhedake' 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 says 'in any particular.' So that if you find from the evidence that in any one point there has been a misbrand- ing under the definition which I have read to you then you shall find a verdict of guilty." United States V. Harper. Notice of Judg- ment. 25. It is no defense on a charge of misbranding whisky, that the brand was placed upon the packages con- taining the liquor by the United States ganger upon information re- ceived from the distiller in accord- ance with the usual practice, or that the same kind of liquor had for a number of years been so branded and sold under such brand, to the knowledge of the agents and ofBcers of the United States. Unit- ed States V. Fifty Barrels of Whis- ky, 165 Fed. 966. 325 MISBEANDING. [§§ 359, 360 imposition is just as disastrous to it as an intentional one. Any one who unwittingly misbrands an article of food or drug is as liable to the penalty of the statute as if he did it designedly, though no doubt the court would bear in mind the fact that the accused had no intention to violate the statute when fixing the amount of the fine.^ § 259. Trade Marks. If a device or design be calculated to deceive or mislead the purchaser, then the manufacturer can not shield himself under the fact that such device or design, is a registered trade mark. Trade marks that are deceptive as to the qual- ity of goods will not be protected by the courts from in- fringement by others, nor can their use be insisted upon if they deceive the purchaser when placed upon an article of food. Section 8 of the Pure Food and Drugs Act is broad enough to prevent the use of a counterfeit of a "design" or "device" used by an honest manufacturer by another. When the counterfeit is so used by another on an article of food it is "misbranded," for it is a representation that the article is made by the person lawfully entitled to use such design or device.^ §260. Package of Food Need Not Be Labeled. It is to be observed that the statute does not require an 1 See United States v. Fifty Bar- and that it conforms to the stand- rels of Whisky, 165 Fed. 966. ard prescribed by law. District of It is no defense for a druggist Columbia v. Lynham, 16 App. D. who is prosecuted for selling an C. 85. adulterated drug in violation of Act "It should be noticed that al- of Congress, February 17, 1898 though the indictment alleges a (30 Stat. 246), relating to the wilful fraud, the shipment is pun- adulteration of foods and drugs in ished by the statute if the article the District of Columbia, to show is misbranded, and that the article simply that he was at the time of may be misbranded without any sale, or of possession for sale, conscious fraud at all." United ignorant of the fact ihat the drug States v. Johnson, 219 U. S. — . was adulterated, as he must know 31 Sup. Ct. 627, 55 L. Ed. — . what he sells, or proposes to sell, i See N. J. 184. § 361] LAW OF PUEE FOOD AND DEUGS. 336 article of food or a drug to be labeled or branded unless it contains certain specified substances or is otherwise of a char- acter that renders it liable to be prohibited as adulterated without some statement of character or quality. But there is a limit to this statement. Thus in case of a drug or food, "if it be an imitation of or offered for sale under the dis- tinctive name of another article," it is misbranded, and Regu- lation 22 provides as follows: "It is prohibited to sell or offer for sale a food or drug product bearing no label upon the package or no descriptive matter whatever connected with it, either by design, device or otherwise, if said product be an imitation of or offered for sale under the name of another article." But if a name or device be used when not neces- sary, it must be such as will not mislead the public; it must be a true name. In an instance of a drug which is recognized by the United States Pharmacopoeia or National Formulary, it must, if it bear any name, bear the name recognized in one or the other of these two authoritative publications. But the common English name of the drug may be used, rather than its technical name. In fact, a teahnieal labeling may be such as to convey no information to the purchasing public con- cerning what it is. Thus it is permissible to use the term "Epsom Salts," the English name, instead of "Magnesium Sulphate," its technical equiA'alent. § 261. Failure to Brand Drug is to Misbrand it — Label Defined. It ha;s been contended that a total failure to label or brand an article of food or a drug does not come within the statute providing a penalty for misbranding an article, but unsuc- cessfully. "In construing the terms of the statute," said Judge Dayton of the Northern District of West Virginia, "it is further insisted that a criihinal offense can not 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 327 MISBRANDING. [§ 361 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 in- genious 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 Columbia any article of food or drug which is adulterated or misbrauded,' 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 it; that is, in these parts of the country over which it had full control and jurisdiction. Section two 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 other 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 Con- stitution, 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 can not 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 § 361] LAW OF PUEE FOOD ANE DRUGS. 328 be deemed adulterated, and what articles of each shall be deemed misbranded. 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 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, '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 cases 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 quantity of alcohol,' etc., would it not as well meet the view of counsel? A label is defined by Web- ster to be 'a slip of paper, parchment, etc., af&xed to any- thing, and indicating the contents, ownership, destination,' etc. The use of the word itself, therefore, carries the mean- ing 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. Twenty Boxes of Corn Whisky^ 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 ar- ticle 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, 1 133 Fed. 910, 67 C. C. A. 214. 329 MISBEANDING. [§263 and not as a regulation of interstate commerce. It follows that the first ground of defense must be unavailing. "= §262. Form of Label. "The following is an extract from a letter recently re- ceived : "We do not understand the requirements of the regulations respecting the arrangement of labels; that is, the order in which the various features of the labels should be arranged.' "To meet the requests for the opinion of the Department regarding the proper arrangement of a label, the following order is suggested: "1. Name of substance or product. "2. In ease of foods, words which indicate that the arti- cles are compounds, mixtures or blends, and the word 'Imi- tation,' 'Compound' or 'Blend,' as the case may be. "3. Statements designating the quantity or proportion of the ingredients enumerated in the law, or derivatives and preparations of same,^ as mentioned under Regulation 28; also statements of other extraneous substances whose pres- ence should be declared, such as harmless coloring matter, or any necessary statement regarding grade or quality. "(The statements specified in paragraphs 1, 2 and 3 should appear together, without any intervening descriptive or ex- planatory matter.) "4. Name of manufacturer (if given). "5. Place of manufacture (if given, when required in case of food mixtures or compounds bearing a distinctive name). "It is stated in Regulation 17 that if the name of the manufacturer and place of manufacture be given they should appear upon the principal label. Although the law does not require that the name of the manufacturer be given, or the place of manufacture, except in case of food mixtures and 2 United States v. Knowlton Dan- that the declaration of alcohol and derine Co., 170 Fed. 449; N. J. its derivatives is not required in 284; affirmed 175 Fed. 1022. foods. 1 Attention is called to the fact §362] LAW OF PURE FOOD AND DRUGS. 330 compounds having a distinctive name, it is held that if they are given they must be true, and should be placed v?ith the required information on the principal label. The arrangement of the label is the same for both food and drug products, and an example of each is given. Sample label for food product. [Name of product.] [Declaration required by paragraphs 2 and 3.] [Name of manufacturer, if given.] [Place of manufacture, if given.] KETCHUP. ARTIFICIALLY COLORED. [Descriptive matter, if de- sired, but preferably at bot- tom of label.] BLANK & CO., PORTLAND, ME. [Descriptive matter, is de- sired.] Sample label for drug product. [Name of product.] [Declarations required by paragraphs 2 and 3.] [Name of manufacturer, if given.] [Place of manufacture, if given.] COUGH SYRUP. ALCOHOL, 10 PERCENT. MORPHINE, Va GRAIN PER OUNCE. CHLOROFORM, 40 MINIMS PER OUNCE. [Descriptive matter, if de- sired, but preferably at bot- tom of label.] JOHN JONES & CO., WASHINGTON, D. C. [Descriptive matter,- if de- sired.] "Any descriptive or explanatory matter that may appear on the principal label, therefore, should be placed at the bottom of the label, or betv^een No. 3 and No. 4, and should be clearly separated from other features of the label by means 331 MISBRANDING. [§§263,264 of a suitable line or space. Statements regarding the reason for using alcohol, artificial coloring matter, and other ex- traneous substances, come under the head of descriptive or explanatory matter, and should not be interspersed with the declarations required under Nos. 2 and 3. "The information called for under No. 3 should be so worded as to give only the required information, as, for ex- ample, 'alcohol 17 percent' or 'artificially colored.' All num- bers used in expressing quantity or proportion of substances required to be stated (see Regulation 28) should be expressed in the Arabic notation. "Each substance required to be declared under No. 3 should be printed on a separate line and in type specified in Regulation 17 (c).'"^ §263. The Package to Be Labeled. The provisions of the Act concerning labeling applies di- rectly to the original package, which is the case, box, barrel, in which cans, bottles, cartons or other retail packages are shipped from the manufacturer, producer or packer to the jobber, wholesaler or retailer, or from the jobber or whole- saler to his customer. They also apply to individual cans, bottles, cartons and other packages enclosed in a case, box, barrel or outer package. This is unquestionably true of food products or drugs shipped into or out of the District of Co- lumbia or into or out of any Territory. § 264. Approval of Labels. "Numerous requests are referred to this Department for the approval of labels to be used in connection with articles of food and drugs under the Food and Drugs Act of June 30, 1906. This Act does not authorize the Secretary of Agri- culture nor any agent of the Department to approve labels. The Department therefore will not give its approval to any label. Any printed matter upon the label implying that this Department has approved it will be without warrant. It is 1 F. I. D. 52. §§ 365, 366] LAW OF puke food and dbugs. 333 believed that with the law and the regulations before him the manufacturer will have no difiSculty in arranging his label in harmony with the requirements set forth. If there be questions on which there is doubt respecting the general character of labels, decisions under the Food and Drugs Act will be rendered, of a public character, and published from time to time, covering such points."^ §265. Substance Named on Label Not the Leading One in the Article. If the substance named on the label is not the leading one in the article of food, and is so small a part thereof as to constitute but a very small fraction of such article, then it is misbranded, for the manufacturer has no right to thus de- ceive the public. Such would be the case with extract of lemon, where the lemon juice was but a small fraction of the total amount of the product. In one of the food decisions it was said: "It is further held that the use of an ingredient in small quantity simply for the purpose of naming it in the list of ingredients would be contrary to the intent of the law, and therefore that the ingredients must be used in quantities which would justify the appearance of their names upon the label." §266. Distinctive Names of Foods. Any mixture or compound of food which does not contain any added poisonous or deleterious ingredient can not be deemed misbranded if under its own "distinctive name," "and not an imitation of or offered for sale under the dis- tinctive 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."" 1 F. I. D. 41. lowed, these rulings of the Agricul- iP. I. D. 42; F. I. D. 99; F. I. tural Department may be regarded D. 98. as of doubtful soundness. See Sec-. But if the dictum in United tion 405. States V. American Druggists' Syn- i Section 8. dicate, 186 Fed. 387, is to be fol- 333 MISBRANDING. [§ 261' The term "distinctive name" means the trade description by which an article of food is known to the public. It also in- cludes generic names, such as coffee, tea, flour, sugar, lemon juice, chocolate, vanilla, as well as fanciful or arbitrary names which a manufacturer puts upon the market, and which are, in fact, trade-mark names. If an article be not coffee, then it can not be labeled "coffee,"^ and so cane syrup can not be labeled "maple syrup," or cotton-seed oil "olive oil," if it be not the genuine article; nor can a Brazilian coffee be labeled "Mocha" coffee. Nor can a foreign name be used on a domestic article. Examples of this can be found with reference to Roquefort cheese, which is a foreign well-known cheese, and to brand a cheese with the word "Roquefort" is to convey the meaning that it is of foreign manufacture — an imported cheese. There is no objection, however, to a do- mestic cheese made in the type or style of Roquefort cheese being labeled "Roquefort Style" or "Roquefort Type," but the word "type" or "style" must be so plainly printed on the label as to prevent its being overlooked by the pur- chaser.^ § 267. Use of Different Kinds of Type to Deceive Purchasers. It is not an uncommon practice of manufacturers to com- ply with all the requirements concerning labels so far as to make an accurate statement of the contents of the package or can, but to use different kinds of type, so as to attract the attention of the purchaser to the inferior or adulterated quali- ties of the article. Such labeling is considered to be a misbranding. A few illustrations may be given. Thus, a cheese was branded, "Blue Ribbon Brand Neufchatel Style Cheese." Thevsrords "Neufchatel Cheese" were in large type, and the word "Style" in small, inconspicuous type. This was done for the purpose of deceiving and misleading the pur- chaser into the belief that the cheese was a well-known for- 2 As "Cereal Cofifee." F. I. D. 50. had put nothing on his product 3 "The manufacturer here would but the name Como Horse and have fully obeyed the statute if he Mule Feed." N. J. 990. § 268] LAW OF PUEB FOOD AND DRUGS. 334 eign product of superior quality, when in fact it was a do- mestic article, as the label truthfully indicated; but the branding or labeling was such as to mislead the average pur- chaser. It was adjudged that the cheese was misbranded.^ A similar ruling was made where a can was labeled "Broiled California Mackerel-Pilchard or Sardinia Caeruleus." The product in the can was not "California Mackerel," but was California sardines; and the words "Pilchard or Sardinia Caerulus" were printed in very small, insignificant letters, no- ticeable only upon close inspection. This was considered a misbranding.^ So where a product was labeled "Currant Jelly" in large letters, followed by the words "Blended with Apple and Other Fruit Juices," in such small letters that it was calculated to mislead and deceive the public into the be- lief that the product was in fact currant jelly when it was only a mixture, as the words in small type indicated. It was held that the product was mislabeled.' §268. Waste Material in Foods. The regulations provide that: "Where an article is made up of refuse materials, fragments or trimmings, the use of the name of the substance from which they are derived, un- less accompanied by a statement to that effect, shall be deemed a misbranding. Packages of such materials may be labeled 'pieces,' 'stems,' 'trimmings,' or with some other ap- pellation."^ If the article of food is made of such materials, and it is not unfit for food and contains no added substance which is considered deleterious, it may be sold if labeled in accordance with this regulation. Such an article of food must not be passed off for an article better than it really is. But if an article of food is made out of pieces, stems or trim- mings that are unfit for food, then the proper labeling of it will not save it from the charge of adulteration. IN. J. 291; N. J. 565; N. J. sN. J. 415. See also N. J. 811, 341. N. J. 835. 2 N. J. 365. 1 Regulation 26. 335 MISBEANDING. [§ 369 §269. "Manufactured for," "Prepared for," "Distributed by," Used on Labels. "Numerous inquiries are received relative to the marking of products not manufactured by the party in vrhose name they are sold. The following are representative: 'We prepare products on the special prescription of the customer, ship- ping the same to him in barrels to be rebottled, labeled, and packed for the market. Many of our customers are asking how the law affects this busi- ness. 'Manufacturing chemists ship goods to us, made according to our for- mula; we bottle and label the goods. Should our name appear on the labels as manufacturers or distributers? All of our remedies are given a distinctive name. 'If we put up a, cough remedy for John Smith & Co., would it be suffici- ent to label it "Sold by," or must it be labeled "Prepared for John Smith & Co."? 'Will it be necessary to have appear on the label our name as the actual manufacturer of the product or wiU it only be necessary that the words "Prepared only by" be cut out of the label and instead the words "Pre- pared for" be printed thereon, just before the name of the Blank Chemical Compajiy? You will, we think, appreciate that, as the prepara,tion is made over their private formula and for their account, we acting merely as the agent for this manufacturer, we should not care to have our name attached to it or to any other preparation of this kind put out by another concern and should be obliged to discontinue the business entirely should it be re- quired that our name appear on the labels for this preparation. 'I would respectfully call your attention to the injustice the enforcement of Regulation 18 (a) of Circular 21 will be to manufacturers of plain unmixed food products like sweet corn or tomatoes. This regtdation enables jobbers to demand that their names be placed on the labels to the exclusion of that of the manufacturer and to enforce their demand. The remedy is a simple one and seems to be wholly within the intent of the law, viz., re- quire that the name of manufacturer and place of manufacture be put upon every package offered for sale, and that it be held misbranded if this is not the conspicuous feature of all labels on all packages of food, whether plain, mixed, or compounded.' "In considering the above inquiries it should be borne in mind that the law forbids all forms of misrepresentation. Food mixtures and compounds having 'distinctive names* must in all cases bear the name of the place of manufacture. No drug products, whether simple, mixed or compounded, § 369] LAW OS PUEE FOOD AND DEDGS. 336 with or without 'distinctive names,' are required to bear the name of the manufacturer or producer^ or the place where manufactured or produced, except when sold under proper name brands, i. e., brands in which both the given name and the surname are used. All food and drug products sold under such proper name brands should bear the name of the manu- facturer or producer and the place of manufacture or pro- duction. In all cases where the name of party or place is stated upon the label, such name must be the true name of the actual manufacturer, producer or packer, and the true name of the place where the article was manufactured, pro- duced or packed. "If, for trade reasons, when not required by law, a name or a place be given upon the label of foods or drugs manu- factured or packed for any person, firm or corporation by another person, firm or corporation, one of two forms of labels is allowed, viz: "(a) The name of the actual manufacturer or packer and the place where the goods were actually manufactured or packed may be given; or " (b) The name of the person, firm or corporation for whom the goods are manufactured or packed, or by whom they are distributed, may be given, if preceded by the words 'prepared for,' 'manufactured for,' 'distributed by,' etc. The phrase 'sold by' is not satisfactory. The approved phrase shall be set in type not smaller than eight-point (brevier) caps. "This rule holds even if the formula or prescription be furnished or owned by the parties for whom the goods are manufactured or packed. "Foods and drugs repackaged within a State and sold only within that State are not subject to the Federal law; but repackaged foods or drugs which enter interstate com- merce, or which are sold in the District of Columbia or in the Territories, are subject to the law, and should be labeled in accordance with this decision."^ 1 F. I. D. 68. See also N. J. 990. 337 MISBRANDING. [§ 270 § 270. Imitations of Poods— Intent — Mistake. The statute expressly declares that in case of food an article shall be deemed misbranded "if it be an imitation of or of- fered for sale under the distinctive name of another article."^ This prohibition applies to all foods covered by trade marks under fanciful names that are imitations of other foods. But imitations of foods may be sold if they are properly labeled or branded as such. They must be labeled, branded or tagged so as to plainly indicate that they are imitations, and the word "imitation" must be plainly stated on the package in which it is offered for sale. Eegulation 21 declares that the term "imitation applies to any mixture or compound which is a counterfeit or fraudulent simulation of any article of food or drug." Regulation 22 provides as follows. "It is pro- hibited to sell or offer for sale a food or drug product bear- ing no label upon the package or no descriptive matter what- ever connected with it, either by design, device or otherwise, if said product be an imitation of or offered for sale under the name of another article." Notwithstanding an article is properly branded, yet if it be not wholesome or free from deleterious ingredients, capable of or intended for use in the same way as the substance of which it is an imitation, and as a substitute for such substance, it can not be put on the market. "Now," said a court in its charge to the jury, "there is another question to which your attention must be directed by the court, and that is the question of intent — as to whether the defendant intentionally committed the offense charged in the information. Now, gentlemen, in most crim- inal trials it is necessary for the government to establish be- yond a reasonable doubt that the accused intended to violate the statute, and the person charged with crime should not be convicted if it appears that the offense was due to a mistake or inadvertence — that is to say, absence of intent to violate the statute. Usually in criminal trials the intent is presumed from the facts and circumstances, and follows as a necessary consequence of the act; hence the defendants, if they knew 1 Section 8. Pdee Food — 22. §371] LAW OF PUEE FOOD AND DEDGS. 338 their product was an imitation of the other, and was not a distinctive article, then you may assume the defendant must be held responsible under the Act in question. The Pure Food and Drugs Act does not expressly provide that shippers or dealers must knowingly or wilfuUy violate its provisions; but if, as it is claimed by the defendants, this label was put on inadvertently, or by mistake by employes whom he had hired, and who had not become sufficiently familiar with their duties, it is my opinion, then, gentlemen, that he ought not to be held guilty of these two counts. On the other hand, if it is your opinion that this claim made at this time is merely a subterfuge, that the article in fact was misbranded, and that it is now claimed to have been a mistake in bad faith, in order to escape liability under the statute, then manifestly you will give little heed to the claim of mistake or inadvertence. Of course, if a dealer in a commodity of this character is to escape punishment, if persons are to be permitted to misbrand their goods and send them into inter- state commerce, and then may be heard to say that they did not intend to violate the statute, if they are not to be held liable as a necessary consequence of their act, this statute which is now before us will not remedy the evils that Con- gress designed it to remedy by its enactment."^ §271. Mixtures or Compounds of Poods. "An article containing more than one food product or active medicinal agent is misbranded if named after a single constituent."^ The statute provides that "the ca,se of mix- tures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinc- tive names, and not an imitation of or offered for sale under the distinctive name of another article," shall not be deemed misbranded "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." "In the case of articles labeled, branded, or tagged so as to plainly indi- 2N. J. 806. 1 Regulation 17. 339 mSBEANDlNG. ' [§ 2'J'l cate. that, they are compounds, . . . the word 'com- pound' must be "plainly stated on the package in which it is offered for sale."^ The words "mixture" and "com- pound" have practically the same meaning, and are so con- strued by the Department of Agriculture, and that meaning, in this connection, is the putting together two or more food products. But all the products thus compounded must be food products; a food product can not be compounded with a mineral or non-food product. To mix a mineral or non- food product with a food product is expressly forbidden by the statute.^ A compound of two or more food products need not be labeled with the names of the ingredients, or even labeled or branded with the word "compound" or "mix- ture," if such compound or mixture is now or may hereafter be known as an article of food under a "distinctive name,"* by which is meant either a trade description usually or com- monly employed or the name applied to a proprietary food; but in such an instance there must be placed on the label a statement where the article was manufactured or produced. If a compound or mixture be not known under a "distinc- tive name," then either the word "mixture" or "compound" must be used on the label, and must stand alone and without ' qualification. ° The fact that the mixing of two or more in- gredients lowers the grade of one of them is no objection to the product thus compounded. An illustration of this is the addition of flour or meal to pure mustard; but the compound thus made must not be offered as pure mustard, yet it is not treated as adiilterated if plainly labeled as a mixture or com- pound. But a mixture or compound can not be made for the purpose of concealing inferiority or damage ; nor can one be made which contains poisonous or deleterious ingredients. If wheat and rye flour be mixed, the product can not be sold either as wheat or rye flour, but the legend on the label must show that it is a mixture of wheat and rye flours.' The use of' an ingredient in a small quantity for the purpose of nam- 2 Section 8. = See F. I. D. 42, F. I. D. 47. 3 Section 7. <= F. I. D. 42. * Section 8. § 372] LAW OF PURE FOOD AND DBUGS. 340 ing it in the list of ingredients does not authorize, so naming it, for the ingredients must hfi present in substantial quanti- ties. The words "mixture" and "compound" must not be confused with "blend." From the latter they differ, not necessarily being limited to the product resulting from the mingling together of like substances, while the statute ex- pressly limits a blend to a mingling of like substances.'^ §272. Blends of Foods — Distinctive Name. The statute provides 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."^ A blend differs from a "mixture" or "compound," for they "indicate the results of putting together two or more food products," and may be the "putting together two or more" dissimilar sub- stances, while a blend must be the putting together of "like substances." "Coloring and flavoring can not be used for in- creasing the weight or bulk of a blend," and "in order that colors or flavors may not increase the volume or weight of a blend they are not to be used in quantities exceeding one pound to eight hundred pounds of the blend. "^ A color or flavor can not be recognized to imitate any natural product or any other product of recognized name and quality.* These two last clauses must be read together with the clause in the statute providing that imitations, if properly labeled or tagged, shall not be deemed misbranded.* Colors or flavors in the production of foods that are imitations are not pro- hibited if such foods are offered for sale for what they actu- ally are. In other sections will be found a discussion con- cerning the blending of whiskies, which it is not necessary here to repeat. "The manufacturer," said Justice Jones of the Middle District of Alabama, "without violating any of the provisions of the statute against adulteration, may mix 7 See F. I. D. 65. s Regulation 21. 1 Section 8. * Section 8. 2 Regulation 21. 341 MISBEANDIKG. [§ 273 any number of constituents in his compound, so long as these constituents are not poisonous or deleterious to health and he gives the compound a distinctive name and states where it is manufactured. The matter thus produced is 'the article of food' whose quality and strength the statute seeks to pre- serve, and the nature of the product in these respects is fixed and determined by the elements which enter into it. . . . Putting in a mixture of things which may be lawfully blended therein can not amount to adulteration of the blend, since, other things aside, the statute declares, its other conditions being complied with, the blend shall not thereby 'be deemed to be adulterated.' '" §273. Proprietary Foods — Formula. The statute provides "that nothing in this Act shall be construed as requiring or compelling proprietors or manu- facturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in- sofar as the provisions of this Act may require to secure free- dom from adulteration or misbranding."^ But notwithstand- ing this provision, proprietary foods are subject to the gen- eral provisions of the statute both with regard to adulteration and misbranding. If such foods contain substances prohibited by the statute, or if they are materially different in character or quality from what they are represented to be, their manu- facturers or proprietors are subject to the penalties provided for in sections four and five of the statute. Proprietors of such foods must, therefore, disclose on the label so much of the formula as is necessary to comply with the general re- quirements of the Act regarding misbranding. Eegulation 8 provides that "manufacturers of proprietary foods are only required to state upon the label the names and percentages of the materials used, insofar as the Secretary of Agriculture may find this to be necessary to secure freedom from adul- teration and misbranding," and "the factories in which pro- 5 N. J. 990. 1 Section 8. ^■fi^J LAW OF ^esrjlE.FOOD ,ATi(0 DK0GS. Sit prietary. fopd^ are, .made shall be open at. all reasonable times to the ii^spection provided for in Regulation 16. "^ . §274. Fictitious Names. r ' ' The following extract , from a letter is typical of a ques- tion frequently asked:. i 'In conileGtion with our manufacture of flavoring extracts, we produce an .article .containing, a certain percentage of artificial coumarin and yanillin. This product has been placed on the market under the name of r and Gonjpany, a fictitious firm, although dealers have always under- stood that it was our product. Is there any objection to our continuing to brand the product as manufactured by — and Company?' "The same question has frequently .been asked by importers who state that they desire to assume the responsibility for particular brands. "It has been held by the Attorney-General (F. I. D. 2) that — 'the words "... Daisy Sugar Corn, '■ Company, Milwaukee, Wis.,'' clearly imply that the goods referred to are manufactured or pre- pared by that company in Wisconsin. The general public, unfamiliar with trade practices, would inevitably reach that conclusion.' "Regulation 18 provides that if the name of the manufac- turer and the place of manufacture be given, they must be the true name and the true place. It would appear, there- fore, that the use of a fictitious name in such a manner that it would be understood to be the name of the manufacturer would be clearly a violation of Regulation 18. It is apparent that the provisions of Regulation 18 will not be fulfilled by the nominal incorporation of a fictitious firm. The regula- 2 Regulation 16 is as follows : tion," and "Th^ Secretary of Agri- "The Secretary of Agriculture, when culture shall make such inspections he deems it necessary, shall exam- as often as he may deem necea- ine the new materials used in the aary." manufacture of food and drug prod- It has been doubted if the stat- uots, and determine whether any ute affords a basis of that portion filthy, decomposed or putrid sub- of Regulation 8 above quoted, stance is used in their prepara- 343 MISBRANDING. [§ 275 tions require that goods must be actually manufactured by tbe firm represented on the label as the manufacturer. "When a proper name, other than that of the manufac- turer, is placed upon a label, it must not be used in the pos- sessive. For instance, CHAELES GASTON'S OLIVE OIL BORDEAUX can only be properly used on an oil manufactured by Charles Gaston at Bordeaux. The same is true if the designation GASTON'S OLIVE OIL BORDEAUX be employed. "On the other hand, the word 'Gaston' might be used in an adjective sense, and not in the possessive case as qualify- ing the words 'olive oil,' in a manner that would indicate that it represented a brand and not a manufacturer, as GASTON'S OLIVE OIL Or, OLIVE OIL, GASTON BRAND In such case, however, neither given name nor initials should be employed. The word 'Gaston' should be in the same type as 'olive oil' and in equal prominence, thus forming a part of the label. "The phrase 'Olive Oil, Charles Gaston Brand,' may be used, in which case the name of the actual manufacturer should appear, in order that no false indication of the name of the person or firm manufacturing the product may be given. "^ §275. Name of Manufacturers. The name of the manufacturer is often a guaranty in the market of the quality and purity of the manufactured prod- uct. In time these names often become practically trade marks, though not capable of registration. By a long usage IF. I. D. (as amended) 46. ., , § 276] LAW OF PTJBE FOOD AND DRUGS. 344: the public becomes used to the names attached to foods or drugs, and rely upon them. To permit a manufacturer to use a name thus established as a cloak for inferior goods is to permit a misbranding of the article, and to clearly fall with- in the prohibition of the Pure Food and Drugs Act on the question of misbranding. The statute does not require the name of the manufacturer to be placed upon the label, but if one be placed thereon it must be the name of the actual manufacturer. The mere placing of a name of a person or corporation upon a manufactured product is sufficient to carry the impression to the general public that such person or corporation manufactured the product thus labeled, with- out words to the effect that it was "manufactured by" such person or corporation, and is, therefore, a misbranding if not true. In the instance of a jobber or wholesaler, distributor, importer, agent, or the like, who desires to place his name upon the article, no objection can be taken to such usage if the name be accompanied by the words "packed for," "dis- tributed by," "agent," "importer," or other words, so as to indicate that the name is not used as a manufacturer or producer. The only restriction in the use of names is that a name must not be used which gives out the impression that its owner is the manufacturer or compounder of the article upon which it is placed; and this difficulty can be overcome by the proper use of language in connection therewith. But a name which a packer or manufacturer has the right to use as an assignee or successor can not be held to be a fictitious or improper name. The use of any fictitious name which purports to be the name of the manufacturer clearly falls within the prohibition of the statute, though the use of fic- titious names on the labels is not expressly prohibited by the statute.^ §276. Deceptive Labeling of Foods — Foreign Labels. The statute provides that if food "be labeled or branded iN. J. 580. To state on the la- was not manufactured by him, is bel that it was manufactured by a to mislabel the article. N. J. 184. particularly named person, when it 345 jaSBRANDLNG. [§ 376 so as to deceive or mislead the purchaser, or purport to be a foreign product when not so," it shall be deemed mislabeled or misbranded; so it is taken as misbranded or mislabeled "if it be an imitation of or offered under the distinctive name of another article."^ These are very broad terms, and would seem to cover every possible ease of so labeling or branding food as to deceive the public either as to its qual- ity, character or origin. These provisions reach all instances of the use of labels in a foreign language, or of foreign names as the manufacturer's or producer's name, when used upon foods of a domestic origin in such a way as to lead the purchaser to believe it is of foreign origin. Such is a case where the name of a foreign locality is used as the locality of origin. If the label be in the English language, its repeti- tion in a foreign language, — ^nor would additional represen- tations thereto in a foreign language, — ^be deemed a mislabel- ing, if truthful! But a label and all necessary information must be in the English language. Yet the principal label may be "in a foreign language," but "all information re- quired by law and such other information" as Regulation 17 requires must "appear upon it in English. Besides the prin- cipal 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 informa- tion required by law, but not necessarily in English." De- scriptive matter upon the label must be "free from any state- ment, design or device regarding the article or the ingredients or substances contained therein, or quality thereof, or place of origin, which is false or misleading in any particular."' "The use of any false or misleading statement, design or de- vice appearing on any part of the label shall not be justified by any statement given as the opinion of any expert or other person, nor by any descriptive matter explaining the use of the false or misleading statement given as the opinion of an expert or other person, nor by any descriptive matter ex- 1 Section 8. 2 Regulation 17. § 377] LAW OF PUEE FOOD AND DRUGS. 346 plaining the use of the false or misleading statement, design or device."^ §277. False or Misleading Laibel, Design or Device. To label any article that is an imitation of any food or drug as a genuine article, or "under the name of another ar- ticle," is to violate the statute. The object of the statute is to enable the purchaser when purchasing an article to ascer- tain from an examination of the statement or legend on the label just what are the contents of the package, bottle or carton to which it is attached; and if that statement or le- gend be false in whole or part, the object of the statute is perverted. A pictorial reproduction may as effectually mis- lead him as a direct statement in words, and is just as much a misbranding as a false statement. Thus, if a picture of a beehive and bees be placed upon a can of imitation or adul- terated honey, the inference to be drawn therefrom is that it is pure bee honey, and if it be not it is misbranded or mis- labeled. So take an instance of maple sugar or syrup, where maple leaves or a sugar camp is placed upon the label, when the sugar or syrup is not pure maple sugar or syrup; or an instance of placing coffee plants or scenes from coffee planta- tions upon packages not containing pure coffee. All such pic- tures hold out the idea that the articles upon which they are placed are pure articles of the kind it is intended to depict by their use, and are clearly acts of misbranding. Thus, a box of macaroni was labeled "Molino e pastificio a vapore Napoletano San Giovanni a Teduccio." In addition to these words the label bore a picture or design depicting a body of water with a smoking volcano in the distince, a Maltese cross, a lion, the monogram "A. R.," and a number of medals, on one of which was inscribed "Victor Emanuel, Italia." The picture design and words were to deceive the purchaser, for the reason that they purported that the macaroni in ques- tion was a foreign product, signifying and importing that it had been manufactured in the vicinity of Naples, Italy, and 3 Regulation 17. 347 , MISBRANDING. . ■ [§ ^'^8 that after being so manufactured it had been imported into the United States from that country. In fact, the macaroni had been manufactured in the city of Philadelphia. It was held that it was improperly labeled.^ § 278. False Indication of Origin — Geographical Names. There is nothing in the statute which requires the label to contain a statement concerning the place where the article of food or drug had its origin, or where it was manufactured, except in the ease of compounds or mixtures having a dis- tinctive name.^ But if a name be given as the place of the manufacture of the food or drug then the true name of its origin must be given. Thus, to label a can of fish "Broiled California Mackerel" when the fish was not taken in the State of California is to mislabel them.^ So to label a firkin of butter "The Elgin Butter Company, Elgin, Illinois," when the butter was made and put up in Wisconsin, is to falsely brand it.^ So to use the words "Caracas Cocoa,", when it comes from the State of Zulia in Venezuela, and not from either Rio Caribe, Guiria, Carupano, Rio Chico, Higuerto, and other places of the eastern coast of Venezuela, is to mislabel or misbrand it, for the brand gives it a false origin.^ There are many foods or drugs — particularly foods — that have acquired in the markets a reputation for excel- lence or a peculiar flavor. Such is Vermont Maple Syrup, Michigan apples, Maine canned corn, Baltimore oysters, Dela- ware peaches, Wisconsin cranberries, Elgin butter, Kentucky whisky, Indian River oranges, Smithfield hams. Western New York grapes, Ohio wine, and the like. These are geograph- ical names in the nature of trade marks. The right to use them belongs not to any individual in particular, but to the producers located within a certain region. In the law of IN. J. 600; N. J. 167; N. J. i Seetion 8. 262; N. J. 487. 2 N. J. 365. A picture of a churn placed on 3 N. J. 67. oleomargarine is a representation * N. J. 114. that it is butter. People v. Griffin, 128 N. Y. Supp. 946. § 278] LAW OF PUEE POOD AND DBUG8. 348 trade marks they are known as "Regional Marks" or "Col- lective Marks." In foreign countries these "Regional Marks" are often protected, and are not infrequently sub- ject to treaty arrangements between them. On April 14, 1891, Great Britain, Prance, Spain, Portugal, Switzerland, Ttinis and Brazil entered into a treaty at Madrid, having for its express purpose the suppression of false indications of origin. To prevent deception by the use of a geographical name it is provided in Regulation 19 that their use "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." One of the decisions of the Board of Food and Drug Inspection covers this phase of the question. It is as follows: "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 consequence 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 'Rocky Ford' as applied to canta- loupes, and 'Indian River' as applied to oranges. "The Rocky Ford melon is not a new variety of melon, but is one of the older varieties of melons which in the environ- ment of Rocky Ford, Colo., has attained particular excel- lence. "The same remark applies to the Indian River oranges of Florida. They are not a new variety, but various varieties which in the environment 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 geographical names are only properly applied to the product of the restricted area for the melons which are grown in or near Rocky Ford, and for the product grown in 349 MISBRANDING. [§ 278 or near the Indian Eiver. Inasmuch as the term 'Eocky Ford' has thus become associated with a melon of particular 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 de- ceptive in any particular."^ This question is presented in another phase. Thus, the use of a geographical name may have been so long continued as to indicate a kind of product rather than it is from a pecu- liar district or country. Such is the case of the word "Champagne" when applied to a wine. In the district of Champagne, France, a peculiar wine was made which became known as "Champagne Wine." The process of manufacture was different from that of ordinary wines, resulting in an agreeable taste. In time the production of wine by a similar process was undertaken, resulting in a wine similar to that produced in Champagne, and to this production was applied the term "Champagne Wine." So universal has the use of the term become that it no longer indicates the place of the origin of wine upon which it is used, but it does indicate a kind of wine. Another illustration is the use of the word "calico." It now means a peculiar product, and not that it was made in Calicut, India. The words "Concord grapes" now indicate a grape of a distinctive flavor and growth, and not that they are raised in Concord, Massachusetts, where the grape originated. The same is true of the Delaware grape, which had its origin in Concord. The use of the words "Concord" and "Delaware" now merely indicate a kind of grape, and not that they were grown in a particular locality. To meet this phase of the trade a paragraph of Regulation 19 provides as follows: "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 a style, type, or brand; but in all such cases the State or Territory where any such s F. I. D. 116. § 278] LAW OS PUEE FOOD AND DRUGS. 350 article is manufactured or produced shall be stated upon the principal label." If a manufacturer produces goods in several States, "the actual place of manufacture or production of each particular package need not be stated on the label, except where, in the opinion of the Secretary of Agriculture, the mention of any- such place, to the exclusion of the other, misleads the pub- lic."" To brand salt "Granulated Liverpool Dairy Salt, Fac- tory Filled, Manufactured by Inland Crystal Salt Co., Salt Lake City," with a stamp or branded picture of a crown above the label, with the words "Liverpool Dairy Salt" printed in large and more prominent letters than the other words in the brand, is to misbrand it, giving out the infer- ence that it is salt from Liverpool, England.'' So it is to misbrand American rice to label it "Mikado No. 1, Fancy Japan Rice, Coated with Glucose and Talc, Removed by Washing Before Using."* So California maple syrup as "Strictly Pure Canada Maple and White Sugar Blended Syrup. "° So fJour labeled as manufactured in San Fran- cisco, California, when it was manufactured in Oregon.^" So vanilla labeled "Gold Medal Pure Concentrated Compound Extract of Vanilla, Stajidard Extract Company, New York," when it was produced in Richmond, Virginia.^^ So to label syrup "George Bubb and Sons, Williamsport, Pa.," when it was made in Granite City, Illinois, ^^ or cheese "Roquefort Cheese" when made in Illinois, for Roquefort cheese is a French production;^' or "English Dairy Cheese," when made in Connecticut," or "Fromage de Brie, Trade Mark Circle X Brand," when it was made in Illinois and not in France;^® or "Elgin Creamery Butter" when it was made in Pierceville, Indiana ;^° or "Saint Louis" and "Bohemian Beer" when it was made in Brooklyn, New York;" or "Original Holland « Regulation 18. ^ 12 N. J. 100. ^ N. J. 280. 13 N. J. 341. 8N. J. 190. :, , . 14N. J. 154. sN. J. 99. 16 N. J. 431. r . ' ; ION. J. 443; N. J. 439. 10 N. J. 332; N." J. 351. 11 N. J. 532. 17 N. J. 51. :'dl f\. .t .' ' 351 MISBRANDING. [§ 279 Eusk, made in Holland," when it was made in New York.^' "Trinacria Macaroni Works, Pasta Extra Sieilia," indicates that the macaroni thus labeled was made in Italy.^° So a bakery product made in Philadelphia labeled as made in Bal- timore is mislabeled.^" §279. Sugar in Canned Poods. "Numerous inquiries have been addressed to the Depart- ment respecting the proper labeling of canned fruits and vegetables to which sugar has been added. Sugar is a whole- some food product, and is also condimental. It reveals its own presence by its taste. Its addition to a food product can not be objected to on the ground of injury to health. "It is held by this Department that sugar can be used in the preparation of all food products where it is not used for fraudulent purposes. If sugar be added without notice to Indian corn which is not sweet, for the purpose of making it appear a sweet corn, to be sold as such, it is used for a fraud- ulent purpose, and for this reason is prohibited by the law,. "In section seven of the law it is provided that a food is adulterated 'if it be mixed, colored, powdered, coated or stained in a manner whereby damage or inferiority is con- cealed. It is evident, therefore, that a food product can not be mixed with any other substance for the purpose of con- cealing damage or inferiority. A vegetable which is not nat- urally sweet could not be sold as one which is naturally sweet by mixing with sugar without violation of the law, un- less the addition of sugar is plainly indicated on the label. "The addition of sugar to canned vegetables is not for pre- servative purposes. Added sugar increases the tendency to fermentation. It is added wholly as a condimental ingre- dient. "It is held, therefore, that the addition of sugar to a sub- stance not naturally sweet, converting it into a substance which might seem naturally sweet, is justified if the label 18 N. J. 429. 20 N. J. 954. i, -i 19 N. J. 804. i § 280] LAW OF PUEE FOOD AND DBUGS. 352 plainly indicates that this sweetening material is added. In other eases, where no deception is practiced, the mention of the presence of sugar is not required. "The term 'sugar,' as used herein, is confined to sucrose (saccharose), either in a solid form or in solution."^ §280. — Substances Used in the Preparation of Foods. "The following letter was recently received at the Depart- ment of Agriculture: 'We import a preparation of gelatin preserved with sulphurous acid for the purpose of fining wine. This gelatin is not used as a food and does not remain in the wine, although a small amount of the sulphurous acid may be left in the wine. Please inform us if the sale of this product is a viola- tion of the food law.' "It is held that the products commonly added to foods in their preparation are properly classed as foods and come within the scope of the Food and Drugs Act. The depart- ment can not follow a food product into consumption in order to determine the use to which it is put."^ ART. II.— FOOD DECISIONS. SEO. SEC. 281. Alcohol in food. 287. Brandy. 282. Alfalfa meal. 288. Buckwheat. 283. Apples. 289. Butter. 284. Apple butter — glucose. 290. Butterol, Concreta. 285. Beer. 291. Cane syrup. 285a. Benzoate of soda. 292. Caramels. 286. Bran. 293. Cereal. 1 F. I. D. 66. compound a distinctive name and 1 F. I. D. 48. states where it is manufactured. "The manufacturer, without vio- The matter thus produced is 'the lating any of the provisions of the article of food' whose quality and statute against adulteration, may strength the statute seeks to pre- mix any number of constituents in serve, and the nature of the prod- his compound, so long as these con- uct in these respects is fixed and stituents are not poisonous or dele- determined by the elements which terious to health and he gives the enter into it." N. J. 990. 353 MISBRANDING. SEC. SBC. 294. Cerecut. 330. Flavoring extracts. 295. Cheese. 331. Flour. 296. Cherry syrup. 332. Flour bleaching. 297. Chicken feed. 333. Flour from biscuits — Boric 297a. Chocolate cremolin. acid. 298. Cider. 334. Fruit syrups. 298a. Cloves. 335. Gelatin. 299. Coca Cream. 336. Gin. 300. Cocoa and chocolate. 337. Ginger ale. 301. Cocoa butter substitutes. 338. Glucose. 302. Cod liver oil compound. 339. Gluten flour and gluten farina. 303. Codfish. 340. "Hen— E— Ta Bone Grits." 304. Coffee. 341. Honey. 305. Glazed coffee. 342. Ice cream. 306. Coffee, imitation — Cereal cof- 343. Jam. fee. 344. Jelly. 307. Coffee, importation — ' 'Black 345. Kola syrup. Jack" — "Quakers" — Coffee 346. Lemon oil. screenings. 347. Linseed meal. 308. Copper salts. 348. Macaroni. 309. Cordials. 349. Maple syrup. 310. Corn meal. 350. Meal. 311. Corn syrup and sorghum I com- 351. Milk. pound. 352. Mince meat. 312. Cotton seed meal. 353. Molasses — Glucose. 313. Cream— X—Cel—0. 354. Oats. 313a. Crown Glossine. 354a. Olives. 314. Curacao. 355. Olive oil. 315. Custard. 356. Orangeade powder. 316. Eggs. 357. Peach butter. 317. Extract of banana. 358. Pepper. 318. Extract of lemon. 359. Phosphate, calcium acid. 319. Extract of orange. 360. Pork and beans. 320. Extract of peach. 361. Preserves — Glucose — Phos- 321. Extract of peppermint. phoric acid. 322. Extract of pineapple. 362. Raisins. 323. Extract of rose. 363. Rice. 324. Extract of stravpberry. 364. Rice, polishing and coating. 325. Extract of vanilla. 365. Rococola. 326. Failure to state contents. 366. Rye. 327. False statement as to amount 367. Sago and tapioca. used in preparation. 368. Salad oil. 328. Feed. 369. Salt. 329. Fish. 370. Sardines. PuEE Food — 23. §§ 281-383] LAW OP PUEB POOD AND DEUGS. 354r SBC. SBC. 371. Syrup. 381. Water, table and medicinal. 372. Syrup, mixtures of cane and 382. Whey, maple. 383. Whisky. 372a. Soda water syrup cola. 384. Whisky, opinion of Attorney 373. Stearin. General on blending. 374. Stock and poultry foods and 385. Whisky, decision of President medicinal mixtures. Taft on labeling. 375. Succotash. 386. Whisky, labeling Canadian 376. Tomatoes. Club. 377. Tomato ketchup. 387. Whisky — Bourbon whisky. 378. Tomato paste. 388. Whisky compound. 378a. Turmeric. 389. Wine. 378b. Vani-Kola Compound Syrup. 390. Wintergreen essence. 379. Vinegar. 391. Yando egg noodles. 380. Water. 392. Yeast. §281. Alcohol in Food. The amount of alcohol in food need not be stated. How- ever, extracts- that are sold and used for medicinal purposes must have the percentage of alcohol stated on the label. ^ § 282. Alfalfa Meal. A meal the label upon which states it combains 15 peircent of protein ajud 22 peopcent of fiber is mislabeled where it con- tains only 11.94 percent of protein and 31.96 percent of fiber.^ § 283. Apples. Apples labeled as packed in Michigan and as Michigan apples are mislabeled when they are grown and packed in Arkansas. "It is immaterial," said the court, "whether Michigan fruits are better than those grown in Arkansas. A purchaser of fruits may prefer Michigan 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 1 F. I. D. 47. 1 F. I. D. 608. 355 MISBEANDING. [§§ 284r-286 buy and wMch ke will receive and which, he will eat. The vendor can not determine that for the purchaser. He, of course, can make his argument, but they should be fair and honest arguments."^ Apples labeled as "choice evaporated apples" are mislabeled if they are rotten and moldy in part, have worms, seeds and general apple waste. ^ §284. Apple Butter — Glucose. Under the label stating that the apple butter contained in the can is "absolutely pure," the use of 6.13 percent of glu- cose in the butter is an adulteration, and the can is mis- branded.^ §285. Beer— Cream Ale. Beer labeled as manufactured in St. Louis and as "Bo- hemian" beer when it was manufactured in Brooklyn and is not Bohemian beer, is misbrand^d.^ A beer having a. greater percentage of alcohol than the label indicates is mislabeled.^ A product was labeled "Temperine Special Brew, the great Temperance Drink," and another "The Great Temperance Beer; Laevison's Original Cream Ale Special Brew." They each contained four percent of alcohol. It was adjudged that they were mislabeled.^ §285a. Benzoate of Soda. If a label, pretending to give the ingredients of a product, fails to state that it contains benzoate of soda, when such is the fact, it is mislabeled.* § 286. Bran. An article marked "Bran" is mislabeled if it contains rice hulls.i IN. J. 36. IN. J. 51. 2N. J. 519; N. J. 255; N. J. 2 N. J. 65. 457; N. J. 161; N. J. 949; N. J. a N. J. 834. 976; N. J. 978; N. J. 934. *N. J. 999. IN. J. 702. IN. J. 231. See §§ 328, 374. §§ 287-390] LAW OF PUEE POOD AND DRUGS. 356 § 287. Brandy. To label imitation brandy as brandy is a violation of the statute.^ § 288. Buckwheat. A flour labeled "Buckwheat Flour" is mislabeled if wheat flour has been mixed M'ith it;^ so if graham flour be mixed; with it;^ so if corn flour or meal be mixed with it." § 289. Butter. Butter labeled as made in New Orleans when it was manu- factured in Chicago is mislabeled.^ So is butter labeled as "Elgin," Illinois, when it was not made there.^ But inas- much as a statute of 1886^ permits butter to be colored, it is not a violation of the Pure Pood and Drugs Act if it be colored; and the fact that it is colored need not be stated on the label.* To label renovated butter "Gold Seal War- ranted Pure, Pine Fresh Butter," is to misbrand it;^ and the charge of misbranding is not lessened by putting on the sides of the packages "Process Butter," where they are entirely hidden from view.* §290. Butterol, Concreta. A substance called "Concreta Butterol" labeled as fol- lows: 1. "This product has the characteristics of rich creamery butter, both in taste and odor." 2. "Imparts the true butter flavor to your goods." 3. "It is absolutely pure and palatable . . ." 9. "Concreta Butterol tones up the quality of butter that has lost it» refinement of taste, making it sweet and wholesome," IN. J. 413 (apricot brandy) ; N. i N. J. 351. J. 414 (peach brandy). 2 N. J. 332; N. J. 67; N. J. 42. 1 N. J. 317; N. J. 129; N. J. 118; 3 24 U. S. Stat, at Large 209. N. J. 60. * F. I. D. 51. 2N. J. 263. 5N. J. 713. 3 N. J. 118; N. J. 60. « N. J. 1018. 357 MISBRANDING. [§ 391 is mislabeled unless it corresponds with all these representa- tions.^ §291. Cane Syrup. A label which contains the statement that the can on which it is placed contains "Cane Syrup" is false if it eon- tains an appreciable amount of glucose.^ "Where the label was as follows : ' ' This syrup is composed of the following ingredients and none other, Cane Syrup 60 percent, and Maple Syrup 40 percent," whereas it contained little, if any, maple syrup, the label was considered to contain a false statement.^ Syrup was labeled "Alaga Syrup, Alabama- Georgia Syrup Co., Montgomery, Ala.," together with a pic- torial design of a bundle of sugar cane tied with streamer of ribbon bearing the words "Alabama-Georgia," and a scene showing the gathering of sugar cane from a field, to- gether with the following legend: "Alaga — contents of this can is put up direct from the evaporator while hot. Guaran- teed to retain its natural SAveet flavor indefinitely," while on the sides of the label in small type was the following legend: "Alaga Brand Syrup is a blend of Pure Ribbon Cane Syrup, with just enough corn syrup to keep the same from sugaring or souring. Its merits is what tells." The syrup was com- posed of cane syrup and 28 percent glucose. It was held that it was misbranded.' Upon a can of syrup was the fol- lowing legend: " "Wilder 's Uniform Brand Syrup. Canned only by the D. R. "Wilder Mfg. Co., Atlanta, Ga.," it being printed in a quadrangular space formed by an arrangement of the words "Georgia Cane," printed in capital letters, which were represented as being interwoven with cane stalks, and on the opposite side of the can appeared the following words, "Best in the "World." "The Syrup that made Geor- gia famous," and on the side of the can in small type to- gether with other descriptive matter, "This package con- tains eighty-five percent pure Georgia cane and fifteen per- 1 N. J. 343. 2 N. J. 271. 1 N. J. 324. 3 N. J. 127. § 393] LAW OF PUKE FOOD AND DRUGS. 358 cent pure com syrup which is added to prevent granula- tion." An analysis of a sample showed the following re- sult: Solids (percent) 71.00 Polarization, direct, at 25° C. ( °V.) -|-76.9 Polarization, invert, at 25° C. ( °V. ) +36 . 4 Polarization, invert, at 87° C. { °V.) +48.4 Sucrose ( Clerget) (percent) 31 . 1 Glucose (87° C. 163) (percent) 29.7 Ash (percent) 0.82 This was held to show that the syrup was misbranded within the meaning of the law, because labeled to show that it was Georgia Cane Syrup, whereas it was a mixture of eane syrup and glucose, and the statements in the label, "Georgia Cane," "Best in the World," and "The syrup that made Georgia famousi," were false and misleading.* § 292. Caramels. "The Department is in receipt of the following inquiries from manufacturers of confectionery: '1. Milk Caramel. — This piece contains no milk, but is composed princi- pally of sugar and glucose, and we vrould like very much to know if milk were added to this formula whether we could still continue to call it "Milk Caramel." '2. Peaches and cream caramel. — This piece is made up principally of sugar and glucose and milk, and flavored with peach flavor. As there are 50 pounds of milk to a batch of 116 pounds, would this be considered as one of the principal ingredients? '3. Whipped cream caramel. — Thia piece does not contain any cream or milk, but is made up principally of sugar and glucose. The batch is, how- ever, whipped, and if we should add milk to it, would it be misbranded to continue to call it "Whipped Cream Caramel?" "Section eight of the Pood and Drugs Act of June 30, 1906, provides that any article of food is misbranded (1) if it be an imitation of or offered for sale under the distinctive name of another article ; (2) if it be labeled so as to deceive or mislead the purchaser; (3) if the package containing it or 2N. J. 106. 359 MISBEANDING. [§ 393 its label shall bear any statement, design, or device regard- ing the ingredients or the substance contained therein, which statement, design, or device, shall be false or misleading in any particular." "These portions of section eight bear directly on the above as concerning the labeling of different types of caramels. Caramel No. 1 would be distinctly a case of misbranding, since it contains no milk. "In regard to caramel No. 2, it is evident that if milk is used in that product, it is false and misleading to call it 'Cream Caramel.' It is thought that this product would be properly labeled as 'Peach-flavored Caramel' or 'Caramel, Peach Flavor,' if the peach flavor is not produced by the use of an imitation product. If an imitation peach flavor is used, the caramel could be properly branded only as 'Imita- tion Peach-flavored Caramel' or preferably, 'Caramel, Imita- tion Peach Flavor.' The question as to whether the 50 pounds of milk used to a batch of 116 pounds forms one of the principal ingredients would have to be determined by the proportion of the ingredient found in the finished article. This question, however, is immaterial in considering the question as to whether the name 'Cream' can be applied to the caramel. "To caramel No. 3 the above statements apply equally well. Since it does not contain any cream, the label 'Whipped Cream Caramel' would be false and misleading. Even if milk were added to the batch and the whole were whipped, the product would not be entitled to bear the label 'Whipped Cream Caramel'."^ § 293. Cereal. A cereal food was labeled as follows: "Nivara Cereal food. Nivara is made from rice, wheat and barley malt, no sweetening or shortening. A wonderful property of Nivara is that it helps to digest oither foods. It is a rich, concen- trated food." An analysis of it showed the following re- sults : 1 F. I. D. 81. §§ 394, 395] LAW OF pure food and drugs. 360 Water (percent) 3 . 78 Ash (percent) 1 .70 Fat (percent) .11 Protein (percent) 12 . 31 Crude fiber (percent) 1.07 Carbohydrates by difference (percent) 81 . 03 Fuel value (calories per gram) 3,977.72 It "wias ©vident that the article was not a rich, concen- trated food, and had not the property of assisting in the digestion of other foods, and was therefore misbranded within the meaning of section eight of the Act, because the staitements on the label that "Nivara is a rich, concentrated food" and "a wonderful property of Nivara is that it helps to digest other foods" were false, misleading and deceptive.^ § 294. Cerecut. A product was labeled as follows: "For drawback, minimum fat eight percent, minimum protein fifteen per- cent, maximum crude fiber fifteen and five-tenths percent. Average water eight percent, starch, sugar, etc., forty-nine percent. Sterilized cerecut, one hundred pounds net. Ground from the whole grain, wheat, oats, buck- wheat and flax screenings. The Millers' Products Co., Chicago, 111., U. S. A. Made in Minneapolis, Minn. Guaranteed under the Food and Drugs Act, June 30, 1906, 17115." The product contained no oats or buckwheat. It was held that it was mislabeled.^ § 295. Cheese. Cheese labeled "Fromage de Brie, Trademark Circle X Brand" is mislabeled if a domestic cheese.^ Cheese labeled IN. J. 96; N. J. 105. "Fig- statements placed on medicines prune Cereal" has been condemned. concerning their curative proper- N. J. 975. ties. United States v. Johnson, It may now be well doubted if — U. S. — , 31 Sup. Ct. 627, — these decisions are sound, since the L. Ed. — . See § 405. decision of the United States Su- i N. J. 298. preme Court holding that the stat- i N. J. 431. ute does not apply to instances of 361 MISBRANDING. [§§396,297 "English Dairy Cheese" is mislabeled if a diomestie cheese.'' Cheese labeled "Neufchatel Style Cheese" is mislabeled if mayde of skimmied milk ; and it is also mislabeled if the word "Style," is in so small and inconspicuou's type as to deceive and mislead the purchaser into believing it to be a foreign product of a well-knovsrn superior quality.' A cottage cheese can not be labeled "Neufchatel cheese."^ The use of the words "Neufchatel Cheese" on cheese shows it to be a for- eign cheese.^ So the use of the word "Roquefort" on cheese implies that it was made in Roquefort, France.^ Cheese la- beled ' ' Cream' Cheese ' ' which is made from skimmed milk is mislabeled.'' Cheese by statute may be colored,* and it is not a violation of the Pure Food and Drugs Act to do so." A domestic cheese labeled "Leider Tafel Specialitaet. Dieser dessert Kase ist mit der groessten Sorgfalt angef ertigt, " is misbranded.^" § 296. Cherry Syrup. To label a syrup to be used as the basis for a drink as "Red Tame Cherry" is to bold out to the public that the syrup is prepared from cherries; but if it contains only a "trace" of fruit, and is colored with coal tar dye, it is mis- labeled.^ To label a product "Maraschino Cherries" when it contains no Maraschino is a violation of the statute.^ §297. Chicken Feed. A sack of chicken feed which contains only 2.56 percent fat and 18.7 percent crude fiber is mislabeled under the fol- lowing label: "Guar. Analysis Protein (6.25 times nitrogen) 12 percent, Fat 3.5 percent. Fiber 12 percent."^ 2 N. J. 154. 8 29 U. S. Stat, at Large 253. SN. J. 291; N. J. 562; N. J. 576. See Appendix. "Mohawk Brand." N. J. 851. » F. I. D. 51. Soaked curd. See *N. J. 566. F. I. D. 97. 5 N. J. 576. 10 N. J. 870. eN. J. 341. iN.J. 372; N. J. 549. TN. J. 344; N. J. 980. 2N. J. 912. iN. J. 404; N. J. 729. §§ 397a^399] law oj pdeb food and dbugs. 362 §297a. Chocolate Gremolin. A product purporting to be "Chocolate Creanolin," con- taining "powdered cocoa and a little harmless coloring" is mKbranlded if it contains 5.96 pencent of ferric oxide and twelve parts of aa^enic per million.^ § 298. Cider. A liquid labeled "Red Refined Cider," which contains sac- charine, benzoic acid, dye and water, is mislabeled.^ A liquid can not be labeled "Apple Cider" where the analysis of it shows the following result: Alcohol by volume (percent) 11 . 93 Solids (percent) 3.82 Polarization ( degrees Ventzke ) 4.0 Reducing sugar after inversion ( percent ) 1.28 Sucrose 0.00 Aah (percent) 0.277 Benzoic or salicylic acid None 30.9 cc N/10 NaOH for 100 cc of cider. Alkalinity of ash Phosphoric acid, P (percent) 0.019 2 A liquid labeled "Apple Cider" is mislabeled if it contains even one-tenth of one percent of benzoate of soda.' § 298a. Cloves. A product labeled "Pure Powd. Cloves" is misbranded if it contains allspice tissue and a small amount of exhausted cloves.^ §299. Coca Cream and Pepsette. A product was labeled "Great American Coca Cream. A caribonated beverage artificially colored and flavored." An- other was labeled "Great American Pepsette. A pepsin and fruit drink for indigestion, heartburn, etc. A carbonated 2N. J. 989. 3N. J. 6. 1 N. J. 615. 1 N. J. 888. 2N. J. 1. 363 MISBRANDING. [§ S99 beverage artificially colored and flavored." The coca cream was found to contain saccharine, benzoic acid, cocaine and caffeine; and the pepsette none of the proteolytic activity of pepsin and to contain cocaine. It was held that both pro- ducts were adulterated and misbranded.^ The criminal in- formation in this case was substantially as follows : "That the pepsette contained in the aforesaid shipment of April 29, 1909, was adulterated in that said bottles contained a dilute solution of sugar, colored and flavored; that it con- tained no pepsin; in that the said product contained cocaine, an added poisonous and deleterious ingredient which ren- dered said article injurious to health, and that it was arti- ficially colored whereby its inferiority was concealed; and further alleging the product to be misbranded in that the contents of said bottles consisted of a dilute solution of sugar artificially colored and flavored and contained no pep- sin; that it contained cocaine, and the label upon said bottles failed to declare the quantity and proportion of cocaine con- tained therein, or that said bottles contained any cocaine; in that the said bottles did not contain a pepsin and fruit drink; and that the contents of said bottles contained no pepsin; in that said bottles were so labeled as to deceive and mislead the purchaser, and that the labels upon said bottles were false and misleading; and alleging that the coca cream so shipped was adulterated in that the said jugs contained a product with whiqh had been mixed cocaine, saccharine, ben- zoic acid, and a coal tar dye, so as to injuriously affect its quality, and in that the contents of said jugs contained added poisonous and deleterious ingredients, to wit, eooaitie, caf- fein, and a harmful coal tar dye, which rendered the said article injurious to health, and further alleging the product to be misbranded in that the said jugs contained a product which had been mixed with cocaine, saccharine, and benzoic acid and a coal tar dye, so as to injuriously affect its qual- ity; and in that the label of said jugs failed to declare the quantity and proportion of cocaine contained therein or that 1 N. J. 742. § 300] LAW OF PUKE FOOD AND DRUGS. 364- said jugs contained cocaine; and that the labels upon said jugs were false and misleading in that said jugs were so la- beled as to deceive and mislead the purchaser, that said product contained in said jugs was not a coca cream, but was in fact a mixture of coca cream, cocaine, benzoic acid, and coal tar dye. The information also alleged that the pepsette contained in the aforesaid shipment of April 28, 1909, was adulterated in that said bottles contained a dilute solution of sugar, colored and flavored; in that it did not contain either pepsin or fruit; and that it did contain cocaine; and that said product contained an added poisonous and dele- terious ingredient which rendered said article injurious to health, to wit, cocaine; and that it was artificially colored whereby its inferiority waiS concealed; and that the product was misbranded in that said bottles contained a dilute solu- tiion of sugar colored and flavored; that it did not contain either pepsin or fruit; that said product did contain co- caine; that said label failed to declare the quantity and pro- portion of cocaine contained therein, or that said product contained any cocaine; that said product contained an added poisonous and deleterious ingredient which rendered said article injurious to health, to wit, cocaine; that it was arti- ficially colored whereby its inferiority was concealed; and that said label was false and misleading." A product was labelled "Great American Coca Cream. A carbonated beverage artificially colored and flavored." On analysis it was found to contain caffein, cocaine, saccharine and benzoic acid. It was held mislabeled because it did not show these elements.^ § 300. Cocoa and Chocolate. "The Board of Food and Drug Inspection has had under consideration for some time the question of the propriety of the use of the term "Caracas" as applied to cocoa coming from South America. Valuable information has been ob- tained through the Department of State in the form of a dispatch from the American consul at La Guaira, Venezuela, 2 N. J. 741. •365 MISBEANDING. [§ 300 under date of September 30, 1909. In reply to a request from the Secretary of State for a report on the cocoa of Venezuela and its proper designation, the American consul states as follows : 'In reply thereto I am informed that the term "Caracas cocoa" or "Car- acas cacao" should properly, according to its original usage, be applied only to cacaos exported through the port of La Guaira, but through the exten- sion of the industry and similarity of product it has become corrupted so as to cover all "current" or "ordinary" cacaos of Venezuela, including those coming from Eio Chico, Rio Caribe, Guiria, Carupano, and liiguerote. This has come about because of the parallel quality of these cacaos with those of the socalled "Caracas" district. 'There are three Venezuelan districts usually found in current quota- tions of cacaos: Angostura, being the cacaos coming out of the lower Ori- noco basin through Ciudad Bolivar ; Caracas, those mentioned above ; Mara- caibo, those cacaos being exported through Maracaibo. Exports from La Guaira and Puerto Cabello, with the exception of perhaps 10,000 bags (mentioned below) cover only such cacaos as are generally known as "current," and therefore classified by importers in the United States as "Caracas." 'There are some small districts lying between La Guaira and Puerto Cabello, known as Choroni, Ocumare, Cepe, and Chuao, turning out about 10,000 bags annually of a very high grade of cocoa, but this virtually all goes to Europe, principally to Paris, and is therefore not quoted in the ordinary "brokers" cocoa reports. ******* 'The caeaos from Carupano, Eio Caribe, and Higuerote are said to be of the same grade as these two latter. The Angosturas may be more or less a cent better in grade than the samples of "Caracas" sent herewith. ******* 'From what I can learn of the cacao situation I think the name "Cara- cas" has gotten to be more of a designation of the current class of Vene- zuelan cacao than to indicate the district of its production, and under the ■circumstances it seems the term has taken on the broader meaning sxig- gested in the letter of the Secretary of Agriculture of August 30, 1909. To further indicate that this is true I beg to inclose a "Broker's cocoa report," from a New York commission house, wherein no other Venezuelan districts are named than Angostura, Caracas, and Maracaibo.' "In House Documents, volume 65, serial 4844, Fifty-eighth Congress, page 155, is the following: 'The cacao of Venezuela also finds a ready sale in the United States, in the markets of which it is known, like coff'ee, by the name of "Caracas" ' § 300] LAW OP PUKE FOOD AND DBT7GS. 366 and "Maracaibo," the former embraciag the cacao coming from Eio Caribe, Guiria, Carupano, Eio Chico, Higuerote, and other places on the eastern coast; the other grade comes from the States of Ziilia, Merida, Trujillo, and Tachira.' "This corresponds entirely with the views expressed by our consul at La Guaira. "After a consideration of this question, the board is of the opinion that the term "Caracas" is properly applied to the area mentioned in the above quotation from House Docu- ment, Volume 65."^ "After consideration of the evidence submitted in regard to the meaning of the tenns 'chocolate' and 'cocoa,' the Board of Food and Drug Inspection has reached the conclusion that the definitions laid down in the 'Standards of Puiity for Food Products,' adopted by the Committee on Food Stand- ards, Association of Official Agricultural Chemists, and printed in Circular No., 19, Office of the Secretary of Agri- culture, are substantially correct. By these definitions the nam^^s '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) percent of ash insoluble in water, three anid 50 hundredths (3.50) percent of crude fiber, and' nine (9) percent, of starch, and not less than forty- five (45) percent 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 fla- voring miaterials, 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 pulverized, and contain percentages of ash, crude fiber, and starch corresponding to those in chocolate after correction for fat removed. 1 F. I. D. 114. 367 MISBRANDING. [§ 300 "Sweet coeoa, and sweetened cocoa, are terms applied to cocoa mixed with sugar (sucrose), and contain not more than sixty (60) percent 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. "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 percent 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 con- tains increased mineral matter as the result of this treatment, but no alkali as such is present, the label should bear a state- ment to the effect that the cocoa contains added mineral in- gredients, stating the amount. Cocoas and chocolates con- taining 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 's'oluble' cocoa is misleading and deceptive." ^ If in the preparation of cocoas alkali or any other sub- stance may be employed in order to increase the apparent solubility of the product, the label placed upon it should have upon it a declaration to that effect. "Prepared with alkali" or "manufactured with alkali" is sufficient. A substance purporting to contain "powdered cocoa and a little harmless colouring" is adulterated if it contaims 5.96 percent of ferric oxide and twelve parts of arsenic per million.' 2 F. I. D. 136. 3 N. J. 989. §§ 301, 303] LAW OF PURE FOOD AND DRUGS. 368 §301. Cocoa Butter Substitutes." "A manufacturer writes: " 'We use in the preparation of chocolate sticks a. guaranteed pure pro- duction of cocoanut oil. May this production be sold merely as confec- tionery, and not as chocolate sticks? If not, would it be satisfactory for us to mark the product as "Chocolate sticks prepared with substitute butter?' "Regulation 22 prohibits the sale, or offer for sale, in in- terstate or foreign commerce or in the District of Columbia or in any Territory of the United States, of a food or drug product which bears no label whatever if said product be an imitation of or offered for sale under the name of another article. It would clearly be a violation of the law to sell an article which was made in imitation of chocolate, even though it sold under the general name of a confection. Such an article should be labeled in such manner as to correctly represent its true nature. "Regulation 25 (a) provides: " 'When a substance of a recognized quality commonly used in the prep- aration of a food or drug product is replaced by another substance not injurious or deleterious to health, the name of the substituted substance shall appear upon the label;' "It is held that cocoa butter is the only fat that can prop- erly be used in chocolate. The declaration of foreign fats merely as 'substitute butter' is apparently not suiBcient; the nature of the fat employed should be stated."^ §302. Cod Liver Oil Compound. A liquid was labeled "Metabolized Cod Liver Oil Com- pound;" "Waterbury's Metabolized Cod Liver Oil Com- pound does contain Cod Liver Oil." "Mlany of these [insti- tutions] are using it exclusively as the one general tonic and tissue biiilder;" "Blue wrapper indicates product without antiseptic." It contained no material part derived from cod liver oil due to metabolic changes. It could not be used IF. I. D. 61. 369 MISBRANDING. [§§ 303, 304 as a tissue builder, and was not such. It contained an an- tiseptic — ^salicylic acid — notwithstanding the statement on the blue wrapper that it did not. The court declared the liquid forfeited.^ §303. Codfish. To label codfish taken out of North American waters with the label "Prime Italian Codfish" is to violate the statute.^ § 304. Coffee. To label a blend of South American and Dutch East In- dian coffees as "Mocha and Java" is to misbrand them.'^ A product can not be labeled "Cereal Coffee," even if it con- sists in part of coffee.^ A coffee was labeled as follows: "Climax Java Blend Coffee" and "Climax Package Coffee, a Combination of High Grade Old Crop Coffee of Scientific Blending." It consisted exclusively of a low-grade Rio cof- fee, no Java coffee being present, nor could any "scientific blending" be traced. It was held that the labels were false.^ Coffee labeled as "Mocha and Java Blend" is mislabeled where Maracaibo or Santos coffee has been in part substi- tuted for the Mocha and Java.* A substance labeled "cof- fee" is mislabeled if it contains chicory.^ A package of cof- fee w^as labeled as follows: "One Pound Net Weight Blanke Coffee Company Dutch Moba. A Bourbon Blend Select Boasted Coffee," ajod on the fourtih side thereof, in small type, "This has no reference to Arabian Mocha but as the name iiaplies, is a perfectly balanced combination of fine old mellow varieties with choice Bourbon Santos, which means Mocha Coffee transplanted in Santos, producing a cup at once rich, smooth and satisfying. ' ' The coffee was' a Santos cof- iN. J. 303. *N. J. 215; N. J. 896; N. J. IN. J. 778. 951; N. J. 841; N. J. 981; N. J. 1 N. J. 677; N. J. 547; N. J. 355; 1014. N. J. 1014. 5N. J. 177; N. J. 407; N. J. 2F. I. D. 50. 530; N. J. 714. 3N. J. 55. PUBE Food — 24. § 304] LAW OF PURE FOOD AND DBUGS. 370 fee, and it was held that it was mislabeled." To label Santos coffee or "Old Government" coffee is to Yiolate the statute; for the term "Old Government" applies exclusively to a cof- fee produced on the island of Java, and not to a Santos coffeeJ Coffee was labeled in Greek, of which the following are translations: "Leva Brothers. Leva Brothers' Mustapha Turkish Coffee. Genuine Mocha Coffee is ground by a special machine. Each box contains one pound of coffee, and the box is firmly tied, so that no air can get in to spoil the flavor of the cofl'ee. Prepared by Leva Brothers, 36% Oliver Street, New York." and "Leva Brothers' Genuine Turkish Coffee is ground by a special ma- chine. Every box contains one pound of coffee, and the box is firmly tied, that no air can get in to spoil the flavor of the coffee. Prepared by Leva Brothers, ZSy^ Oliver St., New York, N. Y." The coffee was a low grade Santos coffee, and it was held to be misbranded.* Coffee was labeled as follows: On front of carton — "One Poimd Net weight Blanke Coffee Co. Dutch Moka A Bourbon Blend Select Roasted Coffee;" On back of carton — "Dutch Moka A Bourbon Blend Coffee This has no reference to Arab- ian Mocha but as the name implies, is a perfectly balanced combination of fine old mellow varieties with choice Bourbon Santos, which means Mocha Coffee transplanted in Santos;" "Blanke's Grant Cabin Blend Coffee Combination of Mocha, Java, and other Superior Grades C. F. Blanlce Tea & Coffee Co., St. Louis, Mo." The coffee was a South American coffee, and it was held to be misbranded.° Upon the label of a coffee package was printed the fol- lowing : "Refined Coffee, Digesto Brand. This high-grade coffee is the only « N. J. 387. 8 N. J. 371. T N. J. 611. 9 N. J. 275. 371 MISBRANDING. [§ 304 really refined coffee known. The excess of both caffeine and caffetannic acid has been removed. Consequently, its flavor is better than other coffee, because this bitterness and acidity have been extracted. Does ordinary coffee hurt you? Many people can not drink unrefined coffee because it . contains the irritating poisons, caffeine and tannic acid. They produce — headache, wakefulness, palpitation of the heart, nervousness, nervous dys- pepsia, indigestion, biliousness, languid feeling, heartburn, depression of spirits, irritability, tremulousness, caffeinism. (See Century Dictionary.) Why refined coffee will not hurt you: The excess of irritating bitter poison is taken out of this coffee. It is refined by both mechanical and chemical processes. A sample of the coffee -vpas obtained, ajld on anialysis the re- sults given below were obtained. At the same time an analy- sis of a sample of ordinary roasted coffee purchased on the open market was made and these which are given for com- parison : Analysis of "Digesto" and of ordinary coffee. Ordinary Determination. "Digesto" Roasted Coffee. Coffee. Water (percent) 2.23 3.19 Ash (percent) 4.23 3.92 Alkalinity of ash (cc of normal acid per 100 grams of material) 48.2 48.4 Fat (percent) 14.10 15.92 Proteids (Nx6.25) (percent) 12.43 13.50 Chloroform extract from alkaline solution of the water extract 1-24 1 . 30 Acidity (cc of normal alkali per 100 grams of ma- terial) 22.0 28.0 Caffetannic acid (percent) 10.88 10.67 Caffein (percent) 106 1.04 The statement upon the label was, therefore, false in these respects: It was claimed that the coffee, by reason of its purity, was the best in the world for flavor and aroma. It was represented that the excess of haih caffein and caffetan- nic acid had been removed from the coffee, whereas in truth and in fact no portion of these substances had been so re- moved, unless by the removal of a portion of the substance of the coffee itself; that its flavor was better than any other coffee because bitterness and acidity had been extracted; § 304]: LAW OF PUEE FOOD AND DKUGS. 372 that the reduction of the bitter and acid elements left the coffee in a highly purified form; that the excess of irritating bitter poison had been left out of the coffee, and that it was refined by both mechanical and chemical processes; and that the manner in which the coffee was prepared permitted the real flavoring constituent — an aromatic oil — to be ex- tracted easily by boiling.^" By p'Uittin'g a very smiall amount of Java Coffee in Santos coffee the mixture oan not be labeled "Java Coffee. "^^ "The term 'Java OoflFee' has been abused for many years, hence it arises that both roasted and unroasted coffee, perchance ten times as much coffee is sold to the consumer, under the name of 'Java Coffee,' as is grown in Java. "In conformance with the provisions of the pure food Act, all coffee coming from the island of Java might be called 'Java Coffee,' that from the Padang districts 'Padang Coffee,' that from Celebes 'Celebes Coffee,' and all other sorts from the Netherlands Indies 'Dutch East Indies Coffee.' "In the Netherlands what is known as 'Java Coffee' is only the Coffea . arabica produced in Java, so that the Coffea liberica coming from that island under the name of 'Java Coffee' falls as little under that term as all the coffee from the rest of the islands of the Indian archipelago. The suggestions which are incorporated in this quotation from the American Minister at the Hague indicate a proper method of labeling coffee coming from the Dutch East In- dies. Coffee grown on the island of Sumatra would also be prop- erly labeled if called "Sumatra Coffeej" or, if desired, the label may state specifically and correctly the particular loca- tion in which the coffee in question was really grown.^^ The following quotations are taken from the report sub- mitted to the Department of State from the consular agent at Aden under date of January 3, 1908 : "The Mocha coffee is produced in that district of southern Arabia known as 'Yemen.' The latter is a, strip of territory commencing at a point on the Red Sea a little north of the port of Hodeidah and extending first southeast to the Strait of Bab-el-Mlandeb and then oast nearly to Aden. 10 N. J. 4. 12 F. I. D. 82. 11 N. J. 355; N. J. 951; N. J. 841; N. J. 981; N. J. 896. 373 MISBRANDING. [§ 304 Yemen is, with the exception of a, narrow fringe of land a,Iong the Red Sea and the Gulf of Aden, rugged and mount£|.inous, embracing innumerablp small, elevated valleys of high fertility which are irrigated by waters from the melting snows. This is the coffee district of Arabia. "The term 'Mocha' was bestowed upon 'Yemen' coffee early in the last- century, when Mocha was the port from which all Arabian coffee was shipped. The formation of huge sandbars in the Red Sea off Mocha, prac- tically barring out all shipping, caused the port to be abandoned, and its trade went to Hodeidah and Aden, the bulk of it going to the latter place. "All of the coffee raised in Yemen may properly be called 'Mocha' coffee, all coffee shipped from the port of Hodeidah comes within such classification. With regard to that exported from Aden, however, the case is somewhat different. There is a coffee grown in the upland regions of Abyssinia, in the vicinity of Harrar, which is known locally and to the coffee trade of the world as 'Longberry' or 'Harrar' in contrast with that of Mocha, which is sometimes called the 'Shortberry.' The colors of both coffees are practically the same, but the Abyssinian product has a raw, rank, leathery odor, while that of the berry grown in Arabia is delicate and agreeable. The Harrar berry is much longer than the Mochq, one, besides being much less regular in form. "While a considerable quantity of Abyssinian coffee is brought to Aden for shipment to Europe and to the United States, it is doubtful whether very little of it, if any, is exported as being Mocha coffee, the local mer- chants as a rule dealing in both grades of coffee . and being very carefjjl of the reputations of their houses. In Aden the only way in which a dis- honest dealer might adulterate Mocha coffee would be by mixing it with the Abyssinian article. Such a proceeding would be at least but a clumsy fraud and would be readily and rapidly detected. It is safe to say that practically all of the coffee shipped directly from Hodeidah or Aden to the United States and labeled 'Mocha' are pure and unadulterated. Consequently the term "Mocha" can be applied only to coffee grown in that part of Arabia to the north and west of Hodeidah, known as Yemen.^^ A can was labeled "Mocha, Java and Mexican Coffee." On the label was the statement that "this can contains a combination of the three best coffees the world produces." The product was composed of one-half Mexican, one quarter Dutch East India, probably Padang, and one-quarter Long- berry Mocha. It was adjudged that the coffee was mis- branded with respect to the statement that it contained Mocha coffee." A coffee labeled as "Climax Package Cof- 13 F. I. D. 91. "N- J. 772; N. J. 841. § 305] LAW OF PUKE FOOD AND DRUGS. 374 fee, a combination of high grade, old crop coffee of scientific blending," is mislabeled if it consist of inferior stock or or- dinary stock.^^ §305. Glazed Coffee. "There have been frequent inquiries made regarding the application of the Food and Drugs Act to the practice of glazing coffee. The following is a type of the communica- tions of this nature: 'It has been the custom with many roasters of coffee to use a finish, made out of supposedly harmless ingredients, on their coffees, especially the lower grades, the main object being to lessen the natural loss in weight during the process of roasting, and thus reduce the cost. 'We used a finish, ourselves, made up of lemon juice, flaxseed, gelatin, bicarbonate of soda, and lime water, until January 1, 1907, when we ceased, as we were uncertain as to its lawfulness under the pure food and drugs Act which went into effect that day. If it is against the law, we would ask that the pure food commission prepare a ruling on coffees, such as has been done on rice, and have this ruling take effect as soon as possible, as manufacturers who are adhering to this method of roasting are enabled to undersell those who are using the natural roast, thereby placing them at a decided disadvantage.' "Coffee is coated for one or all of the following reasons: "1. To restore, at least in part, the loss of weight incident to roasting. "2. To conceal damage or inferiority. "3. To prevent the depreciation of the roasted coffee due to the escape of the aromatic constituents. "4. To prevent the absorption of water which renders the roasted grains tough. "It would appear that the questions involved in this prac- tice are similar in many respects to those involved in the polishing and coating of rice, which is discussed in F. I. D. 67. As in the case of coating rice, it is the opinion of the department that no coating of any kind can be applied to the coffee 'if the product be mixed, colored, powdered, coated, or stained in any manner whereby damage or in- "N. J. 1017. 3'^5 MISBRASTDING. [§ 306 feriority is concealed.' In each case, whether or not such a result be secured is a question of fact to be decided by the evidence. "It is held by the department that coffee treated in the manner indicated with lemon juice, flaxseed, gelatin, bicarbo- nate of soda, and lime water should be labeled in aU cases with the name of the extraneous substances, as, 'coated with lemon juice, flaxseed, gelatin, bicarbonate of soda, and lime water.' "In such declarations all of the substances used for eoat- iag should be mentioned. Any coloring matter or other sub- stances that may be employed to change the tint of the cof- fee should be declared on the label. "^ §306. Coffee, Imitation— Cereal Coffee. "A manufacturer wrote as follows: 'We beg to ask your opinion as regards the hyphenated word "Cereal-Coffee," and whether or not we are entitled to its use for a cereal substitute for coffee. ... In our opinion the term "Cereal- Coffee" would come under the so-called trade name and dis- tinctive name.' It is held that since the product mentioned is not coffee it can not properly be called by the term men- tioned. Regulation 20 (d) provides that a distinctive name shall give no false indication of character. The use of the name 'Cereal-Coffee' might be taken to indicate that the product is coffee or has the properties of coffee, and hence the tise of this term does not comply with the definition of distinctive name. Even if the product consist in part of coffee, the name would not be correct. It is suggested that products of this nature be designated as 'imitation coffee,' as provided in Regulation 21 (f). In such case the word 'imitation' should be in uniform type, or uniform back- ground, and should be given equal prominence with the word 'coffee'."^ 1 F. I. D. 80. 1 F. I. D. 50. § 307] LAW OF PUEE FOOD AND DBUGS. 376 §307. Coffee, Importation— "Black Jack"— "Quakers "— Coffee Screenings. "The department has recently investigated the sale and shipment within the jurisdiction of the Food and Drugs Act of June 30, 1906, of decomposed, imperfect and damaged coffee. A public hearing on this subject was held by the Board of Food and Drug Inspection on December 15, 1908, at which an opportunity to be heard was given to the trade and to the public. As a result of the investigations and the evidence adduced at the hearing, it is announced that the product ordinarily known as 'Black Jack,' consisting of rot- ten and decomposed berries, is regarded by the department as injurious to health and the Food and Drugs Act forbids its shipment or sale within the jurisdiction of said Act. Coffee which is damaged by water during shipment, or which has acquired a permanently offensive odor because of its proximity to hides or other materials of objectionable odor, is considered by the department to come within the phrase 'filthy, decomposed, or putrid,' within the meaning of that phrase as used in the Food and Drugs Act, and its shipment or sale as herednbetfore stated as, therefore, held to be for- bidden. Immature berries, ordinarily known as 'Quakers,' are dead beans without pronounced smell or taste. They have not the characteristics of coffee, and, in the opinion of the department, their shipment or sale as coffee within the jurisdiction of the Act is in violation thereof. It is recog- nized that the ordinary coffees of commerce usually contain small quantities of these inhibited products, and no action will be taken in regard to the shipment or sale of the recog- nized graded coffees of commerce because of the small amount of these substances which may be present. In de- termining the present action of the department on any par- ticular lot as to whether it contains more than the ordinary small quantities of the inhibited products, coffee graded as No. 8, on the New Tqrk Coffee Exchange, will be taken as a standard. Screenings consisting of inferior or broken ber- ries, of stones, sticks, dirt, etc., should not be sold as coffee 377 MISBRANDING. [§§ 308, 309 even in a ground condition. This product should be desig- nated as 'coffee screenings'."^ § 308. Copper Salts. Vegetables may be greened with copper salts, but the salts must not contain an excessive amount of copper and be suit- able for food, if the label bear the statement that sulphate of copper or other copper salts have been used to color them.^ § 309. 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 the use of synthetic flavors, and also by the treatment of some vege- table 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 sim- ulate the color of the fruit, flavor plant, etc., the name of which it bears, the legend 'Artificially Colored' in appropri- ate size type shall appear immediately 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, ereme de menthe which is artificially colored green should be labeled 'Artificially Colored.' On the con- trary, chartreuse, either green or yellow, need bear no such legend for color. "When the flavoring material is not derived in whole di- rectly 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 'Imita- tion. ' 1 F. I. D. 108. 1 F. I. D. 102. See §s!35. §§ 310-313] LAW OF PUEE FOOD AND DEUGS. 378 "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 sub- stantially as follows: 'Prepared with anhydrous sugar,' which statement should be made in a distinct fashion on the main label. "^ A preparation containing glucose, saccharin, benzoic acid and coal tar cannot be labeled "blackberry cor- dial."^ §310. Com Meal. Sacks of com meal were labeled as follows: "Old Log Cabin Meal. Fresh Ground Corn Meal. Best Water Ground Style." This was held to indicate that the meal had been ground in a water mill on mill stones or buhxs ; and as it was ground by the steam roller process, steam power being used, the meal was not correctly labeled.^ § 311. Corn Syrup and Sorgliiim Compoimd. Labeling a can as "Corn Syrup and Sorghum Compound" in equal percentages when it contains 65.8 percent of com- mercial glucose is a misbranding of the article.^ Com syrup labeled as manufactured at Williamsport, Pa., which was made at Granite City, Illinois, is mislabeled.^ "We have each given careful consideration to the labeling, under the pure food law, of the thick, viscous syrup obtained by the incomplete hydrolysis of the starch of corn, and com- posed essentially of dextrose, maltose and dextrine. "In our opinion it is lawful to label this syrup as 'Com Syrup;' and if to the corn syrup there is added a small per- centage of refiner's syrup, a product of the cane, the mix- ture, in our judgment, is not misbranded if labeled 'Corn Syrup with Cane Flavor'."^ §312. Cotton Seed Meal. A cotton seed meal was labeled as follows : ' ' Creamo Brand 1 P. I. D. 125. See F. I. D. 92. i N. J. 699. 2 N. J. 926. 2 N. J. 100. 1 N. J. 170. » F. I. D. 87. 379 MISBRANDING. [§ 312 Feed Meal. Guaranteed Analysis — ^Protein 22 percent, Fat 5 percent, Crude Fiber 28 percent." An analysis showed 18.73 percent of protein, 4.69 percent fat, and 25.04 percent crude fiber, and approximately 50 percent cotton seed hulls. It was held that the article was mislabeled.^ In another instance the label contained the legend that it was "Pure Cotton Seed Meal, 100 pounds. Guaranteed an- alysis not less than Ammonia 8 percent, Protein 41 percent, Nitrogen 6.50 percent. Crude Fat and Oil 9 percent." The percentage of crude fat and oil was only 7.61 percent. It was held that the product was mislabeled.^ A product was labeled: "Guaranteed Analysis: Protein 22 percent, Fat 5 percent. Crude Fiber 28 percent, 1909." On analysis it was found it contained moisture 7.79 percent, ether extract 4.69 percent, protein 18.73 percent, and crude fiber 25.04 percent. It was held to be mislabeled as to the protein.^ Another product was labeled: "Guaranteed Analysis: Protein (6.25 times nitrogen) 25.00 (equivalent to Ammonia 4.50 percent), Starch and Sugar 15.00, Fat 5.00, Crude Fiber 28.00. This meal is made from decorticated Cotton Seed." An analysis showed that it contained moisture 9.31 percent, ether extract 4.50 percent, protein 19.57 percent, crude fiber 22.72 percent, reducing sugar 0.07 percent, sucrose 2.60 percent, starch 1.36 percent (sugars and starch 4.03 percent), and about 50 per- cent hulls." It was held that the product was mislabeled both as to the protein and hulls.* "Where the product was labeled "25 percent protein," but it only contained 24.01 percent, it was adjudged mislabeled.^ The label was as fol- lows: "Guaranteed Analysis: Ammonia not under 8 percent. Nitrogen not under 6i/^ percent, Protein not under 41 per- cent. Oil and Fat not under 9 percent. Crude Fiber 7 per- cent. J. Lindsay "Wells Co., Memphis, Tenn., guarantees this Star Brand Cotton Seed Meal to contain not less than 9 per- cent of Crude Fat, 41 percent of Protein, and to be com- pounded from the following ingredients : Cotton Seed Prod- 1 N. J. 179. * N. J. 756. 2N. J. 173. »N. J. 767. 3N. J. 755. §§ 313-315] LAW OF PUEE FOOD AND DEUGS. 380 uct . . ." It was found to contain 9.87 percent moisture, 6.93 percent ether extract, 39.88 percent protein, and 11.05 percent crude fiber. This was adjudged misbranded both as to the crude fat and fiber.* § 313. Cream-X-Cel-D. A vegetable ice cream powder termed " Cream-X-Cel- 0," was labeled as follows: "Contains a high percentage of cream and butter fat." The article did not contain a "high" percentage of cream and butter fat, but did contain a low percentage. It was considered that it was mislabeled.^ §313a. Grown Glossine. A product was labeled' "Crown Glossine, with Chocolate Flavor and harmless color. ' ' It contained 27 parts per million of arsenic. It was held to be mislabeled.^ § 314. Curacao. A liquor was labeled as follows : "Curacao La Forge Fils & Cie., Liqueur Superfine A. De Claremont Compagnie Concessionaires." "Compounded and distributed by A. De Claremont Co., New York, N. T." "Cette Liqueur a ete prepar6e avec des mati^res premieres absolument pures et de qualite irreprochable. EUe se recom- mande comme digestif hygienique des plus agreables. La Forge Fils & Cie." It was manufactured in this country. It was adjudged to be mislabeled, in that the label held out the inference that it was made in France.^ § 315. Custard. An article labeled "Custard" is mislabeled if cornstarch be substituted for eggs.'^ 6 N. J. 758; N. J. 794; N, J, 798. i N. J. 746. 1 N. J. 402. ;• 1 N. J. 166. tN. J. 972. 381 MISBEANDING. [§§ 316-318 §316. Eggs. To label eggs as 'pure and wholesome" when they are in part of a filthy, decomposed and putrid animal substance is to mislabel them.^ A substance labeled "Egg Noodles" or "Egg Macaroni" is mislabeled if it contains little or no egg material; for such a label indicates that the principal ingredient of such a food is egg.^ To brand a case of eggs as "Fresh Eggs" when they are not is to violate the statute.' Eggs marked "A No. 933" are misbranded if they are in whole or in part filliiy, decomposed, and in a moldy condi- tion and unfit for food.* A product labeled "Eg Nutrine, Whole Egg Substitute," and "1 lb. Eg Nutrine dissolved in one gallon of water compares in working properties to one gallon or seven or eight dozen fresh eggs;" and which con- sists of cornstarch, gum tragacanth and considerable pro- teid substances, and which contains water 6.89 percent, pro- teids 3.40 percent, fat 0.14 percent, ash 0.76 percent, lecithin P2 O5, 0.0064 percent, carbohydrates by difference 88.81 per- cent, sucrose 30.78 percent, is misbranded.^ §317. Extract of Banana. A liquid labeled "Pure Concentrated Extract of Banana" is mislabeled if it be not an extract of banana, but a mere imitation of banana flavor.^ §318. Extract of Lemon. A liquid was labeled as follows: [On Carton.] "King B Concentrated Extract of Pure, Imitation, Lemon. From the Laboratory of Ullmann, Dreifus & Co., Cincinnati, Ohio. For Flavoring ice cream, soda water, custard, cakes, jellies, confections, etc. The delicious flavor possessed by King B Concentrated Extract is due to the excellence of the materials used, and to the great care with which they are prepared." IN. J. 675. *N. J. 295; N. J. 272. 2N. J. 652. 5N. J. 991. See also N. J. 969. 3 N. J. 7; N. J. 22. 1 N. J. 405. § 318] LAW OF PUBE FOOr. AND DBUGS. 382 [On Bottle.] "King B Compound citrol and lemon, Colored, manufactured by Ullmann, Dreifus & Co., Cincinnati, 0." This liquid was adulterated, in that a dilute solution of alcohol was substituted wholly or in part for lemon flavor; the article did not contain any oil of lemon, and not more than a trace of citrol derived from the oil of lemon, and was not even an "imitation" extract of lemon because of the substances enumerated. This was held to be a misbranding and a false label.^ A product labeled "Terpeneless Lemon Flavor" which contains 0.08 peiieent citrol and an artificial coloring is mislabeled.^ To label a product as "Strictly Pure Flavoring Extract of Lemon. Color Simulated," is to mislabel it if it contains dilute extract of lemon.^ A repre- sentation that a liquid contains lemon oil when it does not is a mislabeling.* Lemon extract is the flavoring extract prepared from oil of lemon or from lemon peel, or both, and contains not less than 5 percent by volume of lemon oil. Therefore, any substance labeled "Extract of Lemon" that does not contain this percentage is mislabeled.'' A substance labeled "Extract of Lemon" which contains methyl alcohol is mislabeled;' so is one colored with coal tar dye.' "A great deal of testimony has been offered here," said the court in its charge to the jury in one case, "as to whether the words 'lemon extract' and 'lemon flavor' are used in the trade as synonymous terms. ... It is for you to determine from the evidence whether or not the terms 'lemon flavor,' and 'lemon extract' are synonymous and mean one and the same thing. The contention of the government is that 'lemon ex- iN. J. 689; N. J. 684; N. J. = N. J. 115; N. J. 147; N. J. 637; N. J. 774; N. J. 918; N. J. 152; N. J. 277; N. J. 281; N. J. 966; M. J. 1029. 313; N. J. 339; N. J. 411; N. J. 2N. J. 662; N. J. 661; N. J. 444; N. J. 601; N. J. 774; N. J. 660; N. J. 141; F. I. D. 444. 823. sN. J. 644. 8N. J. 339; N. J. 823. *N. J. 56; N. J. 91; N. J. 136; t N. J. 585. N. J. 149; N. J. 237; N. J. 259; N. J. 536; N. J. 774. 383 MISBRANDING. [§ 318 tract' 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'."* A fluid was labeled "Messina Lemon Extract, one ounce, fruit acid 50 percent solution one and one-half to two ounces, crystal foam one- fourth ounce." An analysis showed the following results: Alcohol by volume 33.5 percent, solids 1.28 percent, oil by volume none, citrol percent by weight 0.06, and color natural. It was held that the product was mislabeled.* A bottle was labeled "Extract of Lemon, half strength." It did not con- tain half strength; and it was adjudged mislabeled.^" An- other fluid was labeled "Extract of Lemon." An analysis showed these results: "Lemon oil by ppt. none, lemon oil by polar none; sp. gr. 15.6° C. 0.9850; citrol 0.11 percent, alco- hol by volume 21.20 percent." It was adjudged that the product was mislabeled.^^ A label was as follows: "New York Brand Extract Lemon Compound. Formula: Citrol, Lemon Juice, Alcohol, "Water. Color Lemon Yel." An anal- ysis showed the following results: "Specific gravity 0.9910, solids 0.32 percent, lemon oil by polarization 0.0 percent, lemon oil by precipitation 0.0 percent, alcohol 7.30 percent, citrol 0.013 percent, citric acid absent, reaction alkaline, col- ored with naphthol yellow S, methyl alcohol absent." It was adjudged that the product was mislabeled.^^ A product was labeled "Lemon Flavor Artificial Crown Extracts." An analysis showed the following: "Specific gravity 0.9959, ethyl alcohol 13.87 percent, methyl alcohol absent, lemon oil absent, citrol 0.064 percent, solids (principally glycerin), color coal tar dye naphthol yellow S." It was held that it was mislabeled.^^ A substance labeled "Oil of Lemon about .04, Alcohol about .58, "Water about .38, Color a trace,' 8N. J. 194. "N. J. 739. «N. J. 733. "N. J. 768. 10 N. J. 738. 13 N. J. 774. §§ 319-322] LAW OF PUKE FOOD AND DBTJGS. 384 ■which contained about 44.65 percent alcohol by volume and 1.06 percent oil of lemon by volume, is misbranded.^* §319. Extract of Orange. The label "Extract of Orange Soluble Terpeneless" tends to lead the purchaser into the belief that the product thus labeled is a pure terpeneless orange extract; and if the sub- stance thus labeled is diluted and contains no oil of orange, it is mislabeled.^ A label was as follows: "Extra Extract Orange." An analysis showed the following results: "Sp. gr. at 15.6° C. 0.9471, orange oil none, aldehyde as citrol 0.07 percent, color — not coal tar — apparently natural, ethyl alco- hol by volume 44.60 percent." It was held that the product was mislabeled.^ §320. Extract of Peach. To label a substance "Extract of Peach" which is only an imitation of that product is to violate the statute.^ § 321. Extract of Peppermint. "Where a product was labeled "Extract of Peppermint," and it contained less than three percent of the oil of pep- permint, it was adjudged misbranded.^ § 322. Extract of Pineapple. A liquid was labeled "Pure Concentrated Extract of Lemon." An analysis of it showed the following result: Specific gravity . S447 Alcohol by volume (percent) 45.40 Esters as ethyl butyrate . 696 Coloring matter Turmeric. This was held to disclose practically the total absence of the sapid and odorous principles of pineapple, and hence was " N. J. 1029. 1 N. J. 520. 1 N. J. 661. 1 N. J. 775. 2 N. J. 739. 385 MISBRANDING. [§§ 333-325 adulterated and misbranded. "A flavoring extract, as recog- nized by reliable manufacturers and dealers is a solution," it was said, "in ethyl alcohol of proper strength of the sapid and odorous principles derived from an aromatic plant, or parts of the plant, with or without its coloring matter, and conforms in name to the plant used in its preparation."^ §323. Extract of Rose. A product was labeled "Extract of Rose." An analysis showed the following: Oil by gravimetric determination 0.35 percent, and coal tar dye and other undetermined col- oring matter. The product was a solution of oil in strong alcohol plus artificial color. It was held that it was mis- labeled.^ §324. Extract of Strawberry. To label a liquid "Extract of Strawberry" that is an imi- tation of that liquid, colored to conceal its inferiority, is to violate the statute.^ A sample analyzed showed the follow- ing results: Specific gravity ( 15.5° C.) 0. 9786 Alcohol by volume (percent) 41 .30 Esters as amyl acetate (percent) 1.72 Color Coal tar dye. The analysis, it was held, showed practically the total ab- sence of the sapid and odorous principles of the strawberry, properties derived from aromatic plants and necessary in extracts, and therefore the article was misbranded." §325. Extract of Vanilla. A product labeled "Flavoring Extract of Pure Vanilla" is mislabeled if it contains vanillia and caramel,^ or ooumarin 1 N. J. 152. 2 N. J. 143. IN. J. 739. IN. J. 663; N. J. 659; N. J. IN. J. 91; N. J. 218; N. J. 246; 774; N. J. 740; N. J. 842. N. J. 380; N. J. 892; N. J. 939. PtiEE Food— 25. § 335] LAW OF PUKE FOOD AND DEUGS; 386 and aloohol.^ A bottle laibeled "Vanilla." " Seientifieally pre- pared. Colored with harmless color," is mislabeled when the latter words are in so small type as to mdslead the pur- chaser into believing that the bottle contained extract of pure vanilla when it contained an imitation of vanilla arti- ficially colored.^ Vanilla extract is a flavoring extract pre- pared from vanilla bean, with or without sugar or glycerin, and contains in one hundred cubic centimeters the soluble matters from not less than ten grains of vanilla bean. Con- sequently, a liquid as follows is adulterated: Volume (e.c.) 122, vanillin (percent) 0.049, resins practically none and coal tar dye present. So this analysis shows an adultera- tion : Coumarin ( percent) . 032 Vanillin (percent) 0.07 Resins Very slight. Coal tar dye None. Caramel Present. Weight found ( grams ) 53 . 5 Weight should be (grams) 56 . 5 To brand it "Vanilla Extract" is to violate the statute.* A bottle was labeled : ' ' One one-fourth ounce .... Extract of Vanilla, half strength. Infused with vanillin." An an- alysis showed the following results: "Vanillin 0.25 percent, coumarin none, acetanilide none, resins trace, Leach test neg- ative, alcohol potash test negative, lead number 0.30 percent, artificial color lead acetate filtrate none, natural color high amyl alcohol test normal. ' ' It Was held that the bottle was mis- labeled.^ A food prodliet was labeled as foUoivra: (on bottle) : ' ' Shepard's Economical Brand Extracts. Vanillin Vaildlla flavor, sugar color Serial No. 11648. Manufactured by Shepard Baking Powder Co., St. Louis;" (on carton): "Shepard's Eoodiomical Brand Extracts. Vanillin vanilla flavor. Guar- anteed economical, sugar colored. We guarantee under the Food and Drugs Act of June 30, 1906. Mianufactured by 2N. J. 662; N. J. 619. N. J. 139; N. J. 148; N. J. 242; 3 N. J. 640. N. J. 320; N. J. 389; N. J. 548. *N. J. 14; N. J. 48; N. J. 123; 5 N. J. 738. 387 MiSBRANDivo. [§§336,327 Shepard Baking Powder Co., St. Louis, Mo. Shepard's for quality. Shepard's Economical flavoring can be secured in the following flavors, vanilla, strawberry, orange, pineapple^ lemon, raspberry, almond, banana. Fruit coloring, perfectly harmless. Shepard's vanilla;" (on paper box in which packed) : "Shepard's Economical Brand Flavoring Extracts. Mfgd. by Shepard Baking Powder Co., St. Louis, Mo. Shep- ard's baking powder and pure extracts. Shepard's vanilla. Shepard's." Samples from this shipment were procured and analyzed by the Bureau of Chemistry, United States De- partment of Agriculture, and the product was found to eon- tain vanillin 0.248 percent, coumarin 0.028 percent, color caramel and alcohol by volume 7.54 percent. It was held that it was misbrand^d.' A sulbstenee labeled as " Vanilla Bean .100, Vanillin .012, Coumarin .001, Alcohol and Water .677, Sugar .200, Caramel .010," which contains an artificial colored solution containing alcohol by volume 8.86 percent, vanillin 0.606 percent, coumarin 0.03 percent, and no vanilla resins, is misbranded.' § 326. Failure to State Contents. A failure to state on the label that a medicine contained morphine is misbranding;^ or that a headache cure contained acetanilid;^ or that an alleged cancer cure contained 31.8 percent of acetanilid.' §327. False Statement as to Amount Used in Preparation. A false statement as to the amount of a particular drug used in a preparation subjects it to condemnation.^ A state- ment upon a product of food that "It has accomplished a great work with the sick," can not be used upon a .label unless it is the truth.^ N. J. 740. in a. pail as Java and Mocha when 7 N. J. 1029 ; N. J. 939. it was not, and it was not labeled, iN. J. 694; N. J. 693. see N. J. 1014. 2 N. J. 643. 1 N. J. 707. 3N. J. 635. As to selling coffee 2 N. J. 470. Since the ease of § 338] LAW OP PURE FOOD AND DEUGS. 388 § 328. Feed. A stock food bearing a tag that it contaiiis "Tankage, mo- lasses, oats, barley, wheat, buckwheat, salt and charcoal" is misbranded when the mixture is of feed, charcoal, weed seeds and screenings.^ A label was as follows: "Mixed (Bran) Feed. Made from pure winter wheat and ground, ear corn." "Mixed (Middling) Feed. Made from pure win- ter wheat middlings and ground ear corn." The product was a mixture of wheat bran and ground oomeobs, with practically no ground com kernel. It was held to be mis- branded.^ To label rice bran as such, in which are rice hulls is to mislabel it;^ so if a food in which oat huUs con- stitute a part of it.* To state on a label that the feed has "Protein 16-18 percent. Fat 3y2 to 4% percent," is a viola- tion of the statute when it has only 16 percent of protein and less than 3^ percent of fat.° To state on a label that the feed labeled oontauis ground corni when the product la- beled has no corn is to mislabel it.* If a feed contains weed seeds and chaff, it must be so labeled;'' so if it contains rice hulls and alfalfa,* or oat hulls.^ "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 ingre- dients 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 different States. Each of the terms has a definite significance. The term 'nitrogen- United States V. Johnson, 31 Sup. * N. J. 171 ; N. J. 230. Ct. 627, there is doubt about the o N. J. 172; N. J. 463 (shorts); soundness of this decision. See N. J. 464; N. J. 116; N. J. 117; §405. N. J. 322 (corn alfalfa); N. J. IN. J. 691; N. J. 810. See 391; N. J. 435; N. J. 540; N. J. §374 (Sugarota). 786. 2N. J. 66; N. J. 119; N. J. 314; 8 N. J. 400. N. J. 809. 7N. J. 432. 8N. J. 104; N. J. 174; N. J. s N. J. 477. 256; N. J. 315. 9N. J. 468; F. I. D. 533. 389 MISBEANDIKG. [§ 338 free extract' includes starch, sucrose, reducing sugars, pen- tosans, organic acids, coloring matter, and certain other in- gredients in small quantities, and the amount of nitrogen- free extract present in a stock feed is determined by sub- tracting the sum of the moisture, crude fiber, protein, fat, and ash content from 100 percent. 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 ingredients which make up the nitrogen-free extract, plus crude fiber, but does not include organic acid and coloring matter. The amount of ingredients included in nitrogen-free extract which are not carbohydrates is so small in stock feeds that they may be disregarded in stating the amount of carbohydrates, and stock feeds will not be held to be mis- branded on accounit of statements on labels of the proportion of carbohydrates if analysis shows that the percentage of carbohydrates 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 determining the amount of carbohydrates present in stock feed. The term 'starch and sugar,' however, is properly ap- plied only to the actual starch, sucrose, and reducing sugars contained therein, and stock feed will not.be held to be mis- branded 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."^" "The department has frequently received inquiries in re- gard to the labeling of bran, of which the following is a fair sample: 'Can the screenings of wheat, consisting principally of shrunken seed, etc., be put in the bran and it still be called bran, etc.?' 10 F. I. D. 124. § 328] LAW 01" PUEE FOOD AND DEUGS. 390 "Since the above is clearly in violation of those provisions of the law requiring that a food product be true to the label, the department is of the opinion that it will be necessary to label such a mixture as 'Bran and! Screenin'gs. ' "It has recently come to the attention of the department that a number of the cattle and poultry foods sold on the American market contain enough poisonous weed seeds, such as com cockle and jimson weed (Jamestown weed), to have a more or less toxic effect on poultry, cattle, etc. Poultry and cattle foods which contain poisonous weed seeds in ap- preciable quantities will be considered as adulterated in ac- cordance with those provisions of the Food and Drugs Act, June 30, 1906, forbidding the presence of poisonous or dele- terious ingredients. "The department has been asked by the manufacturers of medicinal mixtures for poultry, cattle, etc., whether such mixtures may, under the law, be labeled respectively as cat- tle and poultry foods. It is thought, first, that the words 'Cattle Food' or 'Poultry Food' should apply to cattle or poultry foods which are not mixed with any condimental or medicinal substance or substances; second, that mixtures of cattle and poultry food materials, with small quantities of condiments, such as anise seed, ginger, capsicum, etc., should be labeled as 'Condimental Cattle Food,' or 'Condimental Poultry Food;' and third, that mixtures of cattle-food ma- terials with medicinal substances, such as arsenic, sulphate of iron (copperas), etc., should not be labeled as foods, but as medicines, or remedies. For example, under the latter ruling, a cattle food mixed with medicinal substances, such as arsenic, copperas, etc., should be plainly labeled as a rem- edy, or medicine, so as to differentiate clearly such a sub- stance from a cattle food material unmixed with medicinal agents. ' '^ A feed was branded as follows: "Corno Horse and Mule Feed. Mixture of ground alfalfa, oats, corn, flax bran, oat and hominy feeds, made by the Corno Mills Company, Bast St. Louis, Illinois. Guaranteed analysis : Protein 10 percent, 11 F. I. D. 00. See N. J. 990. 391 MISBRANDING. [§ 339 sugar and starch 58.5 percent, fat 3.5 percent, fiber 12 per- cent." An analysis of a sample of this product showed the presence in it of about 15 percent oat hulls and practically no oats, moisture, 9.84 percent, protein 10.63 percent, and fiber 15.24 percent. On the trial of the case is was "ad- mitted that there was present in this Corno Horse and Mule Feed, a quantity of oat hulls in excess of the amount that would have been naturally and normally present in case whole ground oats had been used in lieu of the same amount of oat feed, using the term oat feed according to the con- struction contended for by the claimants; namely, as a by- product of the oat meal or rolled oat factory, said product consisting of the entire residue of the oats after the manu- facture of the oats into food for human consumption, and consisting of the middlings, nubbins, oat dust and hulls; by this admission is meant that there was used in this Corno Horse and Mule Feed a quantity of by-product of the rolled oat mill consisting of oat hulls, middlings, nubbins and dust , as above described." The District Court for the Middle Dis- trict of Alabama held that this product was not misbranded, and the Department of Agriculture accepted this decision as correct. ^^ § 329. Fish. To label fish as "Broiled California Mackerel," and add "Pilchard or Sardinia Caeruleus" in such small type as they are noticeable only upon close inspection, when in fact the product labeled was not California mackerel but California sardine, is to mislabel it, though the name of the product was truthfully stated in small type.^ To label fish as "Nor- way Cod Strips" when they were packed in California is to mislabel them.^ To label lake herring "white fish" is to violate the statute.^ Tb laJbel codfish taken in American waters as "Italian Codfish" is to mislabel it.* "Many inquiries have been made of the department regard- 12 N. J. 990. ^N". J. 306. IN. J. 365. *N. J. 779. 2 N. J. 506. § 339] LAW OF PUBE POOD AND DBUQS. 393 ing the nomenclature commonly employed in designating canned salmon. It is stated that inferior species of salmon are frequently canned and labeled with some name which is understood by the trade to indicate the presence of fish of an inferior viariety but which is mot so understood by the consumer; as, for instance, 'Alaska Salmon.' The depart- ment is informed by the Bureau of Fisheries that the species of salmon in the United States are as follows: 1. Oncorhynohus nerka. Sockeye or sookey salmon, bluebaok salmon, red salmon, redfish, or nerka salmon. 2. Oncorhynchus tscliawytscha. Chinook salmon, king salmon, qninnat salmon, tyee salmon, or spring salmon. 3. Oncorhynchus gorbuscha. Humpback salmon, pink salmon, or gor- buscha salmon. 4. Oncorhynohus kitsutoh. Coho salmon, silver salmon, or medium red. 5. Oncorhynchus keta. Calico salmon, keta salmon, dog salmon, or chum salmon. 6. Salmo gairdneri. Steelhead salmon, steelhead, hardhead, winter salmon, salmon trout, or square-tailed trout. 7. Salmo solar. Atlantic salmon. "Two additional species of landlocked salmon exist in cer- tain New England and Canadian lakes. Neither of these nor the Atlantic salmion is ever canned. Oonsidering this fact, and the further fact that many packers put up humpback and dog salmon under fancy names and thus sell them to con- sumers who may believe them to be of superior varieties, it is held that canned salmon should be labeled with one of the common names mentioned above as belonging to the species of fish canned. "A similar question has frequently been raised regarding whitefish. A fish designated as Argyrosomus artedi, usually called lake herring or eisco, is put on the market at times as 'family whitefish.' The following is quoted from a communi- cation from the Bureau of Fisheries: 'The whitefish tfibe in America has numerous representatives, and at least 12 species are regularly caught for market and others will doubtless in time acquire economic importance. Those now taken are: 'Common whitefish of Lake Ontario ajid Lake Erie, coregonus albus; common whitefish of Lake Huron, Lake Michigan, Lake Superior, Lake 393 MISBRANDING. [§ 330 of the Woods, Lake Winnepeg, etc., ooregonus clupeif ormia ; Rocky Moun- tain whitefish, coregonus williamsoni; broad whiteflsh or Alaska white- fish, coregonus kennicotti; Menominee -whitefish or round whiteflsh, core- gonus quadrilateralis ; lake herring, or cisco, argyrosomus artedi; jumbo herring, or Erie cisco, argyrosomus eriensis; Huron cisco or herring, argyrosomus huronius; moon-eye, or chub, argyrosomus hoyi; longjaw whiteflsh, or bloater, argyrosomus prognathus; longjaw of Lake Superior, argyrosomus zenithicus; blackfin or blueflsh whiteflsh, argyrosomus nigri- pinnis; tuUibee whiteflsh, argyrosomus tullibee. 'To most of these species the name "whiteflsh," with a qualifying word, is strictly applicable; but there is a wide range in food value, and to permit the sale of most of them as plain "whiteflsh" would be unjust to the public. The Bureau does not know that this general question has come before your Board, or that you wish to consider it at this time, but sooner or later it will be necessary to render a decision, and at any time it may be brought to your attention because of cases arising in the Washington, D. C, market, where one of the commonest and best of the fish foods is "smoked whiteflsh" — consisting of any one of three or four species of core- gonus and argyrosomus, none of them clupeiformis or albus. Under these circumstances it would appear to this Bureau to be proper and feasible to require the different kinds of preserved whiteflsh to be designated by their qualifying names. The most appropriate name for "family white- fish" is lake herring or cisco; but whiteflsh as here used would mean, or would be intended to mean, the common whiteflsh, the best of the tribe.' "In harmony with the opinion of the Bureau of Fisheries, the board holds that the term 'whiteflsh' should be applied only to the common whiteflshes, Coregonus albus and Core- gonus clupeiformis, unless prefaced by the name of the par- ticular species of whiteflsh employed. The flshes commonly known to the fishermen and the trade as 'lake herring' and 'cisco' should be so called, with or without qualifying names, but should not be designated 'whitefish'."^ §330. Flavoring Extracts. "The percentage of alcohol is not required to be stated in the case of extracts sold for the preparation of foods only. It is held, however, that extracts which are sold or used for any medicinal purpose whatever, should have the percentage of alcohol stated on the label. 5F. L D. 105. § 331] LAW OP PUEE FOOD AND DRUGS. 394 "Numerous inquiries are received regarding the proper designation of products made in imitation of flavoring ex- tracts or in imitation of flavors. Such, products include 'Imi- tation vanilla flavor,' which is made from such products as tonka extract, coumarin and vanillin, with or without va- nilla extract. They may also include numerous preparations made from synthetic fruit ethers intended to imitate straw- berry, banana, pineapple, etc. Such products should not be so designated as to convey the impression that they have any relation to the flavor prepared from the fruit. Even when it is not practicable to prepare the flavor directly from the fruit, 'imitation' is a better term than 'artificial.' "These imitation products should not be designated by terms which indicate in any way by similarity of name that they are prepared from a natural fruit or from a standard flavor. The term 'venallos,' for instance, would not be a proper descriptive name for a preparation intended to imi- tate vanilla extract. Such products should either be desig- nated by their true names, such as 'vanilla and vanillin flavor,' 'vanillin and coumarin flavor,' or by such terms as 'imitation vanilla flavor' or 'vanilla substitute.' Articles in the preparation of which such substitutes are employed should not be labeled as if they were prepared from standard flavors or from the fruits themselves. For instance, ice cream flavored with imitation strawberry flavor should not be designated as 'strawberry ice cream.' If sold as strawberry ice cream without a label the produiot would appear to be a violation of Regulation 22. "Artificial colors should be declared whenever present." § 331. Flour. Flour made from durum wheat can not be branded as made from "hard spring wheat. "^ Flour manufactured in Ohio can not be labeled "Paragon Minnesota Cream Roller Process."^ Flour containing less than 18.25 percent mini- iP. I. D. 47. See Extract of' 2 p. I. D. 13; N. J. 439; N. J. Lemon, etc. 443. 1 P. I. D. 12. 595 MISBKANDING. [§ 331 mum crude protein can not be labeled as containing 18.25 percent, nor tbat containing less than 5.25 percent of fat as containing 5.25 percent.' "The following communication has been received respect- ing the mixing of flours of different cereals : 'In conformity with the custom of. a century or more, the manufac- turers of rye flour, in order to produce a lighter and more easily worked flour, have added a proportion of wheat flour to their rye and branded it "rye flour.'' 'This custom simply conforms to the consumers' demand for a whiter loaf and from every standpoint is a perfectly legitimate operation. "Under the interpretation of the food and drugs Act of June 30, 1906, apparent restrictions are placed upon their compounding, and I would therefore respectfully ask your ruling upon the following points: '1. Under this interpretation would it be necessary to add the word "compound" to the brands? '2. Will it be necessary in accordance with this interpretation to name in the brand the fact that a wheat admixture has been made, in addition to the use of the word "compound," providing that word is necessary? '3. Referring to paragraph f, Regulation 17, which reads as follows: "An article containing more than one food product or active medi- cinal agent is misbranded if named after a, single constituent," will it be permissible to still name the rye-wheat admixture "rye-flour ?" ' "The Food and Drugs Act of June 30, 1906, and the rules and regulations made thereunder, provide for the proper marking of food products and penalties for misbranding. "The Act also provides that a food product is not mis- branded '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 pack- age in which it is offered for sale.' "Keeping in view these provisions of the law, and rules and regulations made thereunder, it appears that the mixing of rye flour and wheat flour is not prohibited by the law provided the package is marked 'compound' or 'mixture,' the word standing alone and without qualification, and also if the label contain the information which shows that it is 3N. J. 374. §§ 332-334] LAW OF pueb food and dbugs. 396 properly branded. The mixture may also be denominated a 'blend' if rye flour and wheat flour be regarded as like sub- stances. It is held that this information in the ease men- tioned would be a statement of the ingredients used in mak- ing the compound. It is further held that the use of an ingredient in small quantity simply for the purpose of nam- ing it in the list of ingredients would be contrary to the in- tent of the law, and therefore that the ingredients must be used in quantities which would .justify the appearance of their names upon the label. The statement made of the con- stituents used should be of a character to indicate plainly that the article is a compound, mixture, or blend. "It is evident from the above explanation that the naming of a mixture of this kind 'rye flour' would be plainly a vio- lation of the law and the regulations made thereunder. "Attention is called also to the Act of Congress approved June 13, 1898, U. S. Revised Statutes, sections 36 to 49 in- clusive, imposing special taxes under the supervision of the Commissioner of Internal Revenue on mixed flour."* § 332. Flour Bleachinir. To label a product "flour" that has been bleached by the Alsop process is to misbrand it.^ §333. Prou Prou Biscuits— Boric Acid. Labeling a case as containing "Frou Frou Biscuits" when the biscuit contains boric acid or compounds of it which ren- der the article injurious to health, is a misbranding of the article.^ § 334. Fruit Syrups. Fruit syrups not made from the fruit their name indicates they lare made from can not be labeled by the name of such fruit. * F. I. D. 42. Flour labeled as Notice of Judgment contains the having been ground in Pennsylva- evidence given at the trial in the nia when it was ground in Kan- United States Court. See also F. I. sas, is mislabeled. N. J. 940. D. 100. IN. J. 799; N. J. 722. This iN. J. 696. 397 MISBRANDING. [§§ 335-337 Thus a syrup not made from pineapple can not be labeled "Pineapple Syrup," nor one not made from cherries labeled "Cherry Syrup," nor one not made from orange labeled "Orange Syrup. "^ § 335. Gelatin. "The following letter was recently received at the Depart- ment of Agriculture: 'We import a preparation of gelatin preserved with sulphurous acid for the purpose of fining wine. This gelatin is not used as a, food and does not remain in the wine, although a small amount of the sulphurous acid may be left in the wine. Please inform us if the sale of this product is a violation of the food law.' "It is held that the products commonly added to foods in their preparation are properly classed as foods and come within the scope of the Food and Drugs Act. The depart- ment can not follow a food product into consumption in order to determine the use to which it is put. Pending a decision on the wholesomeness of sulphurous acid as pro- vided in Regulation 15 (b), its presence should be declared."^ Gelatin may be used in food products or confectionery if made from unobjectionable and good raw material in a sani- tary way. § 336. Gin. To use strychnine, bruioine and salicylic acid in gin is to violate the statute; and a liquid, therefore, labeled 'Damiana Gin" having those poisons in it is mislabeled.^ A gin was labeled "Geneva Cross Gin. This superior liquor is specially recommended for medicinal purposes. Genuine Gin. Also known as Geneva." It was a domestic product. It was held that it was misbranded.^ § 337. Ginger Ale. A product was labeled "Ginger Ale. Guaranteed under the IN. J. 328; N. J. 372; N. J. i N. J. 245. 549. 2N. J. 770; N.J. 771. iF. I. D. 48. §§ 338, 339] LAW OF puke food and dbugs. 398 Food and Drugs Act of June 30, 1906." An analysis showed it contained benzoic acid, saccharine, capsicum and caramel, It was held that it was mislabeled because it did not show those elements.^ Barrels containing a pr'oduct were labeled: "The Beaufont Lithia Water Co.— 12 Doz. Pints Beaufont Ginger Ale — Delicious Flavor — ^Perfect Quality — Richmond, Va." Each of the bottles in these barrels was labeled as follows: "The Perfection of Purity and Excellence — ^Beau^ font Medicinal Ginger Ale — Highest Quality — ^Refreshing In- vigorating — The Beaufont Lithia Water Co., Richmond, Va., U. S. A." An analysis of the product showed the presence of ginger and capsicum and also showed that there was noth- ing used in the manufacture of the product which would entitle it to be termed "the perfection of purity and excel- lence," nor the "highest quality," nor "medicinal," as stated on the labels. The court held that the product was misbranded.^ § 338. Glucose. A substance labeled "Gilt-edge Brand Wet Mincemeat" is mislabeled if commercial glucose be used in it instead of sugar.^ § 339. Gluten Flour and Gluten Farina. A product labeled "Gluten Farina" and "Gluten Flour" which does not contain gluten as the principal ingredient and not sufficient to entitle the product to that name, is mis- labeled.^ Gluten flour is the clean, sound product made from flour by the removal of starch and contains not less than five and six-tenths percent of nitrogen and not more than ten percent of moisture. Therefore to label a product containing 12.80 percent of moisture and 1.53 percent of nitrogen as "Gluten Flour" is to mislabel it.^ iN. J. 741. iN. J. 250. 2 N. J. 1026. 2 F. I. D. 3. IN. J. 639. 399 MISBRANDING. [§§ 340-344 § 340. ' ' Hen-E-Ta Bone Grits. ' ' A substance labeled "Hen-B-Ta Bone Grits, 30 percent pure bone ash" is mislabeled if it has a substance substituted for the bone.^ § 341. Honey. A product containing invert sugar and glucose can not be labeled as " Honey. "^ §342. Ice Cream. A product out of which the cream has been abstracted and gelatin substituted can not be labeled "ice cream. "^ § 343. Jam. A substance labeled "Choice Home Made Pure Currant Jam. Made from fresh fruit" is mislabeled if not made from fresh fruit, and if it contain a mixture of water, sugar, dried currants, and apple juice.^ Where the label on a jam jar indicated that it contained 30 percent of granulated sugar and 8 percent of corn syrup, when las a matter of fact it ■contained 59.4 percent of glucose and only 2:17 percent sugar, it is mislabeled.^ Jam made out of logan berries can not be labeled "strawberry jam."' §344. Jelly. A product containing glucose can not be labeled "Made of Apple Juice and Sugar. "^ A product labeled "Currant Jelly," followed by the words in small type, "blended with apple and other fruit juices" is mislabeled.^ Jelly labeled as containing 40 percent of glucose is mislabeled when it contains 70.70 percent of it.' To label a jelly in such a man- iN. J. 625. 2N. J. 476. i]Sr. J. 18; N. J. 19; N. J. 20; » N. J. 602. N. J. 21; N. J. 269. i N. J. 238; N. J. 872. iN. J. 438. 2]sr. J. 415. iN. J. 641. 'N. J. 552. §§ 345-348] LAW OF pure food and detjgs. 400 ner as to lead one to believe it was made by a particular person, when in fact it was not made by him, is to mis- label it.* § 345. Kola Syrup. Jugs were labeled "Dr. Don's Kola: Direictions — Carbonate at 60 lbs. pressure, throwing one ounce to a half pint bottle." It was found to be a syrupy liquid consisting essentially of caffein 0.09 percent, cocaine, phosphoric acid, sugar, flavor- ing and coloring agents, and water. It was held to be mis- branded, because it contained no substance derived from the cola-nut or cola-plant, and because it contained no statement that it contained caffein, cocaine and cocaine derivatives and phosphoric acid.^ §346. Lemon Oil. A product in which sesame oil has been mixed can not be labeled as "Lemon Oil."^ § 347. Linseed Meal. A label on a product was as follows: "Pure old process Linseed IVCeal. Guaranteed Analysis: Protein 34 percent, crude fat and oil 9 percent, crude fiber 8 percent." It con- tained moisture 9.87 percent, ether extract 9.53 percent, pro- tein 31.66 percent and crude fiber 7.96. It was held mis- labeled as to the protein.^ § 348. Macaroni. The use of a label as follows: "Macaroni Savoia Brand Gragnano," and had between the words "Savoia" and "Gvar gnano ' ' the shield of Italy, together with a representation of a mountain or volcano and a castle, is a violation of the statute when the macaroni thus labeled was made in the United 4 N. J. 580. 1 N. J. 505. See Extract of 1 N. J. 784. Lemon, § 318. IN. J. 728. 401 MISBEANDING. [§ 349 States.^ The use of foreign words upon domestic macaroni which leads the purchaser to believe it is a foreign produc- tion is prohibited.'' A product was labeled "Trinacria Mac- aroni Works Pasta Extra Sicilia," with word "Style" in- conspicuously placed at the bottom of the label. It was made in America. It was held to be misbranded.* §349. Maple Sugar. Pails of sugar were labeled "Vermont Sugar." It was made in Vermont, and had the appearance of maple sugar. It bore no label, brand, or device of any kind showing the true character of the article. It was a mixture of cane and m'aple sugiax of nearly equal parts. The court condemned the entire lot, and ordered it sold.^ "Where a product was branded "Mapleine" it was left to the jury to determine whether it was the intention of the manufacturers to give a purchaser the impression that it was maple sugar; and if the product was not maple sugar, it was misbranded." To brand a jar as "Maple Syrup'," when only 50 percent of it is such, is to misbrand it.^ To brand a product as "Maple Sugar 40 percent, Cane Sugar 60 percent," when it contains no maple sugar is to mislabel it.* So to brand a product composed in part of sucrose syrup as "Pure Vermont Maple Syrup" is to mislabel it.^ Likewise to label a product as "Baker & Co.'s Cane and Maple Sugar Syrup," so placing the words "cane and" thereon as to be practically invisible, and it consists almost entirely of cane sugar syrup, is to mislabel it." Labeling a product "Maple Syrup" when it contains glucose is a violation of the statute.'' So if it con- tains cane syrup,* or 5% percent water.' IN. J. 167; N. J. 262; N. J. 776. *N. J. 98. See also Section 372. 2 17. J. 487; N. J. 600. sN. J. 198. sN. J. 804. ON. J. 209. IN. J. 107; F. I. D. 47; N. J. 7 N. J. 290; N. J. 403. 802; N. J. 1015, §330; N. J. 928. 8 N. J. 591; N. J. 412. 2N. J. 163. 9lir. J. 603. 3N. J. 469; N. J. 107; N. J. 793. PuEE Food — 26. § 349] LAW OF PDEE FOOD AND DEUSS. 402 A substance was labeled as follows : "Aunt Jemima's Sugar Cream A blend of rook candy and maple syrup creamed Dainty Desserts made from Aunt Jemima's Sugar Cream » blend of rock candy and maple syrup creamed. Aunt Jemima's Sugar Cream." "Aunt Jemima's Sugar Creaim. A delicious sauce for table use, pancakes, biscuits, waffles, puddings, etc. For layer cake it makes an excellent filler and icing. For icing cakes it should be slightly warmed by immersing can in hot water. If syrup separates to top of cream stir with table knife until uniform." It actually consisted of rock candy, maple syrup and glucose. It was held that it was not labeled correctly." A product was labeled "Western Reserve Ohio Blended Maple Syrup. Guaranteed absolutely pure." The mixture was composed largely of refined cane sugar flavored with extract of maple wood. It was held that there had not been a violation of the statute, beoausiei of the use of the w!ord "Mend," the court saying: "In the argument at bar of the case it was contended for the respon- dent 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 referring 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 respondent 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 mean- ing 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 ordinary intelligence, after reading them or either of them, would infer the same meaning that the bottles, as well as the boxes, contained 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 bottle mean the same thing, namely, that each con- tained 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 ION. J. 384; N. J. 325. 403 MISBEANDING. [§ 349 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 poisonous or delete- rious 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 bottles was maple syrup; but, as said before, both labels represent the same fact — that the contents of the boxes and bottles was blended maple syrup. The libel avers that the cases and bottles do not contain a blend of maple syrup, 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 com- pound 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 commodities are such as they are reipresiented to be. If the brands or labels upon the goods in question were truthful, and such as the law permitted upon such goods as they actually were, then there was no violation of the law, and the goods were wrong- fully 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 pack- age 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 ingredients used for the purpose of coloring and flavoring only. "I have already said that the brands or labels in question plainly indi- cate 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 con- strued to mean a mixture of like substances, not excluding harmless color- ing or flavoring ingredients, used for the purpose of coloring and flavoring only. I think I may take judicial notice of all that an ordinarily intelli- § 349] LAW OF PUKE POOD AND DKUGS. 404 gent person knows, and in doing this I know that food syrup is a saccha- rine 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 exclud- ing the flavoring. In the case presented the mixture is cane sugar flavored with extract of maple wood. It seems to me no argument is necessary 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 imitation. 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." n In another ease the product was labeled "Topmost Cane and Maple Syrup. This product is composed of the fol- lowing ingredients and none other: Cane syrup 60 percent, maple syrup 40 percent." Among other things the court charged the jury as follows, and there was a verdict of guilty : "Now, coming to the question — and there does not seem to be much dis- pute 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 witnesses intro- duced on one side, as to whether or not the testimony reads within the meaning of this law, the delivery 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 the 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 forty percent maple syrup, and, as I said a while ago, this law forbids the placing upon the parcel of a label con- taining that statement, if it is substantially untrue, or substantially mis- leading. So, the question for you to decide is whether or not this parcel "United States v. Sixty-eight Cases of Syrup, 172 Fed. 781; N. J. 283. See N. J. 276. 405 MISBEAKDING. [§ 349 contained a substance, one of the ingredients of which was maple syrup, and if so whether that ingredient, maple syrup, constitutes forty percent 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 can not take that can and determine the contents, the ingredients of the contents. That is the 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 accord- ance 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 guilty. You have that power under the law, and three experts, not 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 syrup.' For the United States the position is that the phrase 'maple syrup' used on this label of this defendant is to be understood as meaning to him who put it there, and as having been intended 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 where it would be regarded and called maple syrup, excluding the addition to it of any outside sub- stances, excluding 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 sup- pose, 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 thirty-four percent of water or thirty-six percent of water, or forty percent 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 another 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 detailed 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 deal- ing here, when you talk about maple syrup, you are dealing with pure § 349] LAW OF PUKE FOOD AND DRUGS. iO^ maple syrup, as I have defined to yon the meaning of maple syrup' Bere- tofore in these instructions; and by those tests the reasoning of the wit- nesses is that the contents of this tin receptacle contain the percentage (and it is a percentage per volume of contents) — ^the percentage of maplfe' syrup vrithin the can. "I do not know how I can any better explain to you the nature of this charge. It is a new field. There are questioais involved which would be mor« satisfactorily disposed of by the court, after a better opportunity for consideration and reflection than is afforded in the trial of the 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." 12 "The director of the agricultural experiment station at Orono, Maine, in a recent letter made the following state- ment: 'There are in Maine many syrups which are labeled something like this: "A Fancy Quality Syrup Made from Pure Maple and White Sugar." Many of these syrups carry but little maple, one company saying that in a syrup analogous to this they put ninety percent of cane sugar and ten percent of maple.' "When both maple and cane sugars are used in the pro- duction of syrup the label should be varied according to the relative proportion of the ingredients. The name of the sugar present in excess of 50 percent of the total sugar con- tent should be given the greater prominence on the label; that is, it should be given first. For example, a syrup the sugars of which consist of 51 percent cane sugar and 49 percent maple sugar would be properly branded as 'Syrup Made from Cane and Maple Sugar,' or as 'Cane and Maple Syrup.' The terms 'maple sugar' and 'maple syrup' may only be used on the label as part of the name when those substances are present in substantial qualities as ingredients. They should not appear on the label as part of the name when only a small quantity of those substances is used to 12 N. J. 271. 407 MISBRANDING. [§349 give a maple flavor to the product. A cane syrup containing only enough maple syrup or maple sugar to give a maple flavor is properly labeled as 'Cane Syrup, Maple Flavor' or 'Cane Syrup Flavored with Maple.' "Whenever it is necessary to declare cane sugar (sucrose) on a label it should be declared as cane sugar and not as white sugar. "^^ A sugar was labeled "Blended Cane and Maple Sugar," which was moulded into cakes but was sold and in- voiced as maple sugar. The product consisted of a mix- ture of cane and maple sugar. The government claimed that the product was misbranded for the reason that it was sold and invoiced as maple sugar, when, in fact, it was an imita- tion of and was sold under the distinctive name of maple sugar, but being a mixture of cane sugar and maple sugar. The words "compound, imitation, or blend" were not plainly stated on the package in which it was sold. The owner pleaded guilty to the charge of misbranding.^* 13 p. I. D. 75. Syrup, ten percent of which is made from maple sugar and ninety percent from white sugar, put up in bottles having thereon labels containing the name "Gold Leaf Syrup," with a trademark con- sisting 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, can not be said to he misbranded, so that its ship- ment in interstate commerce consti- tutes a misdemeanor under Food and 'Drugs Act, June 30, 1906, c. 3915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1907, p. 928). In re Wilson, 168 F. 566; United States V. Bockmann, 176 Fed. 382. An article of food, put up and sold in oases bearing principal la- bels, describing the contents as a particular brand of molasses, but plainly stating in three separate places that the product is a com- pound of molasses and corn syrup, and also containing all the other information required by Food and Drugs Act, June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), and the regulations thereunder, and which article is in fact a compound of molasses and commercial glucose, is not adulter- ated nor misbranded within the meaning of such Act; it be- ing shown that it contains nothing deleterious to health, and that under the rulings of the department it is permissible to de- scribe commercial glucose on labels or brands as made from corn syr- up. United States v. Seven Hun- dred and Seventy-nine Cases of Mo- lasses, 174 F. 325. 14 N. J. 1015. §§ 350-353] LAW OF PUKE FOOD AND DRUGS. 408 §350. Meal. To label a meal as follows: "Old Log Cabin Meal. Fresh Ground Meal. Best Water Ground Style," is to represent it was ground by the water process or in buhr mills and not by steam roller process and if it was ground by steam roUer process, then it is mislabeled.^ §351. Milk. To put milk in bottles and brand or label such bottles with the word "Milk" is to represent that the product is unadulterated milk, though not of any particular quality. It may be milk containing a low grade of milk fat, and yet be pure milk, — ^just as it came from the animal. If the milk is sold in a community where only cow's milk is used, then the representation would be that it was cow's milk. So where a product was labeled "Pure Vacuum Dried Milk Flour, containing 5 percent Butter Fat," and it was manu- factured from a closely skimmed milk and contained only between 1 percent and 2 percent butter fat, it was held that it was mislabeled.^ § 352. Mince Meat. A substance labeled "Gilt-edge Brand Wet Mince Meat" is mislabeled if it contains commercial glucose in place of sugar.^ § 353. Molasses — Glucose. A product was labeled "Re-boiled Open Kettle Molasses." An analysis showed that it contained 49.82 percent of glu- iN. J. 44. word, nor asked lor "pure milk," IN. J. 211; N. J. 273. See also or in any other way qualified his N. J. 979. request. Kench v. O'SuUivan, 10 If a would-be purchaser asks for N. S. W. L. E. 605, 27 W. N. "milk" he has a right to expect (N. S. W.) 137. he will receive unadulterated milk, i N. J. 639. although he has not used that 409 MISBEANDING. [§ 353 cose. It was held that it was mislabeled.^ So where the product was 27.8 percent glucose.^ But where some cases of a product were branded "Sugar Glen Open Kettle Sugar House Molasses absolutely pure. Highest grade sugar house molasses," and in inconspicuous type across the face of the label in some cases and across the back in others "Com- pound molasses and corn syrup;" and other cases of the same product was branded "Burro Sugar House Ribbon Cane Molasses," and inconspicously printed over the face of the label in some cases and across the back in others, "Com- pound Molasses and Com Syrup;" and the product called "Sugar Glen" contained 30 percent and the "Burro Sugar" 40 percent of commercial glucose, and the compound con- tained no substance deleterious or injurious to the health of persons using it, and under the practice of the Department of Agriculture commercial glucose, if properly labeled, could be sold under the name of "com syrup," the court held that the product was properly labeled.^ "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 Or- leans molasses.' The evidence at hand shows that 'New Or- leans' 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 statement which is false or misleading in any particu" lar. In view of the general understanding of the term 'New Orleans' molasses the board is of the opinion that the term 'New Orleans' should be restricted 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.* 1 N. J. 2. 3 N. J. 270. 2 N. J. 24. * F. I. D. 134. §§ 354-35?'] LAW OP PUKE FOOD AND DKUGS. 410 § 354. Oats. A substance branded "White Oats" is misbranded if it contains wheat, barley, or other seeds.^ § 354a. Olives. A product labeled "olives" when the olives are wormy and decayed and contain considerable worms has been eonidemned as mislabeled.^ §355. Olive Oil. A substance labeled "Olive Oil" is mislabeled if it con- t9,ins cotton seed oil.^ A label was as follows: "La Sieilia — Extra Compound Cotton Seed Oil — Olive Oil." The can contained nothing but olive oil, but the bottle was held to be mislabeled.^ Oil can not be labeled "Olio Puro d'Oliva Garantito" when it contains 60 percent of cotton seed oil, for the label contains a statement that it is pure olive oil.^ §356. Orangeade Powder. A product labeled "Orangeade Powder" implies that it is produced from oranges; and if it is not so produced it is falsely labeled.^ §357. Peach Butter. A product labeled "Peach Butter, made with choice peaches, granulated sugar, apple juice, phosphoric acid. Pre- served with one-tenth of one percent of benzoate of sodium," 1 N. J. 650; N. J. 620; N. J. 334 N. J. 409; N. J. 452; N. J. 582 N. J. 759; N. J. 752; N. J. 748 386; N. J. 441; N. J. 453; N. J. 472; N. J. 535; N. J. 574; JN. J. 605; N. J. 565; N. J. 710; N. J. N. J. 749. 783; N. J. 819; N. J. 997; N. J. iN. J. 971. 915; N. J. 916. IN. J. 654; N. J. 634; N. J. 2 N. J. 783; N. J. 832; N. J. 617; N. J. 133; N. J. 217; N. J. 953. See "Salad Oil." 244; N. J. 247; N. J. 340; N. J. s N. J. 997. 348; N. J. 360; N. J. 397; N. J. 1 N. J. 279. 411 MISBRANDING. [§§ 358-361 is mislabeled if it contain glucose and a greater amount of benzoate of sodium than that indicated.'^ § 358. Pepper. A substance labeled "Pepper" is mislabeled if it contains olive pits or almond shells ;'^ so if it contains cracker crumbs, ground nutshells and fruit pits;^ or wheat meal, seed coats and cocoanut shells;' or pepper shells and dirt;* or a large percentage of leguminous starch;^ or sand and ash when labeled "pure pepper;'" or a com product.'' § 359. Phosphate, Calcium Acid. Where a product was labeled "C. A. P.," which meant "Calcium Acid Phosphate," but it contained no poisonous or deleterious ingredients; and these initials had been adopted as a trademark; and it appeared that the compound, which was compounded of calcium acid phosphate and com starch, the mixture containing about thirty-three and one-third per- cent of the latter, was formerly called "Cream Acid Phos- phate," it was held that the article was not mislabeled.^ §360. Pork and Beans. Pork and beans are food products and come within the provisions of the Food and Drugs Aet.^ §361. Preserves — Glucose — Phosphoric Acid. Preserves labeled as containing 43 percent of glucose when they contain 64 percent are misbranded; and a failure to note on the label 0.16 percent of phosphoric acid is also a misbranding.^ Labeling a can as "blackberry preserves" 1 N. J. 59^. « N. J. 297. 1 N. J. 655. '' N. J. 835. 2N. J. 75; N. J. 164. i N. J. 300. 3N. J. 120; N. J. 288. i N. J. 39; N. J. 84; N. J. 93; 4 N. J. 159. N. J. 897. 5 ]Sr. J. 158. 1 N. J. 703 ; N. J. 952. §§ 363, 363] LAW OS puke food and drugs. 412 that is filled with "logan preserves" is a misbranding of the can.^ To label preserves as containing 25 percent of glucose when they contain 51.31 percent of that article, is to mislabel them.' § 362. Baisins. To label raisins as "Choice California Raisins" when they are not choice raisins, but are composed in part of a filthy and decomposed vegetable substance, is to violate the stat- ute.^ § 363. Rice. Rice labeled "Mikado No. 1 Fancy Japan Rice" is mis- branded if it was not raised in Japan.^ Rice meal was la- beled as follows: "Carolina Rice Meal. Protein 11.15, fat 9.25, crude fiber 7.50." An analysis showed it contained only 9.72 protein, 7.69 fat, and crude fiber 9.98. It was held to be mislabeled.^ "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' irrespeotive of origin, and that a variety of rice grown in Mexico is imported as 'Hon- duras Rice.' The names 'Japan Rice' and 'Honduras Rice,' used without qualification, in the opinion of the board, clearly convey the impression to consumers that the rices are grown in Japan and Honduras, respectively, and if ap- plied to rices not there grown, constitute misbranding within the meaning of section 8 of the Food and Drugs Act, which provides — 2N. J. 701; N. J. 509. i N. J. 316. 3N. J. 551; N. J. 552; N. J. i N. J. 190. 553; N. J. 554; N. J. 581; N. J. 2 N. J. 579. 952. 413 MISBEANDING. [§ 363 '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.' "The labeling of rices which, have come to be known under geographical 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: '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 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 prin- cipal label.' "To meet the requirements of this regulation rices grown within the United States, labeled 'Japan Rice,' 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 also have 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 varieties of rice rather than rice grown in North or South Carolina, and such rices will not be held to be misbranded if plainly labeled 'Carolina 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. 123. § 364] LAW OF PURE FOOD AND DRUGS. 414 §364. Eice, Polishin|^ and Coating. ''It has been represented to the department that it is a very common practice in this country in the preparation of rice for commerce to treat it in the following manner: '1. The rough rice is passed through a series of set stones, or shellers, which removes the hull. '2. The product is subjected to a series of scouring machines by which the bran and cuticle are removed. '3. The rice is passed through a machine that is known as the brush, which removes a portion of the flour, or more commonly known as polish. '4. The rice is introduced into a warm revolving drum or cylinder hold- ing as much as 4,000 pounds, and glucose and talc are added in the follow- ing manner and in about the following proportion: As the rice is fed into the drunus a small proportion of glucose and tale are applied, namely, glucose one one-thousandth and talc one three-thousandth part of the whole. The object of the glucose is to form a coating by means of which a part of the talc is held on the surface of the rice.' "It is stated that the rice is coated for the following rea- sons: 1. The coating makes the rice less susceptible to dust and other foreign matter during transportation and storage. '2. It is, in a measure, a preventive against the attack of the weevils and worms which are so destructive in warm climates.' "It has also been represented that in some instances par- affin is used instead of glucose and that rice starch is some- times used in place of talc for the purpose of finishing rice according to the method described above. "In submitting these representations it has been asked if the process above described is permitted under the Food and Drugs Act of June 30, 1906. It is not clear to the depart- ment that coating rice in this way protects it in any manner from dust. Evidence of an expert character is also on file in the department showing that unpolished rice is no more subject to the ravages of the weevil than the polished ar- ticle. "It is the opinion of the department that no coating of any Ivind can be used in the manner indicated if the product 'be mixed, colored, powdered, coated, or stained m a man- 415 MISBEANDING. [§§365,366 ner whereby damage or inferiority is concealed.' In each ease whether or not such a result be secured is a question of fact to be decided by the evidence. "It is held by the department that rice treated in the man- ner indicated above v^ith glucose and starch should be la- beled in all eases with the name of the extraneous sub- stances, as "COATED WITH GLUCOSE AJSTD STARCH. "In such declarations all of the food substances used for coating should be mentioned. Any coloring matter or other substances that may be employed to change the tint of the rice should be declared on the label. "The question of the wholesomeness of paraffin, talc, or other nonfood substances used is to be construed in such a way as to protect the health of those most susceptible to their influences. Rice is a diet often prescribed for those suffering from impaired digestion. The use of paraffin in such cases is at least of questionable propriety, and in the opinion of the department it should be excluded from food products. Under the fifth provision of foods, section 7 of the Food and Drugs Act, June 30, 1906, and under Regula- tion 14 the use of talc is permitted, provided that each package be plainly labeled with the name of this preserva- tive and the proper directions for removal be given. "^ A product consisting in part of rice and in part of two other substances known as glucose and talc can not be labeled riee.^ § 365. Rococola. A "soft drink" called "Rococola" was found to contain ■caffedn and cocaine. Nothing was said of this fact on the label. It was held that the product was mislabeled.^ § 366. Rye. Rye flour branded as "Rye Flour," but having wheat flour in it is misbranded.^ ip. I. D. 67. iN". J. 466. 2N. J. 1030. IN. J. 69. § 367] LAW OF P0EB FOOD AND DRUGS. 416 §367. Sago and Tapioca. "It has come to the attention of the Board of Food and Drug Inspection 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 pre- pared 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 coun- tries. Both products ordinarily reach the consumer in gran- ulated 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 resem- bles 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 larticles are imitations of or offered for sale under the dis- tinctive 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 Bast Indian palm trees, and starch prodticts of different origiu will be held to be misbranded under the Act if labeled or offered for sale as 'sago,' 'pearl sago,' etc. The prepared starch prod- uct 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 products and unless the word 'imitation' is plainly stated on the packages in which imita- tion products are offered for sale. Potato or other starch prepared to resemble pearl sago, therefore, should be labeled, for example, 'Imitation sago. Mfede from potato starch,' the words 'imitation' and 'Made from potato starch' being de- 417 MISBRANDING. [§ 368 clared as plainly and conspicuously as the word 'sago.' The word 'Imitation' must appear on the label, but an equiva- lent expression may be substituted for 'Made from potato starch,' which will indicate unmistakably that the product is not made from the pith of East Indian palm trees, but is de- rived from a different source."^ §368. Salad Oil. Oil was labeled as follows: "Olio per Insalata Sopraffine Vival Brand Cotton Salad Oil Extra Qualita." The Italian thus used means "Salad Oil, superfine, extra quality." It was held that the oil was mislabeled. The court charged the jury that it was a "notorious fact salad oil prima facie means olive oil," and this was held not error, although the defendant was permitted to show if he could that "it means something else because of recent events which have perhaps rendered olive oil more difficult to obtain or that other food elements have come to be known, as salad oil." Proof to that effect, however, was not introduced.^ In one case the court instructed the jury as follows, resulting in a verdict of guilty: "Gentlemen of tlie Jury, 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. qu^tion, is cottonseed oil; that it contains five percent of olive oil and ninety-five percent of cottonseed oil, and the government claims that the branding of the article, or branding on the container, the words 'Olio SopraflSno Savoia Brand Salad Oil,' de- ceives the public and leads the ordinary purchaser to believe that he was getting olive oil of a foreign production when in fact he was getting a spurious article. "Now, the witness Eginton, who gave testimony for the government, 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 Soprafiino 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 long since had occasion to examine into a similar question that was presented to him, and upon looking at the dictionaries as 1 F. I. D. 128. 1 N. J. 473. See Olive Oil, § 355. PuBE Food — 27. § 368] LAW OF PUKE FOOD AND DEUGS. 418 to its definitions, found that the Ctentury dictionary, Worcester's diction- ary, and the Encyclopedia all defined salad oil as olive oil. Webster does not give any definition. So that the dictionary definition apparently defines salad oil as synonymous with olive oil. Now while that is con- ceded to be true by the defendant, it claims nevertheless that this term 'salad oil' in connection with cottonseed oil has received a wide and dis- tinctive designation; that the dictionary definition is not universal in that the public generally, the buying public generally, understand by the term superimposed or branded upon this can the real meaning, namely, a pro- duction 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 on the container and that the defendant's commodity is not misbranded by the use of the words 'Olio Sopraifino Savoia Brand Salad Oil,' and uuless.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 believe 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 government. If, therefore, the term 'salad oil' in connection with the other words on the can requires a distinctive trade designation, the defendant is not guilty of misbranding. Upon that subject the defendant has called a number of witnesses, one of them at least a 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 particular bearing on the question as to whether the public generally, the people who use this commodity, are misled or not. As to whether the public generally is misled by the article must be taken by you from the evidence as to how the user and consimier of the article views the can and inscription, and upon that subject there is some contra- dictory testimony, and it is for you to determine it. "This is a criminal case. The government is required to substantiate 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 is dele- terious or harmful to the health of the user, but persons who go into the 419 MISBRANDING. [§§ 369, 370 market to buy olive oil should not have foisted upon them cotton oil. So that these a,re matters you have in mind. I don't think I n«ed say anything further. I think you are thoroughly familiar with all the facts, and that you will take the matter and return a verdict as your judgment dictates. Perhaps you should bear in mind that the can contains other words than those I have specifically mentioned. On the lower corner is found the word 'Compound' in parentheses and the 'Winter Pressed Cotton Salad Oil Flavored with Pure Italian Oil.' Then with relation to this inscription, added to the one I have already spoken of, the government claims it is not sufficient and is misleading, and is not a sufficient warning to the purchaser as to the character of the commodity that he is buying." 2 To misbrand an adulterated olive oil as "olive oil" is to misbrand the article.' § 369. Salt. Sacks of salt were labeled "Granulated Liverpool Dairy Salt. Factory Med. Manufactured by Inland Crystal Salt Co., Salt Lake City," with a stamp or branded picture of a crown above said label, with the words "Liverpool Dairy Salt" printed in large and more prominent letters than the other words in the brand. This was held misbranded, be- cause it led to the belief in the purchaser's mind that the salt was from Liverpool, England.^ § 370. Sardines. "Many inquiries have been made of this department re- specting the extent to which the term 'sardine' can be used in food products entering into foreign or interstate com- merce. The question of the proper labeling of fish of this kind was submitted by the department to the Department of Commerce and Labor, Bureau of Fisheries. After reviewing the nomenclature and trade practices the Department of Commerce and Labor reached the following conclusion: 'Commercially the name sardine has come to signify any small, canned, clupeoid fish; and the methods of preparation are so various that it is impossible to establish any absolute standard of quality. It appears to this 2 N. J. 832. See Olive Oil, § 355. 1 N. J. 280. 3N. J. 953. § 371] LAW OF PURE FOOD AND DRUGS. 430 department that the purposes of the pure food law will be carried out and the public fully protected if all sardines bear labels showing the place where produced and the nature of the ingredients used in preserving or flavoring the fish.' "In harmony with the opinion of the experts of th& Bureau of Fisheries, the Department of Agriculture holds that the term 'sardine' may be applied to any small fish described above, and that the name 'sardine' should be accompanied with the name of the country or State in which the fish are taken and prepared, and with a statement of the nature of the ingredients used in preserving or flavoring the fish. "It is held that a small fish of the clupeoid family, caught upon or near the shores of and packed in oil in Norway, or smoked and packed in oil, is properly labeled with the phrase 'Norwegian Sardines in Oil,' or 'Norwegian Smoked Sardines in Oil,' the nature of the oil being designated. In like manner a small fish of the clupeoid family caught upon or near the shores of aaid packed in Prance may be called 'French Sardines in Oil,' the nature of the oil being speci- fied. Following the same practice, a fish of the clupeoid family caught on or near the shores of and packed in the United States may be labeled 'American Sardines Packed in Oil,' or 'Maine Sardines Packed in Oil,' or be given some similar appellation, the nature of the oil being stated. It is suggested that the name of the particular fish to which the term sardine is to be applied should also be placed upon the label — for example, 'Pilchard,' 'Herring,' etc."^ § 371. Syrup. To brand a syrup as "Cane Syrup" in which there is glucose in an amount over 14 percent than the amount speci- fied on the label, is to mislabel it.^ To label a product as "Topmost Cane and Maple Syrup. This syrup is composed of the following ingredients and none other: Cajie syrup 60 percent, maple syrup 40 percent," when it contains very little maple syrup is to mislabel it.^ So to label a product as 1 F. I. D. 64. See Fish, § 329. 2 N. j. 271 ; N. J. 458; N. J. 469. IN. J. 106; N. J. 127, 421 MISBRANDING. [§ 372 "Aunt Jemima's Sugar Cream, a Blend of Rock Candy and Maple Syrup Cream," is to mislabel it when it contains 12.9 percent of glucose. Such a product is offered for sale under the distinctive name of another product.^ § 372. Syrups, Mixtures of Cane and Maple. "The director of the agricultural station at Orono, Maine, in a recent letter made the following statement: 'There are in Maine many syrups which are labeled something like this : "A Fancy Quality Syrup Made from Pure Maple and White Sugar." Many of these syrups carry but little maple, one company saying that in a syrup analogous to this they put ninety percent of cane sugar and ten percent of maple.' "When both maple and cane sugars are used in the pro- duction of syrup the label should be varied according to the relative proportion of the ingredients. The name of the sugar present in excess of 50 percent of the total sugar con- tent should be given the greater prominence on the label; that is, it should be given first. For example, a syrup the sugars of which consist of 51 percent cane sugar and 49 per- cent maple sugar would be properly branded as 'Syrup Made from Cane and Maple Sugar,' or as 'Cane and Maple Syrup.' The terms 'maple sugar' and 'maple syrup' may only be used on the label as part of the name when those substances are present in substantial qualities as ingredients. They should not appear on the label as part of the name when only a small quantity of those substances is used to give a maple flavor to the product. A cane syrup containing only enough maple syrup or maple sugar to give a maple flavor is properly labeled as 'Cane Syrup, Maple Flavor' or 'Cane Syrup Flavored with Maple.' "Whenever it is necessary to declare cane sugar (sucrose) on a label it should be declared as cane sugar and not as white sugar. "^ 3 N. J. 325. - F. I. D. 75. See also N. J. 1015 and Section 349. §§ 373a-374] law of puke food and drugs. 432 §372a. Soda Water Syrup Cola. A substance labeled "Soda "Water Syrup Cola" is mis- branded if it contains coca leaf alkaloids, including cocaine and a minute quantity of caffeiu.^ § 373. Stearin. Stearin is not admitted into the United States unless ac- companied by a certificate, in tbe prescribed form, showing its freedom from disease, as in the case of meats and meat food products of cattle, sheep, swine and goats.^ Meat prod- ucts of horses and dogs are not allowed entry into the United States.^ § 374. Stock aaid Poultry Feed. "This department has frequently received inquiries in re- gard to the labeling of bran, of which the following is a fair sample : 'Can the screenings of wheat, consisting principally of shrunken seed, etc., be put in the bran and it still be called bran, etc.' "Since the above is clearly in violation of those provisions of the law requiring that a food product be true to label, the department is of the opinion that it will be necessary to label such a mixture as 'Bran and Screenings.' "It has recently eome to the attention of the department that a number of the cattle and poultry foods sold on the American market contain enough poisonous weed seeds, such as corn cockle and jimson weed (Jamestown weed), to have a more or less toxic effect on poultry, cattle, etc. Poultry and cattle foods which contain poisonous weed seeds in ap- preciable quantities will be considered as adulterated in ac- cordance with those provisions of the Food and Drugs Act, June 30, 1906, forbidding the presence of poisonous or dele- terious ingredients. 1 N. J. 1031. of F. I. D. 74 as permits their im- 1 F. I. D. 116, revoking so much portation withooit a oertiflcate. = F. I. D. 74. 433 MISBEANDING. [§ 375 "The department has been asked by the manufacturers of medicinal mixtures for poultry, cattle, etc., whether such mixtures may, under the law, be labeled respectively as cattle and poultry foods. It is thought, first, that the words 'cattle food' or 'poultry food' should apply to cattle or poultry foods which are not mixed with any condimental or medicinal substance or substances; second, that mixtures of cattle and poultry food materials, with small quantities of condiments, such as anise seed, ginger, capsicum, etc., should be labeled as 'Condimental Cattle Food,' or 'Condimental Poultry Pood;' and third, that mixtures of cattle-food ma- terials with medicinal substances, such as arsenic, sulphate of iron (copperas), etc., should not be labeled as foods, but as medicines or remedies. For example, under the latter ruling, a cattle food mixed with medicinal substances, such as arsenic, copperas, etc., should be plainly labeled as a remedy or medicine, so as to difEerentiate clearly such a substance from a cattle food material is unmixed with me- dicinal agents."^ § 375. Succotash. A manufacturer writes as follows: 'We respectfully call your attention to the canned article known as succotash, which is composed of green sweet corn and lima beans. Both dried and green beans are used. The question to which we desire an answer is this : Is it sufBcient to call the product "Succotash" ' ? "The word 'succotash,' if used without qualification, is understood to imply that the product designated is composed of green sweet com and green beans. If soaked beans or soaked com (i. e., dried beans or com softened in water) are employed, the name should be accompanied by declaration of that fact, such declaration to be in type not smaller than eight point (brevier) capitals."^ IF. I. D. 90. See Feed, Section N. J. 868 ( "alaforine," and "True- 328, and N. J. 913; N. J. 990, and bloods Honest Queen Feed"). IF. I. B. 71. §§ 376, 377] LAW OF pure food and drugs. 434 § 376. Tomatoes. Tomatoes packed in Maryland can not be labeled "Dela- ware Tomatoes."^ To brand a product "Tomatoes" which, is a filthy, decomposed and putrid vegetable substance, and contains salts of tin is to misbrand it.^ To brand a product as "Solid Meat Tomatoes First Quality" which contains a large amount of free liquid is to misbrand it.^ And that is also true if it be not "first quality."* §377. Tomato Ketchup. A tomato ketchup labeled as containing "one-tenth of one percent of benzoate of soda" is mislabeled if it contains 0.205 percent of the product.^ A tomato ketchup bore this label: "Navy Brand Catsup, prepared with one-tenth of one per- cent of benzoate of sodium." "Notice: This Catsup is superior on account of its Fine Zest and Fine Tomato Fla- vor." "Made from choice ripe tomatoes, granulated sugar, and selected high grade spices, grain vinegar." It was made from filthy, decomposed and putrid vegetable substance and from tomato pulp screened from peelings and cores. It was held that it was mislabeled.^ A like result was reached when the label was "Tomato Catsup Prepared with one-tenth of one percent Benzoate of Soda," it being con- strued as meaning that it was prepared from clean sound pulp of fresh, ripe tomatoes.' If glucose be used in catsup, it must be so stated in the label.* It tomato catsup be labeled as containing one percent of benzoate of soda when it con- tains more than that, it is mislabeled.^ So failure to state on the label that it contains two percent of benzoate of soda when that is the fact, is to mislabel it.° iN. J. 251. N. J. 604; N. J. 1034; N. J. 827^ 2N. J. 555; N. J. 875. N. J. 904. 3N. J. 369. 3N. J. 388; N. J. 767. *N. J. 369. *N. J. 474. IN. J. 111. 5isr. J. 1004. 2N. J. 156; N. J. 79; N. J. 599; « N. J. 999. 425 MISBRANDING. [§§ 378-379 §378. Tomato Paste. A product was labeled "Tomato Paste, Conserva Di To- mate Rossa P. R. — this article guaranteed to be made from tlie best quality of red ripe tomatoes and to contain no ar- tificial coloring." It was found to contain 500,000,000 bac- teria per gram, 260 yeast spores per one-sixtieth milligram, and mold filaments in 72 percent of the microscopic fields examined. It was held that the product, called "Tomato Paste," was mislabeled.^ § 378a. Turmeric. To label a product as "powdered turmeric" leads the pur- chaser to believe it is pure turmeric ; and if it contains wheat starch or wheat flour and 10.74 percent of calcium sulphate, it is misbranded.^ §378b. Vani-Kola Compound Syrup. A product labeled "Vani-Kola Compound," and containing 0.14 percent cafEein and coca leaf alkaloids, including cocaine, is misbranded.^ § 379. Vinegar. A product labeled as "Cider Vinegar" is mislabeled if it contains a mixture of distilled vinegar and a product high in reducing sugars.^ So a barrel labeled "cider vinegar" is mislabeled if it contain a mixture or compound prepared from a diluted solution of acetic acid and unfermented apple juice, but showing some vinegar.^ The Department of Agri- culture holds that vinegar or cider vinegar is the product made by the alcoholic and subsequent acetous fermentation IN. J. 767; N. J. 973. N. J. 917; N. J. 910; N. J. 927; 2N. J. 996. N. J. 844; N. J. 967; N. J. 985. IN. J. 935. 2N. J. 688; N. J. 653; N. J. IN. J. 690; N. J. 687; N. J. 685 N. J. 681; N. J. 679; N. J. 678 N. J. 720; N. J. 1007; N. J. 1023 654; N. J. 616; N. J. 1007; N. J. 844. § 379] LAW OF PUEE FOOD AND DKDGS. 436 of the juice of apples and contains less tlian four grams of acetic acid in 100 cubic centimeters. The department there- fore held that vinegar shoiwing this analysis: Solids 0.428 Nonsugar solids 328 Eeducing sugar invert 1008 Polarization direct 9 Ash 076 Ash soluble in water 048 Ash insoluble in water 028 Alk. insol. ash, cc N. 10 acid 100 cc 8.8 Sol. phos. acid, mgs per 100 co 1 . 85 Insol. phos. acid, mgs per 100 co 1 . 36 Acid, as acetic • 3 . 24 Volatile acid, as acetic 3 . 22 Fixed acid, as malic 020 Lead precipitate None. Color removed by fuller's earth All. Ratio of ash to nonsugar solids 4.31 was misbranded.^ A liquid branded "46 Sugar Vinegar" is misbranded if it be a compound of part sugar vinegar with part spirit vinegar, or distilled vinegar.* To brand a liquid "Pure Apple Cider Vinegar" is to misbrand it when it con- tains dilute acetic acid and other substances containing re- ducing sugars.^ Vinegar made in Baltimore can not be branded "Old Southern Syrup Vinegar, Spence-Nunnamaker Co., Richmond, Va."° Vinegar can not be branded "White Wine Vinegar" if it contains a dilute solution of acetic acid, or is a distilled vinegar.' Vinegar in which there is water can not be branded "Pure Distilled Spirit Vinegar."* A product can not be labeled "Vinegar" if it contain dilute acid and a foreign material high in reducing sugars and is sN. J. 169; N. J. 200; N. J. *N. J. 195. 187; N. J. 289; N. J. 318; N. J. sN. J. 286; N. J. 232; N. J. 570; N. J. 584; N. J. 593; N. J. 373; N. J. 399; N. J. 910; N. J. 597; N. J. 73; N. J. 207; N. J. 1023. 240; N. J. 243; N. J. 274; N. J. 5 N. J. 61; N. J. 62; N. J. 398. 232; N. J. 398; N. J. 304; N. J. 7 N. J. 197; N. J. 278. 985; N. J. 967; N. J. 977; N. J. SN. J. 199; N. J. 917; N. J. 844. 977. 427 mSBRANDING. [§ 379 artificially colored.' So a product branded as "vinegar" which is composed of the following substances is misbranded: Eeducing sugars (grams per 100 cc) 1040 Solids (grains per 100 ce) 370 Ash (grams per 100 cc) 0264 Total acids (grama per 100 cc) 10.83 Fixed acids (grams per 100 cc) 01 Volatile acids (grama per 100 ce) 10.82 Alkalinity of asli (cc N/10 solution per 100 cc) 1.40 Total phosphoric acid (mg P O per 100 cc) 2 . 00 Lead number (no precipitate or turbidity with lead acetate) 0. 00 Color removed by fuller's earth (percent) 82 .00 lo Polarization ( °V.) 0.7 So where the analysis shows the following results: Solids (grams per 100 cc) 0.25 Acid, as acetic (grama per 100 cc) 3 . 69 Color removed by fuUer'a earth 80.00 u A product was labeled "Saratoga brand vinegar a blend of pure boiled cider and distilled vinegar. We guarantee the vinegar sold under our brand to comply with the require- ments of the national and State food laws." The words "pure boiled apple cider" were in smaller type and belowthe words "Saratoga Brand Vinegar," and in the third line, in large print, were the words "Distilled Vinegar." No punc- tuation marks were used, and it was contended that the words "A Blend of Pure Boiled Apple Cider and Distilled Vinegar" naturally applied to two brands of vinegaa- that were blended, and the words "Pure Boiled Apple Cider" were merely descriptive of one of such ingredients. But the court held that the term "blend" as displayed on the label, was an assurance to the public that the mixture consisted of like substances, and was an assurance that the "Saratoga Brand Vinegar" consisted of two substances, that is, dis- tilled vinegar and a vinegar derived from apple cider, and in that regard the label was false and misleading.^'' AN. J. 289; N. J. 394; N. J. " N. J. 73. 561; N. J. 927; N. J. 1007. 12 United States v. Ten Barrels of ION. J. 23. Vinegar, 186 Fed. 399. § 380] . LAW OF PUKE FOOD AND DKUGS. 428 § 380. Water. Water was labeled "Basic Lithia Water, natural carbonic spring water, Basic, Virginia. Uric acid' solvent. A pure, light, freestone, lithia water. Invaluable as a constant and exclusive drinking water, and in the prevention and cure of rheumatism, gout, malaria, typhoid fever and diseases of the kidneys, liver, blood and nerves." On analysis it was found that the water did not contain enough lithia in 2,000 grams to give a spectroseopie test; the amount of lithia pres- ent was not weighable, andi if present in a quantity appreciable at allj it was estimated to be less than one-hundredth part per million. According to the United States Pharmacopoeia a dose of lithium is seven and one-half grains, and on this basis it would require many thousand liters of this water to contain a medicinal dose. The water evidently did not eorutaia a sufficient quantity or consistency of lithia to make it of value for medicinal purposes. It was therefore held that the water was mislabeled.^ A like decision was made where the analysis showed the following statement was untrue: "Tuckaho'e Lithia Water," and "This water is a sure sol- vent for calculi, either of the kidneys or liver, especially in- dicated in all diseases due to uric acid diathesis, such as gout, rheumatism, gravel stone, incipient diabetes. Bright 's disease, inflamed bladder, eczema, stomach, nervous and ma- larial disorders."^ Water was labeled as follows: "Sussus Wasser. A Concentrated Saline Purgative Water. Should crystals (due to concentration) form, imm'erse bottle in warm water. Fo'rmulae: — Gms in liter Natrium Suiph. 55.03, Na- trium Phos. 28.60, Natrium Chlor. 0.08, Alumen chlor. Trace; Dosage, wine glassful early in the mioming. " The words "Sussus Wasser" indicated that the water was a German natural water when it was not either a German water nor a natural one, but was an artificial water. It was held to be misbranded.^ A water was labeled "Londonderry Lithia Spring Water Co. For Rheumatism, Neuralgia, Dyspepsia, IN. J. 59; N. J. 94; N. J. 1032; 2N. J. 424. N. J. 924; N. J. 968. s N. J. 375. 439 MISBRANDING. [§ 380 Eczema, Malarial Poisoning, Gout, Gravel, Bright 's Disease, Diabetes, Dropsy, and all diseases of the Kidneys and Blad- der," followed by directions when to take and the quajatity. Another quantity had the words on the label "Oarbonated" ajid "Artificially Oarbonated." On analysis it was found that there was no weighable amount of lithium in 2,000 c.c, but only a faint spectroscopic trace, insufficient to^ give the therapeutic action of lithia when a reasonable quantity of water was consumed. The second quantity contained sodium chloride and sodium, bicarbonate, the presence of which was not stated on the label. It was held that they were mis- branded.* A water was labeled as follows: "Foster and Poster, Props., Pairehild, Wis. Original California water of life, formerly known as Isham's Sweet "Water Springs, San Miguel Mts., San Diego, Calif. The most salubrious spot on earth. Just as it flows from nature's laboratory. Famous for its miraculous power to destroy diseases and actually rejuvenates humanity by dissolving and evacuating calcare- ous old age ma,tter and microbes. The worst form of kid- ney, stomach, blood and skin diseases yield to its marvelous power. Cures rheumatism. Bright 's disease, diabetes, dropsy, gallstones, acute dyspepsia, insomnia, and gives new life. Makes the blood pure and postpones old age. No other water performs such wonderful cures. Eequires less than one-half the amount of other medicinal waters to derive the desired results. Some physicians have specially requested that the precipitation, if any occurs, be saved for their own use as it is pronounced by chemists to be iron and silica and in no manner is the value of the water lessened or deterior- ated." Analysis of samples of this product was made by the Bureau of Chemistry, United States Department of Agri- culture, and it was found to contain no ingredients possess- ing therapeutic properties superior to those found in the average spring water or in any sense justifying the above claims of the shipper as to its curative qualities. The water was condemned.' *N. J. 822; United States v. 5 N. J. 830; N. J. 1032. Morgan, 181 Fed. 587. It must be borne in mind, how- § 381] LAW OP PURE POOD AND DEUGS. 430 §381. Water, Table and Medicinal. "The department has received many letters from various water manufacturers and mineral water dealers asking which waters it wiU. be necessary to label as 'artificial' or 'imita- tion.' It is thought that all manufactured waters should be labeled as either artificial or imitation, the choice of words being left to the manufacturer, and applying to waters con- trived by human art and not made in imitation of a natural water, as well as to those so contrived and made in imita- tion of a natural water. A water which is designated by some name alone, without any characterizing adjective to tell whether it is natural, imitation, or artificial, will be con- sidered a natural water. It is suggested tihat the words 'larti- fieial' or 'imitation' be in as large type as the name of the water in question, and on a uniform background. "All waters which, though natural in the beginning, have anything added to them or abstracted from them after they come from source, should either be labeled as 'artificial' or should be labeled as to indicate that certain constituents have been added to or extracted from them. It is suggested that the word 'artificial' or the above explanation, as the case may be, should appear in as large type as the name of the water in question and on a uniform background. "The foUoTving examples are explanatory of the above principles. If lithia be added to a natural water, the water should either be labeled as 'artificial lithia water,' as 'water artificially lithiated,' or as 'water treated with lithia.' Again, if carbon dioxid be added to a natural water, whether the carbon dioxid be of the manufactured variety or collected from the spring itself, the water should either be labeled as 'artificially carbonated water,' 'water artificially carbon- ated,' 'water treated with oarbon dioxid,' or 'contains added carbon dioxid.' ever, that the Supreme Court has drug or medicine. United States held since these decisions were v. Johnson, 31 Sup. Ot. 627. made that the Pure Food and Drugs To brand a water "Royal Lithia Act does not cover statements con- Water" when it does not contain cerning the curative value of a lithium is to misbrand it. N. J. 1032. 431 MISBRANDING. [§ 381 "No water shiould be labeled as a natural water unless it be in the same condition as at source, without additions or abstractions of any substance or substances. "No water should be labeled as 'medicinal water' unless it contains one or more constituents in sufficient amounts to have a therapeutic effect from these constituents when a reasonable quantity of the water is consumed. No water should be named after a single constituent unless it contains such constituent in sufficient amounts to have a therapeutic effect when a reasonable amount of the water is consumed. "No manufactured water should bear upon the label any design or device that would lead the consumer to believe that the water is a natural one. Among such designs may be mentioned pictures of springs, fountains, woodland streams, etc. "No water should be characterized by a geographical name which gives a false or misleading idea in regard to the com- position of said water. For example, it would not be cor- rect to designate a water as 'Lithia water' merely because the water came from Lithia, Ma., or Lithia, Mass. "Manufactured water may be named after a natural water in case the words 'imitation' or 'artificial' are used, but such manufactured waters must clearly resemble in chemical com- position the natural waters after which they are named. "In accordance with Regulation 19 (c) and (d), no natu- ral Amerioan spring water should be named after a foreign spring, unless the name of the foreign spring has become generic and indicative of the character of the water, except to indicate a type or style, and then only when so qualified that it could not be offered for sale under the name of the foreign spring. In these oases, the State or Territory where the spring is situated should be stated on the principal label. "Inasmuch as mineral waters are largely purchased be- cause of their supposed freedom from contamination, any showing such contamination will be considered as adulter- ated and therefore in violation of the Food and Drugs Act."^ 1 F. I. D. 94. Impure "Ozone Vichy Water.'' N. J. 876. §§ 382, 383] LAW OF puee food and drugs. 432 §382. Whey. Whey, eontaining 17.28 percent of water, branded as "but-- ter," is misbranded.^ § 383. Whisky. "Under the Food and Drugs Act of June 30, 1906, all un- mixed distilled spirits .from grain, colored and flavored with harmless color and flavor, in the customary 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. If the proof be less than 80°, i. e., if more water be added, the actual proof must be stated upon the label and this re- quirement applies as. well to blends and compounds of whisky. "Whiskies of the same or different kinds, i.e., straight whisky, rectified whisky, redistilled whisky and neutral spir- its 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. In labeling blends the Act requires two things to be stated upon the label to bring the blended prod- uct within the exception provided by the statute : First, the blend must be labeled, branded or tagged so as to plainly indicate that it is a blend, in other words that it is com- posed of two or more like substances, which in the case of whisky must each be of iteelf a whisky, and, second, the word 'blend' must be plainly stated upon the paebage in which the mixture is offered for sale. A mixture of whis- kies, therefore, with or without harmless coloring or flavor- ing, used for coloring and fl^avoring only, is correctly labeled 'Kerwan Whisky. A Blend of Whiskies.' "Since the term whisky is restricted to distillates from gitfain, land disitillatesi from other sourses are unlike sub- stances to distillates from grain, such distillates from other sources without admixture with grain distillates are mis- iN. J. 721. 433 MISBEANDING. [§ 383 branded if labeled whisky without qualification, or as a blend of whiskies. However, mixtures of whisky, with a potable alcoholic distillate from sources other than grain, such as cane, fruit or vegetables, are not misbranded if labeled com- pound whisky, provided the following requirements of the law are complied with : First, that the product shall be la- beled, branded and tagged so as to plainly indicate that it is a compound, i. e., not a mixture of like substances, in this case whiskies; and, second, that the word 'compound' is plainly stated upon the package in which the mixture is offered for sale. For example, a mixture of whisky, in quan- tity sufficient to dominate the character of the mixture, with a potable alcoholic distillate from sources other than grain and including harmless color and flavor is correctly labeled 'Kerwan W'hisky. A compound of whisky and cane distil- late.' Unmixed potable alcoholic distillates from sources other than grain, with or without harmless color or flavor, are not misbranded if labeled 'Imitation Whisky.' "When an essence or oil is added to a distillate of grain, which without such addition is entitled to the name whisky, and the effect of such addition is to produce a product which simulates a whisky of another kind different from the kind of whisky to which the essence is added, the mixture is an imitation of the particular kind of whisky which is simu- lated, e. g., if rye essence be added to a highly rectified dis- tillate of corn, the mixture is misbranded if labeled rye whisky. Such a mixture is not misbranded if labeled 'Whisky — limitation Rye.' "Nothing in the Food and Drugs Act inhibits any truth- ful statement upon the label of any product subject to its terms, such as the particular kind or kinds of whisky, vended as whisky or as blends or tcompounds thereof, but when de- scriptive matter, qualifying the name of whisky, is placed upon the label, it must be strictly true, and not misleading in any particular. The law makes no allowance for seller's praise upon the label, if false or misleading, and the product is misbranded if a false or misleading statement be made upon one part of the label and the truth about the product Puke Food — 28. , § 383] LAW OP PtTRE FOOD AND DRUGS. 434 be stated upon ajnother part. Similarly a product is mis- branded if the label is false or rndsleadiag through, the use of a trademarked statement, design or device. The fact that a phrase, design or device is registered in the U. S. Patent Office gives no license for its deceptive use. All descriptive matter qualifying or particularizing the kind of whisky, whether volunteered or required by the law to be stated, as in the ease of blends and compounds, must be given due prominence as compared with the size of type and the back- ground in which the name of the whisky appears, so that the label as a whole shall not be misleading in any particu- lar. "Pood Inspection Decisions 45, 65, 95 and 98, and all rul- ings in conflict herewith, are hereby revoked."^ "At the instance of certain parties in interest we have considered the suggestion for a modification of the rules em- bodied in Food Inspection Decision No. 113. The suggestion was that mixtures of whisky with a potable alcohol distillate from sources other than grain, such as cane, fruit or vege- tables, are not misbranded if labeled 'a blend of whisky and neutral spirit.' After exhaustive consideration we have con- cluded that such a change would be in conflict with the con- trolling reason of the rule itself. "It has also been suggested that the term 'blend' might be employed under the circumstances given if the neutral spirit disclosed its origin by the designation 'neutral molas- ses spirit,' or other like terms. While a modification in that form might protect the public against deception or misun- derstanding, 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 dur 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 temn is to be employed the former is the only one that is permissible. 1 F. I. D. 113. 435 MISBRANDING. [§ 384 "Our conclusion accordingly is that we must decline to modify the decision heretofore adopted in any respect."^ To brand a whisky as "Prairie Flower Whisky" is to rep- resent it as a straight whisky, and if it contains a rectified product combined with grain distillates it is misbranded.^ §384. Whisky, Opinion of the Attorney General on Blending. On April 10, 1907, the Attorney General of the United States gave the President tihe following opinion on the blending of whiskies, which the then President, Roosevelt, approved : "The President. "Sir: In accordance with your instructions, I have exam- ined the papers referred to me by you, at the suggestion of the Secretary of Agriculture, and herewith submit you my opinion on certain questions which appear from said papers to have arisen in oonnieetion with the labeling or branding of different kinds of spirit, claimed by their manufacturers 2 JF. I. D. 118. ofiScers and employes of the De- 3N. J. 349; N. J. 353; N. J. 361; partment of Internal Revenue, N. J. 350; N. J. 595. which directs that "alcohol," com- Eevised Statutes, § 3244, in de- mercial alcohol or high wines fining rectifiers, includes "every which have been manipulated by person, who, without rectifying, the aid of artificial colors or ex- purifying or refining distilled spir- tracts, or otherwise, so as to re- its, shall, by mixing such spirits, semble some particular kind of wine or other liquor with any ma- potable spirits, will be marked terials manufacture any spurious with the name of such spirits pre- mutations or compound liquors for ceded by the word "imitation"; for sale under the name of whisky, example, "imitation whisky" is a brandy ... or any other name." proper and a reasonable regulation. In view of this statutory recogni- having in view the provisions of tion of the manufacture of "imita- the food and drugs Act, notwith- tion whisky," and the process of standing the fact that such corn- manufacture, it has been held that pounds may have been previously the regulation promulgated by the sold in the trade under the name Commissioners of Internal Revenue, of the liquors they imitate. Wool- May 5, 1908, for the guidance of ner & Co. v. Kennick, 170 Fed. 662. § 384] LAW OF PUEE FOOD AND DRUGS. 436 or proprietors to be entitled to the name of 'Whisky,* with or witihout qualifying words. In addition to the papers re- ferred to me by you, I have received and eonsideired a num- ber of o/ther papers submitted to me by various individuals, including Messrs. Hemphill land Worthington and Mr. W. M. Hough, as counsel for certain distillers and rectifiers inter- ested in the questions under consideration, and I have per- sonally gathered some further information which seemed to me material in view of the character of the questions in- volved. "These questions have arisen in the construction of sec- tion 8 of the Act approved June 30, 1906, entitled: " 'An Act for preventing the manufacture, sale, or trans- portation of adulterated or misbranded or poisonous or dele- terious foods, drugs, medicines, and liquors, and for regu- lating traffic therein, and for other purposes,' and generally known as 'The pure food law.' The portion of that law bearing upon the points in dispute is section 8, which, so far as material, is as follows: " 'Sec. 8. Thiat 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 thereiD, which shall be false or misleading in any particular. . . . . That for the purpose 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 distinctive name of another article. . . . Fourth. If the package containing it or itS' label shall bear any state- ment, 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 437 MISBEANDIJTG. [§ 384 food, under tbek own distinctive names, and not an imitar tion 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 ar- ticle has been manufactured or produced. " 'Second. In the case of articles labeled, branded, or tagged, so as to plainly indicate that they were compounds, imitations, or blends, and the word "compound," "imita- tion," 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 construed as requiring or compelling proprie- tors 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.' "Before stating or discussing the particular questions as to which you desire my opinion, I think it will conduce to clearness to call attention to the general purpose of this Act and to some considerations founded thereon. "The primary purpose of the purie food law is to protect against fraud consumers of food or drugs; as an incidental or secondary purpose, it seeks to prevent,, or, at least, to dis- courage the use of deleterious substances for either purpose; but its first aim is to insure, so far as possible, that the pur- chaser of an article of food or of a drug shall obtain nothing different from what he wishes' or intends to buy. According to the recognized canons of statutory construction, the lan- guage of its provisions must be interpreted with reference to and in harmony with this primary general purpose; so that, in determining the proper nomenclature of articles of food as defined in the Act, the intention of the law will be best observed by giving to such articles names readily un- derstood and conveying definite and familiar ideas to the general public, although such names may be iniaccurate in. § 384] LAW OF PUKE FOOD AND DEUGS. 438 the view of a ohemist 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 deal- ers or by the general public to two or more substances vary- ing very materially in their scientific charaeteristics and this fact must be given due weight in passing upon ques- tions of branding or labeling under the law. "Human experience has associated certain impressions on the senses of taste and smell with the consumption of cer- tain articles of food, and the so-called 'flavor' which ex- presses the resultant of these impressions constitutes a factor of decisive weight in determining the similarity or identity of substances of this character to the mind of the ordiuary member of the community, quite irrespective of the relative importance of these chemical or physical properties in the substances which impart this flavor as compared to their other chemical or physical properties. This fact is aptly illustrated by a question considered at much length in the papers referred and also submitted to me as above, namely: 'What is Whisky?' A chemist or a distiller might answer this question altogether differently from lihe ordinary pur- chaser of whisky for his own consumption; but this pur- chaser's view of the matter is material to attain the primary purpose of the pure food law; and I think it may be safely said that what he means by 'whisky' when buying it is a distilled spirit, fit for use as a beverage and having the par- ticular flavor which human experience has classified as that of 'whisky.' Undoubtedly the flavors of different kinds of spirits all known as 'whisky' differ considerably, and it may be Hhat the general impression of their similarity is due, in some measure, to imagination or imperfect memory; never- theless, a distinct and definite idea is suggested by the words 'whisky flavor;' this idea is an essential factor in ascertain- ing the identity of a spirit claimed to be whisky, and, in my opinion, it is the decisive factor in determining the relative weight of the claims of two or more kinds of spirits to the name. "With this preliminary explanation, I proceed to state 439 MISBKANDING. [§ 384 what I understand to be the questions as to which my opinion is desired. In substance, these are: "First. Under what circumstances should a distilled spirit be labeled or branded 'whisky' witihout any qualifying words? "Second. Under what circumstances should a liquid be marked a 'blend of whiskies,' or 'blended whisky,' or 'blended whiskies?' "Third. Under whaA circumstances should a liquid be marked as a 'compound of whisky,' or 'compounded whisky,' and what word or words, if any, must be added to such title to make the same appropriate under the law? "Fourth. Under what circumstances, if at all, could a distilled spirit, with additions of coloring and flavoring sub- stances, be termed 'imitation Whisky?' "Before dealing directly with these questions, I think it may be well to indicate the application of this law to a class of liquids affording a field for its interpretation with less opportunity for dispute — I refer to wines. It will not be questioned that to be branded or labeled 'Sherry,' 'Port' or 'Madeira,' a wine must have inherently, and not because any other substance is added to it, the flavor known as that of sherry, port or madeira, as the case may be. There are different kinds of each of these wines ; experts can recog- nize different brands or vintages by their respective flavors, and these flavors vary considerably; nevertheless, there can be no doubt that the sherry, the port land the madeira flavors are distinct from each other, and that each of them has some quality of its own shared by all varieties of the same species of wine. "There is, however, an evident distinction to be drawn be- tween a wine such as sherry, port or madeira, and a wine such as champagne. In the view of a chemist or physicist, champagne would be doubtless described as 'a compound,' for it consists essentially of a wine, of sugar and of an aerating gas, three substances obviously 'unlike.' The law, however, in my opinion, does not contemplate that an article should be marked as a 'blend,' 'compound,' or 'imitation' fci,. § 384] LAW OF PUEE FOOD AND DRUGS. 440 unless its designation would be otherwise 'false or mislead- ing ' to the consumer ; and the name ' Champagne ' would in- dicate to any would-be purchaser, who was ordinarily in- telligent and well-informed, a wine artificially sweetened ajid aerated, or, in other words, a composite substance. "To determine the proper use of the term 'blend' we must first note that the definition of the word in the Law is novel and arbitrary. It is thus defined by Webster: " 'Blend, n. A thorough mixture of one thing with an- other, as colors, liquors, etc.; a shading and m.erging of one ©olor, tint, etc., into another, so that it can not be known where one ends or the other begins.' "There is nothing in this definition about 'likeness' in the substajQces mingled: this feature is introdxiced- f or some spe- cial purpose in the law, and the latter must be interpreted so as to give effect to this purpose. To show this more clearly we may also note the same dictionary's definition of 'compound.' This iS: " 'Compound, n. That which is compounded or formed by the union or mixture of elements, ingredients, or parts; a combination of simples.' '■ 'Compound' and 'blend' are substantially synonymous when applied to mixtures of liquids in ordinary speech, but the pure food law establishes a distinction of its own be- tween tliem based upon the character of . the ingredients entering into the mixture. In discussing therefore what degree of 'likeness' between the mingled substances will justify their designation as a 'blend' it must be always and carefully remembered (1) that 'blend' is meant to be some- thing essentially different from 'compound,' amd (2) that the subject under consideration is a name for an article of food to be embodied in a label or brand in harmony with the primary purpose of the law as above explained. With- out going into metaphysical distinctions, or needless explana- tions, it is my opinion that effect will be most surely given to the evident intent of this provision of the law if it be held that 'blend,' as a substantive, or 'blended,' as an adjective, can be properly and legally used in brands or labels unider 4-11 MISBRANDING. [§ 384 the Act of 1906 only when a single substantive, either in the singular or in the plural, need follow to appropriately and adequately designate the oombination : thus we oan speak of a 'blend of teas' or a 'blended tea,' but not of a 'blend of tea and coffee.' To state the same proposition in different language, I think the two articles mixed must be capable of accurate and sufficient description by a single generic term: they must be substances known by the same name, and that name must be sufficiently distinctive to afford reason- able warning to a purchaser. "If, therefore, the question be what ought to be called 'blend of sherry,' or 'blended sherry,' or 'blended sherries,' I think that such terms could be applied with propriety only to a mixture of two or more sherries, and not to a mixture of sherry with port or with madeira. This is not because 'likeness' does not exist between the three kinds of wine mentioned, nor because great similarity may not be found in their chemical composition-, it is quite possible that, ill tihe latter respect, some kinds of sherry would be found to have greater resemblance to some kinds or port than to other kinds of sherry; just as the chemical composition of a diamond might have much greater similarity to that of coal than to that of some other gems; but the term 'blended sherry' could not be appropriate to a mixture of sherry and port; it would mislead an intending purchaser as to the fact that port entered into the eombruation; the latter might be named with equal propriety 'blended port.' On the other hand, if this mixture should be termed a 'blend of port and sherry,' there is no distinction in generic designation be- tween a mixture of these two distinct wines and a mixture of two sherries or of two ports, and I think the law clearly intended there should be such a distinction. It might be, perhaps, consistent with the law to call such a mixture 'blended wines,' but this title would be insuffieiently specific; it might designate a mixture of burgundy and claret as weU as one of port and sherry. In my opinion, it is the intent of the Act of 1906 that the term 'blended sherry,' or 'blend of sherry,' or 'blend of sherries' shall designate a mixture of § 384] LAW OE PUEE SOOD AND DEUGS. 44:2 two or more kinds of sherry; while the titles 'eompound of port and sherry' or ' ■compounded port and sherry' would appropriately designate a mixture of two unlike substances in the view of the law, namely, two distinct and different kinds of wine; 'unlike' just as diamonds and coal are 'un- like' substances. "It may be that by diluting neutral spirit (ethyl alcohol) with enough distilled water to reduce it to the normal alco- holic strength of sherry wine, and, by adding appropriate flavoring and coloring substances, a mixture can be produced which tastes and smells and looks like sherry, and when consumed produces substantially the same effeots: this mix- ture, supposing it to contain no article deleterious to health, would be appropriately labeled or branded, under the law, 'imitation sherry.' If it were mixed with real sherry, no one would for a moment claim that the two substances thus com- bined were sufficiently 'like' to warrant the description of the resultant as a 'blend;' it could only be accurately la^ beied, under the law, as a 'compound of genuine and imita- tion sherries,' a designation which would not probably pro- mote its sale. "Applying the same principles to the choice of brands or labels for distilled spirits, and especially for whiskies, we are at once confronted by the question whether whisky corresponds to a wine like sherry or to a wine like cham- pagne; that is to say, whether it is natural or artificial spirit; meaning by the first term, of course, not that it exists any- where as a product of nature, but that it is the resultant of the process of distillation alone, without needing any further addition to furnish its characteristic qualities. In the first case, it would be assimilated to brandy or rum; in the sec- ond contingency, to gin, since gin is essentially a distilled spirit, frequently as nearly neutlral as may readily be, fla- vored by an infusion of juniper berries. I learn from the papers referred to me that the Department of Agriculture has reached the conclusion that whisky, like brandy and rum and unlike gin, is a natural spirit, its peculiar taste and aroma being imparted to it in the course of distillation and 443 MISPHANDING. [§ 384 arising primarily from essential oils existing in tbe sub- stances from whicli it may be distilled; that is to say, it cor- responds to a wine like sherry and not to a wine like cham- pagne. This conclusion seems to be fully warranted by in- formation contaiaed in the papers before me and by such other information as I have been able to obtain; neverthe- less, as hereinafter set forth, the statement may, perhaps, need some qualification, or, rather, some explanation. It is doubtful, however, whether the definition of 'whisky' con- tained in the papers aforesaid, and which I understand to have received the approval of the Department of Agricul- ture, is quite broad enough to meet the general intent of the law of 1906. This definition I understand to be as fol- lows : " '"Whisky is a distillate, at the required alcoholic strength, from the fermented mash of malted cereals, or from malt with unmalted cereals, and contains the congeneric sub- stances formed with ethyl alcohol which are volatile at the ordinary temperatures of distillation, and which give the character to the distillate. ' "In Webster's Dictionary 'whisky' is defined as: " 'An intoxicating liquor distilled from grain, potatoes, etc., especially in Scotland, Ireland land the United States. In the United States, whisky is generally distilled from maize, rye or wheat, but in Scotland and Ireland is often made from malted barley.' "In Worcester's Dictionary it is defined as: " 'A Mmd of spirit dJistUled from barley, wiheat, rye, maize, potatoes, etc' "In Chambers' Encyclopedia of 1875, it is defined as fol- lows : " 'A spirit made by distillation from grain of any sort and from other materials, as buckwheat, potatoes and even tur- nips.' "A large number of similar definitions from standard popular works of reference might be given, and I think there can be no doubt that a spirit generally known and described as 'whisky' is often distilled from potatoes and § 384] LAW OF PUEE FOOD AND DRUGS. 444 oeeasionally from some other substances which could scarcely be correctly classed as cereals. I note this fact beoause it appears to me contrary to the spirit and subversive of the purpose of the pure food law to adopt a definition w'hich would exclude from the name any substance generally under- stood by the public to be entitled to it; that is to say, the nomenclature adopted to give eifect to the Act ought to be, in my opinion, popular and not scientific. This matter, how- ever, is of only subordinate importance in connection with the questions immediately under discussion. "It being admitted that whisky is a natural spirit having certain 'congeneric substances,' w'hich, in the language of the above definition 'gives the ebaracter to the disitillaite,' it seems obvious that a mixture of two or more different whiskies as thus defined, whether their differemees arise from the character of the substances from which they were distilled or from the method of ddstiDation used in each case respectively, or even from their several ages and the en- vironment in which they were kept subsequently to distilla- tion, would be appropriately termed a 'blend of whiskies,' or 'blended whisky,' or 'blended whiskies;' any one of these three terms would be appropriate, provided that each article entering into the eombination, standing alone, would be ap- propriately designated as 'whisky.' "The mixture of a spirit properly designated as 'whisky' with another spirit which, standing alone, would not be properly designated as 'whisky,' such as ethyl alcohol, must, in my opinion, be labeled or branded as a 'compound,' or as 'compounded.' This question has given rise to. a very ani- mated dispute, and it is understood that great importance is attached by dealers to its determination, which is thought to involve serious pecuniary loss or gain to some or others among them : I have, therefore, considered it very care- fully. In Chambers' Encyclopedia, above quoted, Volume III, article 'Distillation,' occurs the following passage: " 'If only alcohol and water passed over in distillation, all spirits, from whatever extracted, wiould be the same; but this is not the case. Brandy, which is distilled from 445 MISBEANDINO. [§ 384 wine, has a peculiar essential oil derived from tihe grape and also some acid; rum is impregnated with aa essential oil from the sugar cane, and with othecr impurities; malt liquor has the essential oil of baa-ley, etc. It is these essen- tial oils that give to the various spirits their distinguisihing flavors. Some of the oils and other impurities lare disagree- able and positively noxious, and it is one of the objects of rectifying to remove these. The mellowing effects of age upon spirits is owing to the evaporation, or spontaneous dieoomposition of the essential oils. Newly distilled spirits are, in general, fiery and specially unwholesome.' "This statement from a popular work seems to be fully sustained by works of greater scientific authority and shows, in my opinion, that, for the purposes of the pure food law, neutral spirit or ethyl alcohol, if absolutely pure, would be, not only like, but actually identical, whether it were de- rived from fruit, from cereals, from sugar oane, or from any other of the many substances which can furnish aloohol. In- asmuch as a state of absolute purity can not be attained by any treatment appropriate for commercial purposes, it may be, perhaps, more nearly accurate to say that each of these different kinds of neutral spirit is a like substance to one of any other kind; but, if we concede that ethyl alco- hol is a 'like substance' to whisky, then we must also con- cede, that brandy and rum are 'like substances' to whisky also, because each of them, on precisely the same grounds, can be likened to neutral spirit. It is undoubtedly true that only a very small proportion (less than the half of 1 per centum) of the ingredients entering into whisky are different from those entering into neutral spirit; but this is equally true of brandy and rum, and it is jw^ecisely those substances which 'give the character to the distillate' in each of these ©ases. "In the nature of things there can have been, 'as yet, no judicial decisions as to the meaning of the terms used in the pure food law, but section 3287 of the United States Re- vised Statutes, as amended in 1879, 1880 land 1899, has been cited to me to show the 'likeness' of whisky and neutral i^'. § 384] LAW OF PUEE FOOD AND DKUGS. 446 spirit as maitter af law; I find, however, no thing in that sec- tion at all relevant to the present discussion. It requires the cask to indicate 'tlie particular name of such distiUed spirits as known to the trade, thart is to say, high wines, aleohiol or spirits, as the case may be.' It is undoubtedly true that in distillation under the improved methods of modem times a neutral spirit may be produced at a later stage of the proc- ess out of something which at an earlier stage of the process was crude whisky or so-called 'high wines;' but this no more shows neutral spirit to he a 'like substance' to whisky than vinegar is a 'like substance' to cideir or to wine, or that beef is a 'like substance* to veal, "My attention has been likewise called to the ease of Taylor Company v. Taylor^ in the Court of Appeals of Ken- tucky, as establisijiing the propriety of designating a mixture of whisky and ethyl alcohol as 'a blend' or 'blended.' In this ease it was determined. that the selling of whisky mixed with neutral spirit under a label which might lead the unin- itiated to suppose that it was a 'straight whisky' was a fraud upon the public as well as upon the manufaioturer of the 'straight' article. In its opinion the court says: " 'The defendant may properly sell his brand of 'Old Ken- tucky Taylor,' provided he so frames his advertisements as to show that it is a blended whisky; but he cannot be al- lowed to impose upon the public a cheaper article and .thus deprive appellant of the fruits of bis energy and expendi- tures by selling his blended whisky under labels or adver- tisemients which conceal the true character of the 'aj^cle', for this would destroy the value of the appellant's trade.' This decision was rendered on MJarch 17, 1905, more than a year before the approval of the pure food law; in speaking of a mixture of whisky and neutral spirit as 'blended whisky,' the court has not, of course, in mind the definition of 'blend' in that law, which, as above noted, is altogether novel and arbitrary; on the other band, the decision may have been considered by the Congress when it framed the MKy.), 85 S. W. 1085, 27 Ky. L. Rep. 625. 447 MISBEANDING. [§ 384 pure food law; and the special and original definition of 'blend' given in that law, may have been intended for the very purpose of making more difficult such frauds as the Court of Appeals in Kentucky condemned in this case. "I conclude, therefore, that according to the true intent of the pure food law, a mixture of whisky with neutral spirit must be deemed a 'compound' and not a 'blend,' although the spirit may be a distillate from the same substance used to furnish the whisky, and that such a mixture stands on the same footing as a mixture of whisky and brandy or of whisky and rum. "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 sub- stances, the appearance and flavor of whisky, it is impos- sible to find any other name for the product, in conformity with the pure food law, than 'imitation whisky.' "An interesting question remains, the question, in my opinion, of greatest difficulty connected with the subject; namely, whether a mixture of a liquid such as has' just been described, or, indeed, a mixture of ethyl alcohol itself with whisky ought to be labeled 'whisky' at all. "When the words 'compound' or 'compounded' are used in the Act, it is, in my judgment, ordinarily necessary, that two substances, at least, should be mentioned as entering into the combination described; in other words, it would not be accurate to call a mixture of port and sherry 'compounded sherry' or 'com- pounded port;' such a mixture must be designated as 'sherry compounded wi'th port' or 'port compounded with sherry' or 'compound of port and sherry.' As above stated, this would be, to say the least, no less true if an imitation s'herry were used to mix with a genuine sherry, and, at first sight, it would seem that the same reasoning would deny the name 'whisky' to a compound of 'straight' whisky and ethyl alco- hol whether with or without coloring and fiavoring sub- § 384] LAW OF PURE POOD AND DEUGS. 44:8 stances. There is, however, a distinction between the two eases, and it is not imiversially true that two substantives must follow 'compound' or 'compounded,' although it is true, in my opinion, that only one substantive can appropri- ately follow 'blend' or 'blended.' "In the first place, we may note that the 'imita4;ion sherry' described above would not be a wine at all, while ethyl al- cohol is clearly a spirit; this distinction, however, is not es- sential. But, so far as I know, no practice exists in the wine trade of mixing port with sherry or genuiae with artificial sherry and calling the mixture by the namje of either one of its ingredients. On the other haud, there is, and has been for a long time in existence a well-known practice of mixing ethyl alcohol with whisky to give the latter an artificial age and thus produce the so-called "mellowness" of old whisky, which is caused by the gradual and partial evaporation of the essential oils contained in new whisky; and it seems to be a long and well-established custom in the trade to call the mixture of whisky and alcohol thus produced 'blended whisky.' For the reasons above set forth, I think the law has forbidden the use of the adjective, but it is otherwise with the noun. "In the Encyclopedia Britannica of 1878, Vol. VII, under the head 'Distillation,' there is the following statement: " 'Flat bottomed and fire heated stills are considered the best for the distillation of malt spirit, as by them the flavor is preserved. Coifey's still, on the other hand, is the best for the distillation of grain spirit, as by it a spirit is ob- tained almost entirely destitute of flavor and of a strength varying from 55 to 70 over proof. Spirit produced of this high strength evaporates at such a low temperature that scarcely any of the volatile oils on which the peculiar flavor of spirits depenids are evaporated with it, hence the reason why it is not adapted for the distillation of malt whisky which requires a certain amount of these oils to give it its requisite flavor. The spirit produced by Ck)fEey's still is, therefore, chiefly used for making gin and factitious brandy by the rectifiers, or for being mixed with malt whiskies by the wholesale dealers.' 4-1:9 MISBRANDING. [§ 384 "The practice tihereiu desioribed lias become during the past twenty-eight yeao-s much more general than it was, in the United States as well as in Great Britain, and improve- ments in the art of distillation have rendered it much easier and more profitable. "As above explained, I consider 'Champagne' a suitable label or brand for the composite wine known by that name. If a natural wine existed which was sweet and sparkling and also generally known as 'Champagne,' a mixture of the two might be, I think, appropriately called 'compound' or 'compounded ohampagne,' and, in accordance with this an- alogy, I conclude that a combination of whis'ky with ethyl alcohol, supposing, of course, that there is enough whisky in it to make it a real eompoumdi and not the mere semblance of one, may be fairly called 'whisky;' provided the name is accompanied by the word 'compound' or 'compounded,' and provided a statement of the presence of another spirit is in- cluded in substance in the 'tdtle. I am strengthened in this conclusion by nnderstanding from the papers you have re- ferred to me that it has been reached by the Department of Agriculture as well. "The following seem to me appropriate specimen brands or labels for (1) 'straight' w'hisky, (2) a mixture of two or more 'straight' whiskies, (3) a mixture of 'straight' whisky and ethyl alcohol, and (4) ethyl alcohol flavored and colored so as to taste, smell, and look like whisky: "(1) Semper Idem "Whisky: A pure straight whisky mel- lowed by age. "(2) E Pluribus Unum Whisky: A blend of pure, straight whiskies with all the merits of each. "(3) Modem Improved Whisky: A compound of pure grain distillates, mellow and free from harmful impurities. ' ' (4) Something Better than Whisky : An imitation under the pure food law, free from fusel oil and other impurities. "In the third specimen it is assumed that both the whisky and the alcohol are distilled from grain. "I remain, sir, yours very respectfully and truly, "Charles J. Bonaparte, Attorney-General. ' ' PuBE Pood — 29. § 385] LAW OF PUEB FOOD AND DBUGS. 450 Upon receipt of thds letter President Roosevelt wrote the following letter to the Seicretary of Agricultxire : "The White House, "Washington, April 10, 1907. "My Dear Mr. Secretary: "In accordance with your suggestion, I have submitted the matter ooneerning the proper labeling of whisky under the pure food law to the Department of Justiiice. I inclose the Attorney-General's opinion. I agree with this opinion and direct that action be taken in accordance with it. "Straight whisky will be labeled as such. "A mixture of 'tiwo or more straight wfhiskies will be la- beled 'blended whisky' or 'whiskies.' "A mixtui'e of straight whisky and ethyl alcohol, pro- vided that there is a sufficient amount of straight whisky to make it genuinely a 'mixture,' will be labeled as com- pound of, or compoiinded with, pure grain distillate. "Imitation whisky will be labeled as such. "Sincerely yours, "Theodore Roosevelt. "Hon. James Wilson. "Secretary of Agriculture." §385. Whisky, Decision of President Taft on Labeling Whiskies. On December 27, 1909, after a careful examination of a vast mass of evidence, and after the decision noted in the preceding section. President Taft rendered the following opin- ion on the labeling or branding of various kinds of whisky: "By the Pure Pood Act of June 30, 1906, Congress forbade the introduction into interstate and foreign commerce of adulterated or misbranded drugs or articles of food, %vith 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 451 MISBRANDING. [§ 385 axticles of food. An important controversy has arisen in the execution and application of the Act as to whether the branding of certain potable liquors with the name 'whisky' is a misbranding within the Act. All distilled spirits pay, undter 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 dis- tilled 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 manufaictured under the close supervision of revenue officers and the brands which are placed upon the packages containing the spirits after manu- facture are placed there under regulations of the Internal Eevenue 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) direc- tions 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 knovm 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 wOiisky to those who have to execute the pure food law and the internal revenue law, subject, of course, to a review of a correctness of their action by courts whenever 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 th^e trade as 'straight' whisky. So far as it appears from Mr. Bonaparte's opinions, he ae- §385] LAW OF PUKE FOOD AND DEUGS. 4:52. ©epted a definition of whisky from a dictionary or encyclo- pedia, and, in forming and expressing his opinion, he had not the benefit! of any evidence as to thei meaning or scope of the term acquired from manufacturers, dealers or con- sumers in the trade. Internal Eevenue Order 723 was founded on Mr. Bonaparte's opinions. A petition was filed in April last by a large number of distillers whose interests were aJBEeeted, asking that the issue passed upon by Mr. Bonaparte and confirmed by Mr. Roose- velt 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 re- hearing 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 con- sumers 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 maxi- mum 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 g,t and prior to the passage of the pure food law, which it was the intention of Congress to correct by the provisions of that Act? "5. Is the term 'whisky' as a drug applicable to a differ- ent product than whisky as a beverage? If so, in what par- ticulars ? "A very fuU hearing was had before the Solicitor-Gen- eral 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 ex- 453 MISBRANDING. [§ 385 aot. I sloiall not set them out. It is sTifficient to say that he foimd from the evidence that whisky, las 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 containing a sufficient trace of fusel oil or the congeneric substances accompanying grain distillation to give a distinc- tive whisky flavor to the liquor; and this whether or not colored by burnt sugar or other harmless flavoring and col- oring 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 congeneric substances to give to the liquor the distinctive flavor of whisky. He found further that the mix- ture of neutral spirits with whisky, if a sufficient quantity of fusel oil or congeneric substajices 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-General, and the whole record of the evidence has been brought before me for consideration and decision, I iavited the Attomey-G-eneral and the Secretary of Agricul- tore to sit with me and hear the arguments. Because of the importance of the ease, I have thought it necessary to read with care the entire evidence adduced. The Solicitor-G-en- eral has rendered 'an opinion to justify his findings of great ability and acumen; and I reach a somewhat different con- clusion from him with much reluetanice. But I am led to do so by a very clear conviction as to what the evidence shows. "Whisky for miore than one hundred years has been the most general and comprehensive term applied to liquor dis- tilled from grain. It is derived from the Irish word "Usque- baugh," 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 vdth the changes in the pirocess § 385] LAW OF PURE FOOD AND DRUGS. 454 of its manufacture in the United States, Ireland, Scotland, and England, and have been varied, by the introdtiction into it of fruit juice and burnt sugar and other substances. It was manufactured originally in what was called a 'pot sitill' by the distillation of wort and beer fermented from grain. It was composed of about equal p'arts of water and ethyl al- cohol and certain substances now cialled congeneric sub- stances 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 disagreable odor and a very raw taste. The efforts of those engaged in the manufacture were di- rected towaa*d the reduction of the amount of fusel oil in the prodtict and toward the elimination of the disagreeable odor and taste produced by it. This was effected for a great many years by passing the distilled spirit tlirough leaching tubs of charcoal, which tended to purify amd reduce the amount of fusel oil and subsequently rectification was fol- lowed by another st-ep — i. e., reidistillation — 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 pro- portion. 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 caramel or burnt sugar. Though there was some American white whisky, the conven- tional 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 Oivil War it was discovered that if raw whisky as it came from the still, unrectified and -with- out redistillation, and thus containing from one-half to one- sixth of one percent of fusel oil, was kept in oak barrels, the inside of the staves of which were charred, the tannic acid of the charred oak w'hich found its way from the wood into the distilled spirits would color the raw white whisky to the conventional color of American wihisky, and after 455 MISBRANDTNG. [§ 385 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 eseeedingly palatable without the use of any additional flavoring or col- oring. The whisky thus made by one distillation and by aging in charred oak barrels came to be known as 'straight' whisky, and to those who were good judges came to be re- garded 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 ether by rectifying or by redistilling, which were reduced to potable strength and given a con- ventional flavor of whisky by the use of bumit sugar and other essences, far exceeded that of the so-called 'straight whiskies;' and as according to this method a potable, pleas- ing beverage oould be made in a short time without the ageing in wood and without the loss of interest on the cap- ital involved in holding the product for two or three years while it acquired color and fl^avor, it could be sold, of course, much cheaper. It was made originally by distilUng a prod- uct at a proof of from 140° to 160°, called 'high wines,' by taking these high wines to a rectifying house and there passing them through leaching tubs to reduce as far as pos- sible the fusel oil, and then coloring and flavoring the whisky with buo-nt sugar; or by another step of purification, which was a redistillation 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 thaji the old system of rec- tifying by leaching tubs, or even by redistillation as a sepa- rate step; and the result of this continuous distillation was the production of what was known, and is known now, as 'neutral spirits,' at a pro'of varying from 160° to 188°. They §385] LAW OF PUKE FOOD AND DEUGS. 456 still had a small tnacfr of the congeneric substances that go to make up what is known as 'fusel oil,' but not enough sub- stantially to affieet the flavor. The rectifiers, w'ho 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 betlween the whisky made from hdg'h 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 evi- dence, there was only a difference in slight degree. The importance of the fusel oil in the pipoduct ready for the drinker can be judged by the fact that it varies in straight whisky from one-half of one percent to one-sixth of one percent, 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 hundred proof or less and sold upon the market as beverages were known to the trade and to icus-tomers 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 percent of all the whisky sold, was well under- stood, and the difference between the two was seen in the difference in price which each commanded in the market. "It was supposed for a long time that by the aging 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; thaA 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 nevitral spirits there is less fusel oil and less 457 MISBKANDING. [5 385 of ithie poison arising therefrom than tlhere 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 amcluded all potable liquor distilled from grain; that the straight whisky is, as compared with the whisky made by rec^ tification or redistillation and flavoring and coloring matter, a subsequent improvement, and that therefore it is a perver- sion of the pure food Act to attempt now to limit the mean- ing of the term 'whisky' to that which modem manufacture and taste have made the most desirable variety. "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 iuvestigatdon, that neutral, or velvet spirits as they are there more frequently called, made by a patent still from grain whisky when reduced to potable strength. The same conclusion is shown to have been ia 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 kindsi of liquor. ""With deference to the very able consideration of this question made by Dr. Wiley and other distinguished ohem- isits, I think the fundamental error in all conclusions differ- ing from this is one of fact as to what the name of whisky actually has included for the last hundred years; aoad while Mr. Bowers, the Solicitor-General, greatly enlarged in his definition the character and scope of the term 'whisiky' be- § 385] LAW OF PURE FOOD AND DRUGS. 458 yond theiiis, he fell into what seems to me to be the error of making too nice a distinction in refereiiGe to the amounit of eongeneoric substances or traces of fusel oil required to constitute whisky for practical purposes when the flavor and color of all whiskies but straight whiskies 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 im- provement in the process by continuous dis.tdllation 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,' be- cause of a slightly reduced trace of one ingredient. The distinction is too impracticable, in my judgment, for the exe- cution 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 w'hisky that whieh was thus merely improved in its manufacture without sub- stantial 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 Eye 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 hun- dred 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 459 MTSBF/VNDING. [§ 385 it is to require a branding in eonmection -with, the use of the term 'whisky' which will indicate just what kind of wh^ky 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 recti- fied, redistilled, or neutral spirits, as the case may be. ''With this result, the question arises what ought the order Itio be so that the purposes of the pure food law can be car- ried 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 furfther 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, 'sihey 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 thiem to brand their product as 'whisky made from rectified spirits,' or 'whisky made from redistilled spirits,' or 'whisky made from neutral spirits,' as the case may be; and if aged 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 com- pound 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 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. It seems to me that straight whisky and whisky made from neutral spirits, each with more than ninety-nine and a half percenit ethyl alcohol and water, and with less than half of § 385] LAW OF PURE FOOD AND DEUGS. 460 one percent of fusel oil, are clearly a mixtiire of like sub- stances, and that wMle tihe latter may have and often does have burnt sugar or caramel to flavor and color it, such col- oring and flavoring ingredients may be regaj^ded as for fla- voring and coloring only, because the use of burnt sugar to color and flavor spirits as whisky is much older than the eoloriag 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 Ootnmission in the eas'e 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 .aB< such. "Neutral spirits made from molasses and reduced to pot- able sifcrength has sometimes been called wMsky, but not for a suiHcient 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 de- cision 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 deeision indicates the public will be made to know exactly the kiad 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 wiith 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 Aciti. It injures no man's lawful business, because it only insists upon the statement of the truth in the label. 461 MISBEANDING. [§ 386 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 re- lieved 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 paiblic flavor may truthfully be put forth. Thus the purpose of the pure food law is fully accomplished in respect of mis- branding 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 regulation in aecord- ance herewith, under the pure food law; and to the Secre- tary of the Treasury and the Commissioner of Internal Rev- enue to prepare the proper regulation under the internal revenue law. "William H. Taft. "The White House, December 27, 1909." §386. Whisky, Labeling Canadian Club. On October 19, 1910, the Attorney-General gave the Secre- tary of Agriculture the following opinion on labeling Cana- dian Club whisky, and incidentally on other liquids: "Sir: I have received your letter of July 28, 1910, in which you submit 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?' "Tour letter informs me that: § 386] LAW OT PURE FOOD AND DRUGS. 462 " ' Oanadian Club Whisky' is a mixture of graiii distillates, diuly aged after mixing, withoixt further admixture, and reaches the consumer at 90 degrees proof. It is a particular kind and brand of whiskies made by Hiiram Walker & Sons, Ltd., at Walkerville, Ontario, and is mow and has been for years, known and sold umder the name "Oanadian Club Whisky." It is known by that name and no Oitlher to the trade and consumers in the United States and other coun- tries, and no other whisky is knowm by that name. The Department of Agriculture,' you advise me, 'claims that the product is required to be labeled "A Blend of Whiskies,' under the law as interpreted in Pood Inspection Decision 113. The distillers contend that "Oanadian Club Whisky," ujnder section 8 of the Eood and Drugs Act, is such a dis- tinctive name as is there described, and, therefore, that the proiduet 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 departmient and the counsel for Messrs. Hiram Walker & Sons, respectively, in support of their respective contentions; and I have also had the assist- ance 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, including, among others: " 'I. What was the article called whisky as known (1) to the manufacturers; (2) to the trade, and (3) to the con- sumers 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 tes- timony 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 mianufac- turers at and prior to the date of the passage of the pure food law was — 463 MISBRANDING. [§ 386 "'(a) "What is often spoken of as "straight whisky," made from grain. " '(b) Also, what is often spoken of as "rectified whisky," made from grain, when not a mere neutral spirit, as de- scribed in section (d) below, of the answers to this ques^ tion 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 wflidsky, 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. " '(b) 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 ease 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 in- cluded, the spirituous liquor composed of (1) alcohol derived by distillation from grain; (2) a substantial amounit of by- products (often spoken of as congeners) likewise derived by distillation from grain and giving a distinctive flavor and § 386] LAW OF PURE FOOD AND DRUGS. 464 properties; (3) water suffioient, witibout uuireiasioniaible dilu- tion, 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. " 'A mixture of two or more articles, being each a whisky within the foregoing description, was at land prior to the date of passage of the pure food law, lajid 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 aanount of by-products derived by distillation from grain land giving distinctive flavor and properties- — is whisky, if the alcohol or neutral spirit is de- rived by distillation from grain, and if the mixture still con- forms 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 So- licitor-General was reviewed by the Pres:ident, 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 substances or traces of fusel oU required to con- stitute whisky for practical purposes 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 established that for a hundred years the term "whisky" in the trade and among the customers has included all potable liquorsi distilled from grain; that the sitraight whisky is, as compared with the whisky made by rectification or redistillation and flavoring and coloring mat- ter, a subsequent improvement, and that therefore it is a perversion of the Pure Pood 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.' 465 MISBEANDING. [§ 386 " 'It is iindioubtedly tame,' the President said, 'that the liquor trade has been disgracefully full of frauds upon the public by false labels; but these frauds did not consist ia palming off something whidh was not whisky as wMsky, but in palmirig one kind of whisky as another and better kind of whisky. Whisky made of rectified and redistilled or neu- tral 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 ithe pure food law that warrants the inference of such an intention by Congress.' "Following the decision of the President the Secretaries of the Treasury, Agriculttire, and Commerce and Labor pre- pared and promulgated a regulation, under the Food and Drugs Act, knovoi as 'Food Inspection Decision No. 113,' the portions of whieh material to this opinion are as follows: " 'Under the Food and Drugs Act of June 30, 1906, aU unmixed distilled spirits from grain, colored and flavored with harmless color and flavor in the customary 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 of whisky without quali- fication. . . . "'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 PuBE Food — 30. § 386] LAW 0¥ PUKE FOOD AND DRUGS. 466 food (whicli includ'e drink), and specifies that the term 'mis- branded' shall apply to all articles the package or label of which shall bear any statem.ent, design, or device regarding the article or ingredients contained itherein wihieh sihall be false or misleading in any particular; thajt the article staU also be deemed misbranded: " 'If it be labeled or branded so as to deceive or mislead the purahaser. . . . " 'If the package oontaining it or its label shall bear any statement, design, or de\'ice regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular: Pro- vided, That an article of food which does not contain any added poisonous or deleterious ingredients sihall not be deemed to be adulterated or misbranded in th.e following cases : " 'First. In the case of mixtures or compounds which may be now or from time to time hereafter known as ar- ticles 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 " eompouaid, " "imita^ tion," 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 ©ited, are alternative, and that a mixture or compound which may be sold under its own distinctive name, pursuant to the provisions of the first paragraph, need not be marked as a 'compound,' 'imitation,' or 'blend,' un- der the provisions of the second paragraph. Canadian Club "Whisky is, as you say, entirely a 'mix!ture of grain distillates, duly aged after mixing, without further admixture . . .' It is, therefore, a mixture of two wMsfcies, as under the President's decision the term 'whisky' in the trade and among customers includes all potable liquor d'istilled from 4-67 illSBEANDING. [§ 386 grain. Being a mixture of whiskies, it is distinguisiied from ■all otli©r whiskies by the name 'Canadian Club.' "Regulation 20 of the 'Rules and Regulations for the En- forcement of the Food and Drugs Act,' promulgated by the three Secretaries under date of October 17, 1906, and pub- lished as Circular No. 21 of the offlce of tlie Secretary of Agriculture, reads as follows: V "'(a) A "distinctive name" is a trade, arbitrary, or fancy name which clearly distinguishes a food product, mix- ture or compound from any other food product, mixture or compound. "'(b) A distinctive name shall not be one representing any single constituent of a mixture or compound. " ' (c) A distinctive name sihall not misrepresent any prop- erty or quality of a mixtuire or compound. "'(d) A distinctive name shall give no false iadications of origin, ciharaeter, or place of manufacture, nor lead the purelaser to suppose that it is any other food or drug prod- uct.' "Applying this definition, it will be seen (1) that 'Cana- dian 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 Wihisky' is not one representing any single constituent of the mixture, because -the word wihisky applies to both of ithe component elements of the mixture, and to each of them. "(3) The name 'Canadian Club Whisky' does not misrep- resent any property or quality of the mixture, because within the President's definition each of the elements of the mixture is whisky, and the resultant mixture is whisky. "(4) The name 'Canadian Club Whisky' gives no false indication of the origin, character, or place of manufacture, because the mixture 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 dearly asserts that it is whisky — ■ which is the fact — and in your letter it is stated thaJt it is known by that name and no other to the trade and con- § 386] LAW OF PUKE FOOD AND DEUGS. 468 STimers in the United States and other countries, and no other -wiiisky is known by that name. 'Canadian Club Whisky' is therefore the distinetive name of a whisky so called; that name distinguishes the product to which it is attacbed from all other whiski^, and clearly identifies it as the particular kind and brand of whiskies made by Hiram Walker & Sons (Limited), at WaJkerville, Ontario. The name distingxiishes 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, section 2). It is certainly as distinetive as the designation 'S. N. Pike's Mag- nolia WMsky' w'hich, in Kidd v. Johnson,^ was held to con- stitute a trademark, because distinguishing the whisky of the manufacture of S. N. Pike & Co., and their successors in Cincinnati, from aU other whisky. "The brief of the solicitor of the Department of Agricul- ture contends that the distinetive name under which a mixture or compound may be sold must ia its entirety be purely arbitrary or fanciful, and must not contain the name ■of the component elements of the compound. A mixture of wheat and bariey, 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 bar- leys.' 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 desig- nated to accomplish are, first, to prevent the sale of adul- terated foods, and, second, to prevent deception being prac- ticed on the public. It would seem to me that the latter purpose is more apt to be secured by permitting the seal of a product under its own name qualified by some distinguish- ing characterization, than by requiring it to be masked in an anonymity which would give no clue to any of its com- ponent elements. "But without entering into an analysis of the many de- cisions cited in the briefs of the respective parties, or further pursuing a discussion of the question, it appears to me clear 469 MISBRANDING, [§ 387 thiat the name 'Canadian Club Whisky' is a distinctive name, so arbitrary and so faoaciful, as to cleariy distinguish it from all other kinds of whisky or other things, and a name which, by common use, has come to mean a substance clearly dis- tinguishable by the public from everything else (see United States V. 300 Cases of Mapleiae, per Sanborn, D. J.; Notice of Judgment 163, Food and Drugs Act, p. 3). In my opiu- ion, therefore, it is not necessary that the label under which 'Canadian Club Whisky' is sold shall state that it is a 'blend of whiskies.' "Respectfully, "George W. Wickersham. "Thfi Secretary of Agriculture." §387. Whisky— Bourbon Whisky. A distillery in Nev7 Orleans, La., produced no spirit made from grain mash, but only a product from molasses and water. It miarked each barrel "Bourbon Whisky." The government seized 50 barrels of whisky so labeled, and it was condemned. The following are the instructions of the court to the jury trying the ease : "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. Keally, 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 proceed- ing to condemn these goods and forfeit the goods for misbranding. 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 misbrand 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 authorityj 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 transported from 1 100 U. S., p. 617. § 387]i LAW OF PUEB FOOD AND DEUGS. 470 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 misrepresenta- tion with regard to the constituents of an article that is offered for sale. It is only, therefore, when these goods become a part of the interstate com- merce 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 state- ment which shall be false and misleading in any particular, and provides that any article misbranded, which is transported from one State to an- other for sale, is liable to confiscation. Therefore I do not think that anything that was done in the distillery in Louisiana, 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 against the explicit law; the explicit law in this case being that any goods that are ■ misbranded shall be forfeited. If any gauger, at the request of a distiller or under a generally understood practice of the distillery, should misbrand an article of liquor, it would be utterly subversive of the law if that could be said to be a defense to the positive enactment of the Act of 1906 that misbranding goods that are to be transported from one State to another shall be prohibited. I, therefore, reject that contention on behalf of the claimant of the goods in this case. "Then the jury come to consider what is the real issue which they are to determine, and that is whether these 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, of course 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 case, an end of the defense in th|e case, 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 ^eat d«al of testimony to show that 'Bourbon whisky,' in its most general sense, is a whisky made from grain of which corn is the larger constitu- ■ent. If you find tliat 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 Kentucljy. If you find that to be the fact — and that is for you 'to decide entirely on the testimony — if you 471 MISBRANDING. [§ 387 find that in the trade and among those who deal 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 con- cerned, because 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 incontestably, whether it is what it is branded, or some- thing else. "I will now give you the instructions asked for by the counsel for the United States. The first prayer is as follows: " 'The jury are instructed that if from the evidence they shall find the word "whisky" as understood by scientific men, the liquor trade, and the public generally is confined to a distillate of grain, and shall further find that the contents of the barrels libeled in this case is a distillate of mo- • lasses, and that the said barrels were branded Bourbon whisky, then the said barrels were misbranded, and their verdict must be for the libelant.' "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 reference 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 in New Orleans, in the State of Louisiana, and shall further find that the said barrels were branded Bour- bon whisky, then the barrels were 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,' and that does 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 that there is anything that I need say to the jury § 388] LAW OF PUKE FOOD AND DRUGS. 473 further, 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 accepta- tion of the word 'whisky" imports that it is made from grain. Of course this liquor was not so made. "Further, in regard to Bourljon whisky, if the term 'Bourbon whisky, implies that the article was made of com 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 convinced you are the proper meanings, accepted by the trade and by scientific men, of 'whisky' and 'Bourbon whisky,' these 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." i § 388. Whisky Compounds. "Tfh.e labeling of •whisky compoirnds, under the Food and Drugs Aet of June 30, 1906, will be governed by the opinion of the Attorney- General, dated December 1, 1908, published herewith. "James Wilson, "Secretary of Agriculture. "Washiagton, D. C, December 4, 1908." "December 1, 1908. "The Honorable the Secretary of Agriculture. "Sir: I am duly in receipt of your letter of this date. In this you call voy attention to a passage in my opinion of April 10, 1907, addressed to the President, which passage is in the words following: 'I conclude that a combination of whisky with ethyl alcohol, supposing, of course, that there is enough whisky in it to make it a real compound and not a mere semblance of one, may be fairly called "whisky," provided the name is accompanied by the word "compound" or "compounded," and provided a statement of the presence of another spirit is included in sub- stance in the title' — 1 N. J. 68. 473 MISBEANDINO. [§ 389 and you ask me how much whisky there must be in a mix- ture of whisky and neutral spirits to fairly entitle this mix- ture to be eaUed a 'compound' or 'compounded' whisky, or, as stated in your letter, ' whisky : a compound of pure grain distillates. ' "In the passage in question I stated that there must be, in any such a mixture, 'enough whisky ... to make it a real compound and not a mere semblance of one.' In the absence of any legislative provision or judicial determina- tion on this subject, the proportion of whisky necessary for the purpose in question can be stated only tentatively and for the time being; and a selection of any particular frac- tion of the whole as a necessary proportion must be, at least in appearance, somewhat arbitrary. I have, however, very carefully examined the evidence on this subject submitted by your department, and after full consideration of such evidence, have reached the conclusion that, until better in- formed in the premises from the action of the Congress or of the courts, this department wiU not advise a prosecution on the ground of violation of la.w in using any one of the three labels above suggested or any substantial equivalent therefor when the amount of whisky in the mixture equals or exceeds one-third in volume of the spirituous content; that is to say, in the case you mention, one-third of the whisky and neutral spirits combined. "Very respectfully, "Charles J. Bonaparte, ' ' Attorney-General. ' ' §389. Wine. Wines shipped to various purchasers were labeled as fol- lows: 1. Those shipped by The A. Schmidt, Jr., & Bros. Wine Company: a. "Claret Wine — containing harmless coloring and one-tenth of one per- cent benzoate of soda." b. "Vino Type Claret Wine — containing harmless coloring and one-tenth of one percent benzoate of soda." 1 F. I. D. 98. § 389] LAW OF PURE FOOD AND DEUGS. 474 c. "Vino Puro — Nagherea — A. Cusamano, New Orleans, La., containing harmless coloring and one-tenth of one percent benzoate of soda. d. "Vino Corvo Claret — A. Cusamano & Co., New Orleans, La., contain- ing harmless coloring and one-tenth of one percent benzoate of soda." 2. Those shipped by The Sweet Valley Wine Company: a. "X Ohio Sweet Catawba Wine — Serial 124. Guaranteed under the National Pure Food and Drugs Act. C&ataining one-sixteenth of one per- cent benzoate of soda, sweetened with cane sugar and pure saccharin. Made 1906-1907." b. "X — Port Wine Type — Serial 124. Guaranteed under the National Pure Food and Drugs Act. Containing harmless coloring and one-sixteenth of one percent benzoate of soda. Sweetened with cane sugar and pure saccharin. Made 1906-1907." c. "A — Ohio Red Wine Vino Type — Serial 124. Guaranteed under the Nationa,l Pure Food and Drugs Act. Containing one-sixteenth of one per- cent benzoate of soda. Made 1906-1907. d. "Ohio Claret Medoc Type Wine — Serial 124. Guaranteed under the National Pure Food and Drugs Act. Containing harmless coloring and one-sixteenth of one percent benzoate of soda. 3. Those shipped by John G. Dorn: a. Claret Wine — Serial No. 3255. Guaranteed under the National Pure Food and Drugs Act. Containing harmless coloring and one-tenth of one percent benzoate of soda." b. "Vino Type — Serial No. 3255. Guaranteed under the National Pure Food and Drugs Act. Containing harmless coloring and one-tenth of one percent benzoate of soda." c. "Vino Type — Serial No. 3255. Guaranteed under the National Pure Food and Drugs Act. Containing one-tenth of one percent benzoate of soda." Samples of each of the several braaids included in the aforesaid shipments were analyzed and it was found ithat: The wines designated as "Olaret Wine," and "Vino Type Claret Wine," and "Vino Puro-Nagherea, " and "Vino Como Claret," and "Vino Type" consisted of a fermented soluti'On of commercial dextrose artificially colored with a dye, preserved with benzoic acid. The wine designated as "X Ohio Sweet Catawba Wine" consisted of a fermented siolution of commercial dextrose and sucrose, artificially sweetened with saccharin, preserved with benzoic aoid. The wine designated as "X Port Wine Type" consisted of a fermented solution of commercial dextrose and cane sugar, 475 M.ISBEANDIN6. [§ 389 artificially colored with a coal tar dye, sweetened with sac- ehiarin. There was present only 10.36 percenit of alcohol, a quantity much below that in true port wine. The wine designated as "A Ohio Red Wine Vino Type" consisted of a fermented solution of commercial dextrose or starch sugar, artificially colored with a coal tar dye and pre- served with benzoic acid. The wine designated as "A Ohio Claret Medoc Type Wine" consisted of a fermented solution of commercial dex- trose, artificially colored with a coal tar dye, preserved with benzoic acid. In the opinion of the Department of Agriculture, wiae is the product made by the normal alcoholic fermentation of the juice of sound ripe grapes, and the usual cellar treat- ment, and eontadns not less than seven (7) nor more than sixteen (16) percent alcohol, by volume, and in one hundred (100) cubic centimeters (20° C.) not more than one-tenth (0.1) gram of sodium chlorid nor more than two-tenths (0.2) gram of potassium sulphate, and red wine is wine containing •the red coloring matter of the skins of grapes. It was therefore held that the products analyzed disclosed that they were not made from the juice of grapes and were artificially colored to simulate true wines, and were not en- titled to be labeled "wine."^ "The question has arisen whelther 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 'Missouri Wine,' respectively, without further qualification. In Pood Inspection Decision 109 it was announced that the term 'wine' without qualifica- tion is properly applied only to the produdt 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 treaitment for clarifying and aging. "It has been decided after a careful review fthiat the pre- 1 F. I. D. 83. § 389] LAW OF PUEE FOOD AND DEUGS. 476 vious announcement is correct and that the term 'wine' without further characterization must he restricted to prod- ucts made from untreated must without other addition or abstraction than that which may occur in the usual cellar treatment for clarifying and aging. However, it has been found that it is impracticable, on aceoumt of natural condi- tions of soil and climate, to produce a merchantable wine in the States of Ohio and Missouri without the addition of a sugar solution to .Hhe grape must before fermentation. This condition has recognition in the laws^ of the State of Ohio, by w'hich wine is defined to mean the fermented juice of un- dried grapes, and it is provided that the addition, within certain limite, 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 mot injurious to health, shall not be construed as adulterations and that the resultanit product may be sold under tihe name 'wine.' Furthermore, it is per- mitted in some of ifche leading wine^producing countries of Europe to add sugar to the grape juice and wine, under restriations, to remedy the natural deficiency in sugar or alcohol, or an excess of acidity, to such am 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 th'alt there is no difEerenee in principle in the adding of sugar to must in poor years to improve the quality of the wine thou 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 fermented 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 sixty 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 fermentation of the must under proper cellar treatment, and corrected by the ad- dition of a sugar solultion to the must before fermentation 477 MISBEANDING. [§ 389 SO that the resiiltaait product does not eontain less than five parts per thousand acid and not more than 13 percent 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 percent, 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 fermentation they should be characterized as 'Sweet Pomiaee Wines.' The addition to such products of any artificial coloring matter or sweetening or preservative other than sugar must be de- clared plainly on the label to render such products free from exception under the Pood and Drugs Act."^ To brand a domestic wine as "Extra Sherry" is to hold out the impression that it was made in Spain, and it is misbranded.* And to brand a domestic wine "Extra Port Wine" conveys the impression that it was made in Portugal ; and so is misbranded.* To apply the term "Hoekheimer" to an American wine is to misbrand it.® A domestic wine was labeled on the neck of the bottle "Sparkling Via Rouge R. Sec. Burgundy," aaad the following principal label below: "R. Vin Rouge See. Sparkling Burgundy Type, Ripin & Company, New York." And this consignment had on the neck of the bottle "Cuvee 2 F. I. D. 120. See also F. I. D. not be labeled "port wine" unless 109 below. those ingredients be stated on the 3 N. J. 737. label. N. J. 824. * N. J. 737. A wine having in it s N. J. 711. glucose and benzoate of soda can § 389] LAW OF PDEE FOOD AND DRUGS. 478 Eervee White Label R. & Co.," and tihe following principal label: "R. & Co., Wlhite Label Extra Dry Champagne, Ripin & Co., New York," with whieh latter was packed a certifi- cate reading " Ripin 's "Wlhite label is a pure Champagne of Superior quality. It is refreshing amd highly exhilarating and is invaluable in cases of convalescence from exhaustive diseases, for a weak stomach and all forms of indigestion." An exajnination showed that the first wine was a very highly charged red wine and the second a highly artificial car- bonated wine. Neither of them was of foreign origin nor bottle fermented. It was held tihat both wines were mis- labeled." To label a -vvine as made with grape sugar when it was made with starch sugar is to mdsbrand it.' In an in- stance of misbranding a domestic white wine artificially carbonated and labeled "Champagne," the court trying the case said: "The term 'Champagne' when used alone and apart from any qualifying or descriptive words is com- monly understood to describe an effervescenit and sparkling wine produced in a province of Prance, the gas therein being .the result of natural fermentation. It is therefore tiiought tihat a bottle containing wine produced in California and labeled 'Champagne' without any o:thejr qualifying or de- scriptive words, tends to mislead and deceive and is 'mis- branded' under the provisions of the pure food Act. lit is further thought that a bottle containing a wine having sub- stantially the same qualities as the ciiampagne manufactured in France and produced substantially in the same way, al- though originating in California should not be held to be misbranded if it is labeled ' California Champagne, ' or by some other device conspicuously displayed in connection with the word champagne, purchasers are clearly advised tihat the bottle does not contain a product of France.'" 6N. J. 828. Grand Vin Royal. Guaranteed TN. J. 1016. under the Pure Food and sN. J. 1020 The label on the Drugs Act, June 30, 1906. Serial neck of each bottle in five No. 7016," with a design of a fancy cases contained the words "Cham- coat of arms. The label on the neck pagne Brand Dufleur Fils & Cie. of each of the. bottles in five other 479 MISBRANDING. [§ 389 "On June 30, 1909, a hearing was held before the Secre- tary of Agrieulture and the Board of Food and Drug Inspec- tion on the labeling of Ohio and Missouri wines. After giv- ing full consideration to the data submitted, the board is of the opinion that the term 'wine' without modification is an appropriate name solely for the product miade from the nor- mal alcoholic fermentation of the juice of sound ripe grapes, without addition or abstraction, either prior or subsequent! to fermentation, except as such may occur in the usual cellar treatment for clarifying and aging. The addition of water or sugar, or both, to (the must prior to fermentation is con- sidered improper, and a product so treated should not be called 'wine' without further characterizing it. A fermented beverage prepared from grape must by addition of sugar would properly be called a 'sugar wine,' or the product may be labeled in such fashion as to clearly indicate that it is not made from the untreated grape must, but with the ad- dition of sugar. The consumer is, under the Food and Drugs Act, entitled to know the character of the product he buys. "Evidence was offered on the preparation of 'wine' from the mare. In these cases it appeared customary to add both water and sugar to the marc and sometimes .tio use sac- cases contained the words "Extra Extra Dry. Guaranteed under the Dry," with a design of a crown, Pure Food and Drugs Act, June and the main label on each of the 30, 1906. Serial No. 7016." Of bottles contained the words "Crown these labels the court said: "Spe- Chamipagne," with the designs of a cifically I find that the label on each crown and crossed scepter, and un- of the three bottles received in evi- derneath the words "Guaranteed dence in support of the three sev- under the National Pure Food and eral counts of the indictment, is Drugs Act, Jtine 30, 1906." The misleading. Considering the form labels on the neck of each of the and dress of each package as a bottles in two other cases had up- whole there is little room for doubt on them the words "Extra Dry upon the part of the originator to Champagne," with a design of a create in the minds of the consum- shield and the monogram A. F. W. ers the impression that they are and the main label on each bottle purchasing a foreign and not a do- eontained the words "Cuvee Spe- mestic product." N. J. 1020. cial E. L. Mercier & Cie. Brand, §§ 390, 391] LAW OF PURE FOOD AND DEUGS. 480 dhaxm, eolormg matter, preservatives, etc., to make a salable article. "In the opinion of the board no beverage can be made from the marc of grapes which is entitled to be caUed 'wine' however further characterized, unless ilt be by the word 'imitation.' The words 'Pomace Wiue' axe not satisfactory, since the product is not a wine in any sense, but only an 'imitation wine' and should be so labeled.'" "A hearing was held on March 21, 1910, before the Sec- retary of Agriculture and the Board of Hood and Drug In- spection on ibhe labeling of wines prodtaeed ia Oalifomia, 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 quaUfled by the name of the State where the wine is pro- duced, "i" §390. Wintergreen Essence. A liquid marked "Essence of "Wintergreen" containing less than one-half the necessary amount of wintergreen and a dilute preparation substituted in its place, is mislabeled.^ A food product was labeled as follows: "1 oz. Net "Weight Mc'Murray's Country Club Brand Extract of True "Winter^ green. Natural Fruit Flavor of Perfect Purity. Manufac- tured by "Wm. McMurray & Co., Minneapolis & St. Paul," and "One Ounce Pull Measure McMurray 's Country Club Brand "Wintergreen Extract. Manufactured by "Wm. McMurray & Co., Minneapolis-St. Paul." It was held that it was mis- branded.^ §391. Yando Egg Noodles. A substance labeled "Tando Egg Noodles" which does not 9 F. I. D. 109. 1 N. J. 293. 10 F. I. D. 122. 2 N. J. 764. 481 MISBEASTDING [§ 392 contain sufficient egg to justify the use of the word "egg" in its description is mislabeled.^ § 392. Yeast. "On August 3, 1909, a hearing was held before the Board of Food and Drug Inspection on the application of the Food and Drug Act of June 30, 1906, to the sale in interstate com- merce of compressed yeast. Other investigations . along the same line have been made by the Department, and as a result of the hearing and of these investigations the position of the Department is: "1. That the term 'compressed yeast,' without qualifica- tion, means distillers' yeast without admixture of starch. "2. That if starch and distillers' yeast be mixed and com- pressed such product is misbranded if labeled or sold simply under the name 'compressed yeast.' Such a mixture or com- pound should be labeled 'compressed yeast and starch.' "3. That it is unlawful to sell decomposed yeast under any label. "^ ART. III.— DRUGS AND MfEDICINlES. SEC. SEC. 393. Drugs — statute. drugs and also for technical 394. Names to be employed in de- and other purposes. daring the amount of the in- 403. Use of the word "compound" gredients. in names of drug products. 395. Alcohol. 404. Refilling drug bottles and car- 396. Statement of quantity or pro- tons. portion of alcohol present in 405. False statements concerning drug products. curative or remedial effects of 397. Declaration of the quantity or proprietary medicines, proportion of alcohol present 406. False representations concern- in drug products. ing curative qualities — De- 398. Drug derivatives. partmental decisions. 399. Substances in drugs required 407. PuflSng remedies — "Cure AH" — to be named. Departmental decisions. 400. Formula or label of drugs. 408. Article named on label present 401. Physicians' prescriptions. in only very small quantity. 402. Products used as foods and IN. J. 686. IF. I. D. 111. PxJBB Food — 31. § 393] LAW OF PUEE FOOD AND DRUGS. 482 § 393. Drugs— Statute. "For the purposes of this Act an article shail 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 quan- tity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eueaine, chloroform, cannabis indica, chloral hydrate or aeetanilide, or any derivative or prepara- tion of any such substances contained therein."^ The Regu- lations provide that a drug may be labeled "by any name recognized in the United States Pharmacopoeia or National Formulary. No other description of the components or quali- ties is required, except as to content of alcohol, morphine," etc., and the other articles named in the statute above quoted.^ If a drug be recognized in either one of these two authorities by two or more names, the use of one of such names is sufiieient. If it is not recognized in them, then the trade name of the article must be used. But it must be borne in mind that a name of one substance or drug can not, under any conditions, be used for another substance or drug, even though it be known to the trade by the description used. An imitation of a drag is not permitted, even if it be stated to be an imitation. In fact, it is difficult to see, even of a simple compound drug, how there can be an imitation of a drug. An article is either the drug it purports to be or it is not such. In the case of medicines, which are nothing more than compound drugs, imitations, even if plainly stated to be such, are not permitted. But "no statement regarding a drug can be false or misleading in any particular within the meaning of the Act, unless it relates to some one or more of 1 Section 8. 2 Regulation 19. 483 MISBKANDING — DRUGS. [§ 394 the various particulars expressly enjoined or prohibited by the Act."'' §394. Names to be Employed in Declaring the Amount of the Ingredients. "Many inquiries are coming to this Department relative to the names that may be employed in declaring the qiiantity or proportion of the ingredients, as required by Congress. ' ' The following are representative : "The word "alcohol" has received so much unfavorable notoriety • during the last few years that we hesitate to place it upon our labels. Could we not employ some other words in place of it, such as "cologne spirits," "spirits of wine," "pure grain alcohol," etc.? 'Would it be satisfactory for us to use "Phenylaeetamide," or the fol- lowing formula, C H NH(CH CO), for the chemical acetanilide? 'One of our preparations contains trichlorethidene ethyl alcoholate, which would undoubtedly under the law be considered a derivative of chloral hydrate. Will it be satisfactory for us to use this name on our trade packages in giving the amount of this chemical present in the product? 'In the manufacture of some of our products we use opium. It would, however, be a financial loss to state this fact on the label. Could we not say this preparation contains twenty grains of the concentrated extract of papaver somniferum to the fluid ounce? 'Dover's powder is mentioned in the regulations as one of the prepara- tions of opium. It would seem at first glance that Dover's powder as a preparation, if mentioned on the label, would be all that could be required as to opium.' "One of the objects of the law is to inform the consumer of the presence of certain drugs in medicines, and the above 3 United States v. American fense is committed under that sec- Druggists' Syndicate, 186 Fed. 387. tion." Ibid. "The purpose was to protect the The statute does not apply to public against deception in the pur- circulars enclosed with the prepa- chase of drugs and food by punish- ration or drug. Ibid. But it probably ing adulteration and misbranding would if each circular was wrapped as therein defined. If the label on around the package with the de- a drug is not false or misleading sign or intention that it take the in any of the particulars enjoined place of a label, or prohibited by Section 8, no of- § 394] LAW Oi- PURE FOOD AND DRUGS. 484 terms do not give the average person any idea as to the pres- ence or absence of such drugs. In enumerating the ingredi- ents, the quantity or proportion of which is required to be given upon the principal label of any medicinal preparation in which such ingredients may be present, the Act uses only common names, and the permission to use any but such com- mon names for any ingredients required to be declared upon the label is neither expressed nor implied in any part of the law. "The teiTn used for aeetanilide is ' acetanilide, ' and not phenylacetamide. No reference is made to the use of the chemical formula in designating the presence of chemicals. The words 'chloral hydrate' appear in the Act, but not the chemical name triehlorethidene glycol. It can readily be seen that if the Act were not closely adhered to in this con- nection there would soon be such a confusion and multiplicity of names and phrases that one of th« objects of the Act would be defeated. "The names to be employed in stating the quantity or pro- portion of the ingredients required by the Act to appear on the label of all medicinal preparations containing same are: "First. Those used in the law for the articles enumerated; example, 'alcohol,' not 'spiritus rectificatus. ' "Second. In the case of derivatives: (a) The name of the parent substance used in the Act should constitute part of the nanie; example, 'chloral acetone,' not 'triehlorethidene dimethyl ketone.' (b) The trade name, accompanied in parentheses by the name of the parent substance; example, 'dionine (morphine derivative.)' "Third. Names of preparations containing the name of some ingredient used in the Act. In such eases the name used in the Act should constitute the first portion of the name of the pi*eparation. (See F. I. D. 55.) "Fourth. Common names (such as laudanum, Dover's powder, etc.) of preparations containing an ingredient enumerated in the laAV, provided such name or names are ac- companied in parentheses by some such phrase as 'prepara- tion of opium' or 'opium preparation,' followed by the num- 485 MISBRANDING DRUGS. [§ 394 ber of minims or grains, as specified in the regulations; for instance, 'laudanum (preparation of opium), 40 minims per ounce. '^ ' ' 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 cus- tomary meaning as understood by the general public, aoid not a technical meaning, as given by any expert witness. This law was passed not to protect the experts especially, not to protect scientific men who knew 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. "In determining the meaning of the words used upon these cartons, bottles, and circulars, they are to be taken in the way that an ordinary, plain, common citizen, without scien- tific knowledge, would understand them if they were put be- fore him. "And so with regard to this ' Cuf orhedake, ' 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 f-rovernment 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, 1 F. I. D. 56. § 394] LAW OJ PURE FOOD AND DEUGS. 486 and you have the right, in considering that question, to 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 citi- zens 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 ordi- nary citizen, in taking that up and seeing these words, under- stand 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 from 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 reasonably or fairly calculated to de- ceive or lead to the belief that the preparation was a food for the brain, then they shall find that the use by the defend- ant of the word 'branefude' was not false or misleading. That is the question that I suggested to you a moment ago. How would the ordinary citizen, upon reading that, under- stand it? If it would mislead him or have a tendency to mis- lead 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 consideration by you. "Mr. Baker: Would Your Honor read the first prayer now? "The Court: I will read, at the request of counsel, the first prayer: " 'If the jury find from the evidence beyond a reasonable doubt (and you gentlemen 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 487 MISBEANDING DRUGS. [§395 charge over and over again. The doubt must be a reason- able 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 informa- tion, in the District of Columbia, did manufacture a certain liquid medicine or preparation, styled and designated "Harp- er's Cuforhedake Brain Pood," 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 evidence that there is a known and distinct kind of food that feeds and nourishes 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 nour- ishes all parts of the body, then the jury are instructed as a matter of law that the words "Brain Food" and "Brane Fude" — if you find thajt "Brane Fude" means "Brain. Food" — are false and misleading, and your verdict shall be guilty on the first count of the information; and if the jury find that the defendant did sell or offer for sale to the said Stone & Poole, on the date within the time mentioned and in the District of Columbia, the said drug in this prayer de- scribed, they shall find the defendant guilty on the fourth count of the information.' "^ § 395. Alcohol. The term "alcohol," as used in the statute and regulations, means the common or ethyl alcohol, or, in other words, al- cohol made from grain. "No other kind of alcohol is per- missible in the manufacture of drugs except as specified in 2N. J. 25. on a label, is not an offense, and Under the recent decision of the these instructions can not, proba- Supreme Court ( see § 406 ) , false bly, be regarded now as a proper representation concerning the cura- statement of the law. tive properties of a remedy, placed § 396] LAW OF PUEB FOOD AND DKU6S. 488 the United States Pharmacopoeia or National Formulary."^ "Wood alcohol or denatured alcohol can not be used in hair tonics, liniments or other preparations for either internal or external use. The percentage of grain alcohol in foods need not be stated.^ §396. Statement of Quantity or Proportion. A drug "is misbrazided in case it fails to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, heroin, cocaine, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate or aeetanilide, or any derivative or preparation of any such substances con- tained therein." "A statement of the maximum quantity or proportion of ajiy such substances present" is sufficient, if "the maximum stated does not vary materially from the average quantity or proportion." "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 derivatives of any of the specified substances, in addition to the trade name of the derivative, the name of the specified substance shall also be stated, so as to indicate clearly that the product is a deriva^ tive of the particular specified substance."^ In case the actual quantity or proportion be stated it must be the aver- age quantity or proportion, but a reasonable variation from the stated weight for individual packages is allowed if the variation is as often above as below the weight or volume stated.^ In ' the case of alcohol the average percentage by volume in the finished product must be given when stating the "quantity" or "proportion;" and in other ingredients required to be named on the label, the number of grains or minims per ounce or fluid ounce must be stated, ' ' and also, if desired, the metric equivalents therefor, or milligrams per gram or per cubic centimeter, or grams or cubic centimeters per kilogram or per liter;" but if the maximum of quantity 1 Eegulation 28. i Regulation 28. 2 F. I. D. 47. 2 Regulations 28 and 29. 489 MISBRANDING — DRUGS. [§397 or proportion be stated,^ then the article is not deemed mis- branded.* It is only in the finished product that the quan- tity or proportion of the substances therein must be named. If during the manufacture of the product substances are eliminated, they need not be stated.^ If the substance or a derivative of it is present in the finished product, only as a mere "trace, "as chemists term it, then it need not be stated on the label; but if present in any material quantity or pro- portion sufficient to enable its presence to be determined with certainty by analysis, then a statement of the amount must be placed on the label. If a medicine be put up in tablets, powder or capsules, then the quantity or proportion must be stated in grains or in minims per ounce (or as speci- fied if the metric system be used), which is in each tablet^ powder or capsule. §397. Declaration of the Quantity or Proportion of Alcohol Present in Drug Products. "The question of stating the percentage of alcohol pres- ent in drug products has caused a multitude of inquiries. The following questions along this line serve as examples: Is it necessary to give the amount of alcohol present in U. S. Pharma- copoeial or National Formulary products ? It seems to me that such a re- quirement is absurd, and not contemplated within the spirit of the Act. None of them are patent medicines. Will I be compelled to tell how much alcohol is present in such goods? 'If we apply for and obtain a serial number, must we in addition to put- ting this number on our labels state the percent of alcohol? 'Will it be necessary to give the percent of alcohol present in such prod- ucts as ether, chloroform, collodion, spirit of nitrous ether, and similar preparations ? "The law is specific on the subject of declaring the amount of alcohol present in medicinal agents, as can readily be seen from the following language: 'An article shall also be a As by Regulation 28. ing of samples to be analyzed must * Regulation 30. always take them from finished 5 It should be noted that the De- products, and not from products in partment of Agriculture in the tak- the course of manufacture. §§ 398, 399] LAW OF pure food and deugs. 490 deemed misbranded ... if the package fail to bear a statement on tJie label of the quantity or proportion of any alcohol . . . contained therein.' No medicinal prepara- tions are exempt, whether they are made according to formulae given in the U. S. Pharmacopoeia or National Formulary or formulae taken from any other source. The serial number, with or without the guarantee legend, does not exempt a preparation from this requirement. The law does not make any statement as to the amount of alcohol that may or may not be employed. It requires, however, that whatever amount be present shall be set forth on the label. The percentage of alcohol given on the label should be the percentage of absolute alcohol by volume contained in the finished product. The manner in which it should be printed is shown in F. I. D. 52."^ §398. Drug Derivatives. Regulation 29 defines what shall be considered as deriva- tives. Within the meaning of this Act a derivative is a sub- stance which is so related to one of the specific substances "that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter 'by actual or theo- retical substitution,' and it is not indispensable that it should be actually produced therefrom as a matter of fact." The Board has the power, and has exercised it, to adopt a rule or regulation requiring the names of the specified sub- stance to follow that of the derivative.^ § 399. Substances in Drugs Required to be Named. In labeling drugs, the label must bear a statement "of the quantity or proportion of any alcohol, morphine, opium, co- caine, heroin, alpha or beta eucaine, chloroform, cannabis in- dica, chloral hydrate or acetanilide, or any derivative or preparation of any such substances contained therein."^ The 1 F. I. D. 54. 1 Section 8. 1 F. I. D. 112. 491 MISBRANDING DBUGS. [§ 399 ■term "drug," as here used, includes all drug preparations and medicines, whether recognized by name in the United States Pharmacopoeia or National Formulary or not. This clause of the statute applies to all proprietary remedies or patent medicines containing any of the drugs named in the statute, as well as to all veterinary medicines and stock foods,^ and preparations having or purporting to have me- dicinal properties for either internal or external use in the treatment or prevention of disease either in man or beast. Bitters is an example of this kind.^ In the Territories and District of Columbia this requirement applies to physicians' prescriptions,* but it does not apply to alcohol used in any article of food, as flavoring extracts.^ It is only when the ■drug contains one of the substances above stated in the quo- tation that it is necessary to state its ingredients; if it con- tains an ingredient not thus enumerated it need not be stated on the label unless it be a derivative." These statutory names should be used on the labels, and not substitutes. The De- partment has given the following opinion on this question : "Many inquiries are received as to the method of stating the quantity or proportion of preparations (containing opium, morphine, etc.) used in the manufacture of other prepara- tions. Of these the following are typical: 'If the label on the bottle were to bear the words "Tincture of Opium," I reason that as this is a definite preparation, constituting a preparation of opium, and so definite as to its composition that to any intelligent person it expresses definitely all that it is desirable to express, the use of this title alone should be sufficient. I feel that as a preparation it is dis- tinct from opium, and if this particular tincture is used in the manu- facture of a preparation the mention of it alone should be sufficient. 'Where extract of tincture of cannabis indica, or extract of opiimi, is employed in making other drug products, would it not be complying with the law if the use of such article be clearly indicated on the label as pre- scribed by the law, or is it necessary to give the actual amounts of the drugs themselves represented by these preparations?' 2 See F. I. D. 90. « F. I. D. 54; F. I. D. 55; F. I. 3 F. I. D. 85. D- 56 ; United States v. American * F. I. D. 57. Druggists' Syndicate, 186 Fed. 387. 5 F. I. D. 47. § 400] LAW OF PUKE FOOD AND DEUGS. 492 "Names of drug products bearing any of the names of the ingredients enumerated in the Act are construed as repre- senting 'preparations' within the meaning of the Act; and if the same are clearly* declared upon the label, as required by Eegulations 17 and 30, it will not be necessary to give the actual amount of the primary drugs used or represented by such article. It is desirable, however, that the word or words used in the law shall constitute the first part of the name of the product. For example : ' Opium, Tincture of ; ' ' Cannabis Indica, Extract of,' followed by the amount of tincture or extract used."^ § 400. Formula on Label of Drugs. "Many inquiries are received relative to the necessity of giving the formula of medicinal remedies on the label. The following is typical: 'I should like to know if it will be necessary for me to state on a label the name of the products from which I prepare my proprietary medicine in order to conform with the Pure Food and Drugs Act. If I do this it will prohibit me from manufacturing and selling a remedy which is a secret of my own; and anyone buying it could, from the label, tell what ingredients were used in its preparation and make his own supply of this medicine. How does the United States Government expect to protect those who have secret medicinal preparations they wish to sell at a profit? If the Pure Food Commission desires, I will send them a sample bottle of my medicine for their inspection and approval.' "The Food and Drugs Act, June 30, 1906, does not require the formula of drug products to be given on the label, but requires only that the quantity or proportion of the ingredi- ents enumerated in the law, and derivatives and preparations of same (Regulation 28), shall be clearly set forth on the label or labels of all preparations used for the treatment or prevention of disease, either internally or externally, for man or other animals. This includes sample packages as well as regular trade packages. ' F. I. D. 55. label. United States v. American Peroxide contained in a. sub- Druggists' Syndicate, 186 Fed. 387. stance need not be named on the 4:93 MISBBANDING DHU6S. [§ 401 "The question is also frequently asked whether a medicinal preparation would be exempt from the operation of the law if the formula were given on the label. The formula on the label is very desirable, but this' information is not required by the law. The Act forbids the use of any statement, de- sign or device in connection with any drug product which is false or misleading in any particular. A defect of this kind would not be corrected by giving the formula on the label. If the formula is given, it must be the correct and complete formula. It is held that, in addition to those substances re- quired by the Act to be named, if only a part of the active medicinal agents used in the manufacture of a drug product are set forth on the label, such a procedure is misleading, and therefore forbidden by the law. All drug products and their labels must conform to the Act, whether the formula is or is not given on the label. "^ §401. Physicians' Prescriptions. "Packages resulting from the compounding of physicians' prescriptions under the Food and Drugs Act are the subject of many queries, of which the following are representative: 'If a druggist compounds a physician's prescription and sends it into an adjoining State, will it be necessary to state upon the label the amount of alcohol, morphine, etc., that may be present? 'Supposing a regularly licensed practicing physician has patients located in various States of the Union and supplies medicines to them through the mails, by express, and otherwise, do such packages come under the pro- visions of the law, and, if so, can the required information be given in pen and ink on the label? 'We treat drug addictions on a very gradual tonic treatment reduction plan. For instance, if John Doe writes for information as to the home treatment for his addiction, I send him a symptom blank which contains, among other questions, an inquiry as to the kind of drug he uses, how he uses it, the length of time he has used it, etc. In addition to giving me a complete history of his case, he states he is using ten grains of sulphate of morphine (each twenty -four hours), hypodermically or internally, as the case may be. In prescribing in his case I immediately put him on just one-half of the amount he reports as his daily allowance, combining same with a bitter tonic. 1 F. I. D. 53. § 403] LAW OF PUKE FOOD AND DRUGS. 494 'It is necessary for the reduction in drug cases to be made without the patient's knowledge. It is, of course, understood by all physicians that, you can not trust a drug habitue to properly make his own reductions, for,, as a matter of fact, if he knew to what extent I was reducing his daily allowance of opiates, he would imagine the reduction too rapid, he would get frightened, and would take to his former drug for relief. Treatment, prepared in this way I do not think would come under the head of a pro- prietary preparation or a patent medicine, as I prescribe the contents of' each bottle to meet the requirements of each individual patient. All instructions as to the conduct of treatment and the use of auxiliary reme- dies are given by letter; consequently there are no printed labels or cartons, containing any claims concerning the efficacy of this treatment. 'I would be pleased to have you inform me whether in your opinion. I would be violating the pure food law in any manner, shape, or form should. I continue to label my preparations as I am now doing, and in having them prepared in and forwarded direct to my patients in this and other States.' If a package compounded according to a physician's pre- scription be shipped, sent, or transported from any State or Territory or the District of Columbia to another State or Ter- ritory or the District of Columbia by a compounder, drug- gist, physician, or their agents, by mail, express, freight or otherwise, the label upon such package is required to bear the information called for by Congress. If, however, the patient himself, or a member of his household, or the physi- cian himself carries such package across a State line, and such package is not subject to sale, it is held that such pack- age need not be marked so as to conform with the law, be- cause such a transaction is not considered one of interstate commerce. "The package may be marked so as to comply with the Act by either stamp, pen and ink, or typewriter, provided all such written matter is distinctly legible and on the principal label,, as prescribed in Regulation 17."^ § 402. Products Used as Foods and Drugs and also for Tech- nical and Other Pxirposes. "Frequent requests for information relative to the proper 1 F. I. D. 57. 495 MISBKANDING— DEUGS. [§ wers of the medicine. See § 406. i N. J. 550. IN. J. 182. § 427] LAW OF PURE FOOD AND DRUGS. 533 § 427. Cancer Cure. V^iere an article was labeled "Cancer Cure," purporting to constitute a treatment for the cure of cancer, and it was not a cure, the Department of Agriculture held that it was mislabeled,^ although one of the District Courts in a similar case held that a like product was not.^ The Department made a similar ruling in an instance of " Cancerine. "^ In another instance a product labeled "Cancerol, a compound of essential oils for the treatment of malignant diseases," and of a salve, "Healing salve, composed of a due mixture of vegetable and mineral oils, with certain drugs of highly heal- ing qualities," and the bottle did not contain a compound of essential oils, but did contain 14 percent alcohol and a certain proportion of opium, of which fact there was no statement on the label, and the salve was not a compound of vegetable oil with highly healing qualities, there was a judgment of conviction on a plea of guilty.* A drug product was labeled as follows: (a) "Mixer's Cancer and Scrofula Syrup ;" (b) "No. 1 Wash;" (c) "No. 1 Alterative;" (d) "Cancer Re- ducer;" (e) "Cancer Paste;" (f) ',' Cancer Salve;" (g) "Cleanoine Soap Powder." With these drugs was a pamphlet called "The Truth," and in said pamphlet and on the labels of the packages above referred to were numerous statements as to the curative value of the treatment in question. Sam- ples of this shipment were procured and analyzed by the Bu- reau of Chemistry, United States Department of Agriculture, and the above seven packages were found to contain re-, spectively: (a) A syrup containing potassium iodide, a small amount of vegetable ingredient similar to sarsaparilla, methyl salicylate flavoring, and about 6 percent alcohol; (b) an ordi- nary solution of hydrogen peroxide; (c) a hydro-alcoholic solution containing a large amount of glycerine and small amount of vegetable matter similar to gentian; (d) a strongly alcoholic solution of camphoraceous oils combined with con- siderable glycerine; (e) an ointment paste made up with IN. J. 507; N. J. 907. sN. J. 427. 2 N. J. 266. i N. J. 606. 523 MISBKANDING — ■DEDGS. [§§428,439 vaseline, including a large amount of ground flaxseed and tlhe health of everybody. Thus where cream, an article likely to be consumed by infants and invalids, was mdxed with boric acid in a proportion harmless to healthy adults but injurious to infants and invalids, it was held that the defendant had been rightly convicted.' §540. Instances of Violations of Statutes Concerning Milk. A statute relative to the adulteration of milk, that each maniifaclturer of cheese or butter s'hall post a copy of the Act in the receiving room of his factory is directory only; and in a prosecution relative to a sale of such milk to a manufactory to be manufactured into cheese, it is no de- fense that the manufacturer did not posit in the receiving room of his factory a copy of such Act.'^ A statute making it unlawful to sell milk until the seller should appear before the clerk of the county court, and take oath not to adulter- ate with any substance whatever the milk offered for sale, is not complied with by an oath not to adulterate the milk offered for sale with any poisonous substance.^ A statute Louis V. Wortman, 213 Mo. 131, of evidence that neither the defen- 112 S. W. 520. dant nor any of his family or em- The Rhode Island Gen. Laws, ch. ployes, put in formaldehyde, and 282, § 1, prohibiting the sale of that he had none on his premises, any kind of diseased, corrupted, and that the milk was delivered adulterated, or unwholesome pro- just as it came from the cows, was visions, whether for meat or drink, held to constitute reversible error, has no application to the sale of as such evidence would tend to adulterated milk. State v. Luther, show that no such addition had in 20 R. I. 472, 40 Atl. 9. fact been made. People v. Bowen, Minnesota statute of 1899, ch. 182 N. Y. 1, 74 N. E. 489, 97 N. 257 construed in its application. Y. App. Div. 642, 90 N. Y. Supp. State V. Rumberg, 86 Mnn. 399, 90 1108. N. W. 1055. iBainbridge v. State, 30. Ohio 3 CuUen V. McNair, 72 J. P. 376, St. 264. 99 L. '1. 358, 24 T. L. R. 692, 6 L. 2 Hall v. State, 9 Lea 574, a case G. R. 753. of mixing and adulterating liq- Where the charge was putting uors. formaldehyde in milk, the exclusion The Illinois Act of March 9, § 540] LAW Of PUKE FOOD AND DRUGS. 673 deelaring thiat "noi person either by his servant or agent, or as the servant or agent of another," shall sell adulter- ated milk dloes not make it an offense for the principal to sell it.^ A statute making it an offense to have in one's possession with intent to sell "milk" to which a foreign substance has been added, is violated by having in possession cream, with intent to sell it, to which boracic acid has been added; for the word "milk" being used as a general term is broad enough to include cream.* If a statute makes it an offense to sell milk to which water or any foreign sub- stance has been added, it is inmiateriail whether coloring matter put iato milk is injurious or not, the addition of the foreign substance being an offense;' and under a staitute making it an offense to place any foreign substance in food of any kind "in any quantity" for any purpose which is poisonous or injurious to health, it is a violation of the stat- ute to put formaldehyde in milk, though the quantity put in it be so small that it is not suiScient to cause death or in- jury to health." So to put annatto in milk, ithough harm- less, is a violation of a statute making it an offense to seU milk "to which water or any foreign substance has been added, even though the milk colored with it be skimmed milk."' A statute providing that no adulterated milk "shall be brought into, held, kept, or offered for sale at any place in the city" does not prohibit the mere possession of milk.' 1869, entitled "An Act to protect 441. The "adding annatto, whether butter and cheese manufacturers," harmful or not, in order to give applied only to factories conducted milk the rich and golden color of upon a joint or co-operative plan. milk from cows fed on green food, Phillips V. Mead, 75 111. 334. was a deception and a fraud upon s State V. Squibb, 170 Ind. 488, milk users, and on honest competi- 84 N. B. 969. tors." St. Louis v. Jua, supra. * Commonwealth v. Gtordon, 159 ' Commonwealth v. Wetherbee, Mass. 8, 33 N. E. 709. 153 Mass. 159, 26 N. E. 414; St. 5 Commonwealth v. SchafFner, 146 Louis v. Jud (Mo.), 139 S. W. 441. Mass; 512, 16 N. E. 280. s People v. Timmerman, 179 N. oSt. Louis V. Wortman, 213 Mo. Y. 550, 71 N. B. 1136, affirming 79 131, 112 S. W. 520; St. Louis v. Po- N. Y. App. Div. 565, 80 N. Y. linsky, 190 Mb. 516, 89 S. W. 625; Supp. 285. See also People v. St. Louis v. Jud (Mo.), 139 S. W. Wright, 19 N. Y. Misc. Eep. 135, 673 MILK. [§540 "Where a statute made it an offense for a milk dealer to have in his possession for the purpose of sale any adulter- ated milk, a dealer was held to have violated its provisions) where he had in his possession wd'th sneh an intent seventeen cans of milk, six of which were below the statutory stand- ard, though the average of the seventeen cans was above the standard.^ An agent selling adulterated milk violates the statulte the same as if the milk weire his own.^° The possession of adulterated milk by a servant is the possession of the master. ^^ The owner of a restaurant is liable to a penalty if a waiter therein, in the ordinary course of his business, supplies a customer with a glass of adulterated milk.^^ It is as much an offense to sell milk lonknowingly and accidentally adulterated as it is to sell milk purposely adulterated by the vendor.^^ 43 N. Y. Supp. 290; People v. Kell- ina, 23 N. Y. Mise. Eep. 134, 50 N. Y. Supp. 653 ; People v. McDer- mott-Bulger Dairy Co., 38 N. Y. Misc. Eep. 265, 77 N. Y. Supp. 888. 9 Splinter v. State, 140 Wis. 567, 123 N. W. 97. 10 Meyer v. State (Ohio), 43 N. E. 164. 11 Commonwealth v. Proctor, 165 Mass. 38, 42 N. E. 335; Common- wealth V. Warren, 160 Mass. 533, 36 N. E. 308. 12 Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577. 13 Commonwealth v. Granstein (Mass.), 95 N. E. 97; People v. Friedman, 138 N. Y. App. 122, 122 N. Y. Supp. 500; affirmed 200 N. Y. 591, 94 N. E. 1096. "The housekeeper who buys milk for her table or children should be protected from adroit tricks, cheat- ing her judgment by deceiving her eyes. Peradventure, golden hued milk speaks of cows bronzing in dewy meadow grass. It harps back PuBE Food — 43. to blue grass and clover, with a sprinkle of buttercups and daisies, not to annatto or any other dye. If such good woman wants annatto in her milk, the policy of the State is to let her put it in herself. Fireside lore and philosophy con- nect rich yellow milk with the food of the cow, not with an arti- ficial dye like annatto. Witness the chimney corner adages: Bar- ley straw is good fodder when the cow gives water. It is the head of the cow gives milk. The cow gives milk through her mouth (i. e. as she is fed." St. Louis v. Jud (Mo.), 139 S. W. 441. A complaint for violatmg a city milk ordinance prohibiting the pos- session of adulterated milk with in- tent to sell it, charging that on a spe- cified day and place, the defendant had in his possession, with intent to sell, adulterated milk, is suf- ficient, under the rule that it is generally sufficient to charge the ofl^ense in the language of the ordi- §§ 541, 542] LAW OP PUEE FOOD AND DEUGS. 674 § 541. Milk in Bottles— Size of Bottles, Designating. Am. ordinance requiring deale;ris selling cream and milk in bottles or glass jars to have the capacity of the bottles or jars permanently indicated on them, and prescribing a pen- alty for having -withdn their possession bottles or glass jars of a capaicity less than that indicated on the outside, or which do not indicate their capacity, is valid, being within the police power of the edty; and it is not invalid as special legislation, since it applies generally to all persons of the class who sell milk in bottles or glass jars in the city. Proof that a oreeun or milk dealer had in his possession bottles for use in the business, which were of less capacity than that indicated on itheir outside, is sufficient to show a violation of the ordinance; and it is no defense that the dealer did not have knowledge that his bottles did not meet the re- quirements of the oipdinajice.^ § 542. Dealer in Milk. A statute providing that no dealer in milk shall sell, ex- nance with such certainty as to time, place, and manner as to rea- sonably notify the defendant of the charge preferred. St. Louis v. Ameln (Mo.), 139 S. W. 429. A statute referred to a series of enumerated and interdicted kinds of milk, each connected with the other by the disjunctive con- junction "or," and solely related to the selling, offering, or exposing for sale any milk or cream of the several kinds described, provided that whoever sold or offered or ex- posed for sale within the State any milk of the kinds specified, or sold or offered for sale, or delivered to another, adulterated or unwhole- some milk, should be guilty of a misdemeanor. The phrase "injur- ious to health" was used in con- nection with milk sold, offered or exposed for sale containing foreign substances or preservatives of any kind. Another statute provided that food should be deemed adul- terated if any substance was mixed with it, so as to lower or depreciate or injuriously affect its strength, quality, or purity. It was held that these sections must be read together, and when so read they prohibited the sale of offering for sale within the State of milk, the quality of which had been reduced by adding pure water, and that it was not the policy of the State to permit the sale of watered milk, so long as a specified standard was re- tained. State V. Ameln (Mo.), 139 S. W. 429. 1 Chicago V. Bowman Dairy Co., 234 111. 294, 84 N. E. 913, 123 Am. St. 100, 17 L. E. A. (N. S.) 684. 675 MILK. [§§ 543, 544: change, or deliver, or liave in Ms custody or possession with intent to sell, milk from which the cream or any part of it had been removed, unless in a conspicuous place on the ves- sel from which the milk is sold is placed the words "skimmed milk" distinctly marked, applies to a person who sells milk ohitaiiied from his own cows as well as one who buys and sells milk.^ § 543. Contract for Adulterated Mlk. Where the charge is a sale of adulterated milk, it is no defense for the defendant that he delivered the milk under a special contract to furnish the complainant with milk at the dairy, if, as a matter of fact, the milk was not of the quality required by the statute.^ In an action to recover the price of milk sold, it is no objection that the contract was im- paired by a statute declaring it to be unlawful tto sell wat- ered or adulterated milk, in that the defendant had an op- portunity to examine the milk, and accepted it. In such an instance itihe defense is baS'ed on the rule of law that a per- son may not found his cause of action on his own violation of a prohibitive statute.^ §544. Conflict between Milk Ordinances and Statute. A statute provided that whoever sold or offered or ex- posed for sale within the State any milk, or sold or offered for sale, or delivered to another adulterated or unwholesome milk, should be guilty of a misdemeanor; and an ordinance of a city of such State provided that no person within such city should have in his possession with intent to sell, any adulterated milk, and prescribed what should constitute adulteiration. It was held that as the statute was silent with reference to "possession with intent to sell," which was 1 Guilder v. State, 26 Ohio Cir. dealer. State v. Luther, 20 R. I. Ct. Eep. 221. 472, 40 Atl. 9. A complaint charging a violation i Commonwealth v. Holt, 146 of a statute which provides that Mass. 38, 14 N. E. 930. "no person" shall sell adulterated ^Hecht v. Wright, 31 Colo. 117, milk, need not allege that the de- 72 Pac. 48. fendant was a registered milk § 544] LAW OF PURE FOOD AND DRUGS. 67-6 roiade an offense by 'tie orddnaBce, the two were not in con- fliot as to .such offense.^ An ordinance pipahibited the sale af milk oontaaning less than 8.5 percent nonfatty solids; and a statute of the State reqnired milk sold within the- of milk containing less than 8.5 percent nonfatty solids; or 0.70 percent more than the ordinance required. It was held that the ordinance wa« not invalid because it proviided a different standard for milk sold within the city, under the rule that, so long as the city ordinance, within the grant of municipal legislative power, falls within, but does not ex- ceed, and is not inconsistent with, the State statute, there is no suehjconflielb or inconsistency as to invalidate the ordi- nance. Such ordinance did not authorize a sale of milk within the city which violated the State law, buit was a mere exercise of a proper municipal discretion not to bring the machinery of the city courts and city laws into opera- tion to prosecute for violation® ia excess of the municipal standard, leaving the State to enforce its own law at all points and 'to the limit prescribed. Sueih ordin'anee was not void on the gromi'd that it was against the policy of the State. Nor was it void on the theory that the inhabitants iof 'the city were entitled to the same grade of milk to which the other inhabitamtSi of the State were entitled, since the ordinance prohibited the having in possession impover- ished milk within the city, with intent to sell it, without reference to whether the possessor was a resident or non- resident, and did not affect the application of the State law within the city. Nor was the ordinance repeiaJed by the statute, either expressly or by implication.^ An ordinance providing a standard for salable skim milk, with reference to fatty and nonfatty solids, and containing no provision with reference to adulteration by the addition of water or otherwise, is not in conflict with another ordinance which prohibits the having in possession, with intent to sell, any milk adulterated by mixing with any substance so as to lower or depreciate its strength. So an ordinance prohibit- ing the possession of adulterated milk with intent to sell is iSt. Louis V. Ameln (Mo.), 139 i St. Louis v. Scheer (Mo.), 1.39 S. W. 429. S. W. 434. 677 MILK. [§ 544 not in conflict with another ordinance prohibiting the traffic in milk containing a substance which is poisonous or injuri- ous to health, but each supplement the otlier. So a statute porohibiting the sale or offering for sale of milk adulteralted with water or any other substances, or any milk produced from diseased cows is not in conflict with an ordinance pro- hiibi'ting the "possession" of adulterated milk with intent to sell ilt.^ The word "adulterated" as used in a statute providing that it shall be a misdemeanor to seR or ofEer for sale any mdlk containing any foreign substance or pre- servative injurious to health, or shall sell or offer for sale ■any unclean, "adulterated," or unwholesome milk, is used in the sense ordinarily given by lexicographers, which is the additon of a foreign matter to change or improve .t!he ap- pearance or flavor of an article; and such statute is not in conflict wisbh an ordinance pro'hibiting the having in pos- session adulterated milk, with the intenit to sell it, and pro- viding that it should be deemed adulterated if any sub- stance was mixed with it, so as to lower or depreciate or injuriously affect its strength, quality, or purity, or if it was mixed or colored, so that inferiority was concealed, or if it was miade to appear better than it really was, on the theory that the statute permitted the addition of coloring matter which was not harmful.^ 2 St. Louis V. Meyer (Mo.), 139 custody of skimmed milk, was S. W. 438; St. Louis v. Schulte "amended by striking it out" and (Mo.), 139 S. W. 449. inserting in lieu thereof a. new see- 3 St. Louis V. Jud (Mo.), 139 S. tion bearing the same number, and W. 441; St. Louis v. Kruempeler providing a new standard for (Mo.), 139 S. W. 446; St. Louis skimmed milk to be sold within the V. Niehaus (Mo.), 139 S. W. 450. city. It was held that the term A municipal code provided that "strike out" as so used meant to no special or general ordinance "force out," to "blot out," "to ef- which was in conflict or ineonsis- face," "to erase," and as so con- tent with general ordinance of strued connected itself with the prior date should be valid or effec- statutory definition of repeal, and tual until such prior ordinance, or hence there was a repeal of the sec- its conflicting parts should be re- tion amended by express terms. St. pealed by "express terms." An Louis v. Kellman (Mo.), 139 S. ordinance of a city acting under W. 443. this code, relating to the sale and § 545] LAW OF PUEE FOOD AND DEDGS. 678 CHAPTER XIII. LABELS— MARKS— NOTICE. SEC. SEC. 545. Statutes concerning labels, tice on label — Otherwise noti- marks and notices. fied. 546. Label, popular understanding 553. Sale of food in altered state — of name used on — Sausage. Disclosure of alteration — 547. Oral statement. Knowledge of alteration. 548. The package to be labeled. 554. False representations made be- 549. Wrapper, marking. fore sale at variance with 550. Notice on label must be clear label. and truthful. 555. Fraudulent false label. 551. Mixture — Sufficiency of labels 556. Instance of proper and defl- on can of condensed milk. cient labels. 552. Seller calling attention to no- 557. Brands. § 545. Statutes Concerning Labels, Marks and Notices. In many instances foods or drugs are required to be labeled, distinctly stating thereon the constituent elements thereof. In a niunber of statutes where this is done permission is given to sell the food labeled, although it is not up to the standard required. Where such a statute prevails it is no defense that the article is sold in the same state or condition as when it was received from the manufacturer. As a rule popular names must be used on the labels— such as the general public commonly use and understand — ^and not technical ones. Not infrequently the size of the lettera to be used in the label are specified. In the case of oleamargarine the letters are usually required to be of large size. Such is the case of the English statute of 1899, where the paper wrapper in which oleomar- garine is sold must be "capital black letters, not less than half an inch long and distinctly legible, and no other printed matter. ' '^ 1 62 and 63 Vict., oh. 51, § 6. ery person manufacturing or sell- By one section of a statute ev- ing any substance made in the sem- 679 LABELS — MAEKS — NOTICE. [§ 546 §546. Label, Popular Understanding of Name Used On — Sausage. Where a statute requires the contents of a package to be stated in the label attached to it, when it is to be sold to the general public, the popidar or common understanding of the name under which it is sold, and not its trade or commercial meaning, is to be used. As the pure food statutes are enacted to protect the purchasers of food, to permit the use of scien- tific terms and names, or trade and commercial terms, and names which are unknown or known only to a few of those who purchase it for consumption, would be to practically nullify the effect of the statute so far as a protection to those who buy it. The object of such statute is to protect those who purchase and consume the food. "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 commerce in importing goods, or of understand- ings of the trade between manufacturers and merchants who buy those products for retail trade. Such constructions (the use of trade and commercial names) would emasculate the pure food laws and deprive the people of the protection which the Legislature wisely intended to give them. '"^ Thus, where it was the practice to use cereal meal in sausage, it was held that the label should be "sausage and cereal," and not merely "sausage," although the trade recognized that blance of lard must cause the pack- Minn. 42, 86 N. W. 768, 54 L. R. age containing it to be labeled A. 468. "Lard Substitute." By another i Armour & Co. v. Bird, 159 section it was enacted that the first Mich. 1, 123 N. W. 580, 25 L. R. section should not apply to cotto- A. (N. S.) 616, note, lene where the package was labeled The statute in this instance re- "Cottolene," if the cottolene was quired a, label to be placed on mix- not manufactured in imitation of tures or compounds; mixture or lard. It was held that these sec- compound had to be "distinctly tions forbade the sale of cottolene labeled under its own distinctive which was manufactuerd so as to name, and in a manner so as to resemble lard, unless the package plainly and correctly show that it containing it was labeled "Lard was a mixture or compound. Substitute." State v. Hanson, 84 §§ 547, 548] LAW OF puee food and drugs. 680 sausage contained eeireal; but it was not necessary for it to contain a statement that salt, spices and water was also a component part of it. "It is too manifest for further argument that the Legislature, in enacting the law, was not providing for the regulation of sales between manufacturers and mer- chants, but between retail dealers and consumers. They en- acted the law solely for the protection of consumers — the peo- ple who buy and eat the products. The consumer who pre- fers sausage made of meat alone is entitled to be informed that he is buying such an article. The consumer who prefers sausage mixed with cereal is entitled to know he is purchas- ing that article. The contention of the complainant,^ if sus- tained, would deprive the consumer of this right which the statute plainly gives him."^ § 547. Oral Statement. An oral statement made to the puTchaser can not take the place of a label where it is an offense to sell a package re- quired to be labeled.^ § 548. The Package to be Labeled. An English statute requires every "package" to be labeled. Under this statute it was held that a tub of margarine stand- ing at the back of the counter, from which margarine was scooped and supplied to customers in a "package," must be labeled.^ In another case margarine had been exposed for sale by retail in an open butt branded "margarine" on the bottom and side, from which it was scooped as required by customers. It was held that the butt was a "parcel" to which a label ought to have been attached.^ In another case 2 That the use of the word "sau- N. Y. App. Div. 669, 100 N. Y. sage'' was sufficient " compliance Supp. 177. with the statute. i McNair v. Horan, 68 J. P. 518, 8 Armour & Co. v. Bird, 159 91 L. T. 555, 20 Cox C. C. 729, 2 Mich. 1, 123 N. W. 580, 25 L. R. L. G. E. 1239. A. (N. S.) 616. 2Maguire v. Porter [1905], 2 1 People V. Waters, 188 N. Y. Irish Rep. 147. 632, 81 N. E. 1171, affirming 114 681 LABELS MARKS— NOTICE. [§ 548 six pieces of margarine of one pound each, and each partly ■wrapped in paper, were piled upon each other in a pyramid in a shop window. One margarine label was put upon the whole heap (on the bottom pieces). An inspector bought the top piece. It was held that the six pieces formed one "par- cel."' "Where a statute required articles to be labeled, a dealer was held to commit no offense in taking small amounts from a properly labeled and ordinary sized package, put up for commercial use, and selling them without a label — e. g., a pound of lard from a fifty-pound pail.* A New York stat- ute required packages of renovated butter to be labeled. If it was put up, sold, or offered for sale in prints or rolls, then the prints or rolls had to be plainly labeled on the wrapper with the words "renovated butter." If packed in tubs, boxes, pails, or other kind of case or package, these words had to be printed thereon, so as to be plainly seen by the purchaser ; and if the butter be exposed for sale uncovered, not in packages or cases, the label had to be attached to the mass of the butter so as to be easily seen by the purchaser. This statute was held to have for its object the prevention of imposition on the purchaser, and was not violated where the seller took a pound of butter from a tub in a cooler and wrapped it in a paper not branded, the tub being branded, and the purchaser knowing this before he paid for the butter, and there being no attempt to deceive such purchaser.^ Un- der the food law of Nebraska the word "package" does not apply to a ham or side of bacon whose form, size and weights are determined by the size, weight and condition of the slaughtered animal; but it does apply to articles of food that are packed, bound, or put together in sizes determined by the manufacturer aaid intended to pass as weighing one pound or more." 3 Parkinson v. McNair, 69 J. P. * State v. Neslund, 141 Iowa 461, 399, 93 L. T. 553, 21 Cox C. C. 120 N. W. 107. 42, 3 L. G. E. 982. See also s People v. Mack, 97 N. Y. App. Wheat V. Brown [1892], 1 Q. B. Div. 474, 89 N. Y. Supp. 1004. 418, 56 J. P. 153, 61 L. J. M. C. « State v. Swift & Co., 84 Neb. 94, 66 L. T. 464, 40 W. R. 462. 244, 120 N. W. 1127. §§ 549, 550] ' LAW OF PURE FOOD AND DEtTGS. 683 § 549. Wrapper, Marking. An English statute required the seller of margarine by re- tail, unless in a package duly branded or durably marked, to deliver it "to the purchaser in a paper wrapper on which must be printed in capital lettera the word "margarine." Under this statute the question has arisen as to whether the wrapper referred to must be the outside wrapper or not. In one ease the margarine was sold in wrappers duly marked "margarine," but before delivery to the purchaser a second wrapper was put on which concealed the first one. This was held to be no infringement of this statute.^ But in a later ease, although the point did not actually arise in the case, the court expressed a strong opinion that it is the outside wrapper that should be marked.^ In this case the word "wrapper" was given a very wide meaning under this stat- ute. There a pound of margarine was sold in a cardboard box, to which a folded paper (containing an advertisement of margarine) was attached by a paper band. The word "mar- garine" in letters of the required size was printed partly on the box, partly on the paper, and partly on the band. The court considered that the box, paper and band together con- stituted a wrapper within the meaning of the statute, and that the box was not a "package" within the meaning of that word as used, to the effect that "every package, whether open or closed, and containing margarine."' § 550. Notice on Label Must Be Clear and Truthful. An English statute provides 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 demanded by such purchaser."^ Certain exceptions follow this quotation not here necessary to quote. This stat- ute requires, in order to incur its penalty, that the sale shall 1 World's Tea Co. v. Gardner, 59 65 L. J. M. C. 4, 75 L. T. 403, 18 J. P. 358. Cox C. C. 202. 2 Toler V. Bischop, 60 J. P. 9, s Toler v. Bischop, supra. 1 38 and 39 Vict., eh. 63, § 6. 683 LABELS — TVrABTfS — NOTICE. [§ 550 be "to the prejudice of the purchaser," and the decisions are to the effect that if the purchaser has notice just what is the composition of the article of food or the drug at the time he purchases it, there is no sale to his prejudice.^ In such an instance he buys with his eyes open, with knowledge of what he is buying, and, therefore, there is no sale to his prejudice. Of course, the notice must be clear and unequivocal. Some cases illustrate this statement. Thus a purchaser, on enter- ing a shop and asking for some cheese, was supplied with a mixture which was compounded of skimmed milk and beef fait, the bulk of the butter fat which is contained in cheese made from "whole" milk having been abstracted. Attached to the bulk of the substance from which the purchaser's portion was taken was a label containing the words "Vallefield Finest Oleine Cheese," the words "Finest Oleine" being in smaller type than the others. No notice of the admixture by a label on or with the article was given to the purchaser, so as to give the seller a defense given by statute where, at the time of delivering the article of food, he supplied to the person re- ceiving it a notice, by label distinctly or legibly written or printed on or with the article, to the effect that it was mixed. The purchaser did not notice the word "Oleine" on the label, and said that if he had he would not have known what it meant. It was held that the vendor had sold the article of food to the prejudice of the purchaser, and had therefore violated the statute.' In another instance an in- 2 The decisions on this subject R. 1 ; Morris v. Johnson, 54 J. P. iave been reviewed on this point in 612; Morris v. Askew, 57 J. P. Section 552 and are as follows: 724; Pearks, Gunston & Tee v. Ward V. Small, 3 Q. B. Div. [1902], 2 K. B. 1, 66 J. P. 774, 449, 42 J. P. 550, 47 L. J. M. 71 L. J. K. B. 656, 87 L. T. 51; C. 115, 39 L. T. 118, 26 W. Pearks, Gunston & Tee v. Hough- E. 814; Higgins v. Hall, 51 ton [1902], 1 K. B. 889, 66 J. J. P. 293; Gage v. Elsey, 10 Q. B. P. 422, 71 L. J. K. B. 385; 86 Div. 518, 47 J. P. 391, 52 L. J. L. T. 325, 50 W. E. 605; Hayes M. C. 44, 48 L. T. 226, 31 W. E. v. Eule, 87 L. T. 133, 18 T. L. 601; Dawes v. Wilkinson [1907], E. 535. 1 K. B. 278, 71 J. P. 23, 76 L. J. « CoUett v. Walker, 59 J. P. 600, K. B. 182, 96 L. T. 26, 23 T. L. 64 L. J. M. C. 267. E. 34, 21 Cox C. C. 340, 5 L. G. §551] LAW OF PUKE FOOD AND DRUGS. 684 specter asked for coffee and was given a mixture containing 74 percent of chicory in a wrapper labeled ' ' Coffee Mixture, ' ' with the words "Sold as a mixture of coffee and chicory" in very small print. It was held that the words "Coffee Mix- ture" would not necessarily lead a purchaser to suspect adul- teration, and therefore the vendor was rightfully convicted.* So where a purchaser asked for "sweet milk," and was given a mixture of sweet milk and skim milk with 2.63 percent of fat, contained in a can embossed with the words "not guar- anteed 3 percent, ' ' the court held that he had not got what he asked for, and that the vendor was not protected by the words on the can.^ Likewise, where the purchaser asked for a bottle of brandy and was given one labeled "Old Brandy,, Trioche & Co., Cognac," and containing 65 percent of spirits other than brandy, it was held that the statute had been, violated." It is not permissible to sell an imitation under the distinctive name of another food, nor to label or brand an article of food so as to falsely indicate that it contains cer- tain ingredients in certain proportions.'' § 551. Mixture — Sufficiency of Label on Can of Condensed Milk. A customer purchased at a milk dealer's shop a tin of con- densed milk for 4% pence. At the time of the purchase the attention of the purchaser was not called to any label on the can or tin, but he saw on it a label with "Condensed Milk,, Swiss Dairy Brand," in large letters, and in smaller type on the back of the tin, "Swiss Dairy Brand. This tin contains skimmed milk prepared with the finest sugar. It will be found cheaper than ordinary fresh milk and useful for all household purposes. The Condensed Milk Company of Ire- land (Limited), Limerick." It was shown that 93 percent of the butter fat had been abstracted from the milk, and that *Star Tea Co. v. Neale, 73 J. P. 175, 6 Fraser (J. C), 10, 4 Adam 511, 8 L. G. R. 5. 310, 41 Sc. L. R. 195. 5 Souter V. Lean, 6 Fraser ^ People v. Luke, 122 HT. Y. App. (J. C.) 20, 4 Adam 280. Div. 64, 106 N. Y. Supp. 621. « Wilson V. McPhee, 68 J. P. 685 LABELS MARKS NOTICE. [§ 551 the material was injuriously affected thereby. It was held that the label was a sufficient disclosure that the milk had been skimmed before the sale, and that it was not necessary to especially call the purchaser's attention thereto.^ In an- other case one P. was charged with selling condensed milk from which 80 percent of fat had been abstracted without disclosing the alteration. The purchaser went into the shop and asked for a can of condensed milk. He was told that there were several sorts of condensed milk at different prices, and that some of them were skimmed milk. He decided to take a can at 3% pence. The can was handed to him and he duly declared that he had bought it for analysis, and divided the milk into three parts, as the statute in case of an analysis required. The owner of the shop then came forward and told him the article supplied was condensed skimmed milk, and drew his attention to the label on the back of the can, which contained (among others) the following words: "Calf Brand. This tin contains skimmed milk, with nothing added hut the finest sugar." The label on the front of the can de- scribed the article as "Condensed Milk (calf brand)." The justices of the peace trying the case found as a fact that the label was not, either by its position of eonspicuousness, and especially having regard to the fact that the article was de- scribed in the main part of the label as "condensed milk," and not as "condensed skimmed milk," a label distinctly printed with the article. It was held that the justices were wrong in convicting the defendant vendor, and that the stat- ute requiring articles sold to be labeled so as to show the contents of the article had been sufficiently complied with.'^ On a demand for purchase of condensed milk, a label affixed round a tin or can of condensed milk, having printed thereon (inter alia) in red letters the words, "This tin contains skim- med milk," whereas the tin, in fact, contained separated milk, from which 97 percent of the original fat had been ab- stracted, while it was proved as a fact that no more than 63 percent of the original fat could be abstracted by the process 1 Jones V. Davies, 57 J. P. 808, = Piatt v. Tyler. 58 J. P. 71. '69 L. T. 497, 9 T. L. K. 492. § 553] LAW OF PUEE FOOD AND DEUGS. 686 of skimming, it was held that the label did not give proper and sufficient notice of the alteration in the milk.^ §552. Seller Calling Attention to Notice on Label — Other- wise Notified. The question here arises whether it is the duty of the vendor to call the attention of the purchaser to the notice on the label. In one instance the tin can of cocoa in question, with, the label upon it, was wrapped in a sheet of opaque white paper before delivery to the purchaser, who had no oppor- tunity of seeing the label, nor was his attention called to it. The cocoa was sold at 8 pence per pound, the price of the best pure cocoa being 2 shillings 8 pence per pound. It was held that a sufficient notice had been given, one of the judges saying: "There was a label which distinctly stated that the article was mixed. It has been seriously contended that it was no label, because it was wrapped up in opaque paper at the time of being sold. The paper covering was merely the usual way of giving the article to a purchaser. The article has been so mixed for thirty years, and must have been well known to purchasers. To say that there was no label because of its being wrapped up is an absurdity."^ This decision was rendered upon a statute which provided that no one should be guilty of any offense in respect to the sale of any article of food "mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight or measure, or conceal its inferior quality if at the time of delivering such article he shall supply to the person receiving the same a notice, by a label distinctly and legibly written or printed on or with the article, to the effect that the same is mixed."^ But in a subsequent case this case was distinguished. In that case the owner of it sold butter blended with milk in such a way as to cause the butter to contain an excess of water to the extent of 7.8 percent. They sold it in a wrapper on which was a label in the following 8 Petchey v. Taylor, 62 J. P. 360, i Jones v. Jones, 58 J. P. 653. 78 L. T. 501, 19 Cox C. C. 38. 2 38 and 39 Viot., eh. 63, § 8. 687 LABELS — MAKES — NOTICE. [§ 552 terms: "Pearks' Butter. This is choicest butter, blended with pure English full cream milk, by new and improved ma- chiaery, whereby it retains about 20 to 24 percent of moisture and acquires that delicacy of flavour which has made Pearks' butter so famous. This package weighs half a pound includ- ing wrapper." The printed wrapper was in turn enclosed in a second wrapper which effectually concealed the printed matter. It was held that the owner so selling the article was not entitled to rely upon the provisions of the statute quoted above, owing to the presence of the opaque wrapper. "In my opinion," said one of the judges, "the delivery of the article with a notice printed on an inner label, covered with an opaque wrapper, would not be sufQcient. Jones v. Jones is not a sufficient authority on the facts of the present case. There the article sold was a tin of cocoa, and it was assumed to be a matter of common knowledge that tins had labels on them, and therefore the fact that they were wrapped up when delivered to the purchaser could not prevent the label having the effect of a notice to the purchaser. The question of the sufficiency of the notice is one to be decided on the particular facts of each case; but I doubt whether a purchaser of a pound of butter, on being handed such a packet, could be taken to have notice that there was another label inside the outside wrapper. If, therefore, the inner label was the only defense relied upon by the appellants (the owners), I should not be prepared to say that their contention was right. "^ But the delivery of the label in accordance with the section quoted is not the only means available for giving the pur- chaser notice of what he is purchasing. Speaking of this statute Chief Justice Coekbum said in one ease that it pro- vided "a mode by which the seller may insure himself against the possibility of the enactment operating to his prejudice. If he delivers the label as provided by that section (statute), he protects himself against the possibility of being charged with an offense under the Act. If he does not, then I think it is incumbent on him to prove that, by several other means, 8 Pearks, Gunaton & Tee v. P. 422, 71 L. J. K. B. 385, 86 L. Houghton [1902], 1 K. B. 889, 66 J. T. 325, 50 W. R. 605. § 553] LAW 01" PURE FOOD AND DRUGS. 688 the purchaser had notice of what he was purchasing. . . . I do not think the statute means that the affixing of the label is to be the only mode of bringing knowledge home to the purchaser. I think if a man puts up in a conspicuous posi- tion a notice, in large letters, as was done here, and it is clear that it must have come under the observation of the cus- tomer, that the statute [oreatiug an offense for selling an article to the prejudice of the purchaser] would not apply."* In another case the vendor called the purchaser's attention to a printed notice which was hanging up in the room: "All spirits sold in this establishment are of the same quality as heretofore, but to meet the requirement of the Food and Drugs Adulteration Act° they are now sold as diluted spirits; no alcoholic strength guaranteed." It was held that there was no sale to the prejudice of the purchaser. ° In another case the facts were exactly the same, but the notice was: "All spirits sold in this establishment are of the same quality and strength as heretofore, but, in order to comply with the , Food and Drugs Act, will not be of any quaranteed strength. ' ' This notice was held not to be sufficient because it did not bring to the purchaser notice of the fact that the spirits were diluted. In other respects it seems to have been sufficient.^ In another instance two servants of an inspector went into a public house and entered a public room called the club room, passing by the bar and kitchen on their way. They then called for half a pint of whisky, and were served with it in the club room. Upon analysis the whisky proved to be 37% degrees under proof, and the usual statutory proceedings were instituted against the vendor. There was evidence that at the time of the sale there was a notice posted in the bar and the kitchen to this effect: "All spirits sold at this estab- * Sandys v. Small, 3 Q. B. Div. Exactly a similar notice was in- 449, 42 J. P. 550, 47 L. J. M. C. volved in Palmer v. Tyler, 61 J. 115, 39 L. T. 118, 26 W. R. 814. P. 389, with a like result. 5 The statute under which the ^ Dawes v. Wilkinson [1907], 1 vendor was prosecuted. K. B. 278, 71 J. P. 23, 76 L. J. 'Gage V. Blsey, 10 Q. B. Div. K. B. 182, 96 L. T. 26, 23 T. L. 518, 47 J. P. 391, 52 L. J. M. C. R. 34, 21 Oox C. C. 340, 5 L. G. 44, 48 L. T. 226, 31 W. R. 501. R. 1. 689 LABELS — MARKS— NOTICB. [§ 553 lishment are diluted with water according to price, ' ' but there was no such notice in the club room. It was further proven that the bar and kitchen were visible to any one approaching the club room from the entrance, and there was but one en- trance to the house ; that neither of the two men saw or knew of any notice posted in any part of the house, and that noth- ing was said at the time of the sale concerning the quality of the whisky. There was nothing to show that the two men did not in fact know that the spirits sold at this house were diluted. The justices before whom the vendor was prosecuted refused to convict the vendor, but stated a case for the High Court, which held that these justices, before they came to their decision, ought to have inquired whether the purchasers knew that the practice at the vendor's house was to sell only diluted spirits, in which case no conviction was proper. ' ' The purchaser's complaint," said one of the judges, "is that they did not see the notice ; but then there was no finding in the ease whether they did not know well enough of the diluting of all spirits before sold at the respondent's (vendor's) house. If the justices find that the men did not know that spirits were diluted, then there should have been a conviction. But if they did know, then there should be no conviction."* Perhaps, however, these cases are not at one with other cases upon the same statute. There it was said that the case might be "to the prejudice of the purchaser," although the pur- chaser had special knowledge, not derived from information given by the seller, that the article sold was not of the na- ture, substance and quality demanded by him, and that the test is, whether the sale would have been to the prejudice of a purchaser who had not that special knowledge. "The ques- tion, in my opinion," said Lord Alverstone, "is not what is the actual knowledge of the particular purchaser, except in- sofar as that knowledge is derived from information given by the seller either by notice, by the nature of the article it- self, or by what passed at the time of the purchase ; the ques- tion is, "What would be the position, not of a skilled pur- 8 Morris v. Johnson, 54 J. P. 612. See also apparently a similar ease, Morris v. Ashew, 57 J. P. 724. PuBE Food — 44. § 553] LAW OP PUEE FOOD AND DEUGS. 690 chaser like an inspector, but of an ordinary person purchasing the article without special knowledge?" Judge Darling added: "There is a sale to the prejudice of the purchaser if a purchaser in the abstract would be prejudiced, although the actual purchaser may, for some reason peculiar to him- self, not be prejudiced."^ In another case there was a notice in a conspicuous position in the shop, to the following effect: "Notice. Pearks' butter, sold at this establishment, is choicest butter blended with Englisli cream and milk by new and improved machinery, whereby it retains about 20 to 24 percent of moisture and acquires that delicacy of flavour which has made Pearks' butter so famous." An inspector asked for half a pound of shilling butter, and did not, in fact, see the notice. The butter supplied him was blended with milk in such a way as to contain 7.8 percent of water above the permissible maximum of 16 percent. The court held that, assuming that only one kind of butter was sold in the shop, the seller was protected by the notice, and the sale was not to the prejudice of the purchaser.^" Where an inspector asked for "best fresh butter," and did not actually see the notice placed up in the shop, though he admitted he could have done so if he had liked, the court expressed the opinion that, under the circumstances, the sale would be to the prejudice of the purchaser, unless it could be proved that he actually saw the notice.^^ A., a publican, was charged with selling rum which was not of the nature of the article, being adulterated with 19 percent of added water. On the purchaser asking for rum A. said he had two qualities, one at 1 shilling and another at 1 shilling 2 pence per half pint, and the quality at 1 shilling was supplied. The analysis showed that the rum was 38 degrees under proof, and contained 19 percent of water beyond the statutory limit. There was this notice stuck up in the house: "All spirits sold here are diluted in accord- 9 Pearks, Gunston & Tee v. Ward J. P. 422, 71 L. J. K. B. 389, 86 [1902], 2 K. B. 1, 66 J. P. 774, L. T. 325, 50 W. R. 605. 71 L. J. K. B. 656, 87 L. T. 51. n Hayes v. Rule, 87 L. T. 133, 10 Pearks, Gunston & Tee v. 18 T. L. R. 535. Houghton [1902], 1 K. B. 889, 66 691 LABELS — MARKS — NOTICE. [§ 553. ance with the new excise regulations." It was held that this mere notice was no protection to A., but the question was whether the purchaser had been prejudiced. ^^ § 553. Sale of Food in Altered State— Disclosure of Altera- tion — Knowledge of Alteration. An English statute provides that: "No person shall, with the intent that the same may be sold in its altered state without notice, abstract from an article of food any part of it so as to affect injuriously its quality, substance or nature, and no person shall sell any article so altered without making disclosure of its alteration."^ Under this section, if at the time of the sale the vendor gives notice to the purchaser that the food has been altered or part of its strength abstracted, he does not violate this section. But if no such notice has been given it is no defense to a prosecution under it for him to plead he had no knowledge of the alteration at the time of the sale. Thus, where a milk seller sold milk from which 28 percent of the original fat had been abstracted, without mak- ing disclosure of the alteration, and no evidence was given that the person selling it had knowledge of the alteration, and the seller gave no evidence he had no such knowledge, and his daughter, who sold the milk, denied all knowledge of the alteration, it was held that he had violated the provisions of this section.^ In another instance a milk dealer poured into the pail eight gallons of unskimmed milk, which she sold therefrom to her customers in small quantities, dipping it out of the pail from time to time with a measure. The sale of the contents of the pail extended over a space of between four and five hours, during the whole of which time, owing to the neglect of the seller to keep the milk stirred, the cream was continually rising to the surface. When not more than two quarts of the milk remained a buyer purchased of her a .pint of milk from the pail, which, upon analysis, showed a 12 Morris v. Askew, 57 J. P. 724; Div. 353, 54 J. P. 469, 59 L. J. Palmer v. Tyler, 61 J. P. 389. M. C. 45, 62 L. T. 284, 38 W. R. 1 38 and 39 Vict., ch. 63, § 9. 428, 16 Cox C. C. 747, 6 T. L. R. 2 Pain V. Boughtwood, 24 Q. B. 167. § 553] LAW OF PDEE FOOD AND DEUGS. 693 deficiency of 33 percent of fatty matter. She did not disclose to the purchaser this deficiency, which was entirely due to the manner in which the early customers had been served. The court held that the words "so altered" in the statute quoted referred to a physical alteration of the article, irre- spective of the intent with which the alteration was made, and that she, in selling the milk so altered without giving notice of its condition, had been guilty of an offense under this statute. "It is not necessary in the interests of the pub- lic," said Lord Coleridge, "to prohibit the mere alteration of an article of food, unless the alteration is coupled with the intent of selling it in its altered state without notice, for the mere alteration without such intention may be perfectly inno- cent. Where, however, the alteration is followed by the actual sale, the intent with which the article was altered must become perfectly immaterial, the injury to the purchaser be- ing just the same whether there was a wrongful intent or not. ' '^ In still another ease the facts were as follows : The servant of a dairyman, being short in his supply of milk, bought two gallons from another dairyman and mixed it with his own. The milk so bought he sold to various cus- tomers. An inspector bought half a pint of it, and it was found to be deficient in cream to the extent of 20 percent. The dairyman was accordingly prosecuted under this statute. It was held that, though neither the dairyman nor his serv- ant knew, or had reason to know, that cream had been ab- stracted from the milk, this was no defense.* A few cases have been decided construing the word "disclosure" as used in this statute. Thus, one Davies sold a can of condensed milk which had upon it a label on which was printed the words, "Condensed Milk, Swiss Dairy Brand," and in smaller type, "This can contains skimmed milk." The analysis of the contents of the can showed a deficiency of 93 percent of Ijutter fat, but, though the purchaser's attention had not been called to the words on the label at the time of the sale, the 3 Dyke v. Gower [1892], 1 Q. C. 70, 65 L. T. 760, 17 Cox C. C. B. 220, 56 J. P. 168, 61 L. J. M. 421, 8 T. L. E. 117. * Morris v. Corbett, 56 J. P. 649. 693 LABELS — MARKS — NOTICE. [§ 553 court held that this was a sufficient "disclosure of the altera- tion" under this statute.^ Well-known refreshment con- tractors were prosecuted for selling milk from which 17 per- cent of cream had been extracted. The deficiency was caused by the milk being poured out in such a way that the greater part of the cream remained in the vessel from which it was poured. The milk was supplied in a glass whereon was dis- tinctly written in blue color the words, "Not guaranteed as new or pure milk, or with all its cream; see notices." On the counter, a few feet from the place where the purchaser was standing when he was served with the milk, and facing the entrance to the refreshment rooms from the street, was placed a framed notice in these words: "Milk Notice. Spiers and Pond, Limited, purchase all milk sold by them under a warranty of its purity and genuine quality, and take all pos- sible precautions to insure its supply to their customers in proper condition, but they are unable to guarantee it as either new, pure, or with all its cream, and (to meet the require- ment of the Sale of Food and Drugs Act) do not, therefore, sell it as such." It was held that the alteration had been sufficiently disclosed, and that the vendor of the glass of milk was not liable. ° A can of condensed milk was sold as "con- densed skimmed milk;" 97 percent of the original fat had been abstracted by the use of a separator. It was shown that not more than 63 percent can be abstracted by skimming.. The magistrate held that the words "skimmed milk" did not properly describe the alteration. The High Court held that it was a question of fact whether the description was suffi- cient, and that the magistrate's decisions could not be in- terfered with.'' A statute making it an offense to sell an ar- ticle of food if any valuable or necessary constituent or in- gredient has been wholly or in part abstracted from it, is not violated by a sale of a package containing a manufactured 5 Jones V. Davies, 57 J. P. 808, 65 L. J. M. C. 144, 74 L. T. 697, 69 L. T. 497; Piatt v. Tyler, 58 44 W. R. 510, 18 Cox C. C. 332. J. P. 71. '' Petchey v. Taylor, 62 J. P. 6 Spiers & Pond v. Bennett 78 L. T. 501, 19 Cox C. C. 38. [1896], 2 Q. B. 65, 60 J. P. 437, § 554] LAW OP PUEE POOD AND DRUGS. 694 product of the cocoa bean, and labeled "Breakfast Cocoa," from which a portion of the natural oil has been abstracted, where the abstraction of the oil is necessary to render the article marketable.* § 554. False Bepresentations Made Before Sale at Variance with Label. A false representation concerning the nature, substance and quality of the article demanded, made by the seller prior to the sale, does not constitute a violation of a statute pro- viding that the true nature of the article of food or drug shall be disclosed at the time of the sale. Thus, a milkman stated to an officer that some cans contained new milk, but afterwards, on the officer intimating that he would have some, declared that it was old milk, and not new. The magistrates decided that this was not a sale of new, but of old milk, and that there had been no misrepresentations made at the time the sale was actually consummated.^ A similar ease arose in Scotland. There a milk seller on his rounds ran short of milk, and bought a further supply from a dairyman. An^ in- spector asked him for some "sweet milk." He was going to supply him from what was left of his own milk, but the in- spector insisted upon being supplied from the can containing the purchased milk. He told the inspector before the pur- chase that it was not his own milk, and warned him that it might or might not prove to be sweet milk. The milk turned out to be adulterated. The seller was acquitted.^ If a false representation is made at the time of the purchase an offense is committed, even though the purchaser must have known from the price paid that the representation was false. Thus, 8 Rose V. State, 11 Ohio Cir. a. 49, 50 J. P. 148, 55 L. J. M. C. Eep. 87, 1 Ohio C. D. 72, reversing 182, 54 L. T. 178, 34 W. E. 295. 2 Ohio N. P. 270. 2 Frew v. Gunning, 3 Fraser Patented articles of food must (J. 0.) 51, 3 Adam 339, 38 Sc. be labeled if other foods must be. L. B. 555. See Sandys v. Jackson, Palmer v. State, 39 Ohio St. 236, 69 J. P. 171, 92 L. T. 646, 3 L. G. 48 Am. Eep. 529. E. 285. iKirk V. Coates, 16 Q. B. Div. 695 LABELS — MABKS — NOTICE. . [§ 55S a milkman sold a pint of milk for a penny as new milk, though it in fact was skimmed milk. Although the purchaser knew it was skimmed milk, yet it was held that the vendor had violated the statute.^ In another instance an inspector asked for "paregoric," and was given a bottle labeled "Paregoric Substitute," but wrapped in an opaque wrapper. The substitute contained no opium, an essential ingredient according to the British Pharmacopoeia. The assistant who served him, being unqualified, was not permitted by law to sell opium, and the next day the employer wrote and apolo- gized for the "technical error" of not informing the in- spector at the time. The justices trying the seller found that there was no prejudice to the purchaser, and the High Court held that there was evidence to support their findings.' § 555. Fraudulent or False Label. An English statute provided that no one shall be guilty of a violation of its provisions "in respect to the sale of articles of food or a drug mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight or measure, or conceal its inferior quality, if at the time of delivering such article or drug he shall supply the person receiving the same a notice, by a label distinctly or legibly written or printed on or with the article or drug, to the effect that the same is mixed. "^ When the mixture is sold in a labeled package, this statute requires justices to de- termine whether the admixture has been made for any of the fraudulent purposes above mentioned. This is purely a ques- tion of fact. In one case where the inspector asked for coffee he received a packet with a label describing it as a mixture of coffee and chicory. The analyst's certificate showed that it was composed of 60 percent of chicory and 40 percent of coffee. The magistrates decided that the seller was not pro- tected by the label, as the 60 percent of chicory was used for 3 Heywood v. Whitehead, 76 li. T. case is regarded, however, valueless • 781. as an authority. *Bundy v. Lewis, 72 J. P. 489, i38 and 39 Viet., ch. 63, §8. 99 L. T. 833, 7 G. E. 55. This § 555] LAW OF PUEE FOOD AND DRUGS. 696 the purpose of fraudulently increasing the bulk or weight of the coffee, and convicted the defendant. The conviction was upheld by the High Court.^ In another instance, under simi- lar circumstances, a mixture was sold which contained 85 percent of chicory instead of 60. The defendant, besides pleading the label in defense, urged that he sold the article in the condition in which he received it from the manufac- turer. The magistrate found that the chicory had been added fraudulently. The High Court upheld this decision, and one of the judges said that the magistrate was bound to find whether the chicory was used fraudulently to increase the bulk; that if it was so used he ought to convict, notwith- standing the label, and that it was no defense for the vendor to say that he sold it just as he had received it from the manufacturers.^ In another instance the facts were somewhat different. An inspector, on entering a shop, asked for "French Coft'ee," and was supplied with a mixture contain- ing 60 percent of chicory and 40 percent of coffee. Upon the tin was a label stating that it was a mixture, and his atten- tion was called to the label. There was also evidence that "French Coffee" was a well-known commodity, and that the description was not misleading; but the magistrates convicted the spller on the ground that the chicory had been added fraudulently to increase the bulk. But the High Court held that there was no evidence of fraud; that the seller was pro- 'tected by the label, and that the conviction was wrong.* In another instance the mixture sold consisted of 30 percent of cocoa and 70 percent of starch and sugar, and it was held that a label stating it to be a mixture, in the absence of any evidence of fraud (since nearly all cocoas are mixtures), was a sufficient protection to the seller.^ In still another instance the purchaser asked for "best fresh butter," and was sup- plied with "Pearks' butter," a mixture of butter and milk containing over 20 percent of water. The butter was handed 2Liddiard v, Keece, 44 J. P. 233. sHoHfer v. Meddings, 44 J. P. A similar case is. Star Tea 'Co. v. 234. Neale 73 J. P. 511, 8: L. ,G. R. 5. * Otter v. Edgley, 57 J. P. 457. s Jones V. Jofles, 58 J. P. 653. 697 LABELS MAEKS NOTICE. [§ 555 to him in a wrapper on which was a printed label containing the following words: "Pearks' butter. This is choicest but- ter, blended with pure English full cream milk, by new and improved machinery, whereby it retains about 20 to 24 per- cent of moisture, and acquires that delicacy of flavour which has made Pearks' butter so famous. This package weighs half a pound, including wrapper." The court considered that, although the butter was not "best fresh butter," yet the vendors were protected by the label.^ A sale of wheat middlings and corn for domestic animals under a label rep- resenting them to be such, when in fact it is adulterated with corn-cob meal, is a violation of a statute prohibiting the misbranding or adulteration of any article of food.' An ar- ticle composed of the compound of vanilline, cumerin, spir- its, sugar, coloring and water, and plainly labeled on one side with the words "Peerless Extract of Vanilla," and on the reverse side, in small letters, with the words "Formula Va- nilline, Cumerin, Spirits, Sugar, Coloring, Water," is mis- branded within the provisions of a statute declaring that an article shall be deemed misbranded where it is an imitation of, or offered for sale under the distinctive name of another article, and is not a mixture or compound known under its own distinctive name.* Such a statute prohibits the sale of a counterfeit for the genuine, though the counterfeit does not contain poisonous or deleterious ingredients; and where a false label is put on one side of an article in such a manner as to arrest the eye, the offense is not evaded by a true label put where it is likely to escape notice.' A statute which makes it an offense to sell an unlabeled, adulterated food, has no application to a sale of an unlabeled but not adulter- ated article.^" A statute forbade the sale of cane syrup or 8 Hayes v. Rule and Law, 87 L. i" State v. Weeden, 17 Wyo. 418, T. 133, 18 T. L. E. 535. 100 Pae. 114. T W. H. Small & Co. v. Common- A statute making it an offense wealth, 134 Ky. 272, 120 S. W. 361. to sell misbranded food, being 8 People V. James Battler, 134 N. penal, must be strictly construed, Y. App. 986, 118 N. Y. Supp. 849. and if it merely requires packages 9 People V. James, supra. of food to be branded, it is not an § 555] LAW OF PUEB FOOD AND DEUGS. 698 beet syrup mixed with glucose, unless the package containing it be distinctly branded "Glucose Mixture" or "Corn Syrup, ' ' with the name and percentage of each ingredient contained therein plainly stamped thereon. Under this stat- ute it was held that a sale of syrup made of 90 percent pure corn syrup and 10 percent cane syrup, labeled "Victor Corn Syrup," and truthfully stating the ingredients composing it, was not in violation of its requirements, in that it was not branded "Glucose 90 percent and Cane Syrup 10 percent. "^^ A New York statute provides that where honey is one of the ingredients of a mixture it shall be so stated in the same size type as the other ingredients, but shall not be sold as honey, nor shall it be branded as "honey" in any other form than as provided by law, nor shall any mixture be sold as honey or branded with the word "honey" unless it is pure. A subsequent statute provided that an article of food which does not contain any deleterious iugredients shall not be deemed adulterated if it is so labeled as to plainly indicate that it is a mixture or combination, and that it should be so labeled as to show the character and its constituents. The defendant sold a mixture composed in part of honey. On the label of the package appeared the words "honey syrup," "honey" in letters many times larger than those in the lat- ter word. In an action to recover the penalty imposed by the statute for a violation of its provisions, the evidence showed that only one other substance than honey was em- ployed. The plaintiff insisted that the word "glucose" should have been employed, but there was no evidence that offense to sell imlabeled food when showed the percentages of ingredi- it is not put up in such packages. ents the fertilizer is guaranteed to State V, Neslund, 141 Iowa 461, contain, it need not specify other 120 N. W. 107. ingredients mentioned in the stat- By a statute commercial products ute, about which there is no guar- had to be "branded or tagged with anty. Williams v. Barfleld, 31 Fed. the manufacturer's analysis" show- 398. ing the percentages of certain de- ii People v. Harris, 135 Mich, terminations specified in such stat- 136, 97 N. W. 402, 10 Detroit Leg. ute. It was held that, if any N. 694. analysis branded on the package 699 LABELS MAKKS NOTICE. [§ 556 such substance was an article of food under the distinctive name of "glucose." It was held that the court should have taken judicial notice that the word "glucose" enters into the many different articles of food, and was not used by itself as such, so that it was a question of fact whether the word "syrup" was not a sufficient characterization of the ingredi- ents employed, so as to take the case to the jury.^^ § 556. Instances of Proper and Deficient Labels. A statute required an original package to be marked on its top, side and bottom. The top of a package was re- moved so as Ito expose the oleomargaxine, and while in that conddton a sale was made at retail of a small quantity. It was held that the statute had not been violated; for the statute did nolt say that under such circumstamees the pack- age sihould be constantly kept covered.^ If the vessel from which the sale is made be properly marked, it is error to teU the jujy. the seller is' liable to the penalty of the staitute unless the buyer had notice or knowledge that the article was adulterated.^ Where a statulfce made it unlawful to sell oleomairgaj^ie from a wagon without having on both sides of the veliicle placards miarked "Licensed to Sell Oleomar- garine," the hanging of such placards on both of the in- 'sides of the wagon was held not to be a compliance with its provisions.^ A statute requiring a restaurant keeper to notify his customer that the ajrtiiele furnished is not butter is not complied with by placing on the walls conspicuous .signs on which are the words, "Butterine Used Only Here," ajid to puti on tihe bill of fare, "Only Fine Butter Used 12 People V. BerghoflF, 47 N. Y. an offense to falsely brand an ar- Miac. Rep. 1, 95 N. Y. Supp. 257 ; tide of food. People v. Griffin, 128 affirmed 112 N. Y. App. Div. 772, N. Y. Supp. 946. 99 N. Y. Supp. 201. 1 Commonwealth v. Bean, 148 A picture of a churn on boxes Mass. 172, 19 N. E. 163. containing oleomargarine is a rep- 2 Commonwealth v. Smith, 149 resentation that it contains butter, Mass. 9, 20 N. E. 161. and the article on which it is s Commonwealth v. Crane, 158 placed is falsely branded within Mass. 218 33 N. E. 388. the meaning of a statute making it § 556] LAW OF PUEB rOOD AND DEUGS. 700 Here," imless siieh ^est saw the signs 'or read the bill of fare.* A statute prohibdting the sale from a public vehicle in the street of "oleomargarine, butterine or any substance made in imitation or semblance of pure butter" without a sign therein provided for, applies to all kinds of oleomar- garine, whether designedly made to imitate butter or not.* If ithe statute requires the seUer of oleomargarine to orally inform the purchaser what it is and to give him "a card or notice, printed on which sihall be the name of the substance sold, and the name and address of the seller or vendor," a failure to give such card, although fall information was given orally, is such a violation of the statulfce as lays the seller liable.' Where a statute forbids the sale of oleomar- garine in imitation of yellow butter, a sale of such oleomar- garine thus an imitation, although the purchaser be fully inifoTmed of the oharaclfcer of the article at the time he purchases it, is a violation of the statute.' The label on a bottle of "lime juice" referred to "this famous beverage" as being "mixed and composed only of the juice of the lime and other natural fruits, acids, etc., diluted with water," and then went on to state that it was a most refreshing and wholesome beverage. The "lime juice" 'consisted of water containing but little lime juice. It was held that the label was only an advertisement and not a statement of the "nar ture or oompoisition " of the lime juice within' the meaning of the Australian statuibe.* 4 Commonwealth v. Stewa-rt, 159 gave the notice required to make Mass. 113, 34 N. E. 84. the sale lawful. Seibright v. State, 5 Commonwealth v. Crane, 162 2 W. Va. 591. See State v. Falk, Mass. 506, 39 N. E. 187. 38 Mo. App. 554, as to indictment. - Bayles v. Newton, 50 N. J. L. Under New York Laws 1881, ch. 549, 18 Atl. 77. 407, relating to the selling of adul- ' Commonwealth v. Russell, 162 terated food, the presence or ah- Mass. 520, 39 N. E. 110. sence of a label does not constitute If diseased meat can be lawfully an element of the offense. People sold to a purchaser by disclosing v. Bischoff, 14 N. Y. St. Rep. 581. fully its condition, upon proof of s Rider v. Freebody, 24 Vict. L. a sale of such a meat the burden R. 429, 20 Aust. L. T. 115, 4 Aust. is upon the defendant to show he L. R. 251. 701 LABELS MASKS NOTICE. [§ 557 § 557. Brands. Wtoen tke statute requires brands to be placed upon boxes •containing food, it does not necessarily mean that the letters shall be burned into the box; it is enough that the letters be placed upon the package ia a legible ajid distinct man- ner, as by a stencil plate and chisel.^ 1 Dibble v. Hathaway, 11 Hun 571. §558] LAW OF PUEB FOOD AND DEUGS. 702 CHAPTER XIV. SALE AND EXPOSING FOR SALE. SEO. 558. What constitutes a sale. 559. Knowledge of adulteration of milk. 560. Ignorance of adulteration of food. 561. Ignorance of adulteration of food, continued. 662. Lack of knowledge of adulter- ation lessening penalty. 563. Article sold to the prejudice of the purchaser — Actual damages. 564. The article demanded — Sale to prejudice of purchaser. 565. Exposure for sale. 566. Purpose of sale. 567. Special contract as to quality of goods. 568. Purchaser having knowledge food is adulterated. 569. OflFered for sale. 570. Manufacture or possession with intent to sell. 571. Eesale of food purchased un- der written warranty of its purity. 572. Sales by agent. 573. Liability of agent. 574. When agent and not principal liable. 575. Knowledge measure is too small. §558. What Constitutes a Sale. There is nothinig peculiar aboiit a sale of umwiholeeome food. Such a sale does not differ from a Sale of any lOither article, so far as is necessary to make a complete sale. In one insltance it has been held that the uniwholesome food sold must be paid for before there can be a conviction;^ but suchi is not the true rule, for a sale on arediit is as much a sale as one for cash. Perhaps illustrations^ of what has been held to iconstitute a sale of food will be more satisfactory than any discussion of the general principles of sales. Thus a milk dealer, whose father owned a milk route, earried the milk to the customers; the defendant and another employee knowingly adulteirated the milk with water while on their way to distribulte it to sucli ©uHtomera; and the defendant iHeider v. State, 4 Oliio Dec. 227. 703 SAIiE AND EXPOSING FOE SALE. [§ 558 handed one of the cans of adulterated milk from the wagon to his co-employee, who delivered it to the purchaser. This was held to be such a sale by the defendant as rendered him liable.^ The delivery of milk to the purchaser of a table d'hote breakfastt;, as a part of the meal, is as much a "sale" of the milk as if a special price had been put on it, or it had been bought and paid for by itself.^ "Where one G was not shown to have ordered, advised, approved, or had knowledge of a sale of oleomargarine by another not under his, G's, control without being properly printed or branded, it was held that G could not be convicted of the alleged wrongful sale of the oleomargarine.* The defendant, it was shown in one case, took local orders for a butter substitute from individuals, and sent them to some manufacturer out- side the State; the orders were then filled and marked for the several individuals, but were consigned together in care of the defendant, who thereby secured a minimum freight rate; ifche orders were filled at the local market price, but by. an agreement with the defendant the manufacturer made out an aooounit for each order to the person giving it, charg- ing therein the amount of the price to the defendant, freight at the rate of single orders, and a charge for delivery by the defendant, who received and forwarded the money. It was held that the sales were made by the defendant.^ A grocer sent his soliciting agents iato another county, where he had no license, and took orders there for ^omargarine, which orders were accepted at his store, and the oleomargar- ine shipped to the customer not in his name, but in care of the agent, and it was taken by the agent from the railroad agent and delivered to the customers. It was held that the grocer oould not be convicted in the county where the or- 2 Conunonwealth v. Haynes, 107 131 Pa. 118, 18 Atl. 938, 25 Wkly. Mass. 194; People v. Teele, 131 N. N. C. 137; People v. Fox, 4 N. Y. Y. App. 87, lis N. Y. Supp. 212. App. Div. 38, 38 N. Y. Supp. 635. 3 Commonwealth v. Warren, 160 *GroII v. United States, 166 Fed. Mass. 533, 36 N. E. 308; Common- 419, 92 C. C. A. 171. wealth V. Vieth, 155 Mass. 442, 29 e State v. Newell, 140 Mo. 282, N. E. 577; Commonwealth v. Miller, 41 S. W. 751. § 558] LAW OF PURE FOOD AND DRUGS. 704 ders were taken, since the sale was oonsummated in the county where thie grocer had his groceiry.^ Where a statute made it an offensie to "mianufaicture or cause the same to be done with intent to sell, or shall sell, or offer to sell," any adulterated wine within the State, an agent for a wine- house located in another State, who took orders for adtdter- ated wioie in the State of its enafctment, and procured the transportation of the wine directly to the purchaser in the State where he took the orders, was held guilty of a violation of its provisions/ Where adulterated milk was taken to a cheese factory, which from day to day was put into a common vat with the milk of other patrons, and made into cheese, which was sold and the money therefor apportioned among the patrons according to the amount of mdlk each had delivered, after deducting expenses, it was held there was neither a sale nor exchange of the milk.* Where State inspectors merely testify 13iat, when they stopped the driver of a truck carrying milk, he stated that he was then on his way to deliver the milk to certain places in the city, and there was no proof that it was ever deliv- ered there or anywhere, it was held that no sale was shown.' But a coinsummated' sale to an inspector is as much a sale as to a private individual, and if illegal, subjects the seller to the penalty inflicted by the statute.^" Yet where it ap- peared that the defendant declined to accept pay from the agent of the^ State for a sam:ple which he knew was in- tended for chemical analysis, and fimally only aoeeipted some payment on his persuasion, such facts were held not to show a sale.^^ 6 Commonwealth v. Gardner, 16 In this case it was held that the Montg. Co. Law Eepr. 171. statute applied to jobbers and mid- 1 Myer v. State, 10 Ohio Cir. Ct. dlemen. Eep. 226. 11 Dinkelbihler v. State, 7 Ohio 8 Flander v. People, 4 Alb. L. Dec. 99, 4 Ohio N. P. 96. Jr. 316. ■ An oflScer of a corporation testi- 9 People V. McDermott, 38 N. Y. fled to sales of uneolored oleomar- Misc. Rep. 365, 77 N. Y. Supp. 888. garine to the defendant, based on 10 People V. Greenberg, 134 N". Y. the charge tickets, which he testi- App. 599, 119 N. Y. Supp. 325. fied were the original entries, and 705 SALE AND EXPOSING FOE SALE. [§559 §559. Knowledge of Adulteration of Milk. In proseeTitions for the sale of a'dultenated milk, or keep- ing for sale, it is no defense that the acensed had no knowl- edge it was adulteirated ; and it need not be alleged or proven that he had sncih fcnowledige, in the absence of special words in the statute requiring the sale tbo be made with knowledge of the adulteration. In such instances knoiwledge is not an affirmative element in the offense.^ In a New York case the statute^ made the sample omission of itMngs directed or com- mission of things prohibited evidence of the violation of the Aict. This provision was held to render the act of sale of adulterated milk without knowledge of its adulteration an offense. In speaking of the provision, the court said: "There also that drafts were drawn on de- fendant for each shipment, all of which, as shown by the company's ledger, had been paid. An officer of the bank through which the drafts were drawn testified as to passage through the bank. This was held to show a payment for the oleomargarine. Hart v. United States, 183 Fed. 368. 1 Commonwealth v. Nichols, 10 Allen 199; Commonwealth v. Far- ren, 9 Allen 489; State v. Smith, 10 E. I. 258; Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St 228 ; People v. Friedman, 138 N. Y. App. 29, 122 N. y. Supp. 500; affirmed 200 N. Y. 591, 94 N. E. 1096; Commonwealth v. Granstein & Co. (Mass.), 95 N. E. 97. The same rule applies to sales of intoxicating liquors. Common- wealth V. Boynton, 2 Allen 160; Commonwealth v. Goodman, 97 Mass. 117; Commonwealth v. Hal- lett, 103 Mass. 452. So a sale of naphtha. Commonwealth v. Went- worth, 118 Mass. 441; State v. Schlenker, 112 Iowa 642, 84 N. W. PUBE Food — 45. 698, 51 L. E. A. 347; Myer v. State, 10 Ohio Cir. Ct. Eep. 226 (agent ignorant) ; Myer v. State, 3 Ohio Dec. 198. Eeturning to sales of milk, we have Common- wealth V. Warren, 160 Mass. 533, 36 N. E. 308; Seattle v. Erickson, 55 Wash. 675, 104 Pac. 1128; Com- monwealth V. Nichols, 10 Allen 199; Commonwealth v. Evans, 132 Mass. 11; People v. Schaeflfer, 41 Hun 23; Commonwealth v. Gray, 150 Mass. 327, 23 N. E. 47; Van- dergrift v. Miehla, 66 N. J. L. 92, 49 Atl. 16; Commonwealth v. Mc- Canoe, 176 Mass. 292, 57 N. E. 603; Commonwealth v. Bowers, 140 Mass. 483, 5 N. E. 469; People v. Laesser, 79 N. Y. App. Div. 384, 79 N. Y. Supp. 470; Commonwealth V. Evans, 132 Mass. 11; People v. West, 106 N. . 293, 12 N. E. 610, 60 Am. Eep. 452; People v. Cipper- ly, 101 N. Y. 634, 4 N. E. 107; People V. Kibler, 106 N. Y. 321, 12 N. E. 795; People v. Eddy, 59 Hun 615, 12 N. Y. Supp. 628. 2 Acts 1885, ch. 458, § 17. § 559] liAW OF PUEE FOOD ANJ) DRUGS. 1106 remains no reasonable doubt of the legislative meaning and the eonstitution'al power tO' so enact we distincitly opdne. The prudence of its exercise may be debatable but it is not indefensible. It is meritorious that the adulteraltdon of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are ex- posed to increasing perils. To redress such evils' is a plain durt;y but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer's knowledge ajid of has intent to deceive and defraud are of little use and rarely accomplish their purpose. Such an emergency may justify legislation which .throws upon the seller the entire responsibility of the purity and sounidaess of what he sells and compels him to know and to be certain."' In a Pennsylvania ease it was said of a statute with regard to the sale of oleomlargarine : "The prohibition is absolute and general. It could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no word imply- ing that the forbidden act shall be done knowingly or wil- fully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the Legislature is plain that persons engaged in the traffic ishall engage in it at their peril, and they can not set up their ignorance of the nature and qualities of the commodities they seU as a defense."* If the milk be below the standard, it is no de- fense thalt it was just as it came from the cow, and the defendant did not know of its low grade." But a statute, by the use of words, such as selling or offering for sale adul- 3 People V. Kibler, 106 N. Y. 321, Strong v. State, 2 Ohio N. P. 93, 12 N. E. 795; People v. Cipperly, 3 Ohio Dec. 284; Bissman v. State, 101 N. Y. 634, 4 N. E. 742, 37 9 Ohio Cir. Ct. Eep. 714; State v. Hun 323. Kelly, 53 Ohio St. 667, 43 N. E. * Commonwealth v. Weiss, 139 163. Pa. 247, 21 Atl. 10, 23 Am. St. 6 People v. Bosch, 129 N. Y. App. 182, 11 L. E. A. 530, note. So in 660, 114 N. Y. Supp. 65; Common- Indiana, Isenhour v. State, 157 Ind. wealth v. Vieth, 155 Mass. 442, 29 517, 62 N. E. 40, 87 Am. St. 228; N. E. 577. 707 SALE AND EXPOSING FOE SAIB. [§ 560 teipated milk, knowing it to be suck, makes knowledge of the adulteration an ingredient of the offense, and it must be averred and proven.' § 560. Ignorance of Adulteration of Food. "Whether or not a knowledge of the adulterated or un- wholesome condition of the article of food sold or offered for sale is necessary to render the vendor Liable to a sitatute pro- hibiting the sale of adulterated or unwholesiome food de- pends upon thie wording of the statuite. Thus where it is made an offense to sell adulterated food, and the staJtute does not use the word "knowingly" in connection with the word "sell," there are many eases (as we have seen in the next preceding section concerning sales of milk), which hold that it is not necessary to the violation of the staitute that a sale shall be made knowing at the time that the article sold is adulterated or unwholesome. A mere sale of such food in the utmost ignorance of its condition constitutes the offense and renders the vendor liable to a penalty.^ Thus 8 Sanchez v. State, 27 Tex. App. may have been adulterated when 14, 10 S. W. 756; Cantee v. State, received from accused, and still he 10 S. W. 757; Commonwealth v. may not have done it, or have had Flannelly, 15 Gray 195; Verona any knowledge of it. Dilley v. Peo- Central Cheese Co. v. Murtaugh, pie, 4 Bradw. (111.) 52. 50 N. Y. 314. I Newton v. Connell, 9 N. J. L. Where it need not be averred Jr. 316; Waterbury v. Newton, 50 that the defendant knew the milk N. J. L. 534; People v. Schaeffer, he sold was adulterated, if it be 41 Hun 23; People v. Mahaney, 41 averred he had such knowledge, Hun 26; Bissman v. State, 9 Ohio that fact need not be proven. Com- Cir. Ct. Eep. 714; Myer v. State, monwealth v. Farren, 9 Allen 489. 10 Ohio Cir. Ct. Rep. 226; Myer In a prosecution for selling adul- v. State, 3 Ohio Dec. 198; Strong terated milk an instruction that if v. State, 3 Ohio Dec. 284, 2 Ohio the accused sold milk to A, and de- N. P. 93; State v. Kelly, 54 Ohio livered to his servant, who deliv- St. 166, 43 N. E. 163; Common- ered it to A in the same condition wealth v. Weiss, 139 Pa. St. 247; in which he received it from the 21 Atl. 10, 27 Wkly. N. C. 182, 23 accused, and that it was then found Am. St. 182; State v. Roger, 95 . by satisfactory tests that the milk Me. 94, 49 Atl. 564; People v. Hill- was adulterated, the accused was man, 58 N. Y. 571, 69 N. Y. guilty, is erroneous, for the milk Supp. 66, 15 N. Y. Cr. Eep. 394; §560] LAW OF PUEE FOOD AND DRUGS. 708 where a statute proihibited the sale of any substance made in imitation of yellow butter and not made exclusively of cream or milk, it was held that the prosecution need not prove, on the trial for a violation of the statute, that the defendant had knowledg^e that the compound sold by him was not made esclusively of milk or cream or intended to deceive the purchasier.^ So lilie inltention to imitate the color of natural butter need not be shown in a prosecution to prohibit the sale of oleomargarine manufactured in imita- tion of natural butter, for it is immaterial.^ In such an instance the dealer can not shield himself by showing his ignorance in regard to its character.* Nor is evidence of the habitual good character of the defendant admissible.^ "The distribution of impure or adulterated food for con- sumptien," said the Supreme Gouirt of Indiana, "is an act perilous to human life and health; hence, a dangerous act, and can not be made innocent and harmless by the want of knowledge or the good faith of the seller."" Continuing the Betts V. Armstead, 20 Q. B. Div. 771, 52 J. P. 471, 57 L. J. M. C. 100, 58 L. T. 811, 36 W. R. 720 16 Cox C. C. 418; People v. Snow- burger, 113 Mich. 86, 64 Am. St. 449, 71 N. W. 497; Pain v. Boughtwood, 24 Q. B. Div. 353, 54 J. P. 469, 59 L. J. M. C. 45, 62 L. T. 284, 38 W. R. 428, 16 Cox C. C. 747; Dyke v. Gower [1892], 1 Q. B. 220, 56 J. P. 168, 61 L. J. M. C. 70, 65 L. T. 760, 17 Cox C. C. 421; Morris v. Gor- bett, 56 J. P. 649; Spiers and Rand V. Bennett [1896], 2 Q. B. 65, 60 J. P. 437, 65 L. J. M. 0. 144, 74 L. T. 697, 44 W. R. 510, 18 Cox C. C. 332. 2 State V. Rogers, 95 Me. 94, 49 Atl. 564. 8 People V. Hillman, 58 N. Y. App. Div. 571, 69 N. Y. Supp. 66, 15 N. Y. Cr. Rep. 394; People v. Mahaney, 41 Hun 26. * State V. Rippeth, 71 Ohio St. 85, 72 N. E. 298; People v. Meyer, 44 N. Y. App. Div. 1, 60 N. Y. Supp. 415; State v. Ryan, 70 N. H. 196, 85 Am. St. 629, 46 Atl. 49; State v. Cornish, 66 N. H. 329, 330, 21 Atl. 180, 11 L. R. A. 191; State V. Campbell, 64 N. H. 402-405, 13 Atl. 585; Common- wealth V. Uhrig, 138 Mass. 492; Commonwealth v. Savery, 145 Mass. 212, 13 N. E. 611; State v. Smith, 10 R. I. 258; State v. Hughes, 16 R. I. 403, 16 Atl. 911; Lansing v. State, 73 Neb. 124, 102 N. W. 254; GroflF v. State, 171 Ind. 547, 85 N. E. 769; Altschul v. State, 8 Ohio Cir. Ct. Rep. 214. B Commonwealth v. Kelt, 13 Pa. Super. Ct. Rep. 347. GroflF V. State, 171 Ind. 547, 85. N. E. 769; State v. Engle, 156 Ind. 339, 58 N. E. 698; Commonwealth V. Gray, 150 Mass. 327, 23 N. B. 709 SALE AND EXPOSING FOR SALE. [§561 coTirIb said: "Guilty intent is not an eiement of the crime; hence, the rule that governs in that larger class of ofEenses, which rests upon criminal intent, has no' application h.ere. Oases libe this are founded largely upon tihe principle that he who voluntarily deals in perilous articles must be cautious how he deals. "^ § 561. Ignorance of Adulteration of Food, Continued. A statute may interject the element of knowledge into the commission of an offense in ti'e sale or exposing for sale of adulterated food; and when thaA is the case, knowledge of the qualities of the food by the vendor must be shown before he can be convicted.^ Thus a statute which provides that every person who shall willfully sell or offer for sale the flesh of any calf less than four weeks old when killed 47; state v. Sehlenker, 112 Iowa, 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. 360; People v. Kibler, 106 N. Y. 321, 12 N. E. 795; People V. Worden Grocery Co., 118 Mich. 604, 77 N. W. 315; Commonwealth V. Weiss, 139 Pa. 247, 21 Atl. 10, 11 L. E. A. 530, 23 Am. St. 182; Engle V. Nowlin, 94 Fed. 646; State v. Rogers, 95 Me. 94, 49 Atl. 564, 85 Am. St. 395; Fox v. State, 94 Md. 143, 50 Atl. 700, 89 Am. St. 419; State V. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. 629. ' An act done ignorantly is no excuse for the violation of a stat- ute, — as cutting out a brand. Smith V. Brown, 1 Wend. 231. Accidental adulteration is no de- fence. Commonwealth v. Gran- stein & Co. (Mass.), 95 N. E. 97. See also People v. Friedman, 138 N. Y. App. Div. 29, 122 N. Y. Supp. 500; affirmed 200 N. Y. 591, 94 N. E. 1096. In Australia it was held that the analyst's certificate that the milk sold was below standard made a prima facie case, and that the de- fendant might then show that he sold the milk in good faith, believ- ing it was up to the standard and pure. Kench v. O'SulIivan, 10 N. S. W. L. R. 605, 27 W. N. (N. S. W.) 137, following Ex parte Wed- lock, 20 N. S. W. L. R. 353, 16 W. N. (N. 8. W.) 117, and Wol- fenden v. McCulloch, 92 L. T. 857. 1 Commonwealth v. Smith, 103 Mass. 444; Bainbridge v. State, 30 Ohio St. 264; Phillips v. Meade, 75 111. 334; Commonwealth v. Flan- nelly, 15 Gray 195; Kelly v. State, 1 Ohio N. P. 238, 2 Ohio Dec. 239; State V. Snyder, 44 Mo. App. 429; Verona Central Cheese Co. v. Mur- taugh, 50 N. Y. 314, revers- ing 4 Lans. 17; Teague v. State, 25 Tex. App. 577, 8 S. W. 667; Fitzgerald v. Leonard, 32 L. R. Irish Rep. 675. § 561] LAW OF PUEE I'OOD AND DEUGS. 710 shlall be fined . makes knowledge an essential element of tihe crime defined by it; and it is error for tihe court to charge that by "willfully selling" was meant deliberately selling, without' regard to the defendant's motive.^ So on a pros- ecution for selling aduiterated molasses, it was' held that the aocused could show that he purdh'ased it believing it to be pure, and in good faith sold it as such without intent to deceive.^ There are also decisions which hold knowledge an element of the crime, although the words "knowingly" or "willfully" be not used in defining the crime. In Indiana a statute provided that "Whoever kills, for the purpose of sale, any sick, diseased or injured animal, or who sells or has in his possession with intent to sell, the meat of any such sick or diseased or injured animal, shall be fined." An indictment charged that the defendant "unlawfully had in his possession, with intent then and there to sell the same the meat of certain sick, diseased or injured animals, to wit: the meat of certain hogs." The Supreme Couirt held this affidavit insufficient, because it did not charge that accused had knowledge of the character or bad quality of the ani- mals or meat, and that it was not enough tO' charge the of- fense in the language of the statute. "We are clear that by the statute in question," said the court, "it was not in- tended to punish acts done in ignoran'oe of the character or deleterious quality of the anim'als or meat. Before a convic- tion can be had under the law, then, it must appear that the animals were killed for the purpose of sale for food, or the meat sold or bad in possession with intent to sell for such purpose, and that the accused had knowledge of the bad qualities of the animals or meat." Then speaking of the indictment, it said: "The language of the statute her© is general, but it was intended to include those only whO' had knowledge; hence knowledge must be averred. So the lan- guage is general in repect to the purpose of sales, or in- tended sales, but the intention was to prohibit sales- for food; estate V. Nussenholtz, 76 Conn. » Kelly v. State, 1 Ohio N. P. 92, 55 Atl. 589. 238, 2 Ohio Dec. 239. 711 SALE AND EXPOSING FOR SALE. [§ 561 hence a sale, or intended sale, for food should be aveirred."* In another ease a statute came under review which made it an offense to "knowingly barter, give away, sell or have in his possession with intent to sell, any substance injurious to health." The defendant was charged with having "in his possession, with intent to sell the same, a certain substance intended for food, to wit, one pint of milk then and there adulterated with a certain substance injurious to health, to wit, formaldehyde." The defendant sought to show whai; representations had been made to him concerning the use of formaldehyde in the milk which he had purchased and which he had in his possession with intent to sell, as charged in the indictment. The court held it was error to exclude this evidence, as the trial court had done. "While the pos- session of milk recently adulterated with a substance in- jurious to health," said the court, "required appellant [the defendant] to Show affirmatively tha;t such adulteration was without his knowledge, yet, he was entitled to the fullest opportunity to do so. If in fact he had no knowledge, and had a sufficient excuse for want of knowledge, he was en- titled to show it. The law will not permit the State to con- struct about the defendant a circumstantial ease, and then deny him an opportunity to explain the circumstances con- sistently with his innocence. If appellant used the pre- server, honestly believing, rafter making reasonable inquiry and investigation, that it contained no formaldehyde or other subs'tance injurious to health, then he was not guilty of 'knowingly,' etc. What he did to ascertain the fact about it, who he inquired of, what was said to him by others in whom he might reasonably confide, What was exhibited to him, in writing or printing, and the trustworthiness thereof, were all proper subjects to lay before the jury in explana- tion of his assertion that he did not, at the time, know the milk eontaiiied a substance injurious to health; and if the facts he was thus able to Show should be sufficient to over- come the presumption of guilty knowledge raised by the * Schmidt v. State, 78 Ind. 41. §§ 563j 563] LAW OF puhe food and deugs. 712 possession, it would have been the duty of the jury to ac- quit. "° Where it is an offense to expose meat for sale that is unfit for food, the offense is committed by the exposure of sueh meat although the person exposing it was unaware that it was unfit far food.* § 562. Lack of Knowledge of Adulteration Lesseninif Penalty. Although a sale of adiulterated food witlhout knowledge of its adulteration is mo offense, unless the statue makes knowledge of the adulteration an element of the offense, yet the defendant is entitled to show that fact as bearing upon the amount of penalty to be assessed against him; for it is reasonable that one who wilfully violates a statute should be assessed with a greater penalty than he who in- advertently violates it. Of course, this rule can have no application where the statute fixes the exact amount of pen- alty to be assessed upon proof of a violation of its terms.^ § 563. Article Sold to the Prejudice of Purchaser — Actual Damage. An English statute makes it an offense to sell "any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser," "to the prejudice of the purchaser."^ A misrepresentation con- cerning the lartdcle of food or drug, or a failure to disclose by pTOper label or notice its true constituent elements is considered a sale "to the prejudice of the purchaser." Under this statute the question has arisen as to whether, in order to show .that the article was sold to the prejudice of the purchaser it is necessary to prove that the purchaser had B Isenhour v. State, 157 Ind. 517, K. B. 271, 102 L. T. 841, 74 J. P. 62 N. E. 40, 87 Am. St. 228. See 413, 8 L. G. E. 1072, 26 T. L. E. also People v. Fvdle, 1 N. Y. Cr. 557. Eep. 172. 1 People v. Secor (N. Y. App.), eHobbs v. Winchester Corpora- 113 N. Y. Supp. 487. tion, 79 L. J. K. B. 1123 [1910], 2 i 38 and 39 Vict., eh. 63, §6. 'J'13 SALE AND EXPOSING FOE SALE. [§ 563 suffered actual prejudice or damage. In one case it was held that an official purchasing a.n article of food as a sample for analysis, and not for consumption, or at his own ex- pense, could not be prejudiced by the purchase;^ but in an- oither case the opposite view was taken, and the seller held liable.^ In the latter case Judge Mellon said: "If a pur- chaser, whoever he may be, . . . getsi an article inferior to that which he demands and pays for, it seems to me that he is necessarily prejudiced within the meaning of the sec- tion [of the statoite] .... The real offense is the fraudu- lent sale of an article adulterated so as to be of an inferior nature, etc., to that which is demanded and paid for. The necessity for the words 'to the prejudice of the purchaser' is this : but for those words various absurdities might arise. . . . The sale of an article of a superior nature or quality to that demanded, would be an offense." Judge Lush also said: "What is the meaning of 'prejudice'? It can not be confined to pecuniary prejudice, or prejudice arising from the consumption of unwholesome food. The prejudice is that which the ordinary customer suffers, viz., that which is suffered by any one who pays, for one thing and gets an- other of inferior quality. . . . The words 'to the preju- dice of the purchaser' are necessary, because if they had not been inserted, a person might have received a superior article to that which he demanded and paid for, and yet an offense would have been committed. The result is, that it is never necessary to prove any actual dama.ge to the pur- chaser in order to obtain a conviction under this statute, and that the words 'to the prejudice of the purchaser' are only inserted to prevent such an absurdity las a prosecution for selling a better article than the one demanded."* It is not 2 Davidson v. McLeod, 42 J. P. Parliament adopted a, statute d«- 43, 5 Kettie (J. C.) 1, 3 Coup. 511. daring that it should not be a de- sHoyle v. Hitchman, 4 Q. B. fence that the article of food or Div. 233, 43 J. P. 431, 48 L. J. drug was purchased for an analy- M. C. 97, 40 L. T. 252, 27 W. E. sis. 42 and 43 Vict., ch. 30, § 2. 487. * Hoyle v. Hitchman, supra. See As a result of these two decisions also Pearks, Gunston & Tee v. § 564] LAW OP PUEE FOOD AND DEDGS. 714 ne&essary for the purcliiaser to request tlie dealer to famish, him with a pure and unadulterated article of food; for when he asfcs the deialer for food there is a tacit implication that there is a request for a pure article. "A man who asks for 'milk' prim'a facie aisks for normal mdlk from the cow. There was no need for the purchaser buying miilk from a milkman on his rounds to add any descriptive adjective or to demand that the milk should be of any stanidard or quality. "° §564. The Article Demanded — Sale to Prejudice of Purchaser. An English statiute makes it an offense to "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 demanded by such purchaser."^ In construing this section the wordte "nature, substance, and quality" can not be disjoined, and the article sold must be different in all ithree respects from the article demanded. As the statute was iinitenided to strike only at foreign admixtures, the very mature of the substance must be altered, or the offense oon- temiplated can not be committed.^ "The article demanded" is the article known eiommeircially under that name. Thus a merchant sold as gin a liquid composed of 26 percent of alcohol, 70 percent of water, and 4 percent of sugar. It was proved that gin was sold by retailers at a strength varying Ward [1902], 2 K. B. 1, 66 J. P. he had separated, will not relieve 774, 71 L. J. K. B. 656, 87 L. the vendor of the penalty of the T. 61. statute. Eider v. Bachus Marsh, A sale "to the prejudice of the etc. Co [1905], Viet. L. R. 147, 26 purchaser" takes place when the Aust. L. T. 156, 11 Aust. L. R. 37. purchaser is supplied with an arti- b Kench v. O'SuUivan, 10 N. S. cle containing but little of the ar- W. 605, 27 W. N. (N. S. W.) 137, tide of food he demanded. Eider denying the soundness of Lane v. V. Freebody, 24 Vict. L. E. 429, Collins, 14 Q. B. Div. 193, 49 J. P. 20 Aust. L. T. 115, 4 Aust. L. R. 89, 54 L. J. M. C. 75, 52 L. T. 251. 257, 33 W. R. 365. The fact that the purchaser was i 38 and 39 Vict., ch. 63, § 6. informed of the adulteration im- 2 Davidson v. McLeod, 42 J. P. mediately after he had paid for the 43, 5 Rettie (J. C.) 1, 3 Coup. 511. article and before the vendor and "MS SALE AND EXPOSING EOE SALE. [§ 564 from proof to 20 degrees under proof. Thds liquid was 44 degrees under proof, 'and although the analyst said he should call it gin whose alcoholic strength was exceedingly low, the justice trying the case convicted the vendor. The High Court upheld the conviction, saying: "This was not an ar- ticle of the nature, substance, and quality of the article de- manded by the purchaser. . . . The justices have come to the conclusion that a mixture of alcohol and water so far as 44 percent below proof is not of the quality of gin as known commercially. . . . It is impossible for us to say that they were wrong."' In another case a grocer was prosecuted for selling a variety of tapioca as sago. The justices found that the public and the trade generally knew this substance as sago, and that there was no appreciable difEerence in cost between the two. It was held that no offense had been committed.^ If the article demanded has no recog- nized standard of quality or composition, it is no offense against this statute to sell an article which does not come up to a particular standard.^ In another case, speaking of a sale of cream, the court said: "The article demanded and supplied was cream. It was admitted that it contained no foreign admixture or adulteration, but it was cream of an inferior quality to that ordinarily sold in Glasgow. Cream is not an article having any standard of quality. It varies with the character of cows from which milk comes and the food on which they are fed. This was genuine cream though of inferior quality. It appears to me that a sale in such a case was not an offense within the Act at all." In the pres- ent case the article demanded was milk; that supplied was milk and water. It was an adulterated artdcle.'" So the sale of an inferior, though pure, quality of cream at a low 3 Pashler v. Stevenitt, 41 J. P. » Eeferring to Davidson v. Mc- 136, 35 L. T. 862. Leod, supra. * Sandys v. Rhodes, 67 J. P. 352. 7 Hoyle v. Hitchman, 4 Q. B. 5 Roberts v. Leeming, 69 J. P. 417, Div. 233, 43 J. P. 431, 48 L. J. 3 L. a R. 1031; Wilson V. MoPhee, M. C. 97, 40 L. T. 262, 27 W. 68 J. P. 175, 6 Fraser (J. C.) 10, R. 487. 4 Adams 310, 41 So. L. R. 195. § 564] LAW OF PUKE FOOD AND DKUGS. 716 priice, is no offense.' So -wihere marmalade was sold wMcli contained 13 percent of glnoose instead of cane or beet sugaj; and eividenee was given showing that for many years glucose had been used by siome marm^alade manufaeturens, but not by all, and that its use had a tendency to prevent mdldew, it was held that there was no evidence to show that this substance was not "marmalade."^ An accidental introduction of deleterious matter into an larticle sold for food does not of necessity make it different in nature, sub- stance and quality from the article demandied.^" But if an article sold be altogether different from that' which was de- manded by the purchaser, an offense is committed, as where saffron was asked for and savin supplied. ^^ The question whether the article sold is the article demanded by the pur- chaser is one of fact for the court or jury tirying the ease.^^ In detei-mining this question of fact, the court or jury, in England, aire entitled to use any special knowledge that they may possess as to what is known commercially under any particular name, even tthough no evidence may be foritheom- ing upon the point. Thus wheire a grocer had sold a packet of cocoa containing 80 percent of starch and sugar; and the justices, who were all retired naval officers, had a large experience of cocoa, which formed one of the regular rations on board naval ships; and acting on the knowledge so ac- quired, and without hearing any evidence concerning the composition of cocoa as sold commercially, came to the con- clusion that the starch 'and sugar had not been added fraud- ulently, notwithstanding the fact that the analyst had cer- 8 Morton v. Green, 8 Rettie n Knight v. Bowei-s, 14 Q. B, (J. C.) 36, 4 Coup. 437. Div. 845, 49 J. P. 614, 54 L. J. 8 Smith V. Wisden, 66 J. P. 150, M. C. 108, 53 L. T. 234, 33 W. R. 85 L. T. 760; Wilson v. McCutoh- 613, 15 Cox C. 0. 728. eon, 4 Adam 34, 40 Sc. L. R. 31. 12 Webb v. Knight, 2 Q. B. Div. loGtoulder v. Rook [1901], 2 K. 530, 41 J. P. 726, 46 L. J. M. C. B. 290, 65 J. P. 646, 70 L. J. K. 264, 36 L. T. 791, 26 W. R. 14; B. 747, 84 L. T. 719, 49 W. R. Friend v. Mapp, 68 J. P. 589, 2 684; Bent v. Ormerod [1901], 2 K. L. G. R. 1317; Goulder v. Rook, B. 290, 65 J. P. 646, 70 L. J. K. supra; Pashler v. Stevenitt, supra. B. 747, 84 L. T. 719, 49 W. R. 684. 717 SALE AND EXPOSING FOR SALE. [§ 565 itified that the ooeoa was adiulterated, and being of the opinion that the offense, if any, was quite trifling, and dis- charged the vendor, their action was approved by the High Court.^^ So in an instanice of caper tea, and the analysis showed that the sample in question was adulterated with 3.5 percent of animal maJtter; and in the cross examination of th'e analyst, a report of the authorities at Somerset House, the offlcial chemical office of England, on the sub j eat of aaper tea was put to him with a view to showing that extra- neous matter was necessarily present in' eaper tea, owing to its method of production, it was hield that the justices com- mitted no error in reading and acting upon it, though rightly refusing to admit it in evidence.^* A milk dealer had on his cart in fairly large letters the words "Containing Preservatives." The plaintiff bought milk from him which was taken from a can in the cart. Plaintiff did not know of the words on the cart until after he had received the milk and paid for it, when the defendant called his attention to them. The milk contained boric a;cid. It was held that the sale was to the prejudice of the purchaser, the fact that there was a notice which the plaintiff might have read but which he did not read or know of until the sale was completed was no defense.^^ A sale "to the prejudice of the purchaser" tiakes place when the purchaser is supplied with an article con- taining little, if any, of the article of food demanded by him." , § 565. Exposure for Sale. Not infrequently statutes make it an offense to expose for sale 'adulterated food. This is especially true of oleomar- isEegina v. Field, 64 L. J. M. i8 Eider v. Freebody, 24 Vict. L. C. 158. E. 429, 20 Aust. L. T. 115, 4 Aust. i*Shortt V. Eobinson, 68 L. J. L. E. 251; Eider v. Bachus Marsh, Q. B. 352, 63 J. P. 295, 80 L. T. etc. Co. [1905], Vict. L. E. 147, 201, 19 Cox C. C. 243. 26 Aust. L. T. 156, 11 Aust. L. IB Eider v. Bachus Marsh, etc. E. 37. Co. [1905], Vict. L. E. 147, 26 Aust. L. T. 156, 11 Aust. L. E. 37. § 565] LAW OF PUKE FOOD AND DEUGS. 718 giarine and ajdxilterated milk. Exposing foir sale means an actual exposure to the public. 'Therefore, where a grocer kept oleomargarine in imitation of butter for sale in his store, in a closed and covered refrigerator, so that it could mot be seen by his customers, it was held that proof of such faots did not justify a conviction of having made "an ex- posure for sale" within the meaning of the statute.^ Upon a prosecution for a failure to supply a sample of food for analysis, as a statute required, it was held error to refuse evidence to show that the defendant did noifc expose for sale the article forming the basis of the prosecution.^ "Where an inspector was served with a portion of margarine cut ofiE a parcel of the substance wfhioh was lying on the counter con- cealed by a screen in such a manner as- .to be invisible to a customer in the shop; and the portion so handed to the in- spector was wrapped in the wrapper required by the statute with the statutory marks thereon, it was held that the parcel of margarine so concealed by the screen was not "exposed for sale," and, therefore, needed no label.' In another case there was a notice in a shop window advertising "Banish Butter." An inspector went in and asked for some. On the counter there was a heajp of paper parcels, each of which bad the word "Maj-garine" printed on it. One of these was handed to the inspector, and was found to contain margairine. The shopkeeper was prosecuted for neglecting to attach to the heap the label required by the statute, and the court dismissed the case, holding, on the authority of the ease just cited, that the margarine being wrapped in paper, and, there- fore invisible to the purchaser, was not "exposed for sale" within the meaning of the statute. But on appeal the case was reversed on the ground that the lower court had' taken an erroneous view of that case, one of the judges saying: "I entirely agree with the decision in Crane v. Lawrence, which was, in effect, that there was no exposure for sale 1 Commonwealth v. Byrnes, 158 s Crane v. Lawrence, 25 Q. B. Mass. 172, 33 N. E. 343. Div. 152, 54 J. P. 474, 59 L. J. 2Margolius v. State, 1 Ohio N. M. C. 110, 63 L. T. 197, 38 W. E. P- 264. 620, 6 T. L. R. 370. 719 SALE AND EXPOSING FOE SALE. [§ 565 ■when ithe margarine was stored in a back room or cellar. The decision is simply that margarine which can not in any sense be seen by the purchaser is not exposed for sale. In this case, the justices refused to convict the defendant on the ground thait "the second part of section six [that part requiring the wrapper to have on it the word 'Margarine'] does not apply to margarine which is wrapped up in paper. That, in my opinion, is a wrong view of the section. The expression 'exposed for sale' is a well-understood term, and oan not be limited so as to mean only 'exposed to view'."* Where slices of bread, spread with a mixture of Danish but- ter and margarine, were sold for consumption on the prem- ises, and also haddocks, on which was put margarine cut from a lumip kept on a shelf, it was held thiat the margarine had not been exposed for sale by retail.' "The question comes to this: was the ease one in which margarine was ex- posed for sale by retail . . .? In order to arrive at a conclusion as to this, one must reaid the concluding portion of the section.® . . . That shows what the character of the sale intended! to be dealt with by the section is ; and it is perfectly obvious that the machinery provided by the section is inapplicable to the course of business as it is carried out at this establishment. It would be absurd to apply the pro- vision as to using a wrapper to each separate piece of mar- garine when spread on the bread or used with the haddock.'" * Wheat V. Brown [1892], 1 Q. a label marked in printed capital B. 418, 56 J. P. 153, 61 L. J. M. letters not lesa than one and a half C. 94, 66 L. T. 464, 40 W. R. 462, inches square, 'Margarine,' and a 8 T. L. R. 294. person selling margarine by retail, s Moore v. Pearce Dining and Ee- save in a package duly branded or freshment Rooms [1895], 2 Q. B. durably marked as aforesaid, shall 657, 15 Rep. 611, 59 J. P. 805, 65 in every case deliver the same to L. J. M. C. 7, 73 L. T. 400, 44 W. the purchaser in a paper wrapper, R. 94, 18 Cox U. C. 196. on which shall be printed in capi- 8 "If such margarine be exposed tal letters, 'Margarine' " 38 and for sale, by retail, there shall be 39 Vict., ch. 63, § 6. attached to each parcel thereof so 7 Moore v. Pearce Dining and Re- exposed, and in such manner as to freshment Rooms, supra, be clearly visible to the purchaser. § 566] LAW OF PUKE FOOD AND DRUGS. 730 In an action to recover a penalty for exposing for sale the carcass of a calf under four weeks of age when bEled, and which was lying on the floor near the wall when seized, about 6 o'clock a. m., in the defendant's place of business, it appeared that the carcasses of calves were at times de- livered at tihe defendant's plaoe of business in the nighttdme and piled upon the floor between business hours, and that when consignments came it was usual to sort, out any small carcasses and leave them on the floor pending the arrival of the city inspectors, who called every day, a judgment was held unauthorized.* § 566. Purpose of Sale. A statute may require the article sold to be sold for food before an offense is committed. Thus wh.ere a statute pro- vided that whoever "sells, or has in his possession with intent to sell, the meat of any" sick or diseased or injured animal, he would be liable to a fine under this statute, the oourt held to constitute the offense the meat must be sold for food. "The evident object of the provision," said the" court, "was to prevent the killing of such animals for the purpose of sale for food, or selling, or having in possession with intent to sell, for food, the meat of such animals. The Legislature evidently did not intend to prevent tihe killing of such animals with intent to sell, or the selling of the meat, for such purposes as would not affect the public or individual h,6alth; and the killing for sale, or the sale of the meat for other harmless purposes, for which it might have a commer- cial value, was not intended to be interdicted. The statute is to be construed as if the interdict had been put upon the killing for the purpose of sale for food, and the selling or having in possession the meat with intent to sell it for such 8 People V. Steers & Menke hibit the mere possession of adul- (N. Y.), 113 N. Y. Supp. 486. terated milk. People v. Timmer- A statute providing that no adul- man, 179 N. Y. 550, 71 N. B. 1136, terated milk "shall be brought into, affirming 79 N. Y. App. Div. 565, held, or offered for sale at any 80 N. Y. Supp. 285. place in the city" does not pro- 731 SALE AND EXPOSING FOE SALE. [§ 567 purpose."^ On the other hand it has been held tbati the use to which the purchaser inibended to put veal was not an ■element of the offense prescribed by a statute forbidding knowingly selling, or having in possession with intent to sell, the meat of a calf killed when less than four weete old.^ Yet when a statute forbade the sale or offer to sell as an article of food any oleaginous substance other than those produced from unadulterated milk or cream, designed to take the place of butter or cheese, it was held necessary to aver in an indictment for selling an oleaginous imitation of butter that it was sold as an article of food.' Still it has been held that upon a charge of selling unwholesome beef, it was not error for the court to refuse to charge the jury that, if tliey find the beef was bought as an article of mer- chandise, and not for domestic consumption, they must ac- quit.* A sale of food for analysis is as much an offense as a sale of it for consumption.'' § 567. Special Contract as to Quality of Goods. A statute of England provides that "No person sihall, with intent that the same may be sold in its altered state without notice, abstract from an article of food any part of it so as to affect injuriously its quality, substance, or nature, and no person shall sell any article so altered without making disclosure of the alteration."^ Attempts have been made to evade the provisions of this section by special contracts be- 1 Schmidt v. State, 78 Ind. 41. the statute made it an offense to It is to be observed that a strong manufacture oleomargarine as an dissent is taken from this view of article of food, see Commonwealth the law. V. Callahan, 12 Pa. Co. Ct. Rep. 2 Commonwealth v. Raymond, 97 170; Commonwealth v. Schollen- Mass. 567. berger, 1 Pa. Dist. Rep. 437, 1.53 8 State V. Fayette, 17 Mo. App. Pa. St. 625, 25 Atl. 999; Common- 587. wealth v. Schmidt, 13 Pa. Co. Ct. 4 People V. Parker, 38 N. Y. 85, Rep. 28. 97 Am. Dec. 774. s State v. Rippath, 71 Ohio St. That it must be alleged the arti- 85 72 N. E. 298. cle manufactured was manufac- i 38 and 39 Vict., ch. 63, § 9. tured as an article of food, where PuBE Food— 46. §§ 568, 569] LAW OF puke food and deugs. 723 tween vendoxs amd purebasers concerning tbe quality of the article to be delivered by the fo-riner, btut imsuceessfuUy. Tlnus a milk producer eonitra'cted to supply milk to a work- hiouse at a certain price. By the contract the milk was to contain a certain percentage of cream, and it was to be tested on each delivery, and a reduction was tO' be made ia the price in respect of any deficiency in cream. When the daily supply, contained in five cans, was being delivered, the respondent, acting under the statute, procured a sample from each of the five cans, and subsequently laid informa- tion in respect of two of the samples, in which they were found to be a large deficiency of cream. It was held that the pro- visions of the contract concerning the deficiency of cream was immaterial in the determination of the question whether the milk producer had committed an offense under the sec- tion quoted.^ § 568. Purchaser having Knowledge Food is Adulterated. It is no defense to an action to recover the statutory pen- alty for adulterating food that the complainants knew it was aidulterated when ithey used it.^ § 569. Offered for Sale. Exposing for sale and offering for sale are distinct aetsi; and usually made distinct offenses. Thus we have seen that keeping oleomargarine ia a closed and covered refrigerator was not an exposure of it for sale.^ But where it was an off'ense to offer oleomargarine for sale unless it was plainly 2 Featt V. Walsh [1891], 2 Q. B. rather than deceit in the sale of the 304, 55 J. P. 726, 60 L. J. M. C. article. People v. Teele, 131 N. Y. 143, 65 L. T. 82, 39 W. E. 525, App. 87, 115 N. Y. Supp. 212. 17 Cox C. C. 322. iLammond v. Volens, 14 Hun In the prosecution of a sale of 263. See also Eider v. Bachus oleomargarine under the New York Marsh, etc. Co. [1905], Vict. L. K. statute, the gist of the offense is 147, 26 Aust. L. T. 156, 11 Aust. the sale of oleomargarine manu- L. R. 37. faptured or produced "in imitation i Commonwealth v. Byrnes, 158 or semblance of natural butter," Mass. 172, 33 N. E. 343. 723 SALE AND EXPOSING FOE SALE. [§ 570 marked so as to establisih its true character, it was held not necessary to prove any overt act of offering for sale in an unidentified state; but the mere possession of it, and placing it in a store with other articles held for sale, was sufficient to warrant a jury in deciding that it was offered for sale.^ So where it appeared that the defendant was at the time in question doing business as a dealer in milk and cream, that the number on the milk wagon from which the sample was taken corresponded with the number on defendant's license, that the man driving the wagoo was in defendant's employ, and that the samples were taken at 6 : 45 in the morning, while the wagon was being driven through the streets, it was held that the evidence was sufficient that the defendant was selling or offering the cream for sale.^ But where it ap- peared that adulterated milk was found in defendant's milk wagon, driven by defendant's employee; and it did not ap- pear the driver was selling or delivering milk, or doing any- thing more than carrying it from Jersey City, where it was re- ceived from the shipper, to the defendant 's place of business in New York City; and the evidence showed thaA the defend- ant returned all the milk to the shipper, it was held that, as it could not be presumed that defendant was engaged in an unlawful act, the evidence was not sufficient to warrant a recovery of the penalty inflicted by the statute.* § 570. Manufacture or Possession with Intent to Sell. Where a statute makes it an offense to manufacture or have in possession oleomargarine or butterine with intent to sell it as pure butter, it is not violated by selling an oleag- inous substance not the product of the dairy and not made from milk or cream, unless the sale was vnth the intent to sell such sTibsitlance as genuine natural butter.^ A statute provided that "no person shall manufacture, mix or com- pound with or add to natural milk, cream or butter any 2 State V. Dunbar, 13 Or. 591, 11 * People v. Kellina, 23 N. Y. Pac. 298, 57 Am. Eep. 33. Misc. 134, 50 N. Y. Supp. 653. 8 People V. Hills, 64 N. E. App. i People v. Laning, 40 N. Y. App. Div. 584, 72 N. Y. Supp. 340. Div. 227, 57 N. Y. Supp. 1057. § 570] LAW OS' PUEB FOOD AND DKITGS. 734 anikniad fats, or animal or vegetable oils; nor shall he make or mannfacitiire any oleaginous substancie not produieed from milk or cream, with intent tO' sell the same for butter or cheese made from unadulteriated milk or cream, or have the same in his possiessiion, or offer the same for sale, with such intent; nor shall any article or substance or compound so m'ade or produced be sold, intentionally or otherwise, as and for butter ot cheese, the product of the dairy." It was held that, in order to prove a violation of such statute, it was not sufficient to show that defendant had manufactured oleo- margarine by mixing animal fats with natural milk, etc., but the intent to sell the oleomargarine so manufactured as the product of unadulterated milk or cneam must also appear.^ But where under a Penniaylvaniia statute it was made an offense to have in "possession vpith intent to sell" any oleag- inous substance designed to take the place of butter or cheese, it was held to be immaterial that the defendant was ignorant that the substance he sold was of the prohibited composition.^ Upon a charge of a sale of milk below the standard prescribed by the statute, it is no defense that it was reduced below the standard by the rem^oval of part of the cream, if the intent to sell was to sell the milk as pure milk, and not as skimmed milk.* Mere possession of adul- terated milk is no offense under a statute making it an of- fense to have possession of such milk with intent to sell or exchange it.^ So under a statute making it an offense to 'adulterate milk with a view to offering it for sale or ex- change, it is no offense to merely adulterate it.° Where it 2 People V. Dold, 63 Hun 583, estate v. Smyth, 14 R. I. 100, 18 N. Y. Supp. 643; People v. 51 Am. Rep. 344. Simpson, Crawford Co., 62 N. Y. s People v. Fauerback, 5 Parker Misc. 240, 114 N. Y. Supp. 945; Cr. Rep. 311. Where defendant People V. Hale, 62 N. Y. Mise. Rep. was a jobber of candy, and admit- 240, 114 N. Y. Supp. 945. ted that he had purchased candies 3 Commonwealth v. Weiss, 139 from which samples shown to be Pa. St. 247, 21 Atl. 10, 27 Wkly. adulterated were taken, that he had N. C. 182, 23 Am. St. 182. such candies at his place of busi- * Commonwealth v. Bowers, 140 ness, and did not contend that Mass. 483, 5 N. Y. 469. the candy was bought for any other 725 SALE AND EXPOSING FOE SALE. [§ 571 was made an offense for every article of diseased meat had in possession for sale, it was held that accused was liable to a penalty for each piece of diseased meat from the same aniLtnal he had in his po^ession at the sam^e timeJ Keeping rotten eggs to use in the manufacture of bread is forbidden by the New York statute.* §571. Resale of Food Purchased under Written Warranty of its Purity. An English statute provides that a defendant charged with selling adulterated food must be discharged if he satis- factorily prove "that he had purchased the article in ques- tion as the same in nature, substance, and quality as thart demanded of him by the prosecutor, and with a written war- ranty to that effect, that he had no reason to believe at the time when he sold it that the article was otherwise, ajid that he sold it in the same state as when he purchased it."^ This section does not fit all ii^anices of violatious of the pure food law in which it belongs. In determining to what transactions it belongs the test is to see whether the word- ing of the section will fit the circumstanoes of the particular offense, or, in other words, whether there has been a sale to the prosecutor following upon a demiand by him for an ar- ticle of a particular nature, substance and quality. If these essentials be not present, the wording of iihis section does not apply to the case. Thus it is not applicable to an instance of "abstracting from the article of food any part of it," be- cause that offense is not the sale, but the abstraction; al- though it would be applicable if the food from which the purpose than for re-sale in the Greenberg, 134 N. Y. App. 599, 119 course of his business, it sufficient- N. Y. S. 325. ly appeared that it was kept for t Kenn v. Bell [1910], S. C. sale, within New York City Sani- (J.) 13. tary Code, Section 68, providing « People v. Friedrich, 138 N. Y. that any person who shall "have App. Div. 29, 122 N. Y. Supp. 500; for sale" adulterated food in the affirmed 200 N. Y. 591, 94 N. E. city of New \ork, etc. People v. 1096. 1 38 and 39 Vict., ch. 63, § 25. § 571] LAW OF PUKE FOOD AND DRUGS. 736 abstraction was made was then sold. Nor would the pro- Amsions be applicable to an' instance of a refusal to sell food to an inspecitlor, where the statute makes it an ofEense; for theire no sale was consnmimated.^ TIhe question as to what constitutes a "written warranty" has been discu^ed in a great many cases, and upon several points- the minds of the judges have fluctuated, so that it is impossible to state with accuracy what the law is at the present time. The best that can be done is to give the results of the several cases. But in considering the cases two rules must be borne in mind: (1) Where foods are sold by desieription, the buyer is entitled to treat that description las a warranty that the goods are of the quality described; and (2) a warranty given after the contract of sale has been completed is gen- erally void, for there is no consideration to support it.^ In an instance of a sale of lard containing water, the defendant showed he sold the article in the same conidition as it was when he bought it, and that when he purchased it he re- ceived an invoice in which it was described as "lard." The court held that the invoice was not a written warranty. "What is required," said Biaron Pollock, "by the statute is a writing expressing on the face of it that it is a warranty."* In a case of a sale of milk the defendant purchased the milk under a written contract made with a farmer who sup- plied it, and who agreed to sell "new and pure milk each and every day for six months." The court held that this contract was not suiHcient to protect him. "It seems clear," said Coleridge, C. J., "that the Legislature meant that a person seeking to priotect himself against the penalty, and 2BUiott V. Pilcher [1901], 2 K. s Consult Roseorla. v. Thomas, B. 817, 65 J. P. 743, 70 L. J. K. 3 Q. B. 234, 11 L. J. Q. B. 214. B. 795, 85 L. T. 50, 20 Cox C. C. *Eook v. Hopley, L. R. 3 Exch. 18, Watts V. Stevens [1906], 2 K. Div. 209, 42 J. P. 551, 47 L. J. ML B. 323, 70 J. P. 418, 75 L. J. K. C. 118, 38 L. T. 649, 26 W. R. B. 828, 95 L. T. 200, 4 L. G. R. 663. The soundness of this decision 821; Kelly v. Lonsdale [1906], 2 may well be doubted, as will ap- K. B. 486, 70 J. P. 441, 75 L. J. pear upon a view of the cases to K. B. 822, 95 L. T. 427, 4 L. G. follow. K. 049. t^l SALE AND EXPOSING EOE SALE. [§ 571 wisTiiTig to make himself perfectly safe in respect of the sale of a specific article, must show that he had a proper specific warranty in writing in respect of the airticle from the vendor. The appellant has mot shown that. It is possible he may have a parol statement, amounting to a warranty, from his vendor each morning that the milk was supplied, but that Wiould not be sufficient." He further added that he was of the opinion that the contract relied upon was "not a written warranty within the meaning of the Act. "^ In a prosecution for selling milk from which the cream had been abstracted, the defendant produced a written contract containing these words: "The vendor hereby warrants each and every supply ■of milk to be pure, genuine and new milk, unadulterated and with all the cream on," and on each of the cans delivered there was a printed label with the words "warranted gen- uine new milk with all its cream on," and the justice trying the case found as a fact that the milk in the can wasi deliv- ered in pursuance of the contract. This was held by the High Court to show a good defense, the court saying: "In the agreement there was a written warranty that the milk to be delivered was to be pure, genuine, and new milk . . . and the fact that the milk was not to be delivered aU at one time does not, to my mind, make any difference."' 5 Harris v. May, 12 Q. B. Div. 2 K. B. 80, 71 J. P. 228, 76 L. J. 97, 48 J. P. 261, 53 L. J. M. C. 39. K. B. 628, 96 L. T. 641, 23 T. L. This case was discussed in Laid- R. 424, 21 Cox C. C. 415, 5 L. G. law V. Wilson [1894], 1 Q. B. 74, R. 608), and approved in Watts v. 63 L. J. M. C. 37, 42 W. R. 78, Stevens [1906], 2 K. B. 323, 70 not followed in EUiott v. Pilcher J. P. 418, 75 L. J. K. B. 828, 95 [1901], 2 K. B. 817, 65 J. P. 743, L. T. 200, 4 L. G. R. 821. 70 L. J. K. B. 795, 85 L. T. 50, « Farmers', etc. Dairy Co. v. Ste- 20 Cox C. C. 18, dissented from by venson, 55 J. P. 407, 6 L. J. M. several of the judges in Bacon v. C. 70, 63 L. T. 776, 17 Cox C. C. Callow Park Dairy Co., 66 J. P. 201. This case is fully discussed 804, 87 L. T. 70, 18 T. L. R. 573 by Justice Cove in lorns v. Van (dissent explained and modified in Tromp, 59 J. P. 246, 64 L. J. M. Watts V. Stevens [1906], 2 K. B. C. 171, 72 L. T. 449, 18 Cox 0. C. 323, 70 J. P. 418, 75 L. J. K. B. 132. 828, 95 L. T. 200, 4 L. G. R. 821, The case of Hutchin v. Hind- and in Evans v. Weatheritt [1907], marsh [1891], 2 Q. B. 181, 57 J. § 571] LAW OF PUEE FOOD AND DEUGS. 738- Where a defemdant bougflit lard which was adulterated with four percent of beeif fats, and the lajrd when purchased was contained in a bladder on which was printed legibly "War- ranted Pure Stao" Brand;" it was held that these words^ th'ough placed on the bladder, did not constitute a war- raiity.'' A grocer bought lard from a manufaeturer und&r the following oontract: "We have this day siold to you three- tons Kilvert's pure lard for delivery to end of January." Two barrels of lard were forwarded to him under this con- tract accompanied by an invoice in which they weire de- Scribed as "Kilvert's pure bladder lard." A portion of this- lard was sold to a customer, and turned out to be adulter- ated. The court held that the grocer was protected by the- contract, saying: "The respondent contends that the con- tract contained a written warranty that the lard should be pure. It is true that the contract does not in terms say that the purity of the lard is warranted, but, in my judg- ment, it is not necessary that the word 'warranted' should be aotually used. To my mind it is enough if the language- of the document imports a warranty, and shows on the part oi the vendor to warrant. It was, however, said on the part of the appellant thait there were two eases which were op- posed to that view. The first was Rook v. Hopley.^ But that case is distinguishable on two grounds. In the first place, the statement there was that the thing sold was lard simply;, there was no statement of its purity. And secondly, the statement there, such as it was, was to be found in an invoice only. But the invoice was no part of the contract, and it is in the contract and in the contract alone, that the warranty which the statute requires must be sought. I decide the P. 775, 60 L. J. M. C. 146, 65 L. the article in question in the same T. 149, 39 W. E. 607, is not in con- state as when he purchased it or flict with Farmers', etc. Dairy Co. that he had no reason to believe V. Stevens, supra; for in Hutch- that it had undergone any change, in's case the question of warranty f Elder v. Smithson, 57 J. P. 809. was only incidentally referred to, s L. E. 3 Ex. Div. 209, 42 J. P. and the true ground of the de- 551, 47 L. J. M. C. 118, 38 L. T.. cision -Bras that there was no evi- 649, 26 W. E. 663. denoe to show that the seller sold 729 SALE AND EXPOSING JOE SALE. [§ 571 present case upon tiie eonstmotion whaicili is to be put, not upon the invoice of December 23rd, but on thie contract of December 17th. The other case relied upon by the appellanit was Harris v. Mjay," where it was held that a written con- tract made on March 24:th, whereiby one, P, agreed to deliver to the defendant eighty-six gallons of pure milk every day for six months, did not constitute a warranty in respect of a specific oan of milk delivered by F on April 12th. There, uo doubt. Lord Ooleridge, ait. the commemcememt of his judg- ment, said that in has opinion the eontraict relied on by the defendant was not a written waaranty within the meaning of the Act. But on looking at his judgm,ent as a whole, I think that what he really meant was that it was not such a warranty as would cover the specific milk on April 12th, in the absence of some written evidence that that specific deiivery was made under the contract. In the present case there is evidence that the particular parcel of lard was' de- livered under the contract, the delivery having been accom- panied by an invoice which describes the lard in the same terms as those contained in the 'Ciontract. The invoice, how- evejr, is immaterial, not as itself containing a warranty of purity, but as ear-marking the particular parcel as having been delivered under a contract in w^hioh a written warranty of purity was contained. " " The word ' pure ', ' ' it was also said, "in the contract of Decemlber 17th, amounts to an agree- ment as an essential part of the contract that the lard sup- plied sihould be pure, and that is, in my opinion, a sufficient warranty of its purity within the meaning of the section."^" In another case a defendant bought vinegar in a cask which had upon it a printed label bearing the words "Vinegar warranted unadulterated — Grimble & Co., Limited. Cumber- land Market, London," and the cask was delivered to her along with an invoice in which it was described as " Grimble 's Vinegar." She afterwards sold it by retail in exactly the 9 12 Q. B. Div. 97, 48 J. P. 261, K. 78, approved in Watts v. Ste- 53 L. J. M. C. 39. vens [1906], 2 K. B. 323, 70 J. P. loLaidlaw v. Wilson [1894], 1 418, 75 L. J. K. B. 828, 95 L. T. Q. B. 74, 63 L. J. M. C. 37, 42 W. 200, 4 L. G. R. 821. § 571] LAW OF PUEE FOOD AND DEUGS. 730 same state as she iiiad received it from the miamafacturers, and it proved to liave been adulterated. It was held that she was entitled to protection under this section of the stat- ute.^^ A grocer sold ground ginger adulterated with 90 per- cent of exhausted or spent ginger. He had purchased it as "ground ginger" in canisters, and had no reason to believe it otherwise than genuine, either when he purchased or re- tailed. He had received from his vendor aai invoice in which it was described as "ground ginger," and each canister bore a printed label, "Warranted genuine pure ginger." It was held that neither the invoice nor the label, together or sepa- rately, constituted a written warranty, so as to entitle the grocer to the protection offered by the statute. Justice Cone reviewed two eases, and said: "Laidlaw v. Wilson^^ was re- ferred to in the argument as being in appellant's favor, but when the judgments are read, it is plain that it governs the present ease adversely to this contention. Then there was a written contract for the delivery of pure lard, and it was held that if the document relied on amounted to a warranty, it was sufficient without the word 'warrant' or 'warranty' being expressly stated in the document. . . . Here there was no such written contract, and the justices have declined to look at the invoice as throwing light on the question of warranty, and they are perfectly right. Of course, there are some cases in which an invoice or label may be regarded in this way, as in Farmers' etc. Dairy Oo. v. Stevenson.'-* . . . But there was a contract warranting the delivery of pure milk for a fixed period . . . , it was niot the label which contained the warranty; all it did was to identify the milk. "When there is a written warranty in the first instance, then a label such as appears on these canisters of ginger may be regarded, but not otherwise." "There must be some express individual representation in writing from the seller to the retail dealer," said Justice Wright, "forming part of the contract to ^11. . . . The representation . . . must 11 Lindsay v. Eook, 58 J. P. 735, is 55 J. P. 407, 60 L. J. M. C. 63 L. J. M. C. 231. 70, 63 L. T. 776, 17 Cox C. C. 201. 12 [1894] 1 Q. B. 74, 63 L. J. M. C. 37, 42 W. E. 78. 731 SALE AND EXPOSING EOE SALE. [§ 571 bear essential terms in the bargain."^* A grocer bought but- ter from a wholesale merchant. At the time of the sale an invoice was handed to him by the merchant, in which the butter was described as "butter guaranteed pure average quality, " and initialed by him. The butter turned out to be adulterated. The justices hearing the case held that the invoice constituted a sufficient warranty to satisfy the stat- ute, and the High Court held that their finding was justified. Lord Russell saying: "An invoice is often used as evidence of the sale itself. Therefore, I see no reason why it should not be evidence of a warranty at the time of sale. Here the natural conclusion from the fact that the invoice bears .the date of the day of purchase, and contains the words 'guaran- teed pure,' followed by initials, is that the vendoip was giving that document as a written warranty in pursuance of a stipulation by the purchaser for that object. "^^ A farmer entered into a written contract on January 20, 1889, to sell the defendant 1,000 gallons of milk weekly, "the milk to be pure milk." On December 15th, 1899, one of the consign- ments of milk was found to be adulterated. There was noth- ing ia writing to show that the warranty attached to this particular consignment. The court held that the defendant was not protected by the warranty unless he could produce evidence in writing to show that the particular consignment was purchased under the warranty.^* A defendant in Janu- ary, 1897, entered into a verbal contract with a firm of "lorns V. Van Tromp, 59 J. P. L. T. 367, 25 T. L. R. 226, 7 L. 246, 64 L. J. M. C. 171, 72 L. T. G. R. 502. 448, 18 Cox C. C. 132. i« Robertson v. Harris [1900], 2 15 Hawkins v. Williams, 59 J. P. Q. B. 117, 64 J. P. 565, 69 L. J. 533. The point to be noted in tbis Q. B. 526, 82 L. T. 536, 48 W. R. case is that the invoice was dated 571, 19 Cox C. C. 495. This case on the day of sale, and in fact con- followed Harris v. May, 12 Q. B. tained the terms of the contract. Div. 97, 48 J. P. 261, 53 L. J. M. The conclusion to be drawn from it C. 39. It was approved in Watts is that an invoice may constitute a v. Stevens [1906], 2 K. B. 323, 70 sufficient warranty if it may be re- J. P. 418, 75 L. J. K. B. 828, 95 garded as the actual contract of L. T. 200, 4 L. G. R. 821, disap- sale, but not otherwise. See Lewis proved in the next case cited. V. Weatheritt, 73 J. P. 164, 100 § 571] LAW OF PUEE FOOD AND DRUGS. 732 dairymen for a daily supply of milk. lii July, 1899, tlie firm, at the defeuidant's request, gave hiim the folloiwing warranty in "writing: "We hereby warrant that each and every supply of milk sent by us to you shall be new milk, unadulterated, and with all its cream." In July, 1900, a 'oonsignment of milk proved to be deficient in fat, but there was niothing in writing to show that the warranty applied to that particular consignment. It was held that the de- fendant Was entitled to prove by oral evidence that the par- ticular consignment was purchased under the warranty; that it was not necessary to show on the face of the warranty that it applied to the particular milk sold, but that the con- nection between the two might be shown by evidence; and that a specific warranty with each delivery of milk was not required.^' Defendants entered into a verbal contra«.t with a farmer for the purchase of a daily supply of milk, and for a written warranty to be given with each chum. The chums were accordingly labeled "Warranted pure." One of the churns turned:' out to be adulterated. It was held that the defendants were protected by the warranty on the churns.^* Defendant was prosecuted for selling milk con- taining seven percent of added water, and he relied upon a 17 Elliott V. Piloher [1901], 2 K. Lord Alverston, C. J., said he B. 817, 65 J. P. 743, 20 L. J. K. doubted whether, having regard to B. 795, 85 L. T. 50, 20 Cox C. C. the more recent case, Harris v. 18. The court considered that May could be regarded as law. It Harris v. May, supra, and Laidlaw should be observed that this case V. Wilson, supra, were irreconcil- differs from Elder v. Smithson, 57 ale, and it followed the latter case, J. P. 809, and lorns v. Van Tromp, and declined to follow Harris v. 59 J. P. 246, 64 L. J. M. C. 171, May and Robertson v. Harris, supra. 72 L. T. 449, 18 Cox C. C. 132, in But in Watts v. Stevens [1906], which a label was held not to be 2 K. B. 323, 70 J. P. 418, 75 L. J. sufficient warranty in itself, inas- K. B. 828, 95 L. T. 200, 4 L. G. much as here there was a contract E. 821, the majority of the court to give a warranty by the label, held that Elliott v. Pilcher was and therefore there was a consider- wrong, ation for the warranty so given. 18 Bacon v. Callow Park Dairy See Lewis v. Weatheritt, 73 J. P. Co., 66 J. P. 804, 87 L. T. 70, 18 164, 100 L. T. 367, 25 T. L. E. T. L. E. 573. 226, 7 L. G. E. 502. 733 SALE AND EXPOSING FOE SALE. [§ 571 document as containing a warranty. It was in these te,mis: "I, A. Playle, agree to buy and Messrs. F and P agree to sell, but without accepting respionsibility after deliyery, about fifty-four Imperial gallons of pure milk every day up to March 31, 1903." The milk was found to be adulterated aifter it had been delivered. The magistrate was of the opin- ion that the document was a valid warranty, and afforded a defense, notwithstanding the words of limitation contained in it; and his decision was held to be rig'ht.^' A milkman made a verbal contract with a farmer for a periodical supply of milk in or about August, 1905. On August 5, 1905, after the making of the contract but before the delivery of any milk thereunder, the farmer gave him the following written guaranty: "I guarantee that the milk supplied by me to Mr. Stevens is perfectly pure and with all its' cream as the cow gives it. ' ' On December 28, 1905, a consignment of milk turned out to be adulterated. The justices found as a fact that the parties intended the written warranty to cover that ■consignment, but there was nothing in writing to connect them. The court held that a warranty may be good al- though it relates to goods not then in existence, but it was further held that in the absence of any written evidence to connect the particular consignment with the warranty, the latter afforded no defense.^" By a contract in writing, dated October 22, 1905, the appellant agreed to purchase from the Great Western and Metriopolitaja Dairies, Limited, the whole of the milk required for his dairy for twelve months. The contract contained the following clause: "All milk to be delivered by the vendors art the purehaseir's address in a 19 Wilson V. Playle, 67 J. P. 263, B. 74, 63 L. J. M. C. 37, 42 W. 1 L. G. R. 870. R. 78, and Robertson v. Harris 20 Watts V. Stevens [1906], 2 K. [1900], 2 Q. B. 117, 64 J. P. 565, B. 323, 70 J. P. 418, 75 L. J. K. 69 L. J. Q. B. 526, 82 L. T. 536, B. 828, 95 L. T. 200, 4 L. G. R. 48 W. R. 571, 19 Cox C. 0. 495, 821. The court reviewed all the and stated in its opinion that El- earlier cases on the point, approved liott v. Pilcher [1901], 2 K. B. Harris v. May, 12 Q. B. Div. 97, 817, 65 J. P. 743, 70 L. J. K. B. 48 J. P. 261, 53 L. J. M. C. 39; 795, 85 L. T. 50, 20 Cox C. C. 18, Laidlaw v. Wilson [1894], 1 Q. was wrong. § 571] LAW OF PUEB FOOD AND DRUGS. 734 sweet, piire and salable oondition, all warranted by tiiem pure with, all its cream as received from tbe icow, but no responsibility will be taken by the vendors -after delivery." On June 27, 1906, a consignment under tlie oontraet was; de- livered, accompanied by a delivery note addressed to the appellant and commencing: "Please receive from the Great "Western and Metropolitan Dairies, Limited," but containing no reference to the contract. It was held that the appellant was entitled to rely upon the warranty. Chief Justice Al- verstone said: "It is not suggested that the appellant re- ceived milk from any one but the Greait Western and Metro- politan Dairies; he proved the receipt of this particular con- signment from that company, and he produced the oontract of October 22, 1905, which showed that all his milk came from the company's dairy. In my judgment that documenit (i. e., the contract of October 22nd) is in these circumstances sufficient on its face to show the requisite "written connection between this consignment of milk and the warranty con- tained in the contract. "^^ One Bainbridge sold milk to one Edwards under a warranty. Edwards^ resold part to the appellant under a written warranty that it was "in the same condition as when received and as warranted by Bain- bridge, viz., pure new unskimmed milk." It was the prac- tice for the appellant to go to the station ;and there take possession of some of the chums consigned by Bainbridge to Edwards. Bach churn bore a label "Warranted pure new and unskimtned milk: G. H. Bainbridge." The magistrate thought that there was not sufficient evidence in writing to connect the warranty with each particular churn, but the High Court held that there was.^^ The appellant had a writ- ten contract containing a warranty with one Carter for a daily supply of milk tiU March 31, 1908. Bach churn had a 21 Evans v. Weatheritt [1907], 2 24 T. L. R. 735, 6 L. G. E. 1038. K. B. 80, 71 J. P. 228, 76 L. J. Lord Alverstone intimated that a K. B. 628, 96 L. T. 641, 23 T. L. warranty on a churn label might R. 424, 21 Cox C. C. 415, 5 L. G. perhaps be sufficient if it contained R. 608. the names of the sender and re- 22Ree8 T. Davis, 72 J. P. 375, ceiver. 735 SALE AND EXPOSING EOE SALE. [§ 671 label: "To Mr. Lewis, 1 ehum, 17 gallons, pure new milk from Carter's Creamery." After March 31, 1908, there were negotiations as to the amiount to be supplied in the future, but nio new eontract was ever entered into, and the old amount was supplied daily with the old label. The High Court held that the appellant was protected, and that after the end of the old contract there was a daily sale and on each sale a written warranty.^^ To succeed in the defense of warranty the person relying upon it must have received it from his immediate vendor; although one of the judges has intimated that if upon a resale the benefit of a warranty be assigned in writing to the purchaser he may be' able to avail himself of it.^* Under the statute quoted at the beginning of this section it should be noted that to enable the vendor to avail himself of the warranty, he must prove thart; he "purchased the article as .the same in nature, substan'ce and quality as that demanded of him by the prosecutor, . . . and thait he had no reason to believe at the time when he sold it that the article was otherwise, and that he sold it in the same state as when he purchased it."^^ Thus where a milk dealer w'ho had bought milk with a warranty added boric acid to it before reselling ift, the court held that he could not rely upon the warranty as a defense, although the boric acid was not relied upon as an adulteration.^' Where a dairyman bought milk with a warranty under a contract for delivery at a railway station, aaid a consignment of milk arrived at the station at 4 :20 a. m., but was not removed till after 5 a. m., and the dairyman proved that the milk was in the same state as when he removed it, but he could not prove in what state it was when it arrived, it was held that 23 Lewis V. Weatheritt, 73 J. P. asHotchin v. Hindmarsh [1891], 164, 100 L. T. 367, 25 T. L. R. 2 Q. B. 181, 57 J. P. 775, 60 L. J. 226, 7 L. G. E. 502. It is clear M. C. 146, 65 L. T. 149, 39 W. R. that the court considered the label 607; Jones v. Bertram, 58 J. P. on the churn a sufficient warranty. 116. 24HargTaves v. Spaekman, 72 J. zsHennen v. Long, 68 J. P. 237, P. 52, 98 L. T. 41, 24 T. L. K. 90 L. T. 387, 20 Cox C. C. 608. 173, 21 Cox C. C. 541, 6 L. G. R. 145. § 571] LAW OF PUKE FOOD AND DEUGS. 736 the purchase AVas oompleted at the time of the removal and not at the time of the arrival, and that, therefore, the dairy- man could rely on the warranty.^'' A servant or agent who has obtained a warranty is not protected by a warranty given his masteir or principal, in cases where suich servant or agent is prosecuted as seller.^* A subsequent statute^* provided th'at a warranty or invoice should not be available as a de- fense to any proceeding under the Sale of Pood and Drugs Aets^° unless the defendant, within seven days after service of the summons, sent to the purchaser a copy of such war- ranty or invoice with a written notice that he intends to rely on the warranty or invoice." But under the decisions the actual words of the warranty need not be set out, if its terms are distinctly stated. Thus where the defendants en- tered into a contract for a periodical supply of milk to them by a farmer with a warranty of its purity, the contract of warranty being coiutained in a number of letters between the parties, and each can of milk was labeled "warranted pure;" and on being prosecuted the defendants gave notice that they relied upon a warranty, and sent a copy of the label on the cans, but did not disclose the correspondence, it Was held that there was a sufficient compliance with this statute just quoted, the court siaying that "A copy of the correspondence would not be half as useful as a copy of the terms of the warranty. "^^ A purchaser bought butter under a verbal contract that a written warranty shtould be given and put upon the invoice. The invoice arrived on the same day, and contained the words, "We guarantee all but- ter sold by us to be absolutely pure." The purchaser was not satisfied with this, so a week later, after the delivery of the butter, he induced the seller to add the words, ' ' Guar- 27 Sanders v. Sadler, 71 J. P. 3, 20, see Manners v. Tyler [1902], 1 95 L. T. 872, 5 L. G. E. 240. K. B. 901, 71 L. J. K. B. 585, aeHotchln v. Hindmarsh [1891], 86 L. T. 716, 50 W. R. 604. 2 Q. B. 181, 57 J. P. 775, 60 L. 29 62 and 67 Vict, ch. 51, § 20. J. M. C. 146, 65 L. T. 149, 39 W. so 33 and 39 Vict., ch. 63. R. 607. This has been changed in si Irving v. Callow Park Dairy England by statute. 62 and 63 Co., 66 J. P. 804, 87 L. T. 70. Viet., ch. 51, § 20. On this section 737 SALE AND EXPOSING FOE SALE. [§571 anteed pure butter in aeeordamce with the third and seventh sections of the Margarine Act, 1887." The butter was adul- terated and he was prosecuted. His solicitors then wrote to the prosecutor giving notice of warranty, and said: "The following is a copy of the warranty," setting out the two sentences above mentioned. The court held that under all the circumstances of the case the notice was sufBcient, say- ing: "I think section 20, which requires a copy of the w^- ranty to be delivered to the complainant, did not mean to say that under all circumBtances the warranty must be cor- rectly set out where there is room for contention as to what the warranty actually was. "^^ A statute of the State of Missouri^^ provides that no dealer shall be prosecuted under its provisions when he can establish a guaranty as provided by the National Food and Drugs Act of June 30, 1906, or a guaranty signed by a wholesaler, jobber or manufacturer either residing within the State or who shall have comiplied with the requirements for service of process in proceedings under the Act, to the effect that the products are not adul- terated or misbranded in the original unbroken packages. It was held that this did not militate against the liability, under the act of dealers in food and dairy products, for placing therein substances which are "poisonous or injurious to health in any quantity for any purpose whatsoever;" the meaning of the statute being merely to relieve the dealer of the necessity of analyzing each and every unbroken package sold or consigned to him, and to' authorize him to sell from such packages, under the guaranty mentioned thereon, pro- viding the wholesaler, jobber, or manufacturer has complied with the provisions of the statute. ^^ A vendor of milk had been supplied with milk by a farmer for years. In Septem- ber, 1908, the farmer gave the vendor the following signed letter: "I hereby guarantee and warrant that all milk sup- plied by me to you is of the nature, quality and substance demanded by law. And I give this warranty for the pur- 32 Farthing v. Parkinson, 68 J. P. »» Acts 1907, p. 242, § 12. 353, 90 L. T. 783, 20 Cox C. C. 661, 3i St. Louis v. Wortman, 213 Mo. 2 L. G. R. 989. 131, 112 S. W. 520. PUEE Food — 47. § 573] LAW OF PUKE FOOD AND DRUGS. 738 poses o£ the sale of the Pood aaid! Drugs Act, 1899." It was held that this wiaaranty applied to all future deliveriesi of milk, and that the vendor was entitled to the proteetioii a vendor was given by the statute iu reselling an adtdterated article when he had purchased it under a warranty that it was unadulterated and pure.^' A farmer supplying milk gave a warranty: 'I hereby guarantee and warrant that all milk supplied by me to you is of the nature, quality and substance demanded by law. And I give this warranty for the purposes of the Sale of Food and Drags Act, 1899." It was held to be a continuing warranty and protected the reseller.'^ §572. Sales by Agent. One who sells adulterated food by an agent violates the sitatute proliibiting the sale of sueh food just as much as if he in persion mlade the sale.^ It is always a question whether the persion making the sale had authority from the defendant to miake it; and that auithlority must be shown before the defendanit can be found guilty. Like any other quesftion of agency it may be proven either by direct or eircumstanitial evidence. Thus upon a charge of a defendJant having in his possession adulterated milk with intent to sell it, and it is shown that his' servant had possession of it, it must be shown thart; sueh servant was acting for and in accordance with the 35 Draper v. Newnham, 102 L. T. 73 Am. Dec. 164; Commonwealth 280, 74 J. P. 124, 8 L. G. R. 144. v. Gray, 150 Mass. 327, 23 N. E. A warranty to supply "milk" 47; Heider v. State, 4 Ohio S. & does not require the furnishing of C. P. Dec. 227; Meyer v. State "pure" milk. Pord v. Urquhart, 21 (Ohio St.), 43 N. E. 164 (princi- Vict. L. R. 688, 17 Aust. L. T. 297,- pal to be tried in county where 2 Aust. L. R. 110. sale takes place) ; People v. Ter- ss Draper v. Newnham, 102 L. T. williger, 59 N. Y. MJisc. 617, 110 280, 74 J. P. 124, 8 L. G. R. 144. N. Y. Supp. 1034; Williams v. 1 Newton v. Reed, 10 N. J. Law State, 25 Ohio Cir. Ct. Rep. 673; Jour. 175; Harvey V. Newton, 52 N. Myer v. State, 10 Ohio Cir. Ct. J. L. 369, 19 Atl. 793; Verona Oen- Rep. 226; Diersing v. State, 29 tral Cheese Co. v. Murtaugh, 50 Ohio Cir. Ct. Rep. 469; Houghton N. Y. 314; State v. Smith, 10 R. I. v. Mundy, 103 L. T. 60, 74 J. P. 258; Hunter v. State, 1 Head 160, 377, 8 L. G. R. 838. 739 SALE AND EXPOSING FOE SALE. [§ 572 "will of hiis master, the defeadaiiit.^ Where la clerk in Ms principal's store miake® la sale of 'adulterated food or oleo- marga-rine, apparently in the ordin-ary course of business, proof of that fact is prima facie evidence of a siale by such principal.^ If the siale was unauthorized, yet closed in the ordinary course of business, the principal will neyertheless be liable for it peisonaUy. Thus the Supreme Ck)urt of In- diana has said in a recent case: "The sale of oleomargarine in an adulterated form, or as a su;bstituite for butter, is a crime against the pubUe health. Whoever, therefore, en- gages in its sale, or in the sale of any article interdicted by the law, does so at his peril, and impliedly undertakes to conduct it with whatever degree of care is necessary to se- cure compliance with the law. He may conduct the business himseK, or by clerks or agents, but if he chooses the latter the duty is imposed upon him to see to it that those selected by him to sell the article to the public obey the law ia.the miatter of selling; otherwise, he, as the principal and re- sponsible proprietor of the business, is liable for the penalty imiposed by statute. We do not believe that it was the leg- islative intent that such proprietor sthould escape by showing that an unlawful sale made by his clerk was unauthorized. We must take a practical, commion-sense view of the whole statute, to give effect to the legislative purpose. To hold that the proprietor should be held liable only wien the sale was made in his presence, or with h.is knowledge or con- sent, would be to prepare a way of easy escape. When we itaike into consideration the community of interest of the proprietor and clerk, in a ease like this, and that private iri- struations to a clerk may be given in such a way tbat there may be more meaning in the manner than in the words spoken, and adding thereto the fact tiat the modern method of ordering supplies by telephone renders the identification of the seller generally impossible, we are led to .the conclu- 2 State V. Smith, 10 K. I. 258; 335, 38 S. W. 317; Hunter v. State, Commonwealth v. Hough, 1 Pa. 1 Head (Tein.) 160, 73 Am. Dec. Dist. Eiep. 51. 164; Newton v. Reed, 10 N. J. Law 3 State V. Bockstruck, 136 Mo. Jour. 175. § 573] LAW OF PtTEE FOOD AND DEUGS. 740 sion that to sustain appellant's oontention wonld operate as a virtual overthrow of the statute." After making several quotations, the court concludes with this language: "While the adjudications are not in harmony, as indicated \)y the text quoted, we think the better reason and weight of au- thority are to the effect that when the, element of guilty knowledge and intent is eliminated from an offense, and the ■doing of the act by any person is interdicted, the principal shall be held to answer for the delinquency of his agent "while the latter is engaged in performing the usual duties of the agency."* In a nisi prius Ohio case it was said: "To hold that by private instructions to a clerk a person in the oleom^aa-garine business might escape prosecution or punish- ment, would go a long way, it seems to us, tow:ard destroy- ing the beneficial effects and purposes of this law. In many cases such goods are ordetred by telephone, and the clerk is not' seen; there is no way of identifying him. . . Where the article is sold by his authority, it is- mot like a case where a party has prohibited his clerks from selling the article at all, or where the clerk without any auithority has sold the article, or where some one has eome into his store without auithority and sold the article. But here is a case where the party is engaged in the business of selling, wihere he intends to sell it, and where his clerks are authorized and em.ployed to sell it."° In the Indiana 'case from which a quotation has been made, the facts were these, as stated by the court: "Appellant is the proprietor of a stall in the Indianapolis market house. Among other food products, he keeps for sale oleomargarine and creamery butter, but not dairy butter. April, 1907, one Bruner, an inspector in the employ of the State Board of Health, presented himself at appellant's stall and asked for one pound of dairy butter. Appellant was not present. The stall was in the sole charge of a young woman, a clerk and employe of appellant, who answered ^Groff V. State, 171 Ind. 547, Rep. 673; affirmed 69 Ohio St. 570, 85 N. E. 769. 70 N. E. 1135; Houghton v. Mun- B Williams v. State, 4 Ohio C. dy, 103 L. T. 60, 74 J. Jf. 377, 8 C. (N. S.) 13, 25 Ohio Cir. Ct. L. G. E. 838. 74:1 SALE AND EXPOSING EOE SALE. [§ 572 Brxmer's application by taking from under tlie counter a package which she wrapped: and handed to Bruner, and for which she charged and received twenty-five cents. The pack- age was wrapped in a paper that had stamped upon it in large letters the word 'oleomargarine,' but which was not observed by Mr. Bruner until the day of trial of thisi cause. Appellant had previously given instructions to the young lady clerk to sell everything in the sitall for just what it was, and to sell nothing as a substitute for something else. These facts," the court proceeded to say, "shiow that the sale was made by a clerk who was employed by appellant to sell oleomargarine from the particulair stall, along with butter and other things. The sale was in the regular course of business, in the exercise of the usual duties of her em- ployment, made for appellant, upon his apparent authority and for his benefit; and it seems clear that he should be answerable if he had failed to apply the necessary precau- tions in selecting, counseling and oversight of his agent; or, in other words, held responsible for what he had done by another."" A sale of a glass of adulterated milk in a res- taurant by a waiter renders the waiter's employer liable.' It is not necessary, unless a statute expressly requires it, to aver that the sale was by an agent, in order to convict the principal.' The general manager of a corporation engaged in selliug food supplies at wholesale, who, iu the course of such business, keeps in stock and sells, through traveling salesmen, an adulterated article of food, may be prosecuted, under a statute prohibiting the sale of impure and adulter- ated articles; and the place of the sale is the county in which the prosecution must be brought.^ Where a statute made it an offense to knowingly sell or bring to any cheese factory, 6 Groff V. State, 171 Ind. 547, 85 ' Oommonwealth v. Vieth, 155 N. E. 769. The court refused to Mass. 442, 29 N. E. 577. extend the adjudications in in- 8 Commonwealtli v. Haynes, 107 stances of sales of intoxicating liq- Mass. 194. uor by barkeepers and servants to 9 Bissman v. State, 9 Ohio Cir. an instance of a sale of adulterated Ct. Rep. 714; Meyer v. State (Ohio food. St.), 43 N. E. 164. § 572] LAW OF PUKE FOOD AST) DEUGS. 743 diluted, adTilterated' or sikimaned milk, il; Tvias held that ex- press authority from the owner to his servant to dilute, adultenate, or depreciate lihe quality of the milk iu any par- ticular manner was not necessary to constitute the offense, but it was sufficient to prove knowledge by the defendant that his servants or agents did deliver bad milk, on author- ity by them to do so.^° "Where the owner is liable even though he did not know the milk wasi adulterated, upon a charge of a sale, it is proper to charge the jury that the defendant was guilty if he sold adulterated milk by his ser- vant, in the ordinary course of business, even if he did not know it was not of standard quality, if there be no sugges- tion that the servant violated his orders. ^^ Possession of a servant is the possession of the master, in a prosecution for having iu his possession adulterated milk or food with intent to sell it.^^ So one selling milk at retail from house to hOuse may bind hds employer by representations to customers con- cerning the quality of the milk furnished; for such repre- sentations are within the apparent scope of his authority; but representations made by him to the State's inspectors are not binding on the principal.^^ A grocer wrapped one 10 Verona Central Cheese Co. v. was below standard from a wagon. Murtaugh, 50 N. Y. 314. belonging to the defendant, and from 11 Commonwealth v. Vieth, 155 cans which contained the supply he Mass. 442, 29 N. E. 577. had delivered to his customers, does Where the officer making an anar not justify his conviction of selling lysis of milk had to notify ■ the milk below standard, where the owner of the milk or his agent, it evidence fails entirely to show that was held that where the milk went the boy who made the sale was au- up to London by train, a railway thorized to sell milk, or had ever porter at the terminus at which the sold any before, but that he sold milk arrived was not the agent of the milk on this occasion without the seller for the purpose of re- the knowledge of the owner, while ceiving the notification. Rouch v. temporarily in charge of the wagon, Hall, 6 Q. B. Div. 17, 45 J. P. 220, and did not account to the owner 60 L. J. M. C. 6, 29 W. R. 304. for the money received therefore. 12 Commonwealth v. Proctor, 165 Diersing v. State, 29 Ohio Cir. Ct. Mass. 38, 42 N. E. 335. Eep. 469. IS People V. Terwilliger, 59 N. Y. Where the wife of a liquor dealer Misc. 617, 110 N. Y. Supp. 1034. broke a bottle containing liquor The admitted sale of milk which when an inspector demanded a sam- 743 SALE AND EXPOSING FOE SALE. [§ 573 pound of oleomargarine for his own use, and laid it on the counter and went away. A customer came in and asked for one pound of salt butter. The clerk saw this package, did not know what it was for, but sold it to the customer. He had been told to sell butter only from bulk and not by the package. It was held that the grocer had violated the stat- ute." §573. Lia,bility of Agent. An occasional statute can be found w'hich makes it an oifense for an agent to solicit orders for the purchase of adulterated food. And some of those statutes declare that the taking of an order for future delivery of an article "shall be deemed a sale" within their provisions. But if an agent solicits' 'an order for pure food, and his principal fills it witih an adulterated article, then such agent is not liable, for such a sale is a sale of pure food 'as to such agent, though a sale of impure food as to his principal.^ And where the agent of a wholesale house solicited an order for oleomar- garine, and his principal, without his knowledge, shipped oleomargarine colored in imitation of pure 'butter in the name of the purchaser, but in care of the agent, it was held that the agent can not be convicted for selling oleom'argarine colored in imitation of butter, for he has no right to open the package nor opportunity to inspect it; and he was justi- fied in assuming that his principal had shipped the goods ordered, and not an adulterated article.^ But an agent who knowingly, at least, sells adulterated food violates the pure food statutes.' pie of the liquor, so that none N. 1090 (distinguishing People v. could be secured by him, it was Snowberger, 113 Mich. 86, 71 N. W. held that the liquor dealer was 497, 67 Am. St. 449, and People v. not liable for her act. Taylor v. Grocer Co., 118 Mich. 604, 77 N". Kixon [1910], 2 Ir. Eep. 94. W. 315). 1* Houghton V. Mundy, 103 L. T. 2 Commonwealth v. Eicharda, 16 607, 74 J. P. 377, 8 L. G. E. 838. Montg. Co. Law Eep. 176. 1 People V. Morse, 131 Mich. 68, s Meyer v. State (Ohio St.) 43 flO N. W. 673, 9 Detroit Leg. N. N. E. 164; Myer v. State, 10 Ohio 198; People v. Skillman, 129 Mich. Cir. Ct. Rep. 226; State v. Walsh, 618, 89 N. W. 330, 8 Detroit Leg. (Wis.), 129 N. W. 656. §§ 574, 575] LAW OF puke food and dkugs. 744 § 574. When Sale must be by Agent to Make Principal Liable. Oeeasionally the sale must be by an agent to make the principal liable by reason of a peculiar phraseology of the statute. Such was held to be the case where a statute pro- vided "that no person, either by his servant or agent, or as the servant or agent of another person," should have in his custody or possession, with intent to sell, impure milk. It was held to apply only to agents and servants and not to the principals themselves. "Manifestly it is only a sale," said the court, "exchange, delivery, custody or possession by or through a servant or agent or in the capacity of servant or agent for another, that is forbidden in this Act."^ § 575. Knowledge Measure is too Small. Where an orddnanice required all persons of a class who sold milk in bottles or glass jars within the city to sell it in bottles or glass jars of a certain capacity, it yvas held no defense that the dealer did not know that his bottles did not meet the requirements of the ordinance.^ 1 State V. Squibb, 170 Ind. 488, 234 111. 294, 84 N. E. 913, 123 Am. 84 N. E. 969. St. 100. 1 Chicago V. Bowman Dairy Co., 'J'45 STATE CONTEOL OF OLEOMAEGAEINE. [§ 576 CHAPTER XV. STATE CONTROL OP OLEOMARGARINE. SEC. SBC. 576. Definitions. 584. Sale of oleomargarine in un- 577. Imitation of butter. licensed restaurant. 578. Natural color — Imitation of 585. Disclosing article sold is oleo- butter. margarine. 579. Pure butter of low grade. 586. Oleomargarine under fancy 580. Pure butter below grade. name. 581. Coloring butter no offense. 587. Sale in sealed packages. 582. Non-imitation of butter — Imi- 588. Sign that oleomargarine is tation. used in restaurant. 583. Liability of hotel, restaurant or boarding house. § 576. Definitions. In England "oleomargarine" is called "margarine." The statutes of the several States some,times define the word "oleomargarine," and in other instances they give a descrip- tion of a substance which they may or may not call oleo^ margarine, and forbid its sale as a butter. An English statute defines "miargarine" as- meaning "all substances whether compounds or otherwise, prepared in imitation of butter, and whether mixed with butter or not;" and it de- fined "butter" as "the substance usually known as butter, made excltisively from milk or cream, or both, with or with- out salt or other preservative, and with or without the addi- tion of coloring matter."^ When this definition of margarine was iu force a purchaser asked for margarine, and obtained margarine which contained 21 percent of water. The analyst certified that this Was at least 5 percent more water than margarine should contain. The seller argued that by this definition the word "margarine" meant all substances pre- 1 50 and 51 Vict., eh. 29, § 3. § 577] LAW OP PUKE FOOD AND DETJ6S. 746 pared in imitation of butter, and that this substance was an imitation of butter, and was therefore margarine. But the court held that the substance sold was not margarine, but margarine and water; and that the seller hiad violated a stat- ute which provided that "No person shall sell to the preju- dice of the purc^basers any article of food whieb. is not of the nature, substance and quality of ,the article demanded by such purchaser."^ In a subsequent case the same court held that a mixture of butter and mUk, called "Peark's Butter" was not margarine within the definition quoted above, and therefore could be sold, althougb containing more than 10 percent of butter fat.^ "Nut cream butter," an article pre- pared in imitation of butter, but containing no animal fat, and unknown at the time of the adoption of tbe above defi- nition, is "margarine" within sueb definition.* §577. Imitation of Butter. Where a statute makes it an oiffense to sell or offer for sale amy article of food Wihieh. is an imitation of or sold under the name of another article, the sale of an article wMch is an imitation is a violation of the Act, though the article itself is neither adulterated nor deleterious to health.^ 2 Burton v. Mattison, 66 J. P. bles butter and is not a milk-blend- 628, 86 L. T. 770; Roberts v. Leem- ed butter." 7 Edw. 7, oh. 21, § 13. ing, 69 J. P. 417, 3 L. G. R. 1031. What plea in defense must state 3 Bayley v. Pearks, Gunston and where it is alleged the oleomarga- Tea, Limited, 66 J. P. 790, 87 L. rine sold was manufactured out- T. 67. side the State. Rouch v. State, 89 4 Wilkinson v. Alton, 72 J. P. Md. 755, 43 Atl. 934. 252, 99 L. T. 119, 6 L. G. E. 544. i Commonwealth v. Eolb, 13 Pa. In the exajnination of these cases Super. Ct. 347; Waterbury v. New- it must be borne in mind that it is ton, 50 N. J. L. 534, 14 Atl. 604; made an offense to sell margarine Bayless v. Newton, 50 N. J. L. which contains more than sixteen 549, 18 Atl. 77. percent of water. 7 Edw. 7, ch. Under the New York law of 21, §4. 1885, ch. 183, §7, forbidding the The English statute now in force manufacture or sale of products defines "margarine" as nieaning not made from unadulterated milk, "any article of food whether mixed in imitation or semblance, or de- with butter or not, which resem- signed to take th« place of butter, 747 STATE CONTROL OF OLEOMARGARINE. [§§ 578, 579 §578. Natural Color — Imitation of Butter. A statute which makes it an offense to manufacture or selQ any prodiiet made wholly or in part of any fat not pro- duced from adulterated milk or cream, which shall be iu imitation of yellow butter, but providing that it shall not be construed to prohibit the manufacture or sale of oleomar- garine free from coloration or ingredient that causes it to look like butter, does not prevent the manufacture or sale of an article, the ingredients of wMch themselves naturally produce the yellow color, and thereby resemble yellow but- ter.^ § 579. Pure Butter of Low Grade. A statute defininig oleomargarine as any substance, not pure butter, of not less than 80 percent of butter fat, which substance is made as a substitute for butter, does not in- clude butter made from pure milk without any adulteration. it is sufficient to constitute the of- fense that coloring matter is pres- ent, making the oleomargarine sold resemble butter; such coloring mat- ter not being essential or necessari- ly incident to its manufacture, and the only object being to make the oleomargarine resemble dairy but- ter, and so increase its value. Peo- ple V. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Eep. 483. Consequently it was held that an instruction to the jury that if they believed the defendant sold an ar- ticle called "oleomargarine," and that it was not a production of pure, unadulterated milk or cream, he was guilty, was erroneous in not submitting to them the question whether the article was or was not an imitation of butter. Ibid. 1 Bennett v. Carr, 134 Mich. 243, 96 N. W. 26, 10 Detroit Leg. N. 407; People v. Schintzins, 61 N. Y. Misc. 410, 113 N. Y. Supp. 313; People V. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Kep. 483. The Pennsylvania statute of May 29, 1901 (P. L. 277), does prevent the sale of yellow oleomargarine, though the resemblance to yellow butter is produced by the admix- ture of the component parts of th& article. Commonwealth v. Mellet, 27 Pa. Super. Ct. 41; Common- wealth V. Vandyke, 13 Pa. Super. Ct. 484; Commonwealth v. Caul- field, 27 Pa. Super. Ct. 279. The New York statute prohibit- ing the coloring of oleomargarine to resemble butter, is aimed at an intentional imitation of dairy but- ter, and not at common qualities inherent in the article. People v. Simpson, Crawford Co., 62 N. Y. Misc. 240, 114 N. Y. Supp. 945; affirmed 142 N. Y. App. — , 126 N. Y. Supp. 1141. §§ 580-583] LAW OF PUKE FOOD AjSTD detjgs. 748 though it may be deficient in butter fats, where such statute does not purport to regulate the sale or grade of butter.^ §580. Pure Butter Below Grade. A statute providing that the word "oleomargarine" shall mean any substance, not pur© butter, of not less than 80 percent of butter fats, which substance is made as a substi- tute for butter, does not apply to admittedly pure butter, although it contains less than 80 percent of butter fate.^ § 581. Coloring Butter no Offense. A statute which prohibits the miauufacturei and sale of oleoimiargarine in imitation of butter has no application to the manufacture of butter; and therefore it is no offense to color butter in order to make it yellow.^ § 582. Non-imitation of Butter — Imitation. A statute which prohibits the manufacture and sale of oleomargarine made in imitation of butter, but providing that nothing in the Act shall be constued to prohibit the manu- facture and siale of oleomargarine in a distinct form, and in such manner as will advise the consumer of its real charac- ter, free from coloration or ingredient that cause it to look like butter, does not apply to oleomargarine not made' in imitation of butter, for the statute is directed solely to prod- ucts in imitation of yellow butter.^ To constitute a viola^ tion of the statute, the article must be so colored as to imi- tate natural butter.^ "When the offense is a sale of a product made in imitation of butter, it is" error for the court to tell the jury the offense was committed if the defendant sold an article not the production of pure unadulterated milk or 1 State V. Ransick, 62 Ohio St. i Commonwealth v. Huntley, 156 283, 56 N. E. 1024. Mass. 236, 30 N. E. 1127, 15 L. E. iKansick v. State, 15- Ohio Cir. A. 839. Ot. Rep. 371, 8 Ohio Dec. 306. 2 People v. Arenaberg, 40 Hun 1 Oommonwealth v. Vandyke, 13 358. Pa. Super. Ct. 484. 749 STATE CONTROL OF OLEOMAEGAEINE. [§ 582 eream, in the absence of instruietions submitting tiie question ■whether the article was or was not an imitation or sem- blance of butter.^ The phrase "yellow butter " used in a statute making it an offenseto sell or offer for sale oleo- margarine colored in imitation of "yellow butter" made from pure milk or cream, means any butter produced from pure milk or cream having a "perceptible shade" of yellow.* "Where a statute makes it an offense' to mianufacture and sell oleomargarine that is an imitation or semblance of natu- ral butter, the imitation or semblance must be proven before there can be a conviction.^ Under such a statute, where the evidence showed a sale by the defendant of oleomargarine containing about as much artificial coloring as was used in butter, and in close imitation thereof; and there was evi- dence that most butter contained artificial eoloriag matter, but there was no evidence of the color of natural butter, except that some was nearly white, which would have been the ease of oleomargarine, had it not been colored, it was held that the evidence was insufficient to show that the oleo- margarine was manufactured as an imitation of natural butter, since the evidence showed no standard by which a comparison in color can be made.' Where a statute forbids the manufacture or sale of any substitute for butter with which is combined any annatto or compound of it, or any substance or substances for the purpose or with the effect of impartiug to it a yellow color, so that the substitute resembles yellow butter, it is immaterial what substance is used to give the substitute such resemblance.'' A statute prohibiting the manufacture of any substance not produced from milk or cream and not the product of the dairy, with intent to sell it as butter made from unadulterated milk or 3 People V. Arensberg, 103 N. Y. « People v. Hillman, 58 N. Y. 388, 8 N. E. 736, 57 Am. Rep. 741. App. Div. 571, 69 N. Y. Supp. 66, i People V. Phillips, 135 Mich. 15 N. Y. Cr. Rep. 394. 395, 91 N. W. 616, 9 Detroit Leg. ^ State v. Bockstruck, 136 Mo. N. 393. 335, 38 S. W. 317. 5 People V. Meyer, 44 N. Y. App. Div. 1, 60 N. Y. Supp. 415. § 583] LAW OF PUKE FOOD AHD DEUGS. 750 cream, and the sale of suoh substajQce as natui'al butter, does not prohibit a sale of an oleaginous' substance not the prod- uct of the dairy and not nuade from nuLk or cream, unless the sale was with the intent to sell such subsitanice as genu- ine natural butter.^ 8 People V. Laning, 40 N. Y. App. Div. 227, 57 N. Y. Supp. 1057; People V. Hale, 62 N. Y. Misc. Eep. 240, 114 N. Y. Supp. 945; affirmed People V. Fried, 62 N. Y. Misc. 240, 118 N. Y. Supp. 1131; People V. Simpson, Crawford Co., 133 N. Y. App. Diir. 936, 118 N. Y. Supp. 1132. Under the New York statute of Laws 1893, p. 663, ch. 338, § 26, the gist of the offense is the sale of the oleomargarine manufactured or produced "in imitation or sem- blance of natura,! butter,'' rather than deceit in the sale of the ar- ticle. People V. Teele, 131 N. Y. App. 87, 115 N. Y. Supp. 212. A statute defined oleomargarine as any article or substance in the semblance of butter not the usual product of the dairy, and not made exclusively of pure, unadulterated milk or cream, or any article or substance into which any oil, lard, or fat not produced from milk or cream, entered as a component. An- other section of the same statute, as subsequently amended, provided that any person manufacturing or selling any substance in imitation or semblance of butter should be deemed guilty of a violation of the statute whether he sold such sub- stance as butter, oleomargarine, or under any other name or designa- tion. In a prosecution for a viola- tion of this statute the preliminary depositions showed that the defen- dant sold an article called "Oleo- margarine," consisting of a small brick of white substance wrapped in paper, and labeled "Oleomarga- rine." There was no evidence that the article imitated or was in sem- blance of natural butter. The chemist who analyzed the substance deposed that it was not natural butter, nor of the color of natural butter produced from pure milk or cream, but was what was common- ly known as oleomargarine. It was held that the depositions nega- tived the fact that the substance was an imitation or in semblance of natural butter, and disproved the essential facts necessary to con- stitute the crime. People v. Wahle, 124 N. Y. App. 762, 109 N. Y. Supp. 629. Certain inspectors found on the accused's premises a tub of a sub- stance marked "Baker's Choice." The tub was also stamped with the word "Oleomargarine," and the State chemist testified that it was other than butter and answered a description of oleomargarine, but that he had not tested it or ex- amined its texture. The accused's evidence, which was undisputed, showed that the substance had neither the taste nor texture of but- ter, that it contained no poison, and was not colored. It was held that he was not guilty of a viola- tion of a statute providing that no keeper of a bakery should keep, 751 STATE CONTROL OF OLEOMAEGAEINE. [§ 583 § 583. Liability of Hotel, Restaurant or Boarding House Keeper. Statutes are frequently so broad as to proMbit a botel, restaurant or boarding house keeper selling or fumisbing his guests with oleomargarine, at least unless licensed and they oomply with certain of their pro-visions. Thus one section (26) of a statute provided that no person should produce or manufacture any compound in imitation of natu- ral butter, or sell any compound produced "in violation of the section whether such compound be made or produced in this State or elsewhere." A subsequent section (28) pro- vided that no keeper of a restaurant should serve therein as food for his customers "any compound made in violation of the provisions of this article." It was held that the phrase "in violation of the provisions of this article" is used in the same sense in both sections, and that the last section prohibited the serving of the condemned compound, whether manufactured in the State or elsewhere.^ So the serving at a public restaurant as a substitute for butter oleomargarine, which though not eaten is paid for as part of the meal, and carried away by the cusitomer constitutes a sale of the article, and comes within the provisions of a statute prohibiting the sale of adiilterated food.^ Even the use of oleomargarine made in imitation of butter for cooking use, or serve any article or sub- defendant was entitled to an in- stance resembling butter, as, or for struction that, if the jury did not butter. People v. Gottfried (N. believe that he made the alleged Y. App.), 113 N. Y. Supp. 1086. admission, they should find for the In an action to recover a penalty defendant. People v. Bremer, 69 prohibiting the sale of oleomarga- N. Y. App. Div. 1, 74 N. Y. Supp. rine "as butter," one witness, who, 570. as inspector, examined the defen- i People v. Fox, 4 N. Y. App. dant's stock, testified that the de- Div. 38, 38 N. Y. Supp. 635. fendant told him that he had been 2 Commonwealth v. Miller, 131 selling a substance, found on anal- Pa. 118, 18 Atl. 938; CJommon- ysis to be oleomargarine, "for but- wealth v. Hendley, 7 Pa. Super. Ct. ter," and this was the only evi- 356, 28 Pittsb. L. J. (N. S.) 401; denee that the substance was sold Hancock v. State, 89 Md. 724, 43 "as butter." It was held that the Atl. 934. § 584] LAW OF FUSE FOOD AND DEUGS. 753 purposes has been forbidden ; and it was held that it was not necessary to allege or prove that the article was kept, used, or served as "butter" by the keeper or proprietor.^ Where a boarding house keeper violated a statute relating to oleomarga- rine purchased the oleomargarine which was colored to imitate butter, in good faith, believing it to be butter, and there were no circumstances which would lead her to believe that it was not butter it was held that the maximum penalty for such violation of the statute should not be imposed.* Where a person for the purpose of delivering or selling to others selects food, including oleomargarine, with an opportunity for examination; and thereafter delivers such food to guests or patrons, he "furnishes" a substance so delivered within the provisions of a statute prohibiting the furnishing of oleo- margarine to a guest or patron of a restaurant without first notifying him that the substance furnished was not butter. In such an instance a waiter in the restaurant serving the guest is liable to punishment.'' § 584. Sale of Oleomargarine in Unlicensed Restaurant. A statute of Pennsylvania made it an offense to sell oleo- margarine without a license as an article of food; or to have it in one's possession with intent to sell it. An unlicensed restaurant keeper furnished oleonuargarine to some of his 3 People T. Berwind, 38 N". Y. after the words "to sell," and no Misc. Eep. 315, 77 N. Y. Supp. semi-colon after the words "in- 859. mates," thus: "or have in his pos- * People V. Seeor (N. Y.), 113 session with intent to sell, or serve N. Y. Supp. 487. to persons, guests, boarders, or in- An Alabama statute provided mates in any hotel, eating house or that no person should manufacture, restaurant," etc.; and, when so sell, offer, or expose for sale, "or read, it was not open to the con- have in his possession with intent struction that it only prohibits the to sell or serve to persons, guests, sale or offer to sell in a hotel, eat- boarders, or inmates; in any hotel, ing house, etc. Cook v. State, 110 eating-house, restaurant," etc., imi- Ala. 40, 20 So. 360. tation butter. It was held that in s Welch v. State, 145 Wis. 86, construing this statute it should 129 N. W. 656. be read as if there was a comma 'i'53 STATE COKTEOL OF OLEOMAEGAEINE. [§ 584 patrons in his restaurant as a part of a meal ordered by them. They did not eat it, but carried it away with them. It was held that this was a sale forbidden by the statute. "It is to prevent adulteration of dairy products, and fraud in the sale thereof, and to protect the public health. It is plain that the exact legislative intent was to prevent the siale, and thereby prevent the use of those adulterations and admixtures as articles of food. It was the use, as food, and the frauds perpetrated upon the public in the sale, which was the mischief to be remedied, and the statute, of course, must be construed with reference to the old law, the mis- chief and the remedy. That the food was furnished to Mc- Kay and Spence, or so mluch of it as they saw fit to appro- priate, was sold to them, can not be reasonably questioned; when it was set before them it was theirs to all intents and purposes, to eat all, or a part, as they chose, subject only to the restaupanteur's right to receive' the price, which it is admitted was promptly paid. They might not eat aU of the article set before them, but they had an undoubted right to do so; and even assuming that the meal is the portion of fo'od taken, in the sense stated, the transiaction must be re- garded as a sale wholly within the purport and meaning of the statute. It is certain that the oleomargarine composed a part of the meal, the price of which was paid, and was embraced in the transaction as an integral part thereof. If an unlicensed keeper of a restaurant may set before his guests a bottle of wine or other intoxicating liquor, charg- ing a regular price for the same, with other articles of food furnished, with liberty to take much or little of the liquor as the guest may choose, or, failing to drink it with his meal, permit him to take it away with him, then the liquor laiws of the commonwealth are of no avail, and the license to sell liquor is wholly unnecessary. "When the liquor is thus furnished and paid for, it is in legal effect a sale, for the very act has been done w:Meh it is the policy of the law to prevent, and which it 'characterizes as a crime, viz., furnish- tag intoxicating liquors at a price which is paid. So, in this case, the oleomargarine was furnished to the persons named PXTBE Food — 48. § 585] LAW OP PUEE FOOD AND DEUGS. 754 as food and the price was paid. As the learned judge of the oourt below well said, it was not given away, and the fact that it was not sold separately, bnt with other articles for a gross sum, would not make it less a sale. It therefore comes within the letter of the law, and it is also within the spirit. If the use of such articles is injurious, it would seem to be especially within the spirit of the Act to prohibit pub- lie caterers from selling them, to their guests as part of an ordinary meal."^ The Legislature has power to make it an offense to fumisih a guest oleomargarine without his knowl- edge." § 585. Disclosing Article Sold is Oleomajrgarine. If a sitatute proMibits the use of coloring matter in oleo- margarine so as to make it resemble butter, it is no defense for the sale of an article thus colored that the defendant when he sold it disclosed to the purchaser that the substance was oleomargarine which had been colored to resemble but- ter. A statute prohibiting the sale of such a colored article is vaHd.^ Another New York ease was of a different char- acter. Thus an early statute of the State punished the sale of oleomargarine, butterine, suine and other substajaees which were not butter, the seller representing the article to be butter. A seller sold an article which he represented to be butter, and which on being analyzed was found to contain 75 percent of butter and 25 percent of fatty substances other than butter. The evidence did not disclose that the foreign substance was either oleomargarine, suine, or butter- ine. The court refused to discharge the seller, holding he was guilty, for the Act prohibited the sale, not only of the various kinds of manufactured butters specified in it, but of any substance not butter, and therefore of any butter adulterated with foreign substance, without regard to the degree of adulteration.^ 1 Commonwealth v. Miller, 131 i People v. Meyer, 89 N. Y. App. Pa. 220, 18 Atl. 938, 6 L. E. A. Div. 185, 85 N. Y. Supp. 834. 633, note; 17 Am. St. 798. 2 People v. Mahaney, 41 Hun 26, 2 State V. Ball, 70 N. H. 40, 46 Atl. 50. 755 STATE CONTROL OF OLEOMAKGAEINE. [§ 586 § 586. Oleomargarine Under Fancy Name. The usual statute concerning oleomargarine does not prevent a sale of oleomargarine under a fancy name, if the law with reference to oleomargarine is fully co'mplied with, and clear notice is given to the purchaser that the article is really oleomargarine. Thus where a statute defined "but- ter," and then declared that "oleomargarine" should mean "all substances, whether compounds or otherwise, prepared in imitation of butter, and whether mixed with butter or not," it was held that no offense had been committed where am inspector asked for half a pound of "Marvo" (a form of margarine), and was served from a mass labeled "Mar- garine;" and the half pound handed him was wrapped in ■a paper labeled "Margarine," and inside the paper was a printed slip: "Marvo, the new butter substitute, equal in flavor to the finest dairy butter; to comply with the pro- visions of the Food and Drugs Act is sold as margarine."^ In another instance the inspector asked for a half pound of "Keeloma," a sort of margarine. He did not see the bulk until it had been wrapped up. It was given him in a plain brown paper wrapper, undiemeath which was a second wrap- per with the word "Margarine," and inside the second wj'apper was a printed label: "Keelomia, the only perfect substitute for butter." Inside the shop were exhibited two notices: (1) "If you ask for butter, you will be served with one of our new substitutes." (2) "Only Keeloma and Over- weight, the new butter substitutes, sold here, and to comply with the Food and Drugs Act are sold under the name of margarine." It was held that no offense had been com- mitted in selling the packages to the inspector.^ 1 Tanner v. Dyball, 70 J. P. 279, Section 10, 7 Bdw. 7, ch. 21, pro- 94 L. T. 539, 21 Cox C. C. 123, 4 vides that "A name shall not ha L. G. E. 506. approved by the Board of Agricul- 2 Keeloma, Dairy Co. v. Jones, 70 ture and Fisheries for use in oon- J. P. 533, 5 L. G. E. 246. See also nection with margarine if it re- Pearks, Gunston & Tee v. Hough- fers to or is suggestive of butter ton, 71 L. J. K. B. 385 [1902], or anything connected with th^ 1 K. B. 889, 66 J. P. 422, 86 L. T. dairy interest, nor shall such name 325, 50 W. E. 605. be approved as a name under which §§ 587, 588] LAW OF pukb food and deugs. 756 § 587. Sale in Sealed Packages. A statute required oleomargarine to be sold in sealed packages, the original seal of whieh should not be broken. A package was wrapped in parchment paper with a band around it attached to the seal; but the band was broken so that it was not difficult to open and change the contents of the package. It was held that there had been a violation of the statute.^ § 588. Sign that Oleomargarine is Used in Restaurant. Statutes occasionally require the keeper of a hotel or res- taurant who serves his guests or patrons oleomargarine as a substitute for butter to exhibit signs in conspicuous places in the eating or dining room bearing the words "Oleomar- garine Used Here" or similair words. Where such a statute is in force an indictment for not so posting up such signs must allege that the defendant furnished oleomargarine to his guests as a substitute for butter.^ ■milk-blended butter may be import- Casora, Casova, Consumo, Dal- ed or dealt with." phine, Debeco, Esselbee, Froco, By Section 1 of the same Act Fromaid, Iveldale, Iveldene, Ivel- "Milk-blended" butter is defined as ette, Ivelmore, Jensa, Kingstyle, "any mixture produced by mixing Maldar, Me-No, Nolax, Pearks' or blending butter with milk or Breadmate, Pearks' Bredspred, cream other than condensed milk Pearksown, Semaldine, Seeandwi, or cream." By Section 4 milk- Ve-vo, ana Vivum. Bell's Sale of blended butter is contraband if it Food and Drugs Act (5th Ed.) "contains more than twenty-four 228. percent of water." The names ap- i People v. Fichten (N. Y.), 130 proved by the Board of Agricul- N. Y. Supp. 704. ture and Fisheries for this kind of i People v. Redding (N. Y. butter are Alimo, Bradlac, Brenco, Misc.), 126 N. Y. Supp. 977. Caimlaw, Casa, Casana, Casmon, 757 INDICTMENT. [§ 589 CHAPTER XVI. INDICTMENT. SEC. SEC. 589. Description of article sold il- 599. Sale of adulterated food with- legally. out informing purchaser. 590. Indictment must show what 600. Allegation sale was of article was the adulteration. of food. 591. Indictment for sale of unla- 601. Sale by agent, beled packages. 602. Milk. 592. Negativing provisions. 603. Selling adulterated milk at 593. Duplicity. cheese factory. 594. Knowledge of adulteration or 604. Intention to sell unfit meat, unfitness of food. 605. Uninspected liquor. 595. Alleging name of purchaser. 606. Refusing to furnish samples. 596. Description of defendant. 607. Failure to label articles of 597. Oleomargarine. food. 598. Mislabeling or misbranding. 608. The prosecutor. § 589. Description of Article Sold Illegally. A statute made it an offense to sell any compound made wholly or partly out of any fat, oil, oleaginous substance, or compound thereof, not produced directly and at the time of manufacture from unadulterated milk or cream from the same, which should be in imitation of yellow butter produced from pure unadulterated milk or cream from the same. In a criminal prosecution under this statute it was held that the indictment was not open to the objections of insufficient de- scription, or that it did not charge an offense, when it charged a sale of the "article, product or compound," and averred that it was "made wholly or partly out of fat, oil, or oleaginous substance, or compound thereof;" that it was not produced directly and at the time of manufacture from unadulterated milk or cream from the same, and that such article, product or compound was in imitation of yellow but- ter, produced from pure unadulterated milk or cream from § 590] LAW OF PUEE FOOD AND DEUGS. 758 the same.^ An' affidavit charging that the defendant sold to a certain person, on a day stated, in a certain county of the State, "a certain quantity of food, to wit, ground mustard," has a sufficient description of the article sold.^ So a charge that the defendant sold for blackberry wine "a certain com- pound and mixture consisting of wine, sugar, water, alcohol, salicylic acid and aniline red," is a sufficient description of the adulterated article sold.^ But an indictment charging one with unlawfully and fraudulently adulterating "a certain substance intended for food, to wit, one pound of confection- ery," is fatally defective, for "confectionery" is a generic word, and includes a great variety of kinds of articles usu- ally found in a confectioner's shop.* Under a statute pro- hibiting the manufacture or sale of any food which has been adulterated by adding any substance so as to reduce or in- juriously affect its quality or strength, or by substituting any cheaper or inferior substance, an indictment should state the particular substance with which, and the manner in which, the article of food alleged to have been manufactured or sold was adulterated.^ §590. Indictment Must Show What Was the Adulteration. In charging that an adulterated article was sold by the defendant, it is necessary to set out what was the adultera- tion. It is not enough to allege that the accused sold a par- ticular article of food that was adulterated. Thus, where 1 Cook V. State, 110 Ala. 40, 20 Under a statute declaring that a So. 360. sale of each of several packages 2 Haas V. State, 1 Ohio N. P. shall each one oonatitute a separ- 248, 2 Ohio Dec. 177. ate violation of its provisions, one s Meyer v. State, 1 Ohio N. P. selling adulterated milk is liable 241, 2 Ohio Dee. 233. in one action to cumulative penal- * Commonwealth v. Chase, 125 ties when he is guilty of a series Mass. 202. of violations. People v. Koster, In an instance where one indict- 212 N. Y. App. Div. 852, 106 N. ment was in lieu of another, see R. Y. Supp. 793. M. Hughes & Co. v. Commonwealth BDorsey v. State, 38 Tex. Cr. (Ky.), 101 S. W. 1194, 31 Ky. L. App. 527, 44 S. W. 514, 40 L. E. Eep. 179. A. 201. 759 INDICTMENT. [§ 591 flour had been adulterated with eom-meal, and then sold, it was held necessary to aver that the adulteration consisted in the mixing of corn-meal with the flour; and it was not suffi- cient to aver that the accused did "knowingly and fraudu- lently manufacture, offer for sale, and sell a certain article of food, to wit, flour which was then and there known by him to be adulterated. "There are a number of articles or sub- stances which might be intermingled with flour so as to re- duce or lower or injuriously affect its quality or strength, or which are of an inferior or cheaper character; and by our system of pleading the appellant should have been charged with the particular substance with which the article in ques- tion was adulterated, so that he might be prepared to meet the State's case."^ § 591. Indictment for Sale of Unlabeled Package. A statute provided that: "No manufacturer or other per- son or persons shall sell, deliver, prepare, put up, expose or offer for sale any lard, or any article intended for use as lard, which contains any ingredient but the pure fat of healthy swine, in any tierce, bucket, pail, package or other vessel or wrapper, or under any label bearing the words 'pure,' 'refined,' 'family' or other words, alone or in com- bination with other words of like import, unless every tierce, bucket, pail, package or other vessel, wrapper or label, in or under which said article is sold, delivered or prepared, put up, exposed or offered for sale, bears on the top or outer iDorsey v. State, 38 Tex. Crim. kept, and offered for sale as and App. 527, 44 S. W. 514, 40 L. E. for cider vinegar a vinegar or prod- A. 201. uct which was not cider vinegar as A complaint In an action for a defined by statute, was sufficient penalty for keeping and offering under New York Agricultural for sale adulterated vinegar, alleg- Law, §§50-53 (Laws 1893, pp. 667, ing that between certain dates de-' 668, ch. 338), defining adulterated fendant manufactured for sale, vinegar, prohibiting the sale there-, kept and offered for sale, adulter- of, and imposing a penalty for its ated vinegar which was made in violation. People v. Windholz, 86 imitation or semblance of cider N. Y. S. 1015, 92 App. Div. 569. vinegar, and that he manufactured. §§ 593, 593] LAW OF puee food and deugs. 760 side thereof, in letters not less than one-haJf inch in length, and plainly exposed to view, the words 'compound lard,' and the name and proportion, in pounds and fractional parts thereof, of each ingredient contained therein." An indict- ment averring a violation of this statute was in the language of such statute so far as it was necessary to constitute an of- fense, and this was held sufficient. In the construction of the statute, the court said: "If the bucket alleged to have been sold did not bear a statement of the ingredients, the offense was complete, no matter whether the package was stamped 'pure,' 'refined,' 'family' or 'compound lard.' "^ § 592. Negativing Provisos. Provisos in statutes excepting certain persons or articles of food from the provisions of the statute need not be nega- tived in the indictment. If a defendant or the article of food falls within their scope, that is a matter of defense to be brought forward by the accused.^ Thus, one section of a statute made it an offense for any person to have in his pos- session for the purpose of sale adulterated milk, and another section defined "adulterated milk" as milk containing less than three percent of milk fat, also deplaring that the Act shall not prohibit the sale of skimmed milk, when sold as such. It was held that an indictment for having adulterated milk in possession, with intent to sell it, was not objection- able for failing to negative the exception contained in the latter section with reference to skimmed milk.^ § 593. Duplicity. An indictment charging that the defendant sold a certain 1 State V. Snow, 82 Iowa 642, 47 20 N. E. 820; People v. Lewis, 131 N. W. 777, 11 L. R. A. 355. N. Y. App. 336, 115 N. Y. Supp. 1 Commonwealth v. Mullen, 176 909; Commonwealth v. Kenneson, Mass. 132, 57 N. E. 331; Isenhour 143 Mass. 418, 9 N. E. 761; State V. State, 157 Ind. 517, 62 N. E. v. Luther, 20 K. I. 472, 40 Atl. 9. 40, 87 Am. St. 228 ; State v. Bock- 2 Splinter v. State, 140 Wis. 567, struck, 136 Mo. 335, 38 S. W. 317; 123 N. W. 97. People V. Briggs, 114 N. Y. 56, 761 INDICTMENT. [§ 593 quantity of "adulterated milk, to which a large quantity — that is to say, four quarts — of water had been added," is not bad for duplicity/ One charging that the defendant ''had unlawfully kept, offered for sale and sold" adulterated milk, charged but one offense.^ A charge that the defendant "sold to divers citizens 500 pounds of beef as good and wholesome beef and food" is not bad for duplicity.' A statute pro- hibited the sale or exposing for sale adulterated milk, and an ordinance punished the bringing of watered or adulter- ated milk into the city for sale. Where this statute and this ordinance were in force a court, in an indictment, proceeded exclusively upon the ordinance, and it was held that it would not justify a conviction under the general statute, and so was not subject to the objection of duplicity, though it contained averments which might sustain a count for the statutory offense.* An indictment charging selling and ex- posing for sale adulterated milk is not bad for duplicity. ° A charge that the defendant, on the 3d and 4th of August, brought to a certain factory a large quantity of milk diluted with water, alleges but a single transaction, and charges but one offense, though two days are assigned to its commission. ° Where a statute provides for the punishment of one selling or having in possession, with intent to sell, adulterated milk, a complaint thereon in two counts, the first charging defend- ant with selling adulterated milk, and the second with having such milk in his possession for sale, the same milk being in- tended in both counts, and the possession being on the same day as the sale, and preliminary to it, charges but one of- fense.'' 1 Commonwealth v. Farren, 9 « People v. Harris, 54 Hun 638, AUen 489. ' 7 N. Y. Supp. 773. 2 Commonwealth v. Nicholas, 10 ^ Commonwealth v. Tobias, 141 Allen 199. Mass. 129, 6 N. E. 217. A com- 8 Goodrich v. People, 19 N. Y. plaint to recover penalties for vio- 574, 3 Park. Cr. Rep. 622. lation of the Agricultural Law, al- * Polinsky v. People, 73 N. Y. leging that plaintiff does not know, 65, affirming 11 Hun 390. and for that reason can not state, B People V. Bums, 53 Hun 274, the precise number of barrels con- 6 N. Y. Supp. 611. tained in each sale and purchase § 594] LAW OF PURE FOOD AND DRUGS. 763 § 594. Knowledge of Adulteration or Unfitness for Food. Where it is necessary to show that the defendant made a sale of food, knowing at the time that it was adulterated or unfit for food, it is necessary to allege knowledge on his part of the adulteration or unfitness. And the same is true where the statute does not use the word "knowingly," but the courts interpret the statute so that he must have had knowl- edge of the adulteration or unfitness of the food at the time of the sale to constitute it an offense. The word "unlawful" can not take the place of the word "knowingly."^ Where a statute provided that an indictment should be sufficient if it could be understood therefrom that the offense charged was stated with such degree of certainty that the court may pro- nounce judgment upon a conviction according to the right of the cause; that none should be quashed for any defect or imperfection which does not tend to prejudice the substan- tial rights of the accused, it was held that an indictment which alleged, on a certain date, the defendant "unlawfully and knowingly had in his possession the meat of a certain diseased and injured animal, to wit, a steer, then and there, with the unlawful intent to sell the meat of said diseased and injured animal for human food," it was a suificient alle- gation of the defendant's knowledge of the diseased condition of the meat at the time of the sale. "The charge that the ac- cused 'knowingly' had in his possession the diseased meat would, in our opinion," said the court, "be understood to mean, in the usual acceptation of such words in common lan- guage, that he had the meat in his possession, knowing that it was diseased."^ In another case the indictment charged of vinegar, but that plaintiff is en- tion. People v. Sheriff, 79 N. Y. titled to recover a penalty of $100 S. 783, 78 App. Div. 46. for each separate purchase of vine- A sale of ten pieces of diseased gar which was sold as cider vine- meat of the same animal has been gar, but was not such, is objeo- held to be ten offenses. Kenn v. tionable, as, by implication, alleg- Bell [1910], S. C. (J.) 13, Ct. of ing in a single count an indefinite Just. number of sales, for any one of i Schmidt v. State, 78 Ind. 41. which plaintiff has a cause of ac- 2 Brovfn v. State, 14 Ind. App. 763 INDICTMENT. [§ 595 that the defendant "did, then and there, unlawfully, know- ingly and wrongfully kill, for the purpose of selling for food, certain sick, diseased and injured animals," and this was held sufficient to show the defendant knew the animals killed were sick and diseased at the time he killed them. "The charge is," said the court, "that the appellant did 'know- ingly' kill for the purpose of selling for food the animals mentioned. The adverb 'knowingly' qualifies not only the verb, did kill, but everything following the same and con- nected therewith, and will supply the place of a positive averment that the accused knew the facts stated subsequent to the use of such word."^ On the contrary, it is held that, as the vendor must know that the meat he sells is diseased it is not enough to m.erely allege he did "knowingly sell such provisions."* Under a statute making it an offense to know- ingly sell, or have in possession with intent to sell, the meat of a calf killed when less than four weeks old, it is sufficient to charge that the defendant killed a calf, intending to sell its meat, "well knowing that said calf was less than four weeks old."^ Where a knowledge of the adulteration is not a necessary element of the offense, then it need not be averred that the defendant knew when he sold the food it was adul- terated, and if averred it need not be proven.' § 595. Alleging Name of Purchaser. In charging a sale, it is one of the cardinal principles of 24, 42 N. E. 244. The court dis- Mass. 567; Lansing v. State, 73 tinguished this case from Schmidt Neb. 124, 102 N. W. 254. V. State, 78 Ind. 41, by saying it « Commonwealth v. Farren, 9 was decided in accordance with the Allen 489. See also Hobbs v. Win- strict rule of common law plead- cheater, 79 L. J. K. B. 1123, [1910] ing. 2 K. B. 271, 102 L. T. 841, 74 3 Moeschke v. State, 14 Ind. App. J. P. 413, 8 L. G. E. 1872, 26 393, 42 N. E. 1029. T. L. E. 557, following Cundig v. * Commonwealth v. Boynton, 12 Le Coceq, 53 L. J. M. C. 125, 13 Cush. 499; People v. Worden Gro- Q. B. Div. 207; Mallinson v. Carr, cer Co., 118 Mich. 604, 77 N. W. 60 L. J. M. C. 34, [1891] 1 Q. B. 315. 48, and Firth v. McPhail, 74 L. B Commonwealth v. Raymond, 97 J. K. B. 458, [1905] 2 K. B. 300. §§ 596, 597] LAW OF pueb food and deugs. • 764 pleading that the name of the purchaser must be given, and the practice is that the name must be proven as laid. If the name be not known, then there must be an allegation that the name is unknown to the grand jurors.^ But the grand jury may not allege that the purchaser's name is unknown to them, unless it has made a careful investigation to ascertain his name.^ § 596. Description of Defendant. Under a statute which makes it an offense only for one engaged in a particular trade or business, it is necessary to allege that, at the time the alleged offense was committed,' the defendant was engaged in such trade or business. Thus, under a statute punishing those engaged in the milk business for selling adulterated milk, it must be alleged that the de- fendant was engaged in the milk business when the offense was committed.^ So where a statute punishes persons who, being recorded in the books of the milk inspector as dealers, shall knowingly sell adulterated milk, an indictment which, after alleging the official character of the inspector, and that he kept the records and books as required by statute, charges that the defendant, being a dealer, and being recorded as such "in the books of such inspector," did sell, etc., does not sufficiently show that the defendant was recorded in such books as the statute requires the inspector to keep, and is defective.^ § 597. Oleomargarine. An indictment for having in his possession, with intent to sell, oleomargarine made partly out of oleaginous substances 1 Goodrich v. People, 3 Parker i Commonwealth v. Flannally, 15 Cr. Rep. 622; People v. Bums, 53 Gray 195. Hun 274, 6 N. Y. Supp. 611, 7 2 Commonwealth v. O'Donnell, 1 N. Y. Crim. Eep. 92; Feigen v. Allen 593; Commonwealth v. Mc- McGuire, 64 N. J. L. 152, 44 Atl. Carron, 2 Allen 157. That it is 972. not necessary to allege that the de- 2 Marxen v. State, 44 Tex. Cr. fendant was a registered milk deal- App. 41, 68 S. W. 277. er, see State v. Luther, 20 E. I. 472, 40 Atl. 9. 765 INDICTMENT. [§ 597 in imitation of yellow butter, produced from unadulterated milk or cream, need not allege it was not "renovated but- ter" where the possession of such butter is made an offense by another statute, the substance described in the indictment differing from that named in the latter statute/ It need not be alleged the oleomargarine was fraudulently sold.^ Where a statute prohibits the sale of oleaginous substance colored in imitation of butter, and not made from adulterated milk or cream, alleging that the "defendant did sell two pounds of an oleaginous substance compounded and colored in imi- tation of yellow butter produced from pure milk or the cream trom the same, and such oleaginous substance and compound not having been produced directly and wholly, at the time of the manufacture thereof, free from coloration or ingredient that caused it to resemble yellow butter produced from un- adulterated milk," does not sufficiently charge that the sub- stance sold was not produced from unadulterated milk or cream.^ "Where a statute provided that no person should coat, powder or color butterine or oleomargarine, or any compound of it, an indictment charging a sale of two pounds of oleomargarine colored with annatto, whereby it was made to resemble butter, is good.* K the offense is selling as nat- ural butter, produced from unadulterated milk or cream, any oleomargarine or other substance made in imitation of butter from animal fats, or animal or vegetable oils not the product of the dairy, the indictment must show that the oleaginous substance sold was made from animal fats or animal or vege- table oils not the product of the dairy.^ An indictment charging a person with selling oleomargarine which, when sold, contained coloring matter, to wit, butter yellow, is suffi- cient, though it contains descriptive words which partially bring the substance within the statutory definition of oleo- margarine." An indictment upon a statute prohibiting "the 1 Conrmonwealth v. Mullen, 176 * Basch v. State, 89 Md. 755, Mass. 132, 57 N. E. 331. 43 Atl. 931. 2 Fox V. State, 94 Md. 143, 50 b People v. Laming, 40 N. Y, Atl. 700, 89 Am. St. 434. App. Div. 227, 57 N. Y. Supp. 1057. 8 State V. Henderson, 15 Wash. ' State v. Arata, 69 Ohio St. 211, 598, 47 Pae. 196. 68 N. E. 1046. § 598] LAW OF PUEE FOOD AND DEUGS. 766 manufacture and sale of oleomargarine, butterine and other similar products," is not bad because the disjunctive "or" is used between the words "oleomargarine" and "butter- ine."' But an indictment in the disjunctive, charging that the defendant kept for sale an article made by "adding to milk, cream or butter, animal fats or animal or vegetable oils," was held sufficient.^ Yet an indictment for having in possession, with intent to sell, oleomargarine made partly out of oleaginous substances not produced from unadulterated milk or cream, is not in the alternative, as alleging that the substance was made from adulterated milk or cream, since if all the substances of which it was composed were produced either from unadulterated milk, or cream therefrom, no of- fense could be charged." § 598. Miskkbeling or Misbranding. A statute provided that no person should sell lard, or any article intended for use as lard, which contained any ingre- dient except the pure fat of healthy swine, under any label bearing the words "refined," "pure," "family," unless every package in which the article was sold was marked "compound lard." It was held that an information charging a violation of such Act is sufficient if it alleges, in substance, that the defendant sold a package, or bucket, filled with an article intended for use as lard which contained other ingre- dients than pure fat of healthy swine, and that such bucket or package did not bear on the top or outer side the naine, and proportion in pounds and fractional parts thereof, of each ingredient contained therein, without alleging that it 7 Commonwealth v. McDermott, serving his guests with oleomarga- 37 Pa. St. Rep. 1. rine "as a substitute for butter" to 8 Ryan v. State, 5 Ohio Cir. Ct. put up signs in the serving or din- Rep. 486. ing room bearing the words "oleo- 9 Commonwealth v. Mullen, 176 margarine Used Here," the indict- Mass. 132, 57 N. E. 331; People ment must allege that the defen- V. Lewis, 131 N. Y. App. 336, 115 dant furnished the oleomargarine N. Y. Supp. 909. to his guests "as a, substitute for Under a statute requiring the butter." People v. Redding, 142 keeper of a hotel or restaurant N. Y. App., 126 N. Y. Supp. 977. 767 INDICTMENT. [§§599,600 was stamped "pure," "family" or "compound" lard.^ A statute prohibited the misbranding or adulteration of any article of food, defined "food" as an article used for food for man or domestic animals, and declaring that an article was misbranded where the label bears any false statement concerning the substances of which the article was made, and that an article was adulterated where any substances were mixed with the article so as to injuriously affect the article. Under this statute an indictment alleging that the defendant sold and delivered a product for food for domestic animals, that the product was branded as described, and was guaran- teed to contain certain articles, that the label was untrue, BJid that the product was largely adulterated, it was held to be sufficient.^ §599. Sale of Adulterated Food Without Informing Purchaser. Where a statute makes it an offense to sell adulterated food without informing the purchaser of its adulteration, then it is not enough to charge a sale of such food without alleging a failure to inform the purchaser of its true condi- tion.^ § 600. Allegation that Sale was of Article for Food. As a rule, it need not be averred that a sale of an adul- terated article was a sale of the article to be used as human food.' A charge of a sale of adulterated milk need not al- lege that the milk was an article of food,^ and if the statute 1 State V. Snow, 81 Iowa 642, 47 wealth v. Kolb, 13 Pa. Super. Ct. N. W. 777, 11 L. R. A. 355. Rep. 347 (sufficient after verdict). 2 W. H. Small & Co. v. Common- A charge of a sale of milk "as and wealth, 134 Ky. 272, 120 S. W. for pure milk, an article of food," 361. is a sufficient allegation that it 1 State V. Falk, 38 Mo. App. 554 ; was sold as an article of food. Commonwealth v. Boynton, 12 Lansing v. State, 73 Neb. 124, 102 Gush. 499. N. W. 254. 1 State V. Kelly, 53 Ohio St. 667, 2 State v. Smith, 69 Ohio St. 196, 43 N. B. 163, reversing 1 Ohio N. 68 N. E. 1044. P. 238, 2 Ohio Deo. 239; Common- § 601] LAW OF PUEB FOOD AND DEUGS. 768 prohibits a sale of adulterated mUk it need not be alleged that the milk sold was cow's milk.^ If the statute makes it an offense to sell adulterated wine as a beverage, then the statute must charge a sale of wine as a beverage or it will be bad.* A charge of a sale of cream of tartar for a drug is not supported by evidence showing a sale of the article as a food, even though the statute make a sale of such an article as a food an offense.^ § 601. Sale by Agent. Where a sale is made by an authorized agent the charge may be that the principal made the sale, and proof that the principal's authorized agent sold it will support the indict- ment. Thus, a statute required that, in a sale at retail of any compound in imitation of butter, "the seller or his agents" should attach to each package a label of a specified character describing the article; it was held that the indict- ment need not allege that the sale with which the defendant was charged was actually made by an agent, in order to let in proof of that fact.^ Yet, where a statute made it an of- fense for any one, by himself or agent, or as servant or agent of another person, to sell milk from which the cream had been removed, an indictment charging a principal with an improper sale was held insufficient where the sale was made by an agent. ^ When the person to be prosecuted is the seller or consignor himself, and the indictment alleges a sale by the consignor "by the hands of A. B., his servant or agent," and it turns out that A. B. was not his servant or agent for sale, but merely a carrier, there is a fatal variance.^ Where a statute provided that "No person, either by his servant or agent, or as servant or agent of another person," should seU 8 Ckmmionwealth v. Farren, 9 Mass. 327, 23 N. E. 47; Williams Allen 489. v. State, 25 Ohio Oir. Ct. Eep. 673. *Vester v. State, 1 Ohio N. P. 2 Haider v. State, 4 Ohio S. & 240, 2 Ohio Dec. 170. C. P. Dec. 227. 5 People V. Fuller, 12 Abb. N. 0. sHiett v. Ward, 58 J. P. 461, 196. 70 L. T. 374, 10 T. L. R. 284. 1 Commonwealth v. Gray, 150 "^69 INDICTMENT. [§ 603 impure food, it was held that an indictment charging that the accused sold such food was insufficient, for it should have alleged that the defendant made the sale "by his serv- ant" or "by his agent," or "by his servant and agent."* §602. Milk. A charge in an indictment that the defendant sold to one T. a quantity of milk as pure milk, to which a quantity of a substance had been added which was poisonous, was held sufficient.^ When a statute defines adulterated milk to be mUk containing more than 87 percent of watery fluid, or less than 13 percent of milk solids, it is sufficient to allege, on a charge of having adulterated milk in possession with intent to sell it, that defendant had in his possession, with intent to sell, a certain quantity of adulterated, "to wit, milk con- taining less than 13 percent of milk solids," and it need not be alleged what reduced the milk below the legal standard.^ Nor need it be alleged that there had been an analysis which showed that the milk had been adulterated, even where the statute provides for an official analysis.^ Where a statute provided that "whoever fraudulently adulterates, for the purpose of sale, bread or any other substance intended for food, with any substance injurious to health, or knowingly barters, gives away, sells, or has in his possession with in- tent to sell, any substance injurious to health," should be fined, an indictment charging one with having for sale adulter- ated milk need not disclose where or how the evidence against him was procured ; and if it be charged that the milk was ' ' adul- terated with a certain .substance injurious to health, to wit, formaldehyde," it need not be alleged that formaldehyde is * State V. Squibb, 170 Ind. 488, wealth v. Tobias, 141 Mass. 129, 84 N. E. 969. 6 N. E. 217; St. Louis v. Bippen, 1 Lansing v. State, 73 Neb. 124, 201 Mo. 528, 100 S. W. 1048; St. 102 N. W. 254. Louis v. Schottell (Mo.), 100 ? Commonwealth v. Keenan, 139 S. W. 1049; Vandergrift v. Miehla, Hass. 193, 29 N. E. 477. 66 N. J. L. 92, 49 Atl. 16; State 3 Commonwealth v. Bowers, 140 v. Luther, 20 E. I. 472, 40 Atl. 9. Mass. 483, 5 N. E. 469; Common- PtrsE Food — 49. § 603] LAW OF PURE FOOD AND DBUGS. 770 either poisonous or injurious to health. Nor need it be al- leged, where possession of adulterated food is charged, that the defendant adulterated it, and it need not be alleged the milk violated a certain standard fixed by the State Board of Health. "Appellant is not charged with violating a stand- ard," said the court, "and the character of the act for which he is prosecuted is not determined by a standard. He is called upon to answer for having in his possession with in- tent to sell milk adulterated with a substance injurious to health. The having in possession with intent to sell adulter- ated food that may in any material degree injuriously affect the health of the consumer is positively forbidden by that provision of the law under which appellant is prosecuted. Whether or not the Board of Health had fixed standards of purity in the matters required of them can not avail one as a defense to a charge in which no standard is required. It is not necessary for the indictment to show that the State Board of Health had prepared rules and ordinances, and de- fined adulterations, and that the milk in possession of appel- lant violated some rule, ordinance or standard. The offense with which appellant is charged is independent of all action of the board, and is not affected by anything they may do or leave undone."* The quantity of the foreign substance added to milk need not be alleged where the charge is hav- ing in possession adulterated milk with intent to sell it. Such was held to be the case where the foreign substance added was putting annatto into it to color it.^ The indict- ment need not separately state and number the causes of ac- tion when they are based on the sale of several cans of milk at one sale, and to so state and number, them would make it of ridiculous length and defeat the object of reducing plead- ings to the simplest form." But there can be separate infor- * Isenhour v. State, 157 Ind. 517, People v. Buell, 85 N. Y. App. Div. 62 N. E. 40. 141, 83 N. Y. Supp. 143. See Peo- B Commonwealth v. Schaflner, pie v. Koster, 121 N. Y. App. Div. 146 Mass. 512, 16 N. B. 280. 852, 106 N. Y. Supp. 793; Carter People V. Llberman Dairy Co. v. State, 122 Ga. 175, 50 S. E. 64. (N. Y.), 109 N. Y. Supp. 1067; 771 INDICTMENT. [§ 603 mations laid in respect of samples taken from more than one can. Thus where an inspector procured a sample from each of five cans in the course of delivery, and, upon its being found that there was a deficiency of cream in two of the samples submitted for analysis, laid two separate informa- tions in respect of them, it was held that the procuring of each sample was a separate transaction, and that the milk- seller had committed a separate offense in respect of each one which was deficient, and that, therefore, the two infor- mations were properly laid, and that there could be two con- victions.^ §6G3. Selling Adulterated Milk at Cheese Factory. Where a statute punished any person selling, supplying or bringing to be manufactured into cheese or butter to any butter or cheese factory, any milk diluted with water, an in- dictment alleging that the defendant brought to a certain named cheese factory, for the purpose of being manufactured into cheese and butter, a large quantity of milk diluted with water, and that such milk was delivered to a person named, for the purpose of cheating and defrauding him, contains a sufficient charge of the crime thereunder.^ Charging that he brought the milk on the 3d and 4th day of a particular month describes only a single transaction.^ A charge that the defendant did wrongfully, unlawfully and knowingly supply and bring to be manufactured into cheese, to a cheese fac- tory, then and there situate, a certain quantity of milk, which milk was then and there diluted with water, for the purpose of having it manufactured into cheese, is likewise sufficient.^ 7 Feat V. Walsh [1891], 2 Q. B. The offense of selling adulterated 304, 55 J. P. 726, 60 L. J. M. C. milk may be charged in the lan- 143, 65 L. T. 82, 39 W. E. 525, guage of tne ordinance making it 17 Cox C. C. 322. an offense. St. Louis v. Ameln The Scottish court, however, dis- (Mo.), 139 S. W. 429. sented from this case. Telford v. i People v. Harris, 54 Hun 638, Fyfe [1908], Sess. Cas. (J.) 83. 7 N. Y. Supp. 773. Under Laws of N. J. 1882, p. " People v. Harris, supra. 97, i 4, the complaint for selling s People v. West, 106 N. Y. 293, adulterated milk must be special. 12 N; E. 610, 60 Am. Rep. 452; State V. Newton, 45 N. J. L. 469. People v. West, 44 Hun 162. §§ 604^606] LAW OF PUEE FOOD AND DEUGS. 772 If the particular offense intended to be proved is the bring- ing of skim milk to a full eream cheese factory, it should be alleged that the milk in question was milk from which the cream had been taken, and that the factory to which it was brought was a full eream cheese factory, or was not a skim cheese factory. One of the general character above stated is not insufficient in such an instance.* § 604. Intention to Sell Unfit Meat. A statute of Vermont made it an offense to sell or keep with intent to sell the flesh of calves which were less than four weeks old when killed, and it was held that an allega- tion that the defendant "in the said county," naming the county of the prosecution, on a certain date "did then and there keep with intent to sell" such flesh, sufficiently laid the place of the intended sale within the State, since, when the offense charged was a misdemeanor, if time and place be added to the first act alleged, it is deemed to be connected with all the facts subsequently added.^ § 605. Uninspected Liquors. Where a statute made it an offense to sell uninspected food and liquors, it was held not sufficient to merely allege that the liquor had not been inspected in the county where sold, and that the cask from which it was taken did not have the inspector's brand of any county.^ § 606. Refusing to Furnish Samples. In a prosecution of a person for refusing to furnish a sam- ple of an article of food offered for sale, for analysis, it was held that it must be distinctly stated what statute had been violated, and that it was not enough to say the defendant refused to furnish for analysis a sample, contrary to an Act 4 People V. Spees, 18 N. Y. App. Atl. 661, 130 Am. St. 998, 14 L. Div. 617, 46 N. Y. Supp. 995. R. A. (N. S.) 677, note. 1 State V. Peet, 80 Vt. 449, 68 i Woodworth v. State, 4 Ohio St. 487. 773 INDICTMENT. [§§ 607, 608 passed on a certain day.^ In such an instance the names of the persons refused must be given,^ and it must also be al- leged that the article of food was "demanded."^ § 607. Failure to Label Articles of Food. One section of a statute provided that every person who should manufacture for sale, or offer for sale, oleomargarine, should cause every parcel to be stamped, and every retailer should cause every package sold by him to be stamped. An- other section provided that every person who should sell or offer to sell, or have in his possession with intent to sell, oleomargarine without being stamped, and that every retailer who sold a package without delivering it labeled, as required by the first section, should pay a fine. A third section pro- vided that every person who should sell, or offer or expose for sale, oleomargarine, without having it stamped or labeled, should be guilty of a misdemeanor. An indictment charged that the defendant had in his possession oleomargarine, with intent to sell the same, without delivering to the purchaser a printed label bearing the word "oleomargarine," and it was held to charge no crime. '^ § 608. The Prosecutor. The general rule is that the action to recover a penalty for a violation of a statute is brought in the name of the State by the ordinary prosecuting officer, by indictment or affidavit, and the fact that an inspector or Board of Health is charged with the duty of enforcing the food adulteration law does not necessarily mean that the action must be brought in his name or that he must be instrumental in bring- ing it. Thus, where a statute declared that "it shall be the duty of the State Board of Health to enforce the laws of this State governing food and drug adulterations," it was held 1 Margolius v. State, 1 Ohio N. s Margoliua v. State, 1 Ohio N. P. 264. P. 264. 2 Margolius v. State, 1 Ohio N. i Pierce v. State, 63 Md. 592. P. 264. § 608] LAW OF PURE POOD AND DEU6S. 774 not necessary for the State board to institute or cause to be instituted proceedings to have a fine assessed for having in possession milk into v?hich formaldehyde had been put. "We can not believe," said the court, "that the General Assembly, by imposing a special duty upon specified officers to enforce the statute, meant that individuals should be excluded from making complaint. The law is general and has a general ap- plication. The interdictions prescribed by the Act are for the public welfare, as much for one as for another, and it can not be assumed that the Legislature, by conferring a duty upon certain officers to enforce the law, intended that its en- forcement should depend wholly upon the pleasure or dis- cretion of such officers. "We see no reason for distinguishing this from other public offenses in its general object and pur- pose, or why any one entitled to the law's protection may not institute its enforcement, as he may, ordinarily, do in other cases. The evident intent was to confer upon the State Board of Health official duty, in addition to common individ- ual right, to put the law in motion in proper cases. "^ A statute requiring the Commisioner of Agriculture to cause an action or proceeding "to be brought in the name of the people," to recover' a penalty, does not require an allegation that the action was brought by him.^ ilsenhour v. State, 157 Ind. 517, monwealth. v. Mitllen, 176 Mass. 62 N. E. 40, 87 Am. St. 228; Ctom- 132, 57 N. E. 331; Commonwealth monwealth v. Gay, 153 Mass. 211, v. Spencer, 28 Pa. Super. Ct. 301. 26 N. E. 852; Commonwealth v. 2 People v. Lamb, 85 Hun 171, McDonnell, 157 Mass. 407, 32 N. 32 N. Y. Supp. 584; People v. E. 361; Commonwealth v. Davison, Braested, 30 N. Y. App. Div. 401, 11 Pa. Super. Ct. Kep. 130; Com- 51 N. Y. Supp. 824. 775 EVIDENCE. [§ 609 CHAPTER XVn. EVIDENCE. SBO. SEC. 609. Oleomargarine. 615. Sample obtained illegally. 610. Milk. 616. Miscellaneous. 611. Agent's representations. 617. Judicial notice of United 612. Diseased meat. States Pure Food Regulations. 613. United States Pharmacopoeia. 618. Analyst's certificate making a 614. Preponderance of evidence — prima facie case. Reasonable doubt. § 609. Oleomargari'ne. Where a statute prohibited a sale of imitation butter, but declared that the "sale of oleomargarine in such manner as will advise the consumer of its real character, free from color- ation or ingredient that causes it to look like butter, by hav- ing it stamped with its true name," it was held, in a prose- cution for the sale of oleomargarine in violation of its pro- visions, that evidence was admissible to show that the oleo- margarine sold was of the color of yellow butter.^ So a wit- ness may testify that the article sold had the appearance of butter.^ If it be shown that the substance sold had coloring in it, it will be presumed that the oleomargarine sold for butter was actually colored to imitate butter.' Under an in- dictment charging a sale of oleomargarine colored yellow to resemble butter, if it is competent for the defendant to prove that cotton-seed oil is, in a commercial sense, a necessary constituent of oleomargarine, it is equally competent for the prosecution to introduce explanatory evidence in rebuttal that the necessary result of the use of cotton seed is not to iCook V. State, 110 Ala. 40, 20 Misc. Eep. 315, 77 N. Y. Supp. So. 360. 859. 2 People V. Berwind, 38 N. Y. a People v. Teele, 131 N. Y. App. 87, 115 N. Y. Supp. 212. § 609] LAW OF PTJKE FOOD AND DfiUGS. ^T'G give the product in which it is used the color of yellow but- ter.* In such an instance a conviction may be sustained, al- though there is no evidence of the artificial coloration of the oleomargarine by the addition thereto, in the process of man- ufacture or afterwards, of any substance which had no other function than to cause it to resemble and be in imitation of yellow butter.^ If the defendant claims that all oleomar- garine, when there is no ingredient introduced solely for coloring purposes, is naturally yellow in color, the prosecu- tion may then put in a sample of the oleomargarine white in color." But a witness can not be asked how the article sold compared in color with the butter made in the vicinity for certain foreign markets, and whether it would pass in such markets so far as its color was concerned. '^ Where a statute punished the sale of oleomargarine by any person represent- ing the article to be butter, and provided that the sale and representation should be presumptive evidence of guilt, it was held that the presumption was not met by showing the absence of knowledge of the adulteration and of an intent to deceive, but only by controverting the prosecutor's evidence showing the sale and false representations.' On a prosecu- tion of an accused for having in his possession, Avith intent to sell, oleomargarine in a tub not marked, it was shown that on the date of the alleged offense the tub was not exposed for sale, nor so situated that it would be seen by the accused's customers; that it was at the bottom of a large refrigerator in the basement of his store; that he purchased it in another State, and had not seen it since the date of its arrival; that he bought it with intent to sell the oleomargarine at retail in his store, but he did not intend to sell it or expose it for sale until the marks had been examined, and, if not marked in accordance with the statute, to mark the tub before open- ing it; it was held that this was not evidence sufficient upon * Commonwealth v. Mellett, 27 « Commonwealth v. Caulfield, 27 Pa. Super. Ct. 41. Pa. Super. Ot. 279. 6 Commonwealth v. Mellett, su- ' Meyer v. State, 134 Wis. 156, pra. 114 N. W. 501. 8 People V. Mahaney, 41 Hun. 26. ■J"?? EVIDENCE. [§ 610 which to convict the accused.' An admission by the defend- ant that he had been fined for an unlawful sale of oleomar- garine during his previous operations is without force to charge a complicity in a subsequent unlawful sale by an- other." Courts will not take judicial notice of the natural appearance of oleomargarine.^^ The system of the accused's business may be shown by proof of other like crimes when it is necessary to prove an intent to violate the statute.^^ When a statute in one section required that every person manufac- turing or selling any substance made in the semblance of lard should cause the package containing it to be labeled "Lard Substitute," and another section provided that such Act should not apply to cottolene, when the package was labeled "Cottolene," but prohibiting the manufacture of cot- tolene in imitation of lard, it was held that evidence that the defendant sold cottolene resembling lard, and as a substitute for it, without the packages being labeled "Lard Substi- tute," was sufficient to sustain a conviction. ^^ §610. Milk. When a statute forbade a sale or exposure for sale of any impure, unhealthy or adulterated milk, and defined adulter- ated milk to be milk having more than 88 percent of water, except skimmed milk for use in the county in which it was produced, and the evidence showed that the accused had sev- eral milk cans in his store containing cream, pure milk and skimmed milk, respectively, and when the inspectors called on him he told them to step back where the milk was kept and help themselves, and it did not appear from which can the milk analyzed by the inspectors was taken, or that ac- cused exposed for sale the milk analyzed as pure milk, or otherwise than as skimmed milk, it was held that the evidence 9 Commonwealth v. Mills, 157 " People v. Meyer, 44 N. Y. App. Mass. 405, 32 N. E. 360; CJommon- Div. 1, 60 N. Y. Supp. 415. wealth V. McDonnell, 157 Mass. 12 Commonwealth v. McDermott, 407, 32 N. E. 361. 37 Pa. Super. Ot. 1. 10 Goll V. United States, 166 Eed. is State v. Hanson, 84 Minn. 42, 419, 92 C. C. A. 171. 86 N. W. 768, 54 L. E. A. 468. § 610] LAW OF PUEE FOOD AND DRUGS. 778 was not sufficient to sustain a conviction.^ Where a witness testified that he had skimmed the milk by the defendant's direction, and sold it from unmarked cans, it was held that the jury had the right to infer that the employe watered the milk by the same authority, so as to constitute an adultera- tion within the meaning of the Act.^ Upon a charge of a sale of adulterated milk under a statute declaring that "adul- terated milk" means milk containing less than a certain per- cent of fluids, the accused may show that there had been no physical interference with the milk since it had been taken from the cows, though the chemical analysis showed that it contained an excess of fluids.^ Proof that milk was found in a milk wagon on the street of a city, and was in- tended "for delivery down town," does not show a sale, nor offer for sale, nor exposure for sale, there being no evidence that the delivery was to be a sale, or in pursuance of a sale. No presumption of intent to sell adulterated milk arises from the mere fact of possession of it, under a statute providing that the doing of anything forbidden by it shall be evidence of a violation thereof, without regard to the intent of the person so doing.* But adulterated milk is shown to have been "offered or exposed for sale" by evidence that the ac- cused, was delivering milk to regular customers at the time a can of impure milk was found in his wagon, though after it was analyzed he returned it to the person from whom he bought it, and was credited with the price.^ Where a statute provides that milk shown to contain more than 88 percentage of watery fluids, or less than 12 percent of milk solids, or less than 21/2 percent of milk fat, shall be deemed to be adulter- ated, it is necessary to prove only that the milk tested failed in some one of these particulars." If a person temporarily 1 People V. Thompson, 60 Hun Misc. Rep. 135, 43 N. Y. Supp. 582, 14 K Y. Supp. 819. 290, 11 N. Y. Cr. Eep. 479. 2 Commonwealth, v. Hough, 1 Pa. s People v. Koch, 19 N. Y. Misc. Dist. Rep. 51. Rep. 634, 44 N. Y. Supp. 387; 3 People V. Salisbury, 2 N. Y. People v. Gilmor, 73 N. Y. App. App. Div. 39, 37 N. Y. Supp. 420. Div. 483, 77 N. Y. Supp. 273. 4 People V. Wright, 19 N. Y. estate v. Luther, 20 R. I. 472, 40 Atl. 9. 779 EVIDENCE. [§ 610 in charge of defendant's milk wagon unauthorizedly sell milk from it, and he had never before sold milk for the de- fendant, and did not account to the owner for the money re- ceived therefor, the defendant can not be convicted of a sale of the milk on the ground that it was adulterated^ A vari- ance between an averment for selling adulterated mUk that the milk was sold to a woman, and proof that the woman in buying the milk was acting as her husband's agent, is not fatal where the defendant had no notice, express or implied, at the time of the sale, that the woman was acting as agent of the alleged purchaser.' An indictment charging that the accused had in his possession, with intent to sell it, "one pint of adulterated milk, to which milk water had been added," is not supported by proof that the milk was adulterated by adding water to pure milk, for the allegation is descriptive.' Upon a charge of having possession of adulterated milk, with intent to sell it, evidence that the accused was upon a wagon on which his name was painted, and that in the wagon were cans of milk from which he gave a sample to a person in the employ of the milk inspector for analysis, is admissible on the issue whether he was in possession of the milk with intent to sell it.^" Such evidence is sufficient to show an intent to' sell.^^ Upon a charge of a sale of adul- terated milk, the accused can not prove for what purpose he had the milk in hand, that being immaterial, if he sold the milk when it was adulterated.^^ 7 Diersing v. State, 29 Ohio Cir. dor to recover a penalty prescribed Ct. Rep. 469. by New York Laws 1893, ch. 338, 8 Commonwealth v. Farren, 9 § 37, for selling adulterated milk, Allen 489. which defendant had purchased 9 Commonwealth v. Luscomb, 130 from the producer, evidence of de- Mass. 42. fendant and his wife that they 10 Commonwealth v. Rowell, 146 had not tampered with the milk Mass. 128, 15 N. E. 154. was incompetent, where the fair- 11 Commonwealth r. Smith, 143 ness of the samples shown to be Mass. 169, 9 N. E. 631. adulterated or of the analysis was 12 Weigand v. District of Colum- not impugned. People v. Laesser, bia, 22 App. D. C. 559. 79 N. Y. S. 470, 79 App. Div. 384. In an action against a milk veu- §§ 611-613] LAW OF PURE FOOD AND DEUGS. 780 § 611. Agent's Representations. The representations of an agent made in the line of his duty are admissible in an action against his principal concerning the transactions of the agent. Thns, one em- ployed to sell milk at retail from house to house may bind his employer by representations to customers as to the qual- ity of the milk furnished, since such representations are within the scope of his apparent authority; but representa- tions made by him to agents of a department of the govern- ment having charge of the enforcement of the pure food laws are not binding on the principal, especially in criminal ac- tions for a violation of such laws.^ §612. Diseased Meat. The court will take judicial knowledge that a running sore on the head of a cow renders her unfit for food."^ If there be evidence that the meat of a certain animal was dis^ eased, and certain purchasers testify that it was good, the mere fact that the leg of the animal was broken and a por- tion of the leg swollen when killed, which parts were not sold, is not sufficient to sustain a conviction.^ On an indict- ment for selling diseased meat without making it known to the buyer, it is sufficient for the State to prove that the ac- cused knowingly sold such meat, the presumption arising from such proof that the sale was unlawful, and it being in- cumbent on the accused to prove that he disclosed to the buyer that the meat weis unsound.^ § 613. United States Pharmacopoeia. "Where there had not been incorporated in the pure food law of Michigan any specific formula for the manufacture of lemon extract, it was held proper to resort to the United - People V. Terwilligejr, 59 N. 2 Marxen v. State, 44 Tex. Cr. Y. Misc. 615, 110 N. Y. Supp. 1034. Aipp. 41, 68 S. Wi. 277. 1 Goodrich v. People, 19 N. Y. 3 Seibright v. State, 2 W. Va. 574, affirming 3 Parker Cr. Eep. 591. 622. 781 EVIDENCE. [§§ 614r-616 States Pharmacopoeia formula to determine of what lemon extract consisted.^ § 614. Preponderance of Evidence — Reasonable Doubt. In an action in a criminal case to recover a penalty of the defendant for having violated the pure food laws, it must be shown beyond a reasonable doubt that the defendant is guilty of the charge laid against him. But many of the stat- utes make such proceedings only quasi-criminal. In such an instance the jury may find against the defendant on a pre- ponderance of the evidence, and need not be satisfied beyond a reasonable doubt that he has violated the statute, even though the action be brought in the name of the State. Such was held to be the case of the New York statute.^ § 615. Sample Obtained Illegally. The fact that a sample of the adulterated food sold or ex- posed or offered for sale was obtained illegally will not pre- vent its introduction in evidence.^ The fact alone that the only interstate shipment shown of misbranded food by the manufacturer was secretly induced by an agent of the prose- cutor is no defense.^ § 616. Miscellaneous. If the evidence clearly shows that the defendant had knowledge of the adulteration of the food, it is not error to exclude his testimony to the effect that he had no such knowledge.^ Upon a charge of manufacturing, selling and exposing for sale a compound of pure honey and other syrup ^ 'for pure honey," the label attached thereto was misleading, in that the word "honey" was printed in large, full type, 1 People V. Jennings, 132 Mich. i Commonwealth v. Byrne, 158 •662,-94 N. W. 216, 10 Detroit Leg. Mass. 172, 33 N. E. 343. N. 39. 2 United States v. Morgan, 181 1 People V. Briggs, 114 N. T. 56, Fed. 587. ■20 N. E. 820. 1 Meyer v. State, 1 Ohio N. P. 241, 2 Ohio Dec. 233. §§ 617, 618] LAW OF PUEE FOOD AND DEUGS. 78^ and the word "compound" in smaller and lighter faced type, and the ingredients, "honey and syrup," in still smaller type. The accused testified that he made the compound, using one-half pure honey and one-half com syrup ; that when the compound was sold to the purchaser he sold it for compound honey, and told him that it was not pure honey. It was held that, whether the accused manufactured for sale, sold and exposed for sale "any compound or mixture branded or labeled as and for honey," which was made of honey mixed with any other substance or ingredient pro- hibited by the statute, was a question for the jury.^ Evi- dence that the effect of coal-tar dye in vanilla extract was to make the extract appear stronger and of greater value than it really was, is sufficient to authorize the submission to the .jury of the question whether the extract containing such dye was inferior.^ §617. Judicial Notice of United States Pure Food Regulations. The State courts can not take judicial notice of the United States Department of Agriculture concerning pure food or the standard fixed by it for milk, even though the State stat- ute upon which the prosecution is based provides that milk sold within the State must be of the standard fixed by such regulations.^ § 618. Analyst's Certificate Making a Prima Facie Case. The certificate of an analyst or chemist who has examined milk, that it is impure, is prima facie evidence of its im- purity, and calls upon the defendant to show that it is pure.* 2 People V. BerghofF, 112 N. Y. i St. Louis v. Kruempeler (Mo.), App. Div. 772, 99 N. Y. Supp. 201, 139 S. W. 446. affirming 47 N. Y. Misc. Rep. 1, i Kench v. O'Sullivan, 10 N. S. 95 N. Y. Supp. 257. W. L. R. 605, 27 W. N. (N. S. W.) 8 People V. Hinshaw, 135 Mieh. 137. 378, 97 N. W. 758, 10 Detroit Leg. N. 794. 783 DRUGS AND DHUGGISTS. [§§ 618a, 618b CHAPTER XVIII. DRUGS AND DRUGGISTS. SEC. SEC. 618a. Constitutionality of statute 618c. What is a drug. relating to. 618d. Proprietary medicines — Orig- 618b. Licensing druggists and their inal packages. qualifications. 618e. United States Pharmacopeia. § 618a. Constitutionality of Statutes Relating To. The State, under its police power, may not only regulate the sale of drugs, but it may require that those sold shall be pure and unadulterated. In respect to adulteration of drugs, the power to prevent their sale and the imposition of them upon the public is the same as in case of adulterated and un- wholesome food.^ A provision in a statute requiring phar- macists to be registered, which permits shopkeepers whose places of business are more than one mile from a drugstore to sell the commonly used medicines and poisons if put up by a registered pharmacist, but prohibiting such sales within that distance, is reasonable and valid, and is not an arbi- trary discrimination.^ § 618b. Licensing Druggists, and Their Qualifications. In order to secure the careful handling of drugs the State may require those selling them to have certain qualifications and to take out a license to sell them. This is the exercise of the State's police power.^ The State may prohibit itin- 1 State V. Williams, 93 Minn. App. 509, 78 S. W. 504; Henkel 155, 100 N. W. 641; Ex parte Hal- v. Mullard, 97 Md. 24, 54 Atl. 657; lowell, 8 Cal. App. 563, 97 Pac. State v. Hall, 109 La. 290, 33 So. 320. 318; State v. Horner, 52 W. Va. 2 State V. Donaldson, 41 Minn. 373, 43 S. E. 89 ; Commonwealth 74, 42 N. W. 781. v. Hovious, 112 Ky. 491, 66 S. W. 1 Watson V. State, 45 Tex. Or. 3, 23 Ky. L. Kep. 1724; State v. § 618b] LAW OF PUHE FOOD AND DEUGS. 784 erant merehants selling drugs. ^ It may not only require a druggist to take out a State license, but may authorize a municipality to exact another one.^ These statutes as a rule do not apply to the mere ownership of drugstores, where it is made an offense for one to compound or sell drugs if he has a licensed employe who compounds and makes the sales.* But if, in such an instance, the owner takes part in the con- duct of the business, he must have a license.^ A statute which requires dealers in drugs to have a license, but per- Edwarda, 105 La. 371, 29 So. 833; State V. State Board, 105 La. 535, 29 So. 989; Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413; Noel v. People, 187 111. 587, 58 N. E. 616, 52 L. R. A. 287; Kentucky Board of Pharmacy v. Lordier, 109 Ky. 119, 58 S. W. 531, 22 Ky. L. Kep. 621; People v. Fisher, 83 111. App. 114; Suffolk V. Shaw, 21 N. Y. App. Div. 146, 47 N. Y. Supp. 349; State v. Mathews, 81 S. C. 414, 62 S. E. 695, 128 Am. St. 919; State v. Hamlett, 212 Mo. 80, 110 S. W. 1082; Sconyers v. State, 6 Ga. App. 804, 65 S. E. 814; Lewis v. Brennan, 6 Ga. App. 419, 65 S. E. 189; State Board of Pharmacy v. Matthews, 197 N. Y. 353, 90 N. E. 966, affirming 122 N. Y. App. 889, 106 N. Y. Supp. 1146; State v. Donaldson, 41 Minn. 74, 42 N. W. 781; People v. Eout- ney, 51 Hun 640, 4 N. Y. Supp. 235, 6 N. Y. Cr. Rep. 249; State V. Enoch, 26 W. Va. 253; Braniff V. Weaver, 72 Iowa 641, 34 N. W. 456; State Board of Pharmacy v. White, 84 Ky. 626, 2 S. W. 225, 8 Ky. L. Rep. 678; State v. For- cier, 65 N. H. 42, 17 Atl. 577; Carberry v. People, 39 111. App. 506; State v. Robinson, 55 Minn. 169, 56 N. W, 594; Plaisted v. Walker, 77 Me. 459, 1 Atl. 356; Haas V. People, 27 111. App. 416;. Cook V. People, 125 111. 278, 17 N. E. 849; People v. Nedraw, 16 Bradw. (111.), 192; Taliaferro v. Moffett, 54 Ga. 150; In re Jager, 29 S. C. 438, 7 S. E. 605; State v. Holmes, 28 La. Ann. 765, 26 Am. Rep. 110; Tulloss v. Sedan, 31 Kan. 165, 1 Pac. 285; Common- wealth V. Johnson, 144 Pa. St. 377, 24 Atl. 703; Commonwealth v. Fuller, 2 Walk. (Pa.) 550; State V. Saymaji, 61 Mo. App. 244, 1 M!o. App. Rep. 366; People v. Moorman, 86 Mich. 433, 49 N. W. 263; State v. Kumpfert, 115 La. 950, 40 So. 365; Green v. State, 49 Tex. Cr. App. 380, 92 S. W. 847; Monnier v. Godbold, 116 La. 165, 40 So. 604; Westchester Coun- ty V. Dresser, 23 N. Y. App. Div. 215, 48 N. Y. Supp. 953. 2 State V. Hall, 10 La. 290, 33 So. 318; State v. Edwards, 105 La. 371, 29 So. 893. 3 In re Jager, 29 S. C. 438, 7 S. E. 605. < Sconyers v. State, 6 Ga. App. 804, 65 S. E. 814; Commonwealth V. Havioua, 119 Ky. 491, 66 S. W. 3, 23 Ky. L. Rep. 1724. 5 State V. Foreier, 65 N. H. 42, 17 Atl. 577. 785 DKUGS AND DEUGGISTS. [§ 618b mits practicing phyisicians to fill their own prescriptions, does not authorize him to fiU the prescriptions of other physi- cians.' But a statute making it unlawful for an uiilicensed pharmacist to practice pharmacy or expose for sale at retail any drugs, unless the business is conducted by a licensed pharmacist, and excepting the widow or administrator of a registered pharmacist, and permitting dealers in general merchandise to sell drugs without employing a licensed phar- macist, is unconstitutional, the discriminations not being based on sufficient grounds.^ So a statute may authorize the revocation of a pharmacist's license for some offense he may commit against the pharmacy or other law.* In a prosecu- tion for keeping a pharmacy without a license, it is no de- fense that there was no board for examination and registra- tion, where the defendant could have compelled the appoint- ment of a board." In a prosecution for carrying on business as a druggist without a license, the burden of justifying or proving a license is on the defendant.^" 6 Suffolk County y. Shaw, 21 N. Y. App. Div. 146, 47 N. Y. Supp. 349. 'State V. Abraham, 78 Vt. 53, 61 Atl. 766. 8 Hildreth v. Crawford, 65 Iowa 339, 21 N. W. 667; State v. Craw- ford, 73 Iowa 676, 35 N. W. 920. 9 People V. Eontey, 51 Hun 640, 4 N. Y. Supp. 235, 6 N. Y. Cr. Eep. 249; Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413. 10 State V. Homer, 52 W. Va. 373, 43 S. E. 89; People v. Ex)n- tey, 51 Hun 640, 4 N. Y. Supp. 235, 6 N. Y. Cr. Eep. 249; People V. Nedraw, 16 Bradw. (111.) 192. In Illinois it has been decided that where a pharmacist pays his license fee, he is entitled to pro- ceed in his business, and can not be held liable in a. criminal prose- cution because of the non-action of the board of pharmacy in issuing a certificate. Carberry v. People, 39 111. App. 506. In Minnesota where a statute made it a iiuable offense to vend drugs, medicines and poisons in a, store except under the supervision of a registered pharmacist, or by a registered assistant, the owner of a drug store was held not liable for a sale made by one in his employ, not a pharmacist or assistant, made without his knowledge and assent. State v. Eobinson, 55 Minn. 169, 56 N. W. 594. But see Haas V. People, 27 111. App. 416. When patented or proprietary medicines may be sold without a license. Kentucky Board of Pharm- acy V. Cassidy, 115 Ky. 690, 74 S. W. 730, 25 Ky. L. Eep. 102. Pure Food — 50. § 618c] LAW OP PUEE FOOD AND DRUGS. 786 §618c. What is a Dnig. It is often difficult to determine what is a "drug," and to differentiate it from food. An English statute declares that "the term 'drug' shall include medicine for internal or ex- ternal use."^ Under this statute it has been held that bees- wax, although used in the preparation of medicine, is not a drug.^ And a like holding was made with reference to a sale of arsenical soap containing no arsenic.^ But chewing gum is neither a drug nor an article of food.* Cream of tartar is a drug within the meaning of the New York Statute.' A sale of borax for other than medicinal purposes is not within the provisions of a statute regulating the sale of articles commonly used as "medicines or poisons."" "Where a statute permits a sale of "domestic remedies" without being a regis- tered pharmacist, the question whether iodine and quinine are such remedies is one for the jury. A drug, though pre- pared by skilled chemists and scientific apparatus, may come into such common use, and be so well understood by the peo- ple without medical knowledge, as to make it a domestic remedy.'' Under an Illinois statute providing that it shall not interfere with "the sale of the usual domestic remedies by retail dealers," quinine is not a "domestic remedy."' A "condiment" is a food and not a medicine." A manufacturer who designates an article made by him as a food is estopped When a. prescription is neces- b State Board of Pharmacy v. sary. Fowler v. Kandall, 99 Mo. Gasau, 122 N. Y. App. Div. 803, App. 407, 73 S. W. 931. 107 N. Y. Supp. 409. A drug store is not a, place of « State v. Donaldson, 41 Mnn. "accommodation or announcement." 74, 42 N. W. 781. Cecil V. Green, 161 111. 265, 43 N. t People v. Fisher, 83 111. App. E. 1105, 32 L. R. A. 566, affirming 114. 60 111. App. 61. 8 Cook V. People, 125 111. 278, 17 1 38 and 39 Vict., ch. 63, § 2. N. E. 845. 2Fowle V. Fowle, 60 J. P. 758, Whether a statute included 75 L. T. 514, 18 Cox 462. "boiled linseed oil" or not, after its 8 Houghton V. Toplin, 13 T. L. amendment, see State v. Williams, R. 386. 93 Minn. 155, 100 N. W. 641. 4 Bennett v. Tyler, 64 J. P. 119; 9 Savage v. Scovell, 171 Fed. 566. Shortt V. Smith, 59 J. P. 213. "^87 DEDGS AND DRUGGISTS. [§§ 618d, 618e to deny that it is such within the meaning of a statute regu- lating the sale of food.^" §618d. Proprietary Medicine — Original Packages. Statutes regulating the sale of drugs not infrequently per- mit the sale of proprietary medicines in the original pack- ages. The words "original packages" in such instances ap- ply to medicines in the original packages of the manufac- turer.i It will not be presumed that the Legislature, in en- actments relative to the sale of poisons, intended to include well-kHOwn proprietary medicines containing so little poison that the effects are beneficial rather than injurious.^ §618e. United States Pharmacopoeia. "Where a statute requires a drug to be of the standard of the United States Pharmacopoeia, the reference is to the edi- tion of the Pharmacopoeia in use at the time the statute was enacted, and not to one when the sale alleged to be illegal was made.^ A statute provided that all pharmaceutical preparations sold in a pharmacy should be of a standard quality established by the United States Pharmacopoeia, and that every proprietor of a drugstore or other place where "drugs, medicines or chemicals" were sold should be respon- sible for the quality of such "drugs, chemicals or medicines." Another section provided that these provisions should not apply to the sale by merchants of cream of tartar and other enumerated articles, except as therein provided. It was held that the enumerated articles not sold as drugs or medicines need not conform to the standard prescribed by the Pharma- copoeia for medicinal preparations, though the seller of such articles, if adulterated, might be subject to other statutory 1" Savage v. Scovell, 171 Fed. Evidence to that effect was held 566, "International Stock Food." admissible. 1 People V. Abraham, 16 N. Y. i State v. Emery, 55 Ohio St. App. Div. 58, 44 N. Y. Supp. 1077. 364, 45 N. E. 319. See State Board 2 State V. Marvin, 5 Ohio S. & of Pharmacy v. Bronson (N. Y. C. P. Dec. 593, 7 Ohio Dec. 204, 5 App.), 113 N. Y. Supp. 490. Ohio N. P. 209. § 618e] LAW OF PURE FOOD AND DEUGfS. 788 penalties, the word "chemicals" in the statute being limited to chemicals used as medicines or drugs. ^ An affidavit charging a defendant with having for sale a drug which "differed from the standard of strength laid down in the United States Pharmacopoeia," without stating whether such drug was below or above the strength, and which of the con- stituent elements of such drug so differed, is insufficient be- cause of its indefiniteness.^ 2 State Board of Pharmacy v. affirmed 52 N. Y. Misc. Rep. 490, Gasau, 195 N. Y. 197, 88 N. E. 102 N. Y. Supp. 539. 55, reversing 122 N. Y. App. Div. s Greenland v. State, 6 Ohio Dec. 803, 107 N. Y. Supp. 409, which 313, 4 Ohio N. P. 122. 789 MISCELLANEOUS. [§ 618f CHAPTEE XIX. MISCELLANEOUS. SEC. SEC. 618f. Adulteration. 618i . Short weight. 618g. Unavoidably mixed. 618j. Cases of adulterated vinegar. 618h. Sale of inferior article. § 618f. Adulteration. The word "adulteration" in the Michigan statute^ declar- ing it unlawful to manufacture and sell maple syrup that is in anywise adulterated with common sugar or any other for- eign substance, means the mixture of any foreign substance, wholesome or unwholesome, mixed with maple syrup.^ If a statute defines adulteration as the putting in food a foreign substance, it is no defense that the substance put in it was harmless.' Thus, though coal-tar dye is harmless, its use in vanilla extract, making it appear stronger than it really is, is a violation of a statute prohibiting the adulteration of food by coloring, whereby inferiority is concealed and it is made to appear better than it is.* As a rule the pure food laws are not intended to prevent manufacturers of articles of food 1 Comp. Laws, § 5007. * People v. Hinshaw, 135 Miich. 2 Pierce Viaus Maple Co. v. 378, 97 N. W. 758, 10 Detroit Leg. Bird, 154 Mich. 73, 117 N. W. 553. N. 794. 3 Commonwealth v. Schaffner, 145 A statute may be so framed as to Mass. 512, 16 N. E. 280; St. Louis require the substance added to be V. Wortman, 213 Mo. 131, 112 S. poisonous to constitute the act of W. 520; Commonwealth v. Dough- adding it to food an adulteration, erty, 39 Pa. Super. Ct. Rep. 338; People v. Bischoff, 14 N. Y. St. Commonwealth v. Kevin, 18 Pa. Eep. 581. Super. Ct. Eep. 414; People v. So a statute may be so limited Hinshaw, 135 Mich. 378, 97 N. W. as to apply only to an adulteration 758, 10 Detroit Leg. N. 794; State of food and not to drinks. Com- V. Haynes, 7 Ohio N. P. 624, 8 monwealth v. Kebort, 212 Pa. 289,. Ohio S. & C. P. Dec. 678. 61 Atl. 895. § 618g] LAW OF PUKE POOD AMD nffiUGSS;. 7,90 from improving it, so long as no infaiagement rf tb& law or spirit of the Act defining adulteration), takes place.? Where a statute provided that "an article of Imd shall ]m- dajamed. to be adulterated if any valuable or necessary co!nstituiffin.t or iur gredient has wholly or in part been alstraieted frona it,." it was held that the product left after the oil had beeni extracted from the eoeoa bean was not an adiulteiFated article within the meaning of the statute, where it was shown that the ab- straction of the oil was necessary t© renfdler the article' mar- ketable." To put salicylic acid in any qmamtity in bees isi an adulteration of the beer, if it be sihawm to be' poisonBus, or deleterious to health.' § 618g. Unavoidably Mixed. A statute made it an offense for any person toi ''selE to' the prejudice of the purchaser any article of fo«>d' or airqjr dtu^ which is not of the nature, substance and quality of tlie arti- cle demanded by such purchaser," butt ma^© an exception "where the food or drug is unavoidably mixed wiith some ex- traneous matter in the process of collection or pirfrpaa?ation. ' '^ Under this statute, to prevent unavoidable mixture,, reason- able care must be used. "When the foreign ingredienl; is pres- ent in larger proportion than is ordinarily found in a com- mercial article, the practice is to regard the excessive quan- tity present as an adulteration! ; for instance, in the case of pepper, where sand is in excess. In an instance of cap^r tea, it was held that owing to the method in which caper tea is produced, the presence of 3.5 percent of mineral matter in the tea did not constitute an adulteration, and that the seller B People V. Jennings, 132 Mich. To offer for sale, as an article 662, 94 N. W. 216, 10 Detroit Leg. of food, liquid chicory and coffee N. 39. See also Commonwealth v. as "liquid coffee," is an offense un- Dougherty, 39 Pa. Super. Ct. Eep. der this same statute. State v» 338. Dreher, 55 Ohio St. 115, 44 N. oRose V. State, 11 Ohio Cir. Ct. E. 510. Rep. 87, 1 Ohio C. D. 72, revers- i State v. Hutchinson, 55 Ohia ing 2 Ohio N. P. 270, 1 Ohio C. St. 573, 45 N. E. 1043. D. 44. Such a product is not a 1 38 and 39 Vict., oh. 63, § 6. compound or mixture. 791 ' MISCELLANEOUS. [§§ 618h, 6781 was protected under this exception in the statute.^ In a case of selling buttermilk adulterated with 30 percent of added water, it was proved that the addition of some water was necessary in the process of manufacture, but that the quan- tity varied, and depended for the most part upon the state of the temperature. The defendant was held not guilty.^ § 618h. Sale of an Inferior Article for Lemonade. A statute forbade the manufacture of adulterated bever- ages, and the sale of any inferior or cheaper substance in imitation of, or under the name of, another article. A dealer, where this statute was in force, sold a mixture of 48 percent sugar, 35 percent tartaric acid, 12 percent citric acid, and 5 percent oil of lemon as "Eiffel Tower Lemonade." On the box were pictures of lemons, and each box contained a cir- cular, which stated that thirty-eight millions of lemons were used during the past year in manufacturing this kind of lemonade, and that it was manufactured by concentrating the lemons in the orchards where they were grown. The dealer testified that the oil of lemon was made from lemon rind, and that during the past year fifty-two millions of lemons were used in manufacturing such lemonade. It was shown that tartaric acid was much cheaper than lemon juice. It was held that the evidence justified a verdict of guilty of selling an inferior article as lemonade.^ §618i. Short Weight. Defendant cured hams and sides of bacon at its packing house, and to preserve them a part of them were wrapped with cloth and paper and correctly branded, and then ship- ped to another State, where a ham and side of bacon were 2Shortt V. Robinson, 63 J. P. 594, and Goulder v. Rook [1901], 295, 68 L. J. Q. B. 352, 80 L. T. 2 K. B. 290, 65 J. P. 646, 70 L. J. 261, 19 Cox C. C. 243. K. B. 747, 84 L. T. 719, 49 W. 3 Warnoek v. Johnstone, 8 Eettie R. 684. (J. C.) 55, 4 Coup. 509. See also i People v. Park, 60 N. Y. App. Bosomworth v. Bridge, 36 Sol. J. Div. 255, 69 N. Y. Supp. 1120. §618j] LAW OF PUKE FOOD AND DEUGS. 792 sold by a distributing agent at their gross weight, and were purchased in that form by the purchaser in preference to purchasing unwrapped meats, which were also on sale at the same place and for the same price. It was held that this sale was not a violation of the statute requiring the weight to be stated on the outside of the package, because it had not been put up by the retailer.^ § 618 j. Cases on Adulterated Vinegar. One section of a statute required cider vinegar to contain 1% percent of cider vinegar solids on evaporation at boiling temperature. Another section required fermented vinegars to contain 1% percent of solids of the fruit or grain from which they were made, and a stated percent of ash or min- eral matter, the product of the fruit from which it was made. It was held that cider vinegar must contain the required quantity of ash or mineral matter, as well as the stated per- cent of cider vinegar solids.^ One convicted of violating a statute prohibiting the sale of vinegars that will not stand a specified test, is not deprived of property without due proc- ess of law, because he could not obtain a sample of the vinegar in question for analysis, where no one connected with the prosecution prevented him from obtaining one, since the prosecutor is not required to furnish the accused a sample.^ A statute provided that vinegar which contained any arti- ficial coloring matter should be deemed adulterated, and prohibited any person manufacturing, keeping for sale, or offering for sale, any adulterated vinegar, or any vinegar or product in imitation of cider vinegar which was not cider vinegar. The defendants manufactured and sold as cider vinegar a product extracted from cores, skins, and small pieces of apples, all of which had been evaporated and soaked in river water, coloring matter having been added to give it the appearance of cider vinegar. It was held that 1 State V. Swift & Co., 84 Neb. 2 People v. Worden Grocer Co., 244, 120 N. W. 1127. supra. 1 People V. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315. 793 MISCELLANEOUS. [§ 618] they had violated this statute.' In the manufacture of such vinegar water can not be introduced. In defining "cider vinegar" as vinegar made exclusively from "pure" apple juice, the word "pure" means "free from mixture or con- tact with that which is deleterious, inferior, vitiating or pol- luting," and water can not be added to the product.* Where, in the manufacture of vinegar, low wine, formed from fer- mented grain, was passed through roasted malt, for the sole purpose of coloring the vinegar, the vinegar was held to con- tain coloring matter within the prohibition of a statute for- bidding the adulteration and artificial coloring of vinegar.' 3 People V. Niagara Fruit Co., 75 ply with the statutory require- N. Y. App. Div. 11, 77 N. Y. Supp. ments and, at the least, justifies a 805; affirmed 173 N. Y. 629, 66 refusal to disturb the finding of N. E. 1114. the jury in the defendant's favor. 4 People V. Heim, 90 N. Y. App. People v. Braested, 30 N. Y. App. Div. 408, 86 N. Y. Supp. 141. Div. 401, 51 N. Y. Supp. 824. Evidence that a sample of cider s Weller v. State, 53 Ohio St. 77, vinegar had less than two percent- 40 N. E. 1001, affirming 8 Ohio Cir. um of cider vinegar solids, with- Ct. Rep. 467. out showing that this result was See generally People v. Albion arrived at "by full evaporation Cider & Vinegar Co., 118 N. Y. over boiling water,'' does not com- Supp. 15. LAW OF PURE FOOD AND DEUGS. 794 CHAPTBE XX. CIVIL LIABILITY OF VENDOR OF DRUGS AND FOOD. 619. Degree of care required of druggist. 620. Drug not producing injury. 621. Accident. 622. Manufacturers of drugs, lia- bility to consumer. 623. Manufacturers of prepared foods or drugs, liability to consumer — Canned goods. 624. Patented medicines. 625. Prescription placed upon pat- ent medicine. 626. Druggist's liability in selling unbroken packages — Negli- gence basis of liability. 627. Sale of drug from broken packages. 628. Mislabeling poisons or medi- cines — Liability to remote purchaser. 629. Failure to label a poison — Physician's prescription. 630. Implied representation that drug requested for a particu- lar purpose is fit for such purpose. 631. Implied representation that drug delivered is the drug called for. 632. Drug sold for specific pur- pose. 633. Druggist recommending pre- scription. 634. Chemical mixed after sale with another chemical pro- ducing dangerous compound. 635. Sale of drug to minor in vio- lation of statute. 636. Negligently compounding pre- scription — Illegible prescrip- tion. 637.. Purchaser informed of dead- ly character of drug. 638. Knowingly administering poi- son or unwholesome food. 639. Plaintiff without consent of defendant taking by mistake dangerous drug from proper- ly labeled vessel. 640. Prima facie showing of negli- gence in sale of drug. 641. Complaint — Pleading. 642. Where action must be brought. 643. Negligence in treatment of in- jured person. 644. Punitive damages. 645. Servant selling drug. 646. Sale of unwholesome food. 647. Implied warranty in sale of food. 648. Eating unwholesome food in a restaurant — Proof of negli- gence. 649. Vendor having knowledge of unwholesomeness of food. 650. Sale of food under false de- scription. 651. Unwholesome supply of water. 652. Food for cattle and horses. 653. Slander. 654. Recovering purchase price on sale of impure food. 655. Liability for price of adulter- ated food sold as pure food. 795 CIVIL LIABILITY VENDOR DRUGS AND FOOD. f §§. 619!,, 620* § 619. Degree of Care Required of Druggist. "The highest degree of care known to practical men must be used to prevent injuries from the use of drugs and poi- sons. It is for this reason that a druggist is held to a special degree of responsibility. The care required must be com- mensurate with the danger involved; the skill employed must correspond with that superior knowledge of the busi- ness which the law requires."^ It is error to charge the jury that the druggist and the purchaser were under the same de- gree of care in furnishing and taking the drug, for the drug- gist is under the highest degree of care for the safety of the public dealing with him, and the purchaser is only bound to exercise ordinary care for his own safety.^ Druggists must know the properties of the medicines they sell, and must em- ploy such persons as are capable of discriminating when deal- ing out medicines called for, and it is not error to so charge the jury.' § 620. Drug Not Producing Injury. If the drug improperly or negligently sold did not produce any ill effects, then there can be no recovery, unless it be the price paid for the article. Thus it has been held error to re- fuse to charge the jury to the effect that, if the medicine was not the proximate cause of, or if the plaintiff was ill at 1 Howes V. Rose, 13 Ind. App. 666, 4 West. L. Mon. 488 ; Fleet v.. 674, 42 N. E. 303; Walton v. Hollenkamp, 13 B. Mon. 219, 56 Booth, 34 La. Ann. 913; Thomas Am. Dec. 563. V. Winchester, 6 N. Y. 397, 57 Am. Where the charge is selling a Dec. 455; Peters v. Johnson, 50 W.. poison by mistake for a, medicine, Va. 644, 41 S. E. 190, 57 L. R. evidence is not admissible that the A. 428; Knoefel v. Atkins, 40 Ind. defendant druggist was a careful App. 428, 81 N. E. 600; Butter- and prudent man in handling medi- fleld V. Smellenburg (Pa.), 79 Atl. cines and poisons. Hall v. Ran- 980. kin, 87 Iowa 261, 54 N. W. 217. 2 Sutton V. Wood (Ky.), 85 S. Damages for permanent physical W. 201, 27 Ky. L. Rep. 412. weakness may be recovered. But- 3 Smith V. Hayes, 23 111. Rep. terfield v. Smellenburg (Pa.), 79 244; Kerr v. Clason, 2 Ohio Dec. Atl. 980. § 621] LAW OP PURE FOOD AND DEUGS. ,796 the time, the taking the drug did not increase his illness, the plaintiff was not entitled to recover.^ § 621. Accident. As the basis of the action against a druggist for furnishing the wrong kind of a drug is negligence, yet if it was fur- nished through a mere accident, devoid of any negligence, he will not be liable for the damages occasioned by his acci- dental act. But his mistake should be submitted to the jury as a matter of evidence on the question of negligence, and not as establishing the accident.^ Unless negligence exists in such an instance, no liability attaches.^ Thus, when a jug filled with sulphuric acid was on a shelf in a creamery, where there were some similar jugs containing buttermilk, and a customer asked an employe of the proprietor for per- mission to take a drink of buttermilk, and he drank from the jug filled with the sulphuric acid, to his injury, it was held that the direction to him to drink out of the jug was not of itself negligence, it not appearing that the one who gave him the permission knew that he had in mind the jug containing the acid, or that he even knew there was a jug containing acid.^ But where a druggist, who had been requested to compound a certain medicine ground the different articles of which it was composed in a mill used to grind poisonous drugs, without properly cleaning the mill, it was held that he was liable for the injuries the person taking the medicine thus compounded sustained, and that the transaction could not be classed as a mere accident. The court refused to ap- ply the rule as to the degree of care and diligence necessary to except a party from liability.^ In another ease a prescrip- 1 Rabe v. Sommerbeck, 94 Iowa 265 ; Antoine v. Duncombe, 8 Ont. 656, 63 N. W. 458. Wkly. Rep. 719. 1 Brown v. Marshall, 47 Mich. s Burk v. Creamery Package Mfg. 576, 41 Am. Rep. 728, 11 N. W. Co., 126 Iowa 730, 102 N. W. 793, 392; Beokwith v. Oatman, 43 Hun 106 Am. St. 377. 265 ; Knoefel v. Atkins, 40 Ind. * Fleet v. Kollenkamp, 13 B. Men. App. 428, 81 N. E. 600. 219, 56 Am. Dec. 563. 2 Beckwith v. Oatman, 43 Hun 'J'9'J' CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 623 tion vpas for aromatic spirits of ammonia. The complaint charged that the defendant negligently prepared and com- pounded a "dangerous, poisonous, corrosive and burning liquid mixture." It was held that the negligence charged was proven by evidence showing that the dose produced the injury complained of because not sufficiently diluted, without evidence that it was compounded of other ingredients than those ordered.^ § 622. Manufacturer of Drugs, Liability to Consumer. The leading case in America upon the liability of a manu- facturer of drugs to the ultimate consumer who is injured by their use is an early one in New York, in which the manu- facturer was held liable. In that case a dose of dandelion was prescribed for a person who was at the time ill. The prescription was presented at the drugstore of one Dr. Foord, and the medicine obtained, which was administered to the person for whom it was prescribed, and great suffering re- sulted from its use. It was afterwards ascertained that the drug was belladonna, and not dandelion. The drug was taken from a jar prepared by the defendant, a manufactur- ing chemist, and which had been by him labeled as extract of dandelion. The defendant sold the jar and its contents to one Aspinwall, a wholesale dealer in drugs, by whom it was sold to Dr. Foord, the retail dealer, from whom the plaintiff purchased it. The court adjudged the defendant liable.^ An English case is in line with this American case. In that case the declaration alleged that the defendant carried on the business of a chemist, and in the course of his business prepared to sell a chemical compound, made of ingredients known only to him, and by him represented to be fit to be used for a hair wash ; and the plaintiff J. G. therefore bought of the defendant a bottle of this hair wash, to be used by his wife, the plaintiff E. G., as the defendant then knew, and 5 Butterfield v. Smellenburg Curtin v. Somerset, 140 Pa. 70, 21 (Pa.), 79 Atl. 980. Atl. 244, 23 Am. St. 220, 10 L. 1 Thomas v. Winchester, 6 N. Y. R. A. 322. 397, 57 Am. Dec. 455. Approved in § 623] LAW OF PURE FOOD AND DRUGS. 798' averred that the defendant had negligently and unskilfully prepared the hair wash so that, by reason thereof, it was un- fit to be used for washing the hair, whereby the female plain- tiff, who used it for that purpose, was injured. It was held by the Court of Exchequer on demurrer that a good cause of action was disclosed.^ § 623. Manufacturer of Prepared Food or Drugs, Liability to Consumer — Canned Goods. There is not uniformity in the cases upon the question of liability of one who puts a food upon the market which is poisonous or unwholesome, and which, after passing through several dealer's hands, injures the person who consumes it. A notable case is an instance of canned meats which injured the person eating it. This was meat put up by one of the^ leading meat packers of the world, and it was put upon the market in the usual way, and passed through a dealer's pos- session before it reached the consumer. In the declaration it was set forth, in substance, that the defendant was engaged in the business of putting up in tin cans or vessels, and vending meats or ham for food and domestic use, and that he put up a certain can of ham for food and domestic use which was sold by the defendant to a retail dealer to be sold to consumers and patrons; that plaintiff purchased a can of such ham from this retail dealer for food and domestic use; that the defendant "so carelessly, negligently, recklessly, and improperly put up, in said can of ham, diseased, unfit and unwholesome pork or ham, which was deleterious and poisonous to the human body and health; that the plaintiff, after purchasing said can of ham, and. without fault or neg- ligence on her part, ate a piece of ham taken from said can, and, in consequence thereof, became poisoned and sick with ptomaine poison." This was held sufficient to show that the defendant was liable. The court assumed, without deciding, that there was no implied warranty on the part of the manu- facturer of canned goods that the goods were wholesome and 2 George v. Skivington, 6 Exch. 1. 799 CIVIL LIABILITY VENDOE DRUGS AND FOOD. [§ 623- fit to be eaten, and then said: "It by no means follows from this that there is no duty resting upon the manufacturers to exercise care that the contents of the cans, which he puts upon the market to be sold for food and domestic use, are, in fact, food, rather than poison." After reviewing a num- ber of cases, none of them exactly in point, the court pro- ceeds as follows: "Coming, then, to consider the facts of the present ease as averred in the declaration, and dealing with them, irrespective of the presence or absence of con- tractual obligations arising out of the dealings between manu- facturer and retailer and between retailer and consumer, the question is, whether the manufacturer is under a duty to him who, in the ordinary course of trade, becomes the ultimate consumer, to exercise care that the goods which he puts into cans and sells to retail dealers, to the end that such dealers may sell the same to customers and patrons as food, are wholesome and fit for food, and not tainted with poison. Canned goods are, at the present day, in such common use that we may judicially recognize that the contents are sealed up, not open to the inspection or test either of the retailer or of the customer, until they are opened for use, and not then susceptible to practical test, except the test of eating. "When the manufacturer puts the goods upon the market in this form for sale and consumption he, in effect, represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were printed upon a label. Un- der these circumstances the fundamental condition upon which the common law of caveat emptor is based — that the buyer should 'look out for himself — is conspicuously absent, for he has no opportunity to look out for himself. And when he thus buys and eats the contents of the package, relying upon the assurance of the manufacturer that they are fit to be eaten, it seems to us to result from general and funda- mental principles that he has a right to insist that the manu- facturer shall at least exercise care that they are so fit, and are not unwholesome and poisonous." "Upon both reason and authority, we are clearly of the opinion that the declara- §633] LAW OF PURE FOOD AND DKUGS. 800 tion before us sets up a good cause of action. The fact that the defendant was the manufacturer, presumably having knowledge, or opportunity for knowledge, of the contents of the cans and of the process of manufacture; that it put the goods upon the market for sale by dealers to consumers un- der circumstances such that neither dealer nor consumer had opportunity for knowledge of the contents; the fact that the goods were thus manufactured and marketed under circum- stances that imported a representation to intending pur- chasers that they were fit for food and beneficial to the human body; that, in the ordinary course of business, there was a probability (it being, indeed, the very purpose of the defendant) that the goods should be purchased, and used by parties purchasing in reliance upon the representation, and that the defendant negligently prepared the food so that it was unwholesome and unfit to be eaten, and poisonous to the human body, whereby the plaintiff was injured, makes a case that renders the defendant liable for the damages sustained by the plaintiff thereby."^ In an Illinois case the declara- iTomlinson v. Armour & Co., 75 299, 23 Am. Rep. 214; Norton v. N. J. L. 748, 70 Atl. 314, 19 L. Sewall, 106 Mass. 143, 8 Am. Eep. E. A. (N. S.) 923. 298; Bishop v. Webber, 139 Mass. The court reviews Mlarvin Safe 411, 52 Am. Rep. 715, 1 N. E. 154; Co. V. Ward, 46 N. J. L. 19; Styles Blood Balm Co. v. Cooper, 83 Ga. V. F. E. Long Co., 67 N. J. L. 457, 10 S. E. 118, 5 L. E. A. 612, 413, 51 Atl. 710, 70 N. J. L. 301, 20 Am. St. 324; Schubert v. J. R. 57 Atl. 448; Conklin v, E. P. & Clark Co., 49 Minn. 331, 51 N. W. J. H. Staats, 70 N. J. L. 773, 59 1103, 15 L. E. A. 818, 32 Am. St. Atl. 144, 66 L. E. A. 595; Thomas 559; Croft v. Parker W. & Co., 96 V. Winchester, 6- N. Y. 397, 57 Am. Mich. 245, 55 N. W. 812, 21 L. E. Dec. 455; Langridge v. Levy, 2 A. 139; Huset v. J. I. Case Mees. & W. 519, 4 Mees. & W. 337; Threshing Co., 57 C. 0. A. 237, 120 Van Winkle v. American Steam Fed. 865, 61 L. E. A. 303, and Boiler Co., 52 N. J. L. 240, 19 Atl. Salmon v. Libby, McNeill & Libby, 472; Appleby v. State, 45 N. J. 219 111. 421, 76 N. E. 573; Cun- L. 161; Brennan v. United Hatters, ningham v. C. E. Peace House 73 N. J. L. 729, 65 Atl. 165, 118 Furnishing Co., 74 N. H. 435, 6 Am. St. 727, 9 L. E. A. (N. S.) Atl.' 120, 20 L. E. A. (N. S.) 254, 118 Am. St. 727, 9 A. Jfc E. 236 (stove polish exploding and in- Ann. Cas. 727 ; Delaware, L. & juring members of the family of the W. E. Co. V. Solnan, 39 N. J. L. purchaser). Only a few of these cases 801 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 633 tion alleged, in substance, that the defendant prepared, put up in packages, and sold to the trade certain mince meat, which, in the due course of business, passed through the hands of a wholesaler, a retail dealer, and finally was made into a pie, after eating of which plaintiff's testator died; that the defendant negligently and improperly prepared and manufactured the mince meat in question; that as a result the same became unfit for food, and poisonous and destruc- tive to human life when used as food; and that plaintiff's testator, lawfully partaking of the same, was poisoned, and lost his life in consequence thereof. There was no averment of a scienter, the declaration counting upon the negligence alone. It was held that this set forth a good cause of action, under a statute permitting a recovery for the death of a per- son caused by the wrongful act or omission of another.^ In another case a vendor of spoiled bacon was held liable. He had sold the meat to the plaintiff's butcher, and the court said, if the vendor was negligent in selling meats that were dangerous to those who ate them, he would be liable for the consequences of his act if he knew the meats to be danger- ous, or by proper care on his part could have known their condition.^ In a Massachusetts case occurs a dictum to the effect that a caterer who furnished improper and unwhole- some food, by which the guests of his customers were made sick, would be liable to such guests, though he had no direct contractual connection with them.* This dictum was followed as an authority in a subsequent case.^ But in an Arkansas relate to the sale of food. Mesh- to state the particular negligence besher v. Channellene Oil & Mfg. complained of. Co., 107 Minn. 104, 119 N. W. 428, a Craft v. Parker W. & Co., 96 131 Am. St. 441; Barney v. Bur- Mich. 245, 55 N. W. 812, 21 L. stenbinder, 7 Lans 224. See Car- R. A. 139. But the court refrained ter V. Harden, 78 Me. 528. from any discussion of the ques- 2 Salmon v. Libby, McNeil & tion of the manufacturer's liability Libby, 219 111. 421, 76 N. E. 573. to third persona. The question of the liability of a * Bishop v. Weber, 139 Mass. packer to persons not in privity 411, 1 N. E. 154, 52 Am. Rep. 715. of contract with him was not dis- s Lebourdais v. Vitrified Wheel cussed, as the specific objection to Co., 194 Mass. 341, 80 N. E. 482. the declaration was that it failed PuBE Food — 51. § 633] LAW OF PUKE POOD AND DRUGS. 803 case a recovery was refused to a purchaser from a retailer of canned meat against the packer of it, upon the ground that, as the goods were purchased from a middleman, there was no privity of contract between the consumer and .the packer, and that, therefore, no warranty of wholesomeness passed with the property from the packer to the consumer through the latter 's vendor. The question of the purchaser's liability for negligence in the preparation of the food was altogether ignored by the court, though the complaint con- tained an averment of such negligence." In the Massachu- setts case already cited, the court said: "The liability does not rest so much upon an implied contract as upon a vio- lated or neglected duty voluntarily assumed. Indeed, when the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter have a right to assume that he will fur- nish for their consumption provisions which are not un- wholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands upon the same ground as the administering of improper medicines, from which a liability springs, irrespec- tive of any question of privity of contract between the par- ties.'" The same rule has been applied to a sale of a drug which turned out to be a poison, and which a person not a party to the contract of purchase took, to his injury.' So where a druggist, at the request of a purchaser, put some croton oil on candy that had been purchased from him, know- ing, or having cause to believe, that the purchaser intended to use the candy as a trick, he was held liable to a criminal prosecution for assault and battery." What has been said is 6 Nelson v. Armour Packing Co., Moore, 15 N. Y. 432 ; WlUson v. 76 Ark. 352, 90 S. W. 288, 6 A. & Faxon, 63 N. Y. App. 561, 117 N. E. Ann. Cas. 237; Davidson v. Y. Supp. 361. See also Minner v. Nichols, 11 Allen 514. Scherpich, 5 N. Y. St. Rep. 851; ' Bishop V. Weber, supra. Blood Balm Co. v. Cooper, 83 Ga. 8 Peters v. Johnson, 50 W. Va. 457, 10 S. E. 118, 5 L. E. A. 612, 644, 41 S. E. 190, 57 L. R. A. 20 Am. St. 324. 428, 88 Am. St. 909; Quinn v. 9 State v. Moore, 121 N. C. 677, 803 CIVIL LIABILITY VENDOR DEUGS AND FOOD. [§623 especially true as to instances of a sale to a husband where he purchases it for his wife^° or a master who procures medi- cine for his servant.^^ 28 S. E. 547, 43 L. E. A. 861, 61 Am. St. 686. "The manufacturer or dealer who puts out, sells, and delivers, with- out notice to others of its danger- ous qualities, an article which in- vites a certain use, and which ar- ticle is not inherently dangerous, but which, by reason of negligent construction, he knows to be im- minently dangerous to life or limb, or is manifestly and not apparent- ly dangerous when used as it is in- tended to be used, is liable to any person who suffers an injury there- from, which injury might have been reasonably anticipated. So a manufacturer or vendor putting out and selling articles inherently dangerous, such as explosions or poisons, without notice to others of their dangerous nature or quali- ties, or with a misleading notice, or negligently in any other way, is liable for any injury to any third person which might have been rea- sonably foreseen by the manufac- turer or dealer in the exercise of ordinary care. So a manufacturer or vendor making and selling an article intended to preserve or af- fect human life is liable to third persons, who sustain injury caused by his negligence in preparing, compounding, labeling, or directing the use of such articles, if such in- jury to others might have been reasonably foreseen in the exercise of ordinary care. The reason for these rules is apparent. The man- ufacturer or vendor should have no immunity from duties common to all, merely because he is a man- ufacturer or vendor. At the same time, there is in the common law no authority for imposing special duties upon him by reason of any privity between him and the ven- dee of his vendee, except in the instances mentioned, which may be regarded as occasions of a general duty toward the public to whom the wares are offered, or as excep- tions to the rule of non-liability. If a general rule of statute or com- mon law requires him to take pre- cautions to protect the public against a dangerous substance by proper designation of the thing manufactured or sold, he owes a duty to the public so to do, and for failure in that regard he is liable for the consequences reason- ably to be anticipated." Hasbrook V. Ai-mour & Co. (Wis.), 112 N. W. 157, 23 L. E. A. (N. S.) 876. Consequently it was held that a manufacturer who sells to the trade is not liable in tort for an injury to a consumer by a needle which is in some way imbedded in a cake of soap without his knowl- edge, which cake is sold with oth- ers in the usual way to the dealer; and it is immaterial that purity of the product was guaranteed. Nor is the retailer liable. 10 Davis V. Guanieri, 34 La. Ann. 913. 11 Norton v. Sewall, 106 Mass. 143, 8 Am. Eep. 298. §§ 634, 625] LAW OS pure food and deugs. 804 § 624. Patented Medicines. In an early English case there is an instruction that if a druggist sold a compound, not knowing for whom it was in- tended, he would not be liable to the person who, not being the purchaser, used it and was injured.^ A druggist is not required to analyze the contents of each bottle or package of a patent or proprietary medicine which he gets from a manufacturer. If he delivers it to a customer calling for it with the label of the proprietor or patentee on it, he is not negligent.^ But the maker of the patented medicine is liable to any one who purchases and uses it in ignorance of its poi- sonous character.^ § 625. Prescription Placed upon Patent Medicine. "Where a prescription is placed upon a patented medicine, giving the amount of the medicine that should be taken at a dose, then any one following the directions, to his injury, may maintain an action against the manufacturer, though the medicine has passed through the hands of several dealers be- tween him and such manufacturer. This question has been discussed by the Supreme Court of Georgia. The medicine there involved was a patented article put up in a bottle, upon which was a prescription. "The liability of the plaintiff in error," said Justice Blandford, speaking for the court, "to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and directions as to the dose that should be taken. We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor or by an intermediate, party to whom the proprietor had sold it in the first instance for the purpose of being sold again. It was put upon the market by the proprietor, not alone for the use of druggists to whom they might sell it, but to be used by the public in general, who might need the same for the cure of certain dis- 1 George v. Skivington, 5 Exch. 1. s Blood Balm Co. v. Cooper, 83 2 West V. Emanuel, 198 Pa. 180, Ga. 457, 10 S. E. 118, 5 L. E. A. 47 Atl. 985. 612, 20 Am. St. 324. 805 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 635 eases, for which the proprietor set forth in his label the same was adapted. This was the same thing as if the proprietor himself had sold this medicine to the defendant in error, with his instructions and directions as to how the same should be taken. In the eases cited by the plaintiff in error there is no case in which the proprietor prescribed the doses and quantities to be taken of the medicine sold by him. If this medicine contained the iodide of potassium in sufficient quantity to produce the injurious consequences complained of to the defendant in error, and if the same was adminis- tered to him either by himself or any other person as pre- scribed in the label accompanying the medicine, he could, in our judgment, recover for any injury he may have sustained on account of the poisonous effect thereof. It was wrong on the part of the proprietor to extend to the public generally an invitation to take the medicine in quantities sufficient to injure and damage persons who might take it. A medicine which is known to the public as being dangerous and poison- ous if taken in large quantities may be sold by the proprietor to druggists and others, ajnd if any person without more should purchase and take the same so as to cause injury to himself, the proprietor would not be liable. But if the con- tents of a medicine are concealed from the public generally, and the medicine is prepared by someone who knows its eon- tents, and he sells the same, recommending it for certain dis- eases, and prescribing the mode in which it shall be taken, and injury is thereby sustained by the person taking the same, the proprietor would be liable for the damages thus sustained. These proprietary or patent medicines are secret, or intended by the proprietors to be secret, as to their con- tents. They expect to derive a profit from such secrecy. They are, therefore, liable for all injuries sustained by any one who takes their medicines in such quantities as may be prescribed by them. There is no way for a person who uses the medicine to ascertain what its contents are, and in this case the contents were only ascertained after an analysis made by a chemist, which would be very inconvenient and expensive to the public ; nor would it be the duty of a person § 636] LAW OF PURE FOOD AND DRUGS. 806 using the medicine to ascertain what poisonous drugs it may contain. He has a right to rely upon the statement and recommendation of the proprietor, printed and published to the world; and if, thus relying, he takes the- medicine, and is injured on account of some concealed drug of which he is unaware, the proprietor is not free from fault, and is liable for the injury thereby sustained."^ § 626. Druggists ' Liability in Selling Unbroken Packages — Negligence Basis of Liability. Many drugs today are sold in the packages or bottles just as received from manufacturers, and while the manufacturer is a guarantor of their contents as he represents them to be, it is a very different thing with the druggist or retailer. The druggist relies upon the representations made to him by the manufacturers. If he has bought the drug from a reputable manufacturer, either directly or indirectly, under verbal or oral representations of its contents or as to what it is, and he, not knowing differently, sells it in reliance upon such rep- resentations, he will not be liable if it turns out to be a dif- ferent drug, though the use of such drug produce serious injury to the person using it. There must be negligence upon the part of the druggist in the sale of a drug to render him liable, unless he expressly enters into an engagement of war- ranty. There is no liability in such eases, irrespective of the question of negligence or intentional wrong. Thus, where a drug- gist's clerk sold sulphate of zinc for epsom salts, Justice Cooley said: "That such an error might occur without fault on the part of the druggist or his clerks is readily supposable. He may have bought his drugs from a reputable dealer, in whose warehouse they may have been tampered with for the pur- pose of mischief. It is easy to suggest accidents after they come into his own possession, or wrongs by others, of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how the mis- 1 Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. E. A. 612, 20 Am. St. 324. 807 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 627 fortune occurs is unimportajit if, under all the circumstances, the fact of occurrence is attributable to him as a legal fault. . . . But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability where a mistake has occurred. ' '^ §627. Sale of Drugs from Broken Packages. "Whatever the rule may be with reference to the sale of drugs in the original packages, it is a very different thing where the druggist breaks the package and retails it to the consumer. He then has an opportunity to examine and as- certain what the drug is that he is selling. The label of a harmless drug placed by reputable wholesale dealers on a poisonous drug purchased from them will not protect him from liability, even though he has failed to discover the mis- take when handling the drug. Having the opportunity to ascertain the character of the drug sold, the least inattention or want of skill on his part to ascertain its properties or what it will render him liable to a person taking it, to his in- jury, who has relied upon the tacit representations put forth by the act of sale concerning the properties of the drug requested. "All persons who deal with deadly poisons, nox- ious and dangerous substances are held to a strict accounta- bility."^ Thus, where a druggist furnished laudanum in- stead of rhubarb, and the laudanum was administered to the purchaser as rhubarb, resulting in his death, his adminis- trator was awarded a judgment for damages because of his death.2 ^^ ^ g^j^g qJ qQ ^f bitter almonds as oil of sweet al- monds was held to render the druggist selling it liable for the fatal results produced in taking it;' so of morphine 1 Brown v. Marshall, 47 Mich. ing Co., 74 N. H. 435, 69 Atl. 120, 576, 41 Am. Rep. 728, 11 N. W. 20 L. K. A. (N. S.) 236, 124 Am. 392. St. 979. 1 Howes V. Rose, 13 Ind. App. 2 Norton v. Sewall, 106 Mass. 674, 42 N. E. 303; Fleet v. HoUen- 143, 8 Am. Rep. 298. kemp, 13 B. Mon. 219; dinning- 3 Davis v. Guarnieri, 45 Ohio St. ham V. C. R. Pease House-Furnish- 470, 4 Am. St. 548, 15 N. E. 350. § 638] LAW OF PUEE FOOD AND DRUGS. 808 sold as calomel,* and of morphine for quinine;^ so in the case of a hair wash prepared at the request of a husband for his wife, which was so negligently and unskilfully prepared that it was unfit to be used for washing the hair." The use of strychnine for camphor, when filling a prescription, estab- lishes negligence;' or sulphate of zinc for epsom salts;' or belladonna for dandelion;^ or tartaric acid for Eoehelle salts ;^° or extract of belladonna for extract of dandelion;" or copperas instead of Glauber's salt;^^ or undiluted aromatic spirits of ammonia that is to be taken internally .^^ § 628. Mislabeling Poisons or Medicines — Liability to Remote Purchaser. "Pharmacists or apothecaries," said the Supreme Court of the United States, "who compound or sell medicines, if they carelessly label a poison as a harmless medicine and send it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine in consequence of the false label, the rule being that the liability in such a case arises, not out of any con- tract or direct privity between the wrongdoer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug with the label may have passed through many intermediate sales be- fore it reached the hands of the person injured."^ Thus, « Smith V. Middleton, 112 Ky. s Walton v. Booth, 34 La. Ann. 588, 66 S. W. 388, 56 L. R. A. 484, 913. 99 Am. St. 308. 9 Thomas v. Winchester, 6 N. Y. 5 Quin V. Moore, 15 N. Y. 432. 397, 57 Am. Dec. 455. See also Peters v. Johnson, 50 W. "Howes v. Eose, 13 Ind. App. Va. 644, 41 S. E. 190, 57 L. E. A. 674, 42 N. E. 303. 428, 88 Am. St. 909; Minner v. "Smith v. Hays, 23 111. App. Scherpich, 5 N. Y. St. Eep. 851; 244. McOubbin v. Hastings, 27 La. Ann. 12 Kennedy v. Plank, 120 Wis. 713. 197, 97 N. W. 895. George v. Skivington, L. E. 5 is Butterfield v. Smellenburg Exch. 1. (Pa.), 79 Atl. 980. ■7 Minner v. Scherpich, 5 N. Y. St. 1 National Saving Bank v. Ward, Eep. 851. 100 U. S. 195, 25 L. Ed. 621; 809 CIVIL LIABILITY VENDOE DKUGS AND FOOD. [§ 628 where a husband purchased from a druggist as oil of sweet almonds, and which was labeled "Oil of Almonds," but which was in fact oil of bitter almonds, and his wife took the oil actually purchased, resulting in her death, it was held that the administrator of the wife's estate could recover, un- der the statute, damages for her death. It was contended that there was no such privity of contract between the drug- gist and the deceased as imposed upon him a duty toward her, but the court said in answer to this : " It is not a sound proposition to say that a dealer in drugs, having in stock and for sale deadly poisons, owes no duty to persons who do not deal with him in relation to them. The public safety and se- curity against the fatal consequences of negligence in keep- ing, handling and disposing of such dangerous drugs is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are likely to prevent death or serious injury to those who may, in the ordinary course of events, be ex- posed to the dangers incident to the trafSc incident in poi- sonous drugs. "^ Consequently for a druggist to fill an order for calomel tablets with morphine and place them in a box labeled "Calomel," without giving notice of the fact, is such an act of gross negligence as renders him liable in punitive damages to the person injured or to his administrator.* "We can not say," said the court in the case just cited, "that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mis- takes, by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not, in and of it- self, gross negligence, and that of an aggravated form. In Thomas v. Winchester, 6 N. Y. 397, 2 Davis v. Guarnieri, 45 Ohio St. 57 Am. Dec. 455; Wise v. Morgan, 470, 15 N. E. 350, 4 Am. St. 548. 101 Tenn. 273, 48 S. W. 971, 44 3 Smith v. Middleton, 112 Ky. L. E. A. 548, 4 Chic. L. J. 588, 66 S. W. 388, 56 L. R. A. 484, Wkly. 69. 99 Am. St. 308. § 629] LAW OF PUEE FOOD AND DRUGS. 810 a business so hazardous, having to do so directly and fre- quently with the health and lives of so great a number of people, the highest degree of prudence for the safety of those dealing with such dealer is required. And that degree of care exacted of such dealer be required, also, of each servant intrusted by him with the conduct of his calling."* Where a druggist was given a bottle labeled "Carbolic Acid," and was asked for arnica, but filled it with carbolic acid, and did not attach a new label, his negligence was held to be the proximate cause of the injury to one who used the carbolic acid supposing it to be arnica.^ § 629. Failure to Label a Poison — Physician's Prescription. Statutes have been enacted in almost every State requiring poisons to be labeled as a warning to all persons coming in contact with them, and a failure to comply with these stat- utes is such an act of negligence as will render liable those whose duty it is to place such labels upon the poisons, if by such omission a person be injured. A statute of this charac- ter, however, does not apply to medicines compounded upon the prescription of a physician, though it contains poison. And where a druggist negligently failed to label a bottle poison, his negligence was held to be the proximate cause of the death of an irresponsible child who got the bottle from the mantelpiece where the mother had left it, not knowing of its dangerous character, and drank the contents, resulting in its death. The mother's negligence in leaving the bottle ac- cessible to the child was not such an intervening negligence on the part of a responsible agent as broke the chain of causation, and became itself the judicial cause. If the mother had been aware of the poisonous character of the substance it might have been otherwise, and if the bottle had been labeled "poison" she would thereby have been admonished of its dangerous character.^ An averment in a complaint * Smith V. Middleton, supra. i Wise v. Morgan, 101 Tenn. 273, 5 Peterson v. Westmann, 103 Mo. 48 S. W. 971, 44 L. E. A. 548; App. 672, 77 S. W. 1015, distin- Horst v. Walter, 53 N. Y. Misc. guishing Fowler v. Randall, 99 Mo. Rep. 591, 103 N. Y. Supp. 750. App. 407, 73 S. W. 931. ■811 CIVIL LIABILITY VENDOR DEUGS AND FOOD. [§ 629 that the defendant negligently put up and sold a poisonous ■drug instead of a harmless medicine called for, authorizes proof that such drug was labeled "poison," as a statute re- quired.^ But where a druggist sold to an intoxicated man poison, and unlawfully neglected to put upon the package a label of its contents as the statute required, and the pur- chaser, while still intoxicated, drank the poison, and died from the effects, it was held that no action lay against the druggist, for the proximate cause of his death was the act of the decedent in administering the poison to himself, and not of the druggist in selling it without a label.^ But it is neg- ligence per se to sell a package of poison unlabeled when a statute requires it to be labeled; yet it is incumbent upon the plaintiff to show that the violation of the statute was the proximate cause of the death; and the question whether the defendant's negligence was the proximate cause of the injury is one for the jury.* A druggist who was not a registered pharmacist sold to the deceased's servant more than five grains of strychnine without placing a label on the outside of the package designating the name of the poison and the name of an antidote, and without making any inquiry as to the purpose for which the strychnine was to be used, as a statute required. A nurse gave the deceased strychnine from the package, supposing it to be morphine, and the deceased immediately thereafter died from its effect. It was held that such facts entitled the deceased's administrator to recover damages from the druggist for a violation of this statute. The plaintiff proved a cause of action under the statute, as well as for defendant's negligence in the sale of the poison, independent of the statute, and it was held error to charge the jury that if the defendant, in selling the poison, did not 2 Davis V. Guarnieri, 45 Ohio St. also Fisher v. GoUaday, 38 Mo. 470, 15 N. E. 350, 4 Am. St. 548. App. 531. In this case it was held not error s Eonker v. St. John, 21 Ohio for the court in its charge to al- Cir. Ct. Kep. 39, 11 Ohio C. D. 434. lude to the statute .making it un- *Burk v. Creamery Package lawful to sell a poisonous drug Mfg. Co., 126 Iowa 730, 102 N. without labeling it "Poison." See W. 793, 106 Am. St. 377. §§ 630, 631] LAW OF PURE FOOD AND DRUGS. 81^ comply with the statute, and plaintiff's decedent came to her death by reason of the failure to do so, the plaintiff was eur titled to recover.^ § 630. Implied Representation that Drug Requested for a Particular Purpose is Fit for Such Purpose. If a person applies to a druggist for a solution or medi- cine for a particular purpose, and the druggist furnishes it, there is an implied representation on the part of the drug- gist that the drug or solution is fit for the particular pur- pose. Thus, where plaintiff applied to a druggist for a solu- tion to wash a wound, and the druggist furnished a solution containing 86 percent of carbolic acid, it was held that he was liable for the injuries sustained in using the solution for a wash, and that the plaintiff was justified in using the solu- tion without further inquiry.^ § 631. Implied Representation that Drug Delivered is the Drug Called for. It scarcely needs to be stated that, if a person goes into a drugstore and makes a request for a particular drug, and the druggist in compliance, apparently, with that request, de- livers him a drug, there is an implied representation on the part of the druggist that the drug delivered is the drug re- quested, and the purchaser is not bound to make an exami- nation of the drug delivered, or make further inquiry, to see that no mistake had been made. The purchaser has a right to rely upon the implied representation of the druggist that the drug delivered to him was the drug he called for. Of 5 Sutton V. Wood, 120 Ky. 23, 85 called for aromatic spirits of am- S. W. 201, 27 R.y. L. Rep. 412. monia, to be taken inwardly, and the 1 Horst V. Walter, 53 N. Y. Misc. druggist put up the ammonia in Rep. 591, 103 N. Y. Supp. 750; its pure state without weakening Brunswig v. White, 70 Tex. 504, 8 it with water. In the state he put S. W. 85; Kennedy v. Plank, 120 it up in it was a very dangerous Wis. 197, 97 N. W. 895. drug. Butterfield v. Smellenburg A similar ruling was made (Pa.), 79 Atl. 980. where a physician's prescription 813 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§§ 633, 633 course, if he knows a mistake has been made, then he must act accordingly, for if he then takes the drug, and is injured, he would be guilty of contributory negligence.^ §632. Drug Sold for Specific Purpose. If a druggist sells a drug for a specific purpose he im- pliedly represents it as suitable for that purpose. Thus, where a person asks a druggist for a drug for a particular, specified purpose, and the druggist furnishes it, he impliedly represents the drug sold to be suitable for that purpose. Hence, where one was asked for corrosive sublimate "to ap- ply to the body to kill lice," and the druggist prepared it for that purpose, but made the solution so strong that it caused severe injury, he was held liable for damages, the case being considered as a sale of a harmful drug sold as a harmless one.^ § 633. Druggist Recommending a Prescription. A druggist who in good faith recommends a prescription, •and then fills it when requested to do so, and the medicine thus compounded produces an injury to the person taking it, is not liable, if he properly filled the prescription. Such was ield to be the case where a druggist in good faith recom- 1 Knoepel v. Atkins, 40 Ind. App. left out the element of eontribu- 428, 81 N. E. 600. In this case the tory negligence on the part of the -complaint averred that the defen- plaintiflF. dant sold a drug to her for phos- See upon the general proposition, phate of soda, and that from the Horst v. Walter, S3 N. Y. Misc. identical drug thus sold by the de- Eep. 591, 103 N. Y. Supp. 750; iendant for phosphate of soda she Kennedy v. Plank, 120 Wis. 197, took the dose which injured her, 97 N. W. 895. and that it was acetanilide; that i Goldberg v. Hegeman & Co., 60 she knew nothing about the appear- N. Y. Misc. 107, 111 N. Y. Supp. ance of either drug, and believed 679. In this case as the druggist the medicine she was taking to be sold the drug as fit for the pur- what it was sold for, phosphate of pose for which he sold it, his lia- soda; and the verdict was for the bility was held not affected by his plaintiff on those allegations. It failure to label it as fit for that was held that it was a harmless purpose, •error to give an instruction which §§ 634, 635] LAW OP pure pood and deugs. 814 mended the prescription of another person, to the owner of a sick horse, who ordered him to put it np, and paid him, and the compound injured the horse. ^ But where the plaintiff asked a druggist for a preparation to wash a wound, and he furnished a solution containing over 86 percent of carbolic acid, without giving a proper label or instruction, it was held that he was negligent, and liable for the injuries sustained bj' the plaintiff in using the solution as a wash for the wound.^ § 634. Chemical Mixed After Sale with Another Chemical Producing Dangerous Compound. If a druggist furnishes by mistake a harmless chemical, not knowing to what use it is to be put, which, if mixed with another harmless chemical, produces a dangerous agent, he will not be liable if the mixture cause injury to the person repurchasing it from the first purchaser. Thus, where a whole- sale druggist furnished by mistake sulphide of antimony for black oxide of manganese, to a retail druggist, he was held not liable to a purchaser from the druggist for damages caused in the use of the article which was not injurious except when used in composition with another chemical agent, the wholesale druggist not knowing that it was to be resold to this particular purchaser.^ § 635. Sale of Drug to Minor in Violatiooi of Statute. If a druggist sell a deadly drug to a minor in violation of a statute prohibiting it, without further negligence, which leads to his injury or death, although the act of sale is neg- ligence per se, thereby leaving the sole question whether it was the proximate catise of the injury or death, yet if the minor had arrived at sufficient age to be capable of oon- tributorj' negligence there can be no recovery, for the 1 Ray V. Burbank, 61 Ga. 505, i Davidson v. Nichols, 11 AUea 34 Am. Rep. 103. 514. 2 Horst V. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750. 815 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§636 act of the minor, and not the sale of the drug to him, must be considered the proximate cause of the injury or death.i And where a druggist sold unlawfully a poisonous drug to a minor, a quantity of which by this minor was ad- ministered to another minor, to his injury, it was held that the father of the latter had no cause of action against such druggist for the loss of his son's services and medical ex- penses; for it can not be said that the druggist might reason- ably have anticipated such use of the drug where, under the circumstances, the presumption arises that the purchaser knew of the qualities of the drug and the effect it would pro- duce.^ § 636. Negligently Compounding Prescription — Illegible Prescription. It is the duty of a druggist to compound a prescription as it was written by the physician. If he faithfully does that he is not liable for fatal results that follow from the patient taking the medicine prescribed. But if he knows the physi- cian has made a mistake, and that the medicine as com- pounded will be dangerous or fatal, then it is his duty to call the physician's attention to the mistake, and if he does not do it, but prepares the medicine according to the pre- scription, and gives no warning that it is dangerous, he will be liable for the result it produces. But if the prescription be so illegibly written that a druggist, notwithstanding the exercise of ordinary care, makes such a mistake in mixing the ingredients as to injure the person taking the compound, such druggist is not liable in damages to the person injured.^ A prescription called for "Elixir Pinus Comp. cum Heroin — ounces 4." The druggist had a bottle of "Elixir Pinus Compositus," and a bottle of Heroin, and, on consulting a pamphlet issued by the maker of the Heroin and the Elixir Pinus Compositus, he found that such manufacturer also put 1 Meyer v. King, 72 Miss. 1, 16 L. R. A. (N. S.) 646, 126 Am. St. So. 245, 35 L. R. A. 474. 677. 2McKibbin v. F. E. Box & Co., i McClardy v. Chandler, 2 Wkly. 79 Neb. 577, 113 N. W. 158, 13 Law Gaz. 1. § 631'] LAW OF PUEE FOOD AND DEUGS. 816 up a compound known as "Elixir Pinus Compositus with Heroin," and the formula in the pamphlet showed that the proportion of Heroin in the Elixir Pinus Compositus with He- roin was 1/24 of a grain per drachm, whereupon, in filling the prescription, he added ^^ of a grain of Heroin to each drachm of Heroin to each drachm of Elixir Pinus Compositus. It was held that he was not negligent in so compounding the prescription.^ If a druggist so carelessly compound a mixture in his store as to cause an explosion which injures a person therein, he is liable, if he failed to exercise the utmost care to avoid the injury, if the mixture was such that a well- educated druggist should reasonably suspect danger from an explosion.^ § 637. Purchaser Informed of Deadly Character of Drug. Notwithstanding a statute makes it an offense to sell a poison without labeling it, yet if a druggist selling a poison inform the purchaser of its deadly character, and warns him against the improper use of it, he will not be liable in dam- ages for causing the death of the purchaser who inadvertently takes it, for by taking it, after such warning, he contributes to his own injury, which will preclude his recovering dam- ages.^ So where the plaintiff's wife sent a fourteen-year-old girl to a drugstore to purchase morphine to be used by her (the wife), and the girl had knowledge of the dangerous character of the drug, and warned her not to take the en- tire contents of one packet, on the ground she thought it was too much, it was held that the wife was charged with knowledge of the poisonous character of the drug, and the plaintiff could not recover.- But where a person sent a bot- 2 Laturen v. Bolton Drug Co. liable to the person taking it to (N. Y.), 93 N. Y. Supp. 1035. his injury. Butterfield v. Smell- 3 Kerr v. Clason, 2 Ohio Dec. enburg (Pa.), 79 Atl. 980. 666, 4 West. Law Mon. 488. i Wohlfahrt v. Beckert, 92 N. Y. The filling of a prescription for 420, 44 Am. Rep. 406, aflSrming aromatic spirits of ammonia to be 27 Hun 74; Eay v. Burbank, 61 taken internally, with tne liquid Ga. 505, 34 Am. Rep. 103. in its undiluted condition is such ^ Fowler v. Randall, 99 Mo. App. negligence as renders the druggist 407, 73 S. W. 931. 817 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 637 tie with a label on it marked "Carbolic Acid" to a druggist to be filled with arnica, and he filled it with carbolic acid, and not arnica, and did not change the label, and did not inform the person to whom he delivered it that he had not put arnica in it, it was held that such person was not guilty of contributory negligence because he used the carbolic acid to his injury, not heeding the label, and supposing the liquid to be arnica. The negligence of a medical student, who had recommended arnica for a cracked finger, in not discovering that the liquid sent by the druggist was carbolic acid instead of arnica, was held not to be imputed to the injured person, so as to preclude him recovering for the druggist's negli- gence.^ "Where a druggist was guilty of negligence in the sale of strychnine, the proximate result of which was the death of the plaintiff's intestate, it was held no defense for the druggist that the negligence of the intestate's nurse in administering the poison concurred with the druggist's neg- ligence in causing the intestate's death.* An agent for the plaintiff called at the defendant's drugstore and asked for quinine, but was given morphine, and told by the clerk that it was the best French quinine. The clerk testified that he had delivered what was called for, and that ounce bottles of both drugs were kept in separate places, some distance apart, but that both were wrapped in blue paper. The court told the jury that the plaintiff could not recover if his agent got what he called for, and then refused to say that he could not recover if his agent was negligent in not examining the label on the bottle, and this was held not error, for no evidence called for the giving of the instruction refused.' A defend- ant put up for the plaintiff a dose of belladonna by mistake for dandelion, from a jar properly labeled. Plaintiff then When warned the wife said, "she ing whether the quantity so taken guessed the druggist knew what he was a proper or fatal dose, was doing, or ought to," and swal- a Peterson v. Westmann, 103 Mo. lowed the morphine. It was held App. 672, 77 S. W. 1015. she was guilty of contributory neg- * Sutton v. Wood, 120 Ky. 23, ligence as a matter of law, for so 85 S. W. 201, 27 Ky. L. Eep. 412. taking the morphine without know- 5 Brunswig v. White, 70 Tex. 504, 8 S. W. 85. PtTEK Food — 52. § 637] LAW OF PUEE FOOD AKD DKUGS. 818 took a portion from the same jar, and asked the defendant if it was a dose, to which he replied, "Yes." He then swal- lowed it. It was held that the failure of the court to in- struct, without qualification, that if the plaintiff was guilty of contributory negligence he could not recover, was error, there being no evidence that the defendant knew the plain- tiff's danger, to support an instruction that, in that event, he would be liable, even if such defendant took no steps to avoid the danger.* A father procured a prescription for his little daughter, which called for medicine in the form of a powder, to be given once every three hours. It was left with the child's mother, who was informed by the child's physician that it would be in powder form, and directed to give one every three hours. By mistake the druggist sent the medicine in liquid form (of another customer), the label on the bottle being marked with his name, and containing directions to give one teaspoonful every two hours, which was delivered. The father was not present when the informa- tion and directions were given by the physician, but before any of the medicine was given he was informed by the mother what were the directions. He also read the directions on the bottle, and knew that the prescription was for powder. He was present when the liquid was given to the child, and per- mitted it to be done. After the first dose, and when nearly time for the second, he suspected something was wrong, and telephoned the doctor from a neighbor's residence. He left the house without imparting to his wife his suspicions or directing her to delay the second dose until he had heard from the doctor, and it was given before his return, and the daughter afterwards died. It was held that these facts showed that the father was guilty of contributory negligence, and could not recover damages for the loss of his child.^ « Gwynn v. Duifield, 61 Iowa 64, It may be shown that the plain- 15 N. W. 594, 47 Am. Hep. 802. tiflf was so drunk when he took the f Scherer v. Sohlaberg, 18 N. D. poison that he did not know what 421, 122 N. W. 1000; Van Lien v. he was doing. McVeigh v. Gen- Sooville Mfg. Co., 14 Abb. Pr. try, 72 N. Y. App. Div. 598, 76 (N. S.) 74. N. Y. Supp. 535. 819 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§§ 638-640 § 638. Knowingly Administering Poison or Unwholesome Pood. To knowingly administer poison to another without his consent is an assault and battery, rendering the person ad- ministering it liable to a criminal prosecution. Thus, where a druggist, at the request of a customer, dropped croton oil on a piece of candy which the purchaser gave to another per- son, who ate the candy so drugged, to his injury, the druggist knowing, or having reason to believe, that the dose was in- tended for such person, or for someone else as a trick, and not for medical purposes, he was held liable upon a criminal charge of assault and battery.* §639. Plaintiff, Without Consent of Defendant, Taking by Mistake Dangerous Drug from Properly Labeled Vessel. Where the plaintiff went into the defendant's drugstore and helped himself to what he supposed was a dose of the extract of dandelion, but which was belladonna, and claimed that he bought and took under the defendant's direction, but the fact was that the jar was properly labeled, and plaintiff could read, and his only excuse was that the defendant had just made the same mistake in filling an order, it was held that the jury should have been told that if the plaintiff was guilty of contributory negligence he could not recover for damages caused thereby.^ § 640. Prima Facie Showing of Negligence in Sale of Drug. If it be shown that one drug was called for and another delivered, without any information being given that the one called for was not delivered, there is a prima facie case of 8 State V. Monroe, 121 N. C. 677, C. & P. 660; McClure v. Klein, 28 S. E. 547, 61 Am. St. 686, 43 60 Tex. 168 (inducing an habitual L. R. A. 861; Commonwealth v. drunkard to drink three pints of Stratton, 114 Mass. 303, 19 Am. liquor at one sitting, to his death). Rep. 350; Kegina v. Loch, 12 Cox i Gwynn v. Duffield, 66 Iowa 708, C. C. 244; Regina v. Sinclair, 13 55 Am. Rep. 286, 61 Iowa 64, 47 Cox C. C. 28; Regina v. Button, 8 Am. Rep. 802. § 640] LAW OF PUEE FOOD AND DRUGS. 830 negligence on the part of the druggist.^ A druggist is bound to know the medicines he compounds, and he can not excuse himself from liability by showing that he used extraordinary care and diligence in compounding the medicine.^ In an In- diana case this rule was applied to a sale of a deadly drug by mistake: "Whdre an accident happens resulting in the injury to a person or his property, and it is made to appear that all the instrumentalities causing the accident are under the exclusive control and management of the defendant, and the accident is such as ordinarily would not occur if due care was exercised by those who have control of such instrumen- talities, and the duty to exercise such care is owing the plain- tiff from the defendant, then proof of the circumstances of the accident and injury resulting therefrom rests on the de- fendant the presumption of negligence and the burden of ex- plaining the accident consistent with due care on his part. Does this rule," asks the court, "apply to the case of a drug- gist who, by mistake, deals out poison to a customer who calls for a harmless remedy? What duty does the druggist owe to the customer? All the authorities agree, and the very necessities of the case require, that the highest degree of care known to practical men must be used to prevent injuries from the use of drugs and poisons. It is for these reasons that a druggist is held to a special degree of responsibility. The care required must be commensurate with the danger in- volved. The skill employed must correspond with that supe- rior knowledge of the business which the law requires. The same rule that applies to the common carrier of passengers, and for the same reason — that is, that the life and safety from bodily harm of a passenger is at hazard, and his secur- ity due to the care and skill of the carrier alone, and under 1 Howes V. Rose, 13 Ind. App. 8 Am. Eep. 298; Walton v. Booth, 674, 42 N. E. 303 ; Smitli v. Hayes, 34 La. Ann. 913 ; Davidson v. Nich- . 23 111. App. 244; Davis v. Guar- ols, 11 Allen 514; Hansford v. nieri, 45 Ohio St. 470, 15 N. E. Payne, 11 Bush 380. 350, 4 Am. St. 548; Minner v. 2 Fleet v. Hollenkamp, 13 B. Sherpioh, 5 N. Y. St. Rep. 851; Mon. 219. Norton v. Sewall, 106 Mass. 143, 831 CIVIL LIABILITY VENDOK DRUGS AND FOOD. [§ 640 circumstances where the passenger is powerless to protect himself — applies to the druggist. So, too, the life and death of a customer at the druggist's counter is at hazard, and he is equally dependent for security upon the care and skill of the druggist, and is equally powerless to protect himself. Are the agencies by which the customers may be injured by mistake exclusively under the management and control of the druggist? To ask this question is to answer it. The poisons and the harmless medicines in which he deals are on his shelves — in his receptacles. He puts them there, he takes them down, he deals them out to the customer, who is not presumed to be able to identify them, and who, as a rule, would not know quinine from strychnine or acetanilid from phosphate of soda. And is a mistake in the dealing out of medicine such an accident as may ordinarily be expected when due care is used by the druggist? Most certainly not. Such being the case, no sound reason can be found for refus- ing to apply the rule above announced to the case of a drug- gist dealing out a poisonous drug by mistake to a customer who asks for a harmless remedy, and we hold that it does apply. And when it is shown that a customer calls upon a druggist for a harmless remedy, and the druggist or his clerk deals out to him a poison by mistake, these circumstances make a prima facie case of negligence against the druggist, and call upon him to show that his mistake was, under the circumstances, consistent with the exercise of due care on his part; and the burden is not imposed upon the purchaser of the drug to go behind the druggist's counter and into the details of his business, and explain how it came about that the druggist made the mistake, and that there was negli- gence in the way the goods were handled by him somewhere in the course of their transit through his hands into the hands of the purchaser."^ 3 Knoefel v. Atkins, 40 Ind. App. view is not inconsistent with the. 428, 81 N. E. 600. The court over- decision of the Supreme Court of ruled Howes v. Eose, 13 Ind. App. Michigan in the cose of Brown v.. 674, 42 N. E. 303, 55 Am. St. 455, Marshall, 47 Mich. 576. In that on this point, and adds: "This case a mandatory instruetioji; was § 641] LAW OF PUEE FOOD AND DRUGS. 832 § 641. Gomplaint — Pleading. A complaint which charges that the defendant was a drug- gist, that he negligently sold tO' the plaintiff a particular drug that was poisonous instead of one that was not poison- ous, which was ordered by the plaintiff, to the plaintiff's damage, states a cause of action. "It is not, generally speak- ing, necessary in actions for negligence that the complaint set forth the circumstances which tend to show negligence. It is sufficient to allege generally the doing of the act that led to the injury, and that it was negligently done. The al- leged wrongful act charged in this ease, as leading to the in- jury, was the delivery by the defendant's clerk to Wolfe, the agent of Dorcas Scott, when calling for phosphate of soda, of the poisonous drug acetanilid, and to allege that this act was negligently done was sufficient."^ If the complaint al- leges negligence generally, and gives the details of the trans- action, it is not necessary that the evidence show such details to be true, the details being uncontroUing in the complaint as well as in the evidence.^ "The wrongful act complained of — the act which led to the injury" — said the Supreme Court of Ohio, "was carelessly selling and delivering to the plaintiff a deadly poison instead of the harmless medi- cine called for. . . . The allegation in a pleading that the party complained against negligently committed the par- ticular act which led to the injury when redress is sought, furnishes the predicate from the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of."' In an action to recover damages for caus- given that entirely left out of con- due care. What we do hold is this, sideration any explanation the that the burden rests upon the druggist might give of the acci- druggist to explain his own mis- dent, consistent with the exercise take." of due care on his pant. We do i Knoefel v. Atkins, 40 Ind. App. not hold that the druggist may not 428, 81 N. E. 600. show that the mistake made 2 Knoefel v. Atkins, 40 Ind. App. by him was excusable, and that the 428, 81 N. E. 600. circumstances were such that he s Davis v. Guarnieri, 45 Ohio St . could not be charged with lack of 470, 15 N. E. 350, 4 Am. St. 548. 823 CIVIL LIABILITY VEND0K.DEU6S ANP FOOD. [§§ 643, 643 ing the death of the plaintiff's child, a complaint which al- leges that plaintiff's agent, as a customer of the defendant druggist, demanded quinine, but was by the defendant's clerk given morphine instead, and, relying on the representa- tions of the clerk that the drug was quinine, plaintiff admin- istered the same to his daughter, from the effects of which she died, states a good cause of action.* § 642. Where Action Must be Brought. It would seem axiomatic that an action to recover damages for injuries sustained by negligence in improperly adminis- tering or filling prescriptions must be brought in the county or district where the defendant resides; but a statute here may change this rule. Thus a statute of Texas provided that an action for trespass might be brought in the county where the trespass was committed. The petition in an action for injuries in consequence of the use of drugs >alleged that the drugs which the plaintiff used, through the fraud of the de- fendant, had permanently impaired plaintiff's hearing and caused her severe pain; and the drugs had been sent by de- fendant from his residemee in another county to plaintiff's residence in the county where the suit was instituted, and there used by the plaintiff. It was held that the court of the county wherein the suit was brought — the county where the drug was used — ^had jurisdiction of the person of the defendant and the cause of action, notvsdthstanding the fact that the defendant lived in another county.^ §643. Negligence in Treatment of Injured Person. It is no defense that the medical treatment to relieve the plaintiff was negligent; but a charge that the defendant is "Evidence, therefore, may be cumstances averred in the com- suffieient to establish negligence plaint." Knoefel v. Atkins, 40 Ind. on the part of the appellant in de- App. 428, 81 N. E. 600. livering acetanilide to his cus- * Brunswig v. White, 70 Tex. tomer who called for phosphate of 504, 8 S. W. 85. soda, even though it does not es- i Winter v. Terrill, 42 Tex. Civ. tablish the particular facts and cir- App. 598, 95 S. W. 761. §§ 644, 645] LAW OF puee food and deugs. 834 liable, without regard to negligence or legal fault, is error.^ So in an action against a druggist for improperly compound- ing a prescription with poisons which caused the death of the wife of the plaintiff, it was held that the action was not barred by proof that the woman was at the time very sick with yellow fever, that the attending physician gave a cer- tificate of death from yellow fever, and that the husband caused this certificate to be published in the newspapers.^ § 644. Punitive Damages. In a case of gross negligence in the sale of drugs, punitive damages may be awarded; ajid in some jurisdietdons, if not most of them, such damages can be awarded although the sale is made by a servant of the defendant, whether that ser- vant be an individual or corporation.^ § 645. Servant Selling Drugs. If a servant fills a prescription wrongly, to the injury of the person taking it; or if he sells a drug when another is called for, which results in an injury, his master will be liable civilly for his act, even to punitive daanages in some jurisdictions.^ Thus where the brother of the defendant druggist, in the latter 's absence, employed a clerk for his, the defendant's, drugstore, it was held that the defendant was liable because of injury resulting from a prescription the clerk improperly filled.^ The fact that a statute requires pharmacists tO' be registered does not relieve a druggist who 1 Brown v. Marshall, 47 Mich. White, 70 Tex. 504, 8 S. W. 85; 576, 11 N. W. 392, 41 Am. Rep. Davis v. Guarnieri, 45 Ohio St. 728. 470, 15 N. E. 350, 4 Am. St. 528; 2 MeCubbin v. Hastings, 27 La. Beckwith v. Oatman, 43 Hun 265 ; Ann. 713. Smith v. Hayes, 23 111. App. 244; 1 Smith V. Middleton, 112 Ky. Knoefel v. Atkins, 40 Ind. App. 588, 66 S. W. 388, 56 L. E. A. 428, 81 N. E. 600. 484, 99 Am. St. 308. 2 MeCubbin v. Hastings, 27 La,. 1 Smith V. Middleton, 112 Ky. Ann. 713; Beckwith v. Oatman, 43 688, 66 S. W. 388, 56 L. R. A. Hun 265. 484, 99 Am. St. 308; Brunswig v. 825 CIVIL LIABILITY VENDOR DRUGS AND FOOD. [§ 646 employs a registered pharmacist as a clerk from liability for negligence of the latter in putting up a prescription.^ Of course, where a druggist is sued for the mistake of his clerk, resulting in injury, the plaintiff must show the clerk's want of due care and skill.* Where a person asked a clerk for a solution to wash his wound, and the clerk furnished a solution containing 86 percent of carbolic acid, it was held that the clerk's employer was liable for the damages occa- sioned by the use of the solution.^ §646. Sale of Unwholesome Food. In an early authority it has been said that a guest might maintain an action against a publican for an injury received from unwholesome food;^ and in another early case it was said that "if a man sells victuals which is corrupt without warranty, an action lies, because it is against the common- wealth."^ "A dealer who sells goods for consumption im- pliedly warrants that it is fit for the purpose for which it is sold. If, in adition to this implied warranty, it is found that he was negligent in selling meats that were dangerous to those who ate them, he would be liable for the consequences of his act, if he knew it to be dangerous, or, by proper care on his part, could have knovm its condition."^ The liability does not rest so much upon an implied contract, as upon a violated or neglected duty voluntarily assumed; and it is not necessary to allege in the complaint that the defendant knew of the injurious quality of the food.* Thus a statute 3 Burgess v. Sims Drug Co., 96 Mich. 245, 55 N. W. 812, 21 114 Iowa 275, 86 N. W. 307, 54 L. E. A. 139. "Those are questions L. R. A. 364. for the jury and not for the court," * Beckwith v. Oatman, 43 Hun it was said in the case just cited. 265. 4 Bishop v. Weber, 139 Mass. sHorst v. Walter, 53 N. Y. 410, 52 Am. Rep. 715; Wiedeman Misc. Rep. 591, 103 N. Y. Supp. v. Keller, 171 111. 93, 49 N. E. 210, 750. reversing 53 111. App. 382; Van 1 Rolle, Abr. 95, 1 Bl. Com. 430. Bracklin, 12 Johns. 467, 1 Am. Dec. 2 Roswell V. Vaughan, Cro. Jac. 399 ; Winsor v. Lombard, 18 Pick. 196. 62. 3 Craft V. Parker, Webb & Co., ■§ 647] LAW OF PUEE FOOD AND DRUGS. 826 prohibiting and punishing as an offense the manufacture or sale of 'any article of food, if itself be injurious, or if it contains any ingredient injurious to health, makes a manu- facturer liable to a person who purchases from a retail dealer. In such an instance the fact that the manufacturer of food did not know it was impure does not affect the question of his liability to one injured in using it; for he was bound to know whether the article which he sold was wholesome and complied with the statute.^ In the sale of food, unless there be an express understanding otherwise, there is an implied warranty that the food sold is fit to be used as food, and if it is not the vendor is Liable for the breach of implied war- ranty.^ § 647. Implied Warranty in Sale of Food. There is an implied warranty in the case of a sale of ar- ticles of food to be consumed directly in domestic uses, that they are sound and wholesome and fit for consumption.^ 5 Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. 441 (Impure sweet oil for cooking purposes.) 8 Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. 459, 58 Am. So. 327; Copas V. Anglo-American Provision Co., 73 Mich. 541, 41 N. W. 690; Craft V. Parker, 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139; Hover V. Peter, 18 Mich. 51. 1 Winsor v. Lombard, 18 Pick. 61; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608 ; Burch v. Spenser, 15 Hun 504; Divine v. McCormick, 50 Barb. 116; Hyland v. Sherman, 2 E. D. Smith 234; Hart v. Wright, 17 Wend. 267; Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Moses v. Mead, 1 Denio 378, 43 Am. Dec. 673; Van Bracklin v. Fonda, 12 Johns. 468, 7 Am. Dec. 339; Hoover v. Peters, 18 Mich. 51; Humphreys v. ComJine, 8 Blackf. 516; Withams v. Slaughter, 3 Wis. 347; Copas v. Anglo-American Pro- vision Co., 73 Mich. 541, 41 N. W. 690; Getty v. Rountree, 2 Plnney 379, 2 Chand. 28, 54 Am. Dec. 138; Moore v. McKinley, 5 Cal. 471; Jones V. Murray, 3 T. B. Mton. 83; Osgood V. Lewis, 2 Harr. & Gr. 495, 18 Am. Dee. 317; McNaughton v. Joy, 1 W. N. C. 470; Ryder v. Neitge, 21 Minn. 70; Sinclair v. Hathaway, 57 Mich. 80, 58 Am. Rep. 327; Lukens v. Freund, 27 Kan. 664, 41 Am. Rep. 429; Goad V. Johnson, 6 Heisk. 340; Beer v. Walker, 46 L. J. C. P. 677; Em- merton v. Mathews, 7 H. & N. 586; Smith V. Baker, 40 L. T. (N. S.) 261; Clarke v. Stancliffe, 7 Exeh. 439; Burnby v. Rollitt, 16 Mees. & Wels. 644. S27 CIVIL LIABILITY VENDOR DEUGS AND FOOD. [§ 647 Warranty of fitness is implied from the payment of a sound priee.^ Usually purchases of food are made in reliance upon the supposed skill of the seller.^ In one case there was' some ■evidence that the defendant knew the animal to 'he diseased before it was slaughtered, and the court held that when he sold it for domestic use he was 'bound at his peril to know that the meat was sound and wholesom;e.* In another in- stance buyers and packers' of pork for shipment to markets for food, purchased a hog from the defendant who knew it to be boar meat unfit for food, that it was intended to be used for food, and not for manufacture into grease or tal- low, and he concealed and denied the facts, the court held there was an implied warranty of fitness for food.^ Where the defendant sold a heifer, he at the- time knowing it to be for immediate consumption, and knowing or having reason to suspect that it was diseased and unwholesome, it was held that he was bound to make his knowledge of its condition known to the purchaser, even though the disease was not externally visible." A baker sold bread at a discount to a peddler, for sale, not as a wholesale dealer but as a mere middleman and acting as his agent in his emiploy, and it was held that he impliedly warranted the wholesomeness of lis breadJ Where meats were purchased from a wholesale dealer and manufacturer without an opportunity for inspec- tion, and packed by a process unknown to the purchaser, it was held that there was an implied warranty of their fitness for food.^ In a few cases, however, it has been denied that anything can be inferred from a sale of provisions, which may not be inferred from a like purpose in other cases.' • 'Van Bracklin v. Fonda, 12 116; Good v. Johnson, 6 Heisk. 340. Johns. 468, 7 Am. Dec. 339; Hart 7 Sinclair v. Hathaway, 57 Mich. -V. Wright, 17 Wend. 267; Gray v. 60, 58 Am. Eep. 327. -Cox, 6 Dowl. & K. 200, 8 Dowl. & « Copas v. Anglo-American Pro- E. 220. vision Co., 73 Mich. 541, 41 N. W. 3 French v. Vining, 102 Mass. 690 ; Tomlinson v. Armour & Co., 132, 3 Am. Eep. 440. 75 N. J. L. 748, 70 Atl. 314, 19 *Van Bracklin v. Fonda, 12 L. R. A. (N". S.) 923. -Johns. 463, 7 Am. Dec. 339. 9 Wright v. Hart, 18 Wend. 464; sBurch V. Spencer, 15 Hun 504. Emerson v. Brigham, 10 Mass. 197; 6 Divine v. McCormick, 50 Barb. Winsor v. Lombard, 18 Pick. 57. § 647] LAW OF PUKE FOOD AND DKU6S. 828 When we come to an instance of a sale between dealers, as where food is sold as merchandise and not as provisions for consumption by the purchaser, a different rule prevails, the courts holding that therei is not, in the absence of fraud, any- implied warranty of fitness.^" Thus where a farmer killed a hog and sold it with a knowledge that it was to be used for food, it was held that there was no implied warranty as to fitness for human food, the sale not being made by common dealers or marketmen, and only a casual one without any guilty knowledge of the defect.^^ So in a sale of molasses in barrels at the market price to a grocer to retail, where the quality of the molasses was not examined — the barrels being present at the sale- — it was held there was no implied war- ranty that such molasses was fit for the purpose for which it was purchased.'^ The same ruling was' made with refer- ence to barrels of beef sold on the market to dealers, there being no affirmative warranty concerning their condition.^' "Where a drover took his cattle to market and sold th&m to a butcher, it was held that no implied warranty was raised in the absence of misrepresentation, concealment or knowl- edge that they were injured.^* A stronger case this: Hogs were purchased by a dealer to be used in hSs' meat market. He examined them and found they were not in the best condition, the owner stating, however, they were healthy as, 10 Howard v. Emerson, 110 Mass. E. D. Smith 234; Goad v. Johnson, 320, 14 Am. Rep. 608; Emerson v. 6 Heisk. 340; Jones v. Murray, 3 Brigham, 10 Mass. 197; Winsor v. T. B. Mon. 83; Fairbank Canning Lombard, 18 Pick. 61; Hart v. Co. v. Metzger, 43 Hun 71: Em- Wright, 17 Wend. 267; Wright v. merton v. Mathews, 7 H. & N. 586; Hart, 18 Wend. 449; Moses v. Smith v. Baker, 40 L. T. (N. S.) Mead, 1 Denio 378, 43 Am. Deo. 261. 673 ; Burnby v. Eollitt, 16 Mees. n Giroux v. Stedman, 145 Mass. & Wils. 644; Giroux v. Stedman, 439, 14 N. E. 538, 1 Am. St. 472. , 145 Mass. 439, 14 N. E. 538, 1 Am. 12 Humphreys v. Comline, & St. 472; Rinschler V. JelifFe, 9 Daly Blackf. .516. See also McEoy v. 469; Goldrich v. Ryan, 3 E. D. Wright, 25 Ind. 22. Smith, 324; Miller v. Scherder, 2 is Emerson v. Bingham, 10 Muss. N. Y. 262; Ryder v. Neitge, 21 197. Minn. 70; Mattoon v. Rice, 102 1* Goldrich v. Ryan, 3 E. Dv Mass. 236 ; Hyland v. Sherman, 2 Smith 324. 839 CIVIL LIABILITY VENDOR DEUGS AND FOOD. [§ 648 far as he knew. The hogs had no perceptible disease. The hogs, having died from cholera and become worthless by- disease existing at the time of the purchase, the court held that there was no implied warranty of their fitness for slaughter.^^ There is no implied warranty where no repre- sentations are made and the purchaser has full opportunity to make an examination, whether he makes the examination o,r not.^° Thus where rabbits were sold and shipped to a dealer which were found on arrival to be putrid, it was held that there was no implied warranty that they would be in a merchantable condition and fit for consumption within a reasonable time after reaching the purchaser, in the absence of anything exceptional in the transit.^'' But where there was a contract to purchase all the liquor consumed upon certain premises from one party, it was held that the law implied a warranty on the part of the seller that it should be fit to drink. ^* §648. Eating Unwholesome Food in a Restaurant — Proof of Negligence. If a person goes into a pulblic restaurant and eats un- wholesome food, mot knowing it to be such, he must, in order to recover damages from the person keeping the restaurant, establish carelessness or negligence on his part. His liability is not that of an innkeeper in protecting his guest from theft. In such an instance proof of the fact lof eating the food and of consequent sickness is not sufficient to make a prima facie case in his favor against the restaurant keeper, nor to shift the burden on the latter to establish due care. "Plaintiff claims that, having proved that she ate the oyster broth at defendant's restaurant, and in consequence became sick, her case is made out, at least the burden of proof is shifted on the defendants. If this rule was adopted, the plaintiff would isNeedham v. Dial, 4 Tex. Civ. "Beer v. Walker, 46 L. J. C. App. 141, 23 S. W. 240. P. 677. isRinscUer v. Jelliffe, 9 Daly is Clarke v. Stancliffe, 7 Exch. 469. 439; Burnby v. Eollitt, 16 Mees. &. W. 644. §§ 649-651] LAW OF PURE FOOD AND DRUGS. 830 be relieved from proving the most important element of her declaration, the negligence of the defendants, which is really the foundation of the action. This would, in effect, make, the restaurant keeper an insurer. Such a rule is not ©orreet in principle, nor has it been sustained, so far as we are ad- vised, by any respectable authority."^ § 649. Vendor having Knowledge of Unwholesomeness of Food. If the vendor has' knowledge that the food he is selling is unwholesome, then he is liable for all the ill consequences of his Act, unless the purchaser also knew it was such. Such was held to be the case where a vendor sold a quarter of beef Eis sound, when it was bad and unwholesome, and he knew Avhen he sold it the beef was diseased.^ But where a farmer killed and sold a hog for provisions to be used by the purchaser it was held that he did not impliedly warrant the hog was fit for food, he making no representations, though some of his hogs were diseased with hog cholera.^ § 650. Sale of Food under False Description. A person who knowingly sells food under a false descrip- tion may be guilty of obtaining money under false pretenses.'- § 651. Unwholesome Supply of Water. Where a water company drew water from a river which was infected in its course through a town in which there was typhoid fever, the company being ignorant of the dis- ease, and the river banks had recently been inspected by the 1 Sheflfer v. Willoughby, 163 111. 439, 14 N. E. 538, 1 Am. St. 472. 518, 45 N. E. 253, 34 L. R. A. The court attempts to distinguish 464, 54 Am. St. 486. But see the this case from Van Braoklin v. first authorities cited in § 646. Fonda, supra, although the facts 1 Van Bracklin v. Fonda, 12 are quite similar. Johns. 467, 7 Am. Dee. 339; Peck- i Eegina v. Foster, 2 Q. B. Div. ham V. Holman, 11 Pick. 384. 301, 41 J. P. 295. 2 Giroux V. Steadman, 145 Mass. 831 CIVIL LIABILITY VENDOK DRUGS AND FOOD. [§ 653 company, it was held that it was not liaible in damages for the death of one who drank the water and contracted ty- phoid fever. ^ §652. Pood for Cattle and Horses. If a vendor of hay, knowing that some poisonous substance had been spilt upon it, but believing he had separated the hay thus contaminated from the remainder, sell of that re- maining in which some of the poisonous matter still remains, he will be liable to the purchaser whose cattle or horses eat it and are injured thereby.^ But in the aJbsenee of negli- gence on his part, it was held in one case that a miller is not liable as upon an implied warranty for injury tO' cattle from bran bought from him into which, without his negli- gence, pieces of metal had accidentally fallen.^ The seller of bran, knowing that the buyer desired to use it as food for his stock and wanted pure wheat bran, is liable for damages caused by the delivery of mixed food.' "Where a contract ■for the sale of com chops was evidenced by a written order for the chops requiring them to be "delivered guaranteed," it was held that there was a guaranty of merchantable qual- ity on delivery.* A statute of Michigan^ regulated the sale of "all condimental stock foods, patented and proprietary stock foods, claimed to possess nutritive properties and all other materials intended for feeding to domestic animals." This was held to include a preparation advertised as food, which, in addition to the possession of medicinal properties, "fattens both cattle and hogs quickly, makes them grow larger and healthier and makes their meat tender, more 1 Buckingham v. Plymouth Wa- 664, 41 Am. Rep. 429. The court ter Co., 142 Pa. 221, 21 Atl. 824. thought it would be different with A city may prohibit bathing in human food, water to be used in supplying its s Houk v. Berg (Tex. Civ. App.), inhabitants with water. State v. 105 S. W. 1176. Morse, 80 Atl. 189. * Kimball-Fowler Cereal Co. v. 1 French v. Vining, 102 Mass. Chapman & Dewey Lumber Co., 132, 3 Am. Kep. 440. 125 Mo. App. 326, 102 S. W. 625. 2 Lukens v. Freund, 27 Kan. 5 Public Acts 1893, p. 421. §§ 653, 654] LAW OF puee tood and deugs. 833 juicy and better eating and produces bone, muscle and better staying powers, improves the wind," thou'g'h the label stated "P's food is a regulator, to be used according to directions, and is not sold as a feeding stuff nor is it to be fed in place of grain or any other feed."" § 653. Slander. To charge one with selling adulterated food as pure food may be a slander or libel. Thus where an article in a news^ paper charged butter had been sold as pure creaanery make, and that the commodity was 40 percent butter and the re- mainder grease; and that persons dealing with the plaintiff had been misled in purchasing such butter, it was held libel- ous per se, for the acts so charged involved moral turpitude in the plaintiff, both as an individual and as a dealer in such commodity.^ § 654. Recovering Purchase Price on Sale of Impure Food. If a person sells unwholesome food, the sale of which a statute makes an offense, he can not recover the purchase price from the purchaser. Such was held to be the case of a sale of watered milk, the sale of which a statute prohib- ited, and it was held that the fact the purchaser had an op- portunity to examine the milk, and accepted it after such examination, did not change the rule.^ So the purchase price of adulterated coffee can not be recovered, where a statute prohibits the sale of adulterated coffee as food.^ So one selling a powder for use with an apparatus for preserving fruit, which contains sulphur, ean not recover the purchase price, where the use of the sulphur for that purpose is pro- 8 Pratt Food Co. v. Bird, 148 72 Pac. 48 ; State v. Smith, 69 Ohio Mich. 631, 112 N. W. 701, 14 De- St. 196, 68 N. B. 1044. troit Leg. N. 304, 118 Am. St. 601. 2 Grossman v. Lurman, 192 U. S. iDabold V. Chronicle Pub. Co., 189, 24 Sup. Ct. 234, 48 L. Ed. 107 Wis. 357, 83 N. W. 639; Witte 401, affirming 171 N. Y. 329, 63 V. Weinstein, 115 Iowa 247, 88 N. n. e. 1097, 33 N. Y. App. Div. W. 349. 422, 54 N. Y. Supp. 72. iHecht V. Wright, 31 Colo. 117, 833 CIVIL LIABILITY VENDOE DRUGS AND FOOD. [§655 hibited by statute. A buyer can not recover back the price of an apparatus for preserving fruit because powders used tberewitli contain sulphur for that purpose was not in fact deleterious, so as to render the apparatus worthless.' §655. Liability for Price of Adulterated Food Sold as Pure Food. A purchaser can not be compelled to accept nor pay dam- ages for nonaceeptance of an article of fo'od so adulterated as to come within the provisions of a State statute prohibit- ing its sale, even though the adulterated article is equal to the standard specified ia the contract.^ 3 Smith V. Alphin, 150 N. C. 425, 64 S. E. 210. 1 Grossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401, afllrming 171 N. Y. 329, 83 N. E. 1097. In this case it was held that a contract made in New York, for the sale of goods to be delivered and stored in New York on arrival from d, joreign port is a New York contract governed by the laws of New York, even though its buyers be residents of another State. This was a sale of colored coffee. See a like holding in Bos- ton Dairy Co. v. J. H. Jones Cor- poration (N. Y.), 129 N. Y. Supp. 70. Pdbe Food — 53. APPEJN^DICES 835. APPENDICES. 837 APPENDIX A. THE FOOD AND DRUGS ACT, 3VNE 30, 1906. [34 U. S. Stat, at Large 771; U. S. Comp. St. Supp. 1909, p. 1193.] 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 traflSo therein, and for other purposes. Be it enacted iy 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 adulterated 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 conviction thereof, be fined not to exceed five hundred dollars or shall be sentenced to one year's imprisonment, or both such fine and imprisonment, 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 Dis- trict or Colimibia 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 mis- branded, 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, or foreign country, and having so received, shall deliver, in original 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 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: Provided, 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 preparation or packing thereof 838 LAW OF PUEE FOOD AND DRUGS. 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 uniform rules and regulations for carrying out the provisions of this Act, including the collection and examination of specimens of foods and drugs manu- factured or offered for sale in the District of Columbia, or any Territory of the United States, or which shall be offered for sale in unbroken pack- ages in any State other than that in which they shall have been respec- tively 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 exajnination by the chief health, food, or drug officer of any State, Territory, or the District of Colimibia, or at any domestic or foreign port through which such product is offered for inter- state commerce, or for export or import between the United States stnd any foreign port or country. Sbc. 4. That the examinations of specimens or 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 examination whether such articles are adul- terated or misbranded within the meaning of this Act; and if it shall appear from any such examination that any of such specimens is adul- terated 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 oppor- tunity 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 examina- tion, 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 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. 6. That the term "drug," as used in this Act, shall include all medicines and preparations recognized in the United States Pharmaoo- APPENDICES. 839' poeia or National Formulary for internal or external use, and any sub- stance or mixture of substances intended to be used for the cure, mitiga- tion, 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 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. 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 mineral substance or poisonous color or flavor, or other ingredient deleterious 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 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 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 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 840 LAW OF PUEE FOOD AND DRUGS. 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. 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 con- tained 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 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, opiimi, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or aeetandlide, or any derivative or preiparation of any such substances 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, or if the con- tents 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 pack- age, 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, dannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any 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. 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: Pro/mded, 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 APPENDICES. 841 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 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 construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in- sofar as the provisions 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 adul- terated 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 prosecu- tions, 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 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, 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 con- demnation. And if such article is condemned as being adulterated or mis- branded, 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 pro- visions of this Act or the laws of that jurisdiction: Provided, however. That upon the payment of the costs of such libel proceedings 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 843 LAW OF PUEB POOD AND DEUGS. delivered to the owner thereof. The proceedings 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 proceedings 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 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 other- wise 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 Sec- retary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending exami- nation 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 for- feit 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 payment 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 include the insular possessions of the United States. The word "person" 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 enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person. Sbc. 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. APPENDICES. 843 APPENDIX B. rillTED STATES DEPARTMENT OF AGRICUITTTRE. Office of the Secretary — Circular No. 21, Third Revision. (Including Regulations 3, 17, 19, 28, and 34 as amended by F. I. D. 79, 84, 112, and 93, issued October 16, 1907, February 10, 1908, January 27, 1910, and May 23, 1908, respectively; also Regulation 9, Section 6, as amended by F. I. D. 99, December 8, 1908, to take effect Jan- uary 1, 1909, and Regulation 15 as amended to accord with F. I. D. 104.) RTJIES AND REGTJIATIONS TOR THE ENFORCEMENT OF THE FOOD AND DRUGS ACT.i lAU amendments since July 23, 1910 (the date to the introduction), down to date (Oct. 20, 1911) of going to press have been inserted in these Rules and Regulations by the author. INTRODUCTION. Under date of October 17, 1906, forty rules and regulations for the enforcement of the Food and Drugs Act, June 30, 1906, were adopted. Since that date seven regulations, Nos. 3, 9, 15, 17, 19, 28, and 34, have been amended, the first named by F. I. D. 79, "Collection of Samples,'' approved by Secretary Wilson of the Department of Agriculture, Secre- tary Cortelyou of the Treasury Department, and Secretary Straus of the Department of Commerce and Labor, No. 9 by F. I. D. 99, "Change in Form of Guaranty Legend," No. 15 to accord with F. I. D. 104, on Benzoate of Soda, Nos. 17 and 19 by F. I. D. 84, "Label" and "Character of Name," No. 28 by F. I. D. 112, on "Labeling of Derivatives," and No. 34 by F. I. D. 93, "Denaturing," all over the signatures of the Secretaries of Agricul- ture, the Treasury, and Commerce and Labor. Regulation 2, Original Unbroken Package, has been interpreted by F. I. D. 86, and Regulation 9, Form of Guaranty, by F. I. D. 83, the latter on opinion rendered by the Attorney-General on the issue of a guaranty based upon a guaranty. In accordance with Regulation 15, Wholesomeness of Colors and Pre- servatives, F. I. D. 76, on Dyes, Chemicals, and Preservatives in Foods, F. I. p. 89, relating to the use in Foods of Benzoate of Soda and Sulphur Dioxide, F. I. D. 92 on the Use of Copper Salts, and F. I. D. 102, amending F. I. D. 92, have been issued over the signatures of the three Secretaries, consti- tuting decisions on these points pending the completion of investigations and the issuance of final regulations governing the use of such substances. F. I. D. 104 constitutes the final decision on the use of benzoate of soda in foods, and allows such use. With the exception of these amendments and amplifications the regu- 844 LAW OF PUEE FOOD AND DRUGS. lations as originally issued remain unchanged, and no additional rules have been adopted, the revision issued under this date merely incorporat- ing the changes enumerated. JAMES WILSON, Secretary of Agriculture. Washington, D. C, July 23, 1910. ORIGINAL LETTER OF TRANSMITTAL. Washington, D. C, October 16, 1906. The Secretaries of the Treasury, of Agriculture, and of Commerce and Labor. Sirs: The Commission appointed to represent your several Depart- ments in the formulation of uniform rules and regulations for the enforce- ment of the Food and Drugs Act, approved June 30, 1906, has reached a unanimous agreement and respectfully submits the results of its delib- erations and recommends their adoption. Very respectfully, H. W. WiMT. James L. Geebt. S. N. D. NOETH. RULES AND REGULATIONS— GENERAL. Begulation 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, medi- cines, and liquors, and for regulating traffic therein, and for other pur- poses," approved June 30, 1906, shall be known and referred to as "The Food and Drugs Act, June 30, 1906." Regulation 2. Original Unbroken Package. [See also F. I. D. 86 for interpretation of this regulation.] (Section 2.) 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. APPENDICES. 845 Eegnlation 3. Collection of Samples. [Aa amended by F. I. D. 79, October 8, 1907, to take effect November 1. 1907.] (Section 4.) Samples of unbroken packages shall be collected only by authorized agents of the Department of Agriculture, or by the health, food, or drug officer of any State, Territory, or the District of Columbia, when com- missioned 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 collector 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 col- lectors shall purchase representative samples. A sample taken from bulk goods shall be divided into three parts, and each shall be labeled with the identifying marks. If a package be leas than four pounds, or in volume less than two 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. Method of Analysis. (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. 846 LAW OF PUEE FOOD AND DEDGS. Regulation 5. Hearings. [As amended to accord with F. I. D. 130.] (Section 4.) (o) When the exa.inination or analysis shows that samples are adul- terated 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 prosecu- tion lies under this Act for the shipment or manufacture or sale of the particular product and such other interested 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 con- cerned. These hearings 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-examination. 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 evidence 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 Secretary of Agri- culture in order that he may give notice and fix dates for hearings to the proper parties. Begulation 6. Publication. (Section 4.) (a) When a judgment of the court shall have been rendered there inay be a publication of the findings of the examiner or analyst, together with the findings of the court. (6) 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. APPENDICES. 847 Eegulation 7. Standards for Drags. (Section 7.) (o) A drug bearing a name recognized in the United States Pharma- copoeia 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 Pharmacopoeia or National Formu- lary, official at the time. (6) A drug bearing a name recognized in the United States Pharma- copoeia 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.) (o) 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. (6) The factories in which proprietary foods are made shall be open at all reasonable times to the inspection provided for in Regulation 16. Regulation 9. Form of Guaranty. [As amended December 8, 1908, by F. I. D. 99, to take effect on January 1, 1909 ; see also F. I. D. 83 for opinion of the Attorney-General on the issue of a guaranty based upon a former guaranty.] (Section 9.) (a) No dealer in food or drug products will he 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. (6) A general guaranty may be filed with the Secretary of Agricul- ture by the manufacturer or dealer and be given a serial number, which number shall appear on each and every package of goods sold under such guaranty with the words "Guaranteed by [insert the 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 adulter- 848 LAW OF PUKE FOOD AND DRUGS. ated 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 Agriculture as above, it should identify and be attached to the bill of sale, invoice, bill of lading, or other schedule giving the names and quantities of the articles sold. ADULTEKATION. Regulation 10. Confectionery. (Section 7.) {a) Mineral substances of all kinds (except as provided in Eegula- tion 15) are specifically forbidden in confectionery whether they be poisonous or not. (&) Only harmless colors or flavors shall be added to confectionery. (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 narcotic nature, Segulation 11. Substances Mixed and Packed with Foods. (Section 7, under "Foods.") No substance may be mixed or packed vnth 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 eliminate'l in the further process of manufacture. Regulation 12. Coloring, Powdering, Coating, and Staining. (Section 7, under "Foods".) (o) Only harmless colors may be used in food products. (6) The reduction of a substance to a powder to conceal the infer- iority in character is prohibited. (o) The term "powdered" means the application of any powdered substance to the exterior portion of articles of food, or the reduction of a substance to a powder. id) The term "coated" means the application of any substance to the exterior portion of a food product. APPENDICES. 849 (e) The term "stain" includes any change produced by the addition of any substance to the exterior portion of foods which in any way altera 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 deleterious ingredient does not come within the provisions of the Food and Drugs Act, June 30, 1906, except when the presence of such ingredient is due to filth, putrescence, or decomposition. Regulation 14. External Application of 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. (6) When these products are ready for consumption, if any portion 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 regulations 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. Wholesomeaess of Colors and Preservatives. [As amended to accord with F. 1 D. iC4. See also F. I. D. 76, 89, 92, 101, and 102 for rulings under this head.] (Section 7, paragraph 5, under "Foods.") (a) Respecting the wholesomeness of colors, preservatives, and other substances which are added to foods, the Secretary of Agriculture 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 Commerce and Labor, shall become a part of these regulations. (6) The Secretary of Agriculture shall determine from time to time, in accordance with the authority conferred by the agricultural appro- priation Act, Public 382, approved June 30, 1906, the principles which shall guide the use of colors, preservatives, and other substances added to Ptjbe Food — 54. 850 LAW OF PUKE FOOD AND DEUGS. foods; and when concurred in by the Secretary of the Treasury and the Secretary of Commerce and Labor, the principles so established shall become a part of these regulations. (c) It having been determined that benzoate of soda mixed with food is not deleterious or poisonous and is not injurious to health, no objec- tion will be reaised under the food and drugs Act to the use in food of benzoate of soda, provided that each container or package of such food is plainly labeled to show the presence and amount of benzoate of soda. Food Inspection Decisions 76 and 89 are amended accordingly. Begfulation 16. Character of the Raw Materials. (Section 7, paragraph 1, under "Drugs;" paragraph 6, under "Foods.") (a) The Secretary of Agriculture, when he deems it necessary, shall examine the raw materials used in the manufacture of food and drug products, and determine whether any filthy, decomposed, or putrid sub- stance is used in their preparation. (6) The Secretary of Agriculture shall make such inspections as often as he may deem necessary. inSBRANSING. Regulation 17. Label. [As amended by F. I. D. 84, January 31, 1908, taking effect February 10, 1908.] (Section 8.) (a) The term "label" applies to any printed, pictorial or other mat- ter upon or attached to any package of a food or drug product, or any container thereof subject to the provisions of this Act. (6) 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 mix- tures sold under a distinctive name; statements which show that the articles are compounds, mixtures, or blends; the words "compound," "mixture," or "blend," and words designating substances or their deriva- tives 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 manufacture are given, they should also appear upon the principal label. Third, preferably upon the principal label, in conjunction with the name of the substance, 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 APPENDICES. 851 contents are stated in terms of weight or measure, such statement 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 (6) 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 promi- nent than the principal label, and these other labels must bear the informa- tion 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 eight-point (brevier) capitals: Provided, That in ease the size of the package will not permit the use of eight-point type, the size of the type may be reduced proportionately. {d) Descriptive matter upon the label shall be free from any state- ment, design, or device regarding the article or the ingredients or sub- stances contained therein, or quality thereof, or place or 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. (e) An article containing more than one food product or active medicinal agent is misbranded if named after a single constituent. In the case of drugs the nomenclature employed by the United States Pharmacopoeia and the National Formulary shall obtain. if) The use of any false or misleading statement, design, or device appearing on any part of the label shall not be justified by any state- ment given as the opinion of an expert or other person, nor by any descriptive matter explaining the use of the false or misleading state- ment given as the opinion of an expert or other person, nor by any descriptive matter explaining the use of the false or misleading state- ment, design, or device. Regulation 18. ITame and Address of Manufacturer. (Section 8.) (a) The name of the manufacturer or producer, or the place where manufactured, except in case of mixtures and compounds having a dis- tinctive name, need not be given upon the label, but if given, must be the true name and the true place. The words "packed for ," "distributed by ,'' or some equivalent phrase, shall be added to the label in ease the name which appears upon the label is not that of the actual manufacturer or producer, or the name of the place not the actual place of manufacture or production. (6) When a person, firm, or corporation actually manufactures or produces an article of food or drug in two or more places, the actual .85® LAW OF PUKE FOOD AND DEUOS. place of manufacture or production of each particular package need not be stated on the label except in the opinion of the Secretary of Agricul- ture the mention of any such place, to the exclusion of the others, misleads the public. Regulation 19. Character of Name. [As amended by F. I. D. 84, January 31, 1908, takiner effect February 10, 1908.] (Section 8.) (a) A simple or unmixed food or drug product not bearing a dis- tinctive name should be designated by its common name in the English language; or if a drug, by any name recognized in the United States Pharmacopoeia or National Formulary. No further description of the components or qualities is required, except as to content of alcohol, morphine, etc. (6) The use of a geographical name shall not be permitted in con- nection 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 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 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 under the name of a foreign article. Regulation 20. Distinctive Name. (Section 8.) (o) A "distinctive name" is a trade, arbitrary, or fancy name which clearly distinguishes a food product, mixture, or compound from any other food product, mixture, or compound. (6) A distinctive name shall not be one representing any single con- stituent of a mixture or compound. (o) A distinctive name shall not misrepresent any property or quality of a mixture or compound. (eJ) A distinctive niame shall give no false indication of origin, char- acter, or place of manufacture, nor lead the purchaser to suppose that it is any other food or drug product. AfPENDICES. 853 Regulation 21. Compounds, Imitations, or Blends Without Distinctive Name. (Section 8.) (o) The term "blend" applies to a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the pur- pose of coloring and flavoring only. (6) If any age is stated, it shall not be that of a single one of its constituents, but shall be the average of all constituents in their respec- tive proportions. (c) Coloring and flavoring can not be used for Increasing the weight or bvilk of a blend. {d) In order that colors or flavors may not increase the volume or weight of a blend, they are not to be used in quantities exceeding one pound to eight hundred pounds of the blend. (e) A color or flavor can not be employed to imitate any natural product or any other product of recognized name and quality. if) The term "imitation" applies to any mixture or compound which is a counterfeit or fraudulent simulation of any article of food or drug. Begulation 22. Articles without a label. (Section 8, paragraph 1, under "Drugs;" paragraph 1, under "Foods.") It is prohibited to sell or offer for sale a food or drug product bear- ing no label upon the package or no descriptive matter whatever con- nected with it, either by design, device, or otherwise, if said product be an imitation of or offered for sale under the name of another article. Regulation 23. Proper Branding not a Complete Guaranty. Packages which are correctly branded as to character of contents, place of manufacture, name of manufacturer, or otherwise, may be adul- terated and hence not entitled to enter into interstate commerce. Regulation 24. Incompleteness of Branding. A compound shall be deemed misbranded if the label be incomplete as to the names of the required ingredients. A simple product does not require any further statement than the name or distinctive name thereof, except as provided in Regulation 19 (a) and 28. Regulation 25. Substitution. (Sections 7 and 8.) (a) When a substance of a recognized quality commonly used in the preparation of a food or drug product is replaced by another substance 854: LAW OF PUKE FOOD AND DRUGS. not injurious or deleterious to health, the name of the substituted sub- stance shall appear upon the label. (6) When any substance which does not reduce, lower, or injuriously affect its quality or strength, is added to a food or drug product, other than that necessary to its manufacture or refining, the label shall bear a statement to that effeot. Regulation 26. Waste Materials. (Section 8.) When an article is made up of refuse materials, fragments, or trim- mings, the use of the name of the substance from which they are derived, unless accompanied by a statement to that effect, shall be deemed a mis- branding. Packages of such materials may be labeled "pieces,"' "stems," "trimmings," or with some similar appellation. Regulation 27. Mixtures of Compounds with Distinctive Names. (Section 8. First proviso under "Foods," paragraph 1.) (a) The terms "mixtures" and "compounds" are interchangeable and indicate the results of putting together two or more food products. (6) These mixtures or compounds shall not be imitations of other articles, whether simple, mixt, or compound, or offered for sale under the name of other articles. They shall bear a distinctive name and the name of the place where the mixture or compound has been manufactured or produced. (c) If the name of the place be one which is found in different States, Territories, or countries, the name of the State, Territory, or country, as well as the name of the place, must be stated. Regulation 28. Substances named in Drugs or 1*0018. [As amended by F. I. D. 112, January 6, 1910, taking effect April 1, 1910.] (Section 8. Second under "Drugs;" second under "Foods.") (a) The term "alcohol" is defined to mean common or ethyl alcohol. No other kind of alcohol is permissible in the manufacture of drugs except as specified in the United States Pharmacopoeia or National Formulary. (6) The words alcohol, morphine, opium, etc., and the quantities and proportions thereof, shall be printed in letters corresponding in size with those prescribed in Regulation 17, paragraph (c). (e) A drug, or food product except in respect of alcohol, is mis- branded in case it fails to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, heroin, cocaine, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein. APPENDICES. 855 {d) A statement of the maximum quantity or proportion of any such substances present will meet the requirements, provided the maxi- mimi stated does not vary materially from the average quantity or pro- portion. (e) In case the actual quantity or proportion is stated it shall be the average quantity or proportion with the variations noted in Regula- tion 29. if) The following are the principal derivatives and preparations made from the articles which are required to be named upon the label: Alcohol, Ethyl : (Cologne spirits, grain alcohol, rectified spirits, spirits, and spirits of wine.) Derivatives — Aldehyde, ether, ethyl acetate, ethyl nitrite, and paraldehyde. Preparations containing alcohol — Bitters, brandies, cordials, elixirs, essences, fluid-extracts, spirits, syrups, tinctures, tonics, whiskies, and wines. MoBPHiNE, Alkaloid: Derivatives — Apomorphine, dionine, peronine, morphine acetate, hydrochloride, sulphate, and other salts of morphine. Preparations containing morphine or derivatives of morphine — Bougies, catarrh snuff, chlorodyne, compound powder of morphine, crayons, elixirs, granules, pills, solutions, syrups, suppositories, tablets, triturates, and troches. Opium, Gum: . Preparations of Opium — Extracts, denarcotized opium, granulated opium, and powdered opium, bougies, brown mixture, carminative mixtures, crayons, dover's powder, elixirs, liniments, ointments, paregoric, pills, plasters, syrups, suppositories, tablets, tinctures, troches, vine- gars, and wines. Derivatives — Codeine, alkaloid, hydrochloride, phosphate, sulphate, and other salts of codeine. Preparations containing codeine or its salts — Elixirs, pills, syrups, and tablets. Cocaine, Alkaloid: Derivatives — Cocaine hydrochloride, oleate, and other salts. Preparations containing cocaine or salts of cocaine — Coca leaves, catarrh powders, elixirs, extracts, infusion of coca, ointments, paste pencils, pills, solutions, syrups, tablets, tinctures, troches, and wines. 856 LAW OF PUEE POOD AND DRUGS. Heboin : Preparations containing heroin — Syrups, elixirs, pills, and tablets. Alpsa. and Beta Etjoainb: Preparations — Mixtures, ointments, powders, and solutions. Chloeofoem : Preparations containing chloroform — Chloranodyne, elixirs, emulsions, liniments, mixtures, spirits, and syrups. Cannabis Indica: Preparations of cannabis indica — Corn remedies, extracts, mixtures, pills, powders, tablets, and tinc- tures. Ohloeal Hybeate (Chloral, U. S. Pharmacopoeia, 1890) : Derivatives — Chloral acetophenonoxim, chloral alcoholate, chloralamide, ehloral- imide, chloral othoform, chloralose, dormiol, hypnal, and uraline. Preparations containing chloral hydrate or its derivatives — Chloral oamphorate, elixirs, liniments, mixtures, ointments, supposi- tories, syrups, and tablets. ACBTAKILIDE ( Antif ebrine. Phenyl ace tamide) : Derivatives — Acetphenetidine, citrophen, diacetanilide, laotophenin, methoxy-ace- tanilide, methylacetanilide, para-iodoacetanilide, and phenacetine. Preparations containing acetanilide or derivatives — Analgesics, antineuralgics, antirheumatics, caxshets, capsules, cold remedies, elixirs, granular effervescing salts, headache powders, mixtures, pain remedies, pills, and tablets. ig) In declaring the quantity or proportion of any of the specified substances the najnes by whicii they are designated in the Act shall be used, and in declaring the quantity or proportion of derivatives of any of the specified substances, in addition to the trade name of the deriva- tive, 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. Begnlatlon 29. Statement of Weight or measure. (Section 8. Third under "Foods.") (a) A statement of the weight or measure of the food contained in a package is not required. If any such statement is printed, it shall be APPENDICES. 857 a plain and correct statement of the average net weight or volume, either on or immediately above or below the principal label, and of the size of letters specified in Regulation 17. (6) A reasonable variation from the stated weight for individual packages is permissible, provided this variation is as often above as below the weight or volume stated. This variation shall be determined by the inspector from the changes in the humidity of the atmosphere, from the exposure of the package to evaporation or to absorption of water, and the reasonable variations which attend the filling and weighing or measuring of a package. Kegulation 30. Method of Stating Quantity or Froportion. (Section 8.) In the case of aleohoi the expression "quantity" or "proportion" shall mean the average percentage by volume in the finished product. In the case of the other ingredients required to be named upon the label, the expression "quantity" or "proportion" shall mean grains or minims per ounce or fluid ounce, and also, if desired, the metric equiva^ lents therefor, or milligrams per gram or per cubic centimeter, or grams or cubic centimeters per kilogram or per liter; provided that these articles shall not be deemed misbranded if the maximum of quantity or propor- tion be stated, as required in Regulation 28 (d). EXPORTS AND IMPORTS OF FOODS AND DRTTeS. Regulation 31. Preparation of Food Products for Export. (Section 2.) (a) i'ood products intended for export may contain added substances not permitted in foods intended for interstate commerce, when the addition of such substances does not conflict with the laws of the countries to which the food products are to be exported and when such substances are added in accordance with the directions of the foreign purchaser or his agent. (6) The exporter is not required to furnish evidence that goods have been prepared or packed in compliance with the laws of the foreign coun- try to which said goods are intended to be shipped, but such shipment is made at his own risk. (c) Food products for export under this regulation shall be kept separate and labeled to indicate that they are for export. {d) If the products are not exported they shall not be allowed to enter interstate commerce. 858 LAW OF PUKE FOOD AND DRUGS. Begulation 32. Imported Food and Drug Products. (Section 11.) {a) Meat and meat food products imported into tlie United States shall be accompanied by a certificate of official inspection of a character to satisfy the Secretary of Agriculture that they are not dangerous to health, and each package of such articles shall bear a label which shall identify it as covered by the certificate, which certificate shall accom- pany or be attached to the invoice on which entry is made. ( 6 ) The certificate shall set forth the official position of the inspector and the character of the inspection. (c) Meat and meat food products as well as all other food and drug products of a kind forbidden entry into or forbidden to be sold, or re- stricted in sale in the country in which made or from which exported, will be refused admission. (d) Meat and meat food products which have been inspected and past through the customs may, if identity is retained, be transported in inter- state commerce. Begulation 33. Declaration. (Section 11.) {a) All invoices of food or drug products shipped to the United States shall have attached to them a declaration of the shipper, made before a United States consular officer, as follows: I, the undersigned, do solemnly and truly declare that I am the of the merchandise herein mentioned and de- ( Manufacturer, agent, or shipper.) scribed, and that it consists of food or drug products which con- tain no added substances injurious to health. These products were grown in and manufactured in (Couaitry.) by during the year , and are exported ( Country. ) ( Name of manufacturer. ) from and consigned to The products bear no false (City.) (City.) labels or marks, contain no added coloring matter or preserva- some tive , and are not of » character to cause prohibition or (Name of added color or preservative.) restriction in the country where made or from which exported. Dated at this .... day of , 19 ... (Signed) : (6) In the case of importations to be entered at New York, Boston, Philadelphia, Chicago, San Francisco, and New Orleans, and other ports APPENDICES. 859 where food and drug inspection laboratories shall be established, this declaration shall be attached to the invoice on which entry is made. In other cases the declaration shall be attached to the copy of the invoice sent to the Bureau of Chemistry. Kegulation 34. Denaturing, [As amended by F. I. D. 93, May 12, 1908.J (Section 11.) Unless otherwise declared on the invoice, all substances ordinarily used as food products will be treated as such. Shipments of substances ordinarily used as food products intended for technical purposes should be accompanied by a declaration stating that fact. Such products should be denatured before entry, but denaturing may be allowed under customs supervision with the consent of the Secretary of the Treasury, or the Secretary of the Treasury may release such products without denaturing, under such conditions as may preclude the possibility of their use as food products. • Begulation 35. Bond, Imported Foods, and Drugs. (Section 11.) Unexamined packages of food and drug products may be delivered to the consignee prior to the completion of the examination to determine whether the same are adulterated or misbranded upon the execution of a penal bond by the consignee in the sum of the invoice value of such goods with the duty added, for the return of the goods to customs custody. Kegulation 36. Notification of Violation of the law. (Section 11.) If the sample on analysis or examination be found not to comply with the law, the importer shall be notified of the nature of the violation, the time and place at which final action will be taken upon the question of the exclusion of the shipment, and that he may be present, and submit evidence (Form No. 5). which evidence, with a sample of the article, shall be forwarded to the Bureau of Chemistry at Washington, accom- panied by the appropriate report card. Kegulation 37. Appeal to the Secretary of Agriculture and Kemuneration. (Section 11.) All applications for relief from decisions arising under the execution of the law should be addressed to the Secretary of Agriculture, and all 860 LAW OF PUEE POOD AND DBUGS. vouchers or accounts for remuneration for samples shall be filed with the chief of the inspection laboratory, who shall forward the same, with his recommendation, to the Department of Agriculture for action. Regulation 38. Shipment beyond the Jurisdiction of the United States. (Section 11.) The time allowed the importer for representations regarding the shipment may be extended at his request to permit him to secure such evidence as he desires, provided that this extension of time does not entail any expense to the Department of Agriculture. If at the expira- tion of this time, in view of the data secured in inspecting the sample and such evidence as may have been submitted by the manufacturers or importers, it appears that the shipment can not be legally imported into the United States, the Secretary of Agriculture shall request the Secre- tary of the Treasury to refuse to deliver the shipment in question to the consignee, and to require its reshipment beyond the jurisdiction of the United States. 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 Secre- tary of Agriculture made thereunder. Regulation 40. Alteration and Amendment of Regulations. These regulations may be altered or amended at any time, without previous notice, with the concurrence of the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. The above rules and regulations are hereby adopted. Leslie M. Shaw, Secretary of the Treasury. James Wilson, Secretary of Agriculture. ViCTOB H. Metcalp, Secretary of Commerce and Labor. Washington, D. C, October 17, 1906. APPENDICES. 861 APPENDIX C. FILLED CHEESE. AN ACT defining cheese, and also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of "filled cheese." [Act of June 6, 1896, ch. 337, 29 U. S. Stat, at Large. 253.] Section 1. Cheese Defined. That for the purposes of this Act, the word "cheese" shall be under- stood to mean the food product known as cheese, and which is made from milk or cream and without the addition of butter, or any animal, vege- table, or other oils or fats foreign to such milk or cream, with or without additional coloring matter. (29 U. S. Stat, at Large 253.) Section 2. Filled Cheese Defined. That for the purposes of this Act certain substances and compounds shall be known and designated as "filled cheese,'' namely: All sub- stances made of milk or skimmed milk, with the admixture of butter, animal oils or fats, vegetable or any other oils, or compounds foreign to such milk, and made in imitation or semblance of cheese. (29 U. S. Stat, at Large 253.) Section 3. Special Taxes — ^Wholesaler — Retailer. That special taxes are imposed as follows: Manufacturers of filled cheese shall pay four hundred dollars for each and every factory per annum. Every person, firm, or corporation who manufacturers filled cheese for sale shall be deemed a manufacturer of filled cheese. Wholesale dealers in filled cheese shall pay two hundred and fifty dollars per annum. Every person, firm, or corporation who sells or offers for sale filled cheese in the original manufacturer's packages for resale, or to retail dealers as hereinafter defined, shall be deemed n wholesale dealer in filled cheese. But any manufacturer of filled cheese, who has given the required bond and paid the required special tax, and who sells only filled cheese •of his own production, at the place of manufacture, in the original pack- ages, to which the tax-paid stamps are affixed, shall not be required to pay the special tax of a wholesale dealer in filled cheese on account of such sales. Retail dealers in filled cheese shall pay twelve dollars per annum. Every person, who sells filled cheese at retail, not for resale, and for 863 LAW OF PURE FOOD AND DEUGS. actual consumption, shall be regarded as a retail dealer in filled cheese, and Sections 3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241, 3243 of the Revised Statutes of the United States are, so far as appli- cable, made to extend to and include and apply to the special taxes imposed by this section and to the persons, firms, or corporations upon whom they are imposed: Provided, That all special taxes under this Act shall become due on the first day of July in every year, or on commencing any manufacture, trade, or business on which said tax is imposed. In the latter case the tax shall be reckoned proportionately from the first day of the month in which the liability to the special tax commences to the first day of July following. (29 U. S. Stat, at Large 253.) Section 4. Penalties. That every person, firm, or corporation who carries on the business of a manufacturer of filled cheese without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than four hundred dollars and not more than three thousand dollars; and every person, firm or corporation who carries on the business of a wholesale dealer in filled cheese without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than two hundred and fifty dollars nor more than one thousand dollars; and every person, firm, or corporation who carries on the business of a retail dealer in filled cheese without having paid the special tax therefor, as required by law, shall, besides being liable for the payment of the tax, be fined not less than forty nor more than five hundred dollars for each and every offense. (29 U. S. Stat, at Large 254.) Section 5. Regulations — Bond — Penalty. That every manufacturer of filled cheese shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such, returns of materials and products, shall put up such signs and afiSx such number to hia factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. But the bond required of such manufacturer shall be vrith sureties satis- factory to the collector of internal revenue, and in a penal sum of not less than five thousand dollars; and the amount of said bond may be increased from time to time, and additional sureties required, at the dis- cretion of the collector or under instructions of the Commissioner of Internal Revenue. Any manufacturer of filled cheese, who fails to comply with the provisions of this section or with the regulations herein author- APPENDICES. OOO ized, sliall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than five huindred nor more than one thousand dollars. (29 U. S. Stat, at Large 254.) Construed United States v. Bohl, 125 Fed. 625; United States v. Green, 137 Fed, 179. Section 6. Packages — Harks — Stamps — Brands — ^Penalty. That filled cheese shall be packed by the manufacturers in wooden packages only, not before used for that purpose, and marked, stamped, and branded with the words "filled cheese" in black-faced letters not less than two inches in length, in a circle in the center of the top and bottom of the cheese; and in black-faced letters of not less than two inches in length in line from the top to the bottom of the cheese, on the side in four places equidistant from each other; and the package containing such cheese shall be marked in the same manner, and in the same number of places, and in the same description of letters as above provided for the marking of the cheese; and all sales or consignments made by manufac- turers of filled cheese to wholesale dealers in filled cheese or to exporters of filled cheese shall be in original stamped packages. Retail dealers in filled cheese shall sell only from original stamped packages, and shall pack the filled cheese when sold in suitable wooden or paper packages, which shall be marked and branded in accordance with rules and regulations to be prescribed by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. Every person who knowingly sells or offers to sell, or delivers or offers to deliver, filled cheese in any other form than in new wooden or paper packages, marked and branded as here- inbefore provided and as above described, or who packs in any package or packages filled cheese in any manner contrary to law, or who falsely brands any package, or affixes a, stamp on any package denoting a less amount of tax than that required by law, shall upon conviction thereof be fined for each and every offense not less than fifty dollars and not more than five hundred dollars, be imprisoned not less than thirty days nor more than one year. (29 U. S. Stat, at Large 254.) Section 7. Dealer's Sign. That all retail and wholesale dealers in filled cheese shall display, in a conspicuous place in his or their sales room, a sign bearing the words "Filled cheese sold here" in black-faced letters not less than six inches in length, upon a white ground, with the name and number of the revenue district in which his or their business is conducted; and any wholesale or retail dealer in filled cheese who fails or neglects to comply with the pro- visions of this section shall be deemed guilty of a misdemeanor, and shall on conviction thereof be fined for each and every offense not less than fifty dollars and not more than two hxmdred dollars. (29 U. S. Stat, at Large 255.) 864 LAW OP PUKE FOOD AND DRUGS. Section 8. Label. That every manufacturer of filled cheese shall securely affix, by pasting on each package containing filled cheese manufactured by him, a label on which shall be printed, besides the number of the manufactory and the district and State in which it is situated, these words: "Notice. — The manufacturer of the filled cheese herein con- tained has complied with all the requirements of the law. Every person is cautioned not to use either this package again or the stamp thereon again, nor to remove the contents of this package without destroying said stamp, under the penalty provided by law in such cases." Every manufacturer of filled cheese, who neglects to affix such label to any package containing filled cheese made by him or sold or offered for sale by or for him, and every person who removes any such label so affixed from any such package, shall be fined fifty dollars for each package in respect to which such offense is committed. (29 U. S. Stat, at Large 255.) Section 9. Tax on Manufacture — Stamps. That upon all filled cheese which shall be manufactured there shall be assessed and collected a tax of one cent per pound, to be paid by the manufacturer thereof; and any fractional part of a pound in a package shall be taxed as a pound. The tax levied by this section shall be repre- sented by coupon stamps; and the provisions of existing laws governing the engraving, issue, sale, accountability, effaoement, and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by this section. (U. S. Stat, at Large 255.) Section 10. Tax on Cheese Sold Unstamped. That whenever any manufacturer of filled cheese sells or removes for sale or consumption any filled cheese upon which the tax is required to be paid by stamps, without paying such tax, it shall be the duty of the Commissioner of Internal Revenue, within a period of not more than two years after such sale or removal, on satisfactory proof, to estimate the amount of tax which has been omitted to be paid, and to make an assess- ment therefor and certify the same to the collector. The tax so assessed shall be in addition to the penalties imposed by law for such sale or removal. (29 U. S. Stat, at Large 255.) Section 11. Imported Cheese — Tax. That all filled cheese as herein defined imported from foreign coun- tries shall, in addition to any import duty imposed on the same, pay an APPENDICES. 865 internal revenue tax of eight cents per pound, such tax to be represented by coupon stamps; and such imported filled cheese and the packages con- taining the same shall be stamped, marked, and branded, as in the case of filled cheese manufactured in the United States. (29 U. S. Stat, at Large 255.) Section 12. Penalty for Purchasing Unstamped Cheese. That any person who knowingly purchases or receives for sale any filled cheese which has not been branded or stamped according to law, or which is contained in packages not branded or marked according to law, shall be liable to a penalty of fifty dollars for each such offense. (29 U. S. Stat, at Large 256.) Section 13. Penalty for Purchasing of Manufacturer not Paying Tax. That every person who knowingly purchases or receives for sale any filled cheese from any manufacturer or importer who has not paid the special tax herein provided for shall be liable, for each offense, to a penalty of one hundred dollars and to a forfeiture of all articles so pur- chased or received, or of the fuU value thereof. (29 U. S. Stat, at Large 256.) Section 14. Destroying Stamps. That whenever any stamped package containing filled cheese is emptied, it shall be the duty of the person in whose hands the same is to destroy the stamps thereon; and any person who willfully neglects or refuses so to do shall, for each such offense, be fined not exceeding fifty dollars or imprisoned not less than ten days nor more than six months. (29 U. S. Stat, at Large 256.) Section 15. Tests — Appeals. That the Commissioner of Internal Revenue is authorized to have applied scientific tests, and to decide whether any substances used in the manufacture of filled cheese contain ingredients deleterious to health. But in case of doubt or contest, his decision in this class of cases may be appealed from to a board hereby constituted for the purpose, and com- posed of the Surgeon-General of the Army, the Surgeon-CJeneral of the Navy, and the Secretary of Agriculture, and the decision of this board shall be final in the premises. (29 U. S. Stat, at Large 256.) Section 16. Forfeitures. That all packages of filled cheese subject to tax under this Act that shall be found without stamps or marks as herein provided, and all filled cheese intended for human consumption which contains ingredients ad- Ptjbb Food— 55. 866 LAW OF PUEB FOOD AND DRUGS. judged as hereinbefore provided to be deleterious to the public health, shall be forfeited to the United States. (29 U. S. Stat, at Large 256.) Section 17. Recovery of Fines. That all fines, penalties, and forfeitures imposed by this Act may be recovered in any court of competent jurisdiction. (29 U. S. Stat, at Large 256.) Section 18. Regulations. That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful regulations for the carrying into effect the provisions of this Act. (29 U. S. Stat, at Large 256.) Section 19. When Act takes Effect, etc. That this Act shall go into effect on the ninetieth day after its passage, and all vyooden packages containing ten or more pounds of filled cheese on the premises of any dealer, on and after the ninetieth day suc- ceeding the date of the passage of this Act, shall be deemed to be taxable under Section 9 of this Act, and shall be taxed, and shall have affixed thereto the stamps, marks, and brands required by this Act or by regula- tions made pursuant to this Act; and for the purpose of securing the affixing of the stamps, marks and brands required by this Act, the filled cheese shall be regarded as having been manufactured and sold or removed from the manufactory for consumption or use on or after the day this Act takes effect; and such stock on hand at the time of the taking effect of this Act may be stamped, marked, and branded under special regula- tions of the Commissioner of Internal Revenue, approved by the Secretary of the Treasury, and the Commissioner of Internal Revenue may authorize the holder of such packages to mark and brand the same, and to affix thereto the proper tax-paid stamps. (29 U. S. Stat, at Large 256.) APPENDIX D. INSPECTION OF ARTICLES OF FOOD AND DRINK, MEDICINES, ETC. AN ACT providing for an inspection of meats for exportation, prohibiting the importation of adulterated articles of food and rink, and author- izing the President to make proclamation in certain cases, and for other purposes. [Act of August 30, 1890, ch. 839, 26 U. S. Stat, at Large 414.] Section 1. Salted Pork — Forging Marks — ^Inspection. That the Secretary of Agriculture may cause to be made a careful inspection of salted pork and bacon intended for exportation, with a view to detcnnining whether the same is wholesome, sound, and fit for human APPENDICES. 867 food, whenever the laws, regulations, or orders of the government of any foreign coimtry to which such pork or bacon is to be exported shall require inspection thereof relating to the importation thereof into such country, and also whenever any buyer, seller, or exporter of such meats intended for exportation shall request the inspection thereof. Such inspection shall be made at the place where such meats are packed or boxed, and each package of such meats so inspected shall bear the marks, stamps, or other device for identification provided for in the last clause of this section: Provided, That an inspection of such meats may also be made at the place of exportation if any inspection has not been made at the place of packing, or if, in the opinion of the Secretary of Agriculture, a reinspection becomes necessary. One copy of any certificate issued by any such inspec- tor shall be filed in the Department of Agriculture; another copy shall be attached to the invoice of each separate shipment of such meat; aiid a third copy shall be delivered to the consignor or shipper of such meat as evidence that packages of salted pork and bacon have been inspected in accordance with the provisions of this Act, and found to be wholesome, sound, and fit for human food; and for the identification of the same such marks, stamps, or other devices as the Secretary of Agri- culture may by regulation prescribe shall be affixed to each of such packages. Any person who shall forge, counterfeit, or knowingly and wrongfully alter, deface, or destroy any of the marks, stamps, or other devices provided for in this section on any package of any such meats, or who shall forge, counterfeit, or knowingly and wrongfully alter, deface, or destroy any certificate in reference to meats provided for in this section, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. ( 29 U. S. Stat, at Large 414. ) Section 2. Importation of Adulterated Food and Liquor. That it shall be unlawful to import into the United States any adul- terated or unwholesome food or drug, or any vinous, spirituous or malt liquors, adulterated or mixed with any poisonous or noxious chemical drug or other ingredient injurious to health. Any person who shall know- ingly import into the United States any such adulterated food or drug, or drink, knowing or having reasons to believe the same to be adulterated, being the owner or the agent of the owner, or the consignor or consignee of the owner, or in privity with them, assisting in such unlawful act, shall be deemed guilty of a misdemeanor, and liable to prosecution there- for in the district court of the United States fpr the district into which Buch property is imported; and, on conviction such person shall be fined in a sum not exceeding one thousand dollars for each separate shipment, and may be imprisoned by the court for a term not exceeding one year, or both, at the discretion of the court. (26 U. S. Stat, at Large 415.) 868 LAW OF PUKE FOOD AND DRUGS. Section 41 of ch. 661, Laws of N. Y. (1893), which provides that an article shall be deemed to be adulterated within the mean- ing of the Act if it be "colored, or coated, or polished, or pow- dered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value," does not contravene the said Section 2 of the above Act of August 30, 1890, forbidding the im- portation into the United States of any adulterated or unwhole- some food or drug or any vinous, spirituous or malt liquors, etc.; this latter Act containing no provisions authorizing the importa- tion of articles for the purpose of deceiving and defrauding pur- chasers and oonsiuineTS. Grossman v. Lurman, 171 N. Y. 329, 63 N.E. 1097; affirmed 192 U.S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401. Section 3. Forfeiture of Imported Adulterated Food. That any article designed for consumption as human food or drink, and any other article of the classes or description mentioned in this Act, which shall be imported into the United States contrary to its provisions, shall be forfeited to the United States, and shall be proceeded against under the provisions of Chapter 18 of Title 13 of the Revised Statutes of the United States; and such imported property so declared forfeited may be destroyed or returned to the importer for exportation from the United States after the payment of all costs and expenses, under such regulations as the Secretary of the Treasury may prescribe; and the Secretary of the Treasury may cause such imported articles to be inspected or examined in order to ascertain whether the same have been so unlawfully imported. ( 26 U. S. Stat, at Large 415. ) Section 4. Suspension of Importation. That whenever the President is satisfied that there is good reason to believe that any importation is being made, or is about to be made, into the United States, from any foreign country, or any article used for human food or drink that is adulterated to an extent dangerous to the health or welfare of the people of the United States, or any of them, he may issue his proclamation suspending the importation of such articles from such country for such period of time as he may think necessary to prevent such importation; and during such period it shall be unlawful to import into the United States from the countries designated in the proclamation of the President any of the articles the importation of which is so suspended. (26 U. S. Stat, at Large 415.) Section 5. Discrimination by Foreign Countries. That whenever the President shall be satisfied that unjust discrim- inations are made by or under the authority of any foreign state against the importation to or sale in such foreign state of any product of the APPENDICES. 869 United States, he may direct that such products of such foreign state so discriminating against any product of the United States as he may deem proper shall be excluded from importation to the United States; and in such case he shall make proclamation of his direction in the premises, and therein name the time when such direction against importation shall take effect, and after such date the importation of the articles named in such proclamation shall be unlawful. The President may at any time revoke, modify, terminate, or renew any such direction as, in his opinion, the public interest may require. (26 U. S. Stat, at Large 415.) Inspection — Duties of Secretary of Agriculture. To investigate the adulteration of foods, drugs, and liquors when deemed by the Secretary of Agriculture advisable; and the Secretary of Agriculture, 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, shall make a request on the Secretary of the Treasury for samples from original packages of such articles for inspection and analysis; and the Secretary of the Treasury is hereby authorized to open such original packages and to deliver specimens to the Secretary of Agriculture for the purpose mentioned, giving notice to the owner or consignee of such articles, who may be present and have the right to introduce testimony; and the Secre- tary of the Treasury shall refuse delivery to the consignee of any such goods which the Secretary of Agriculture reports to him have been inspected and analyzed and found to be dangerous to health because of such adulterations. (32 U. S. Stat, at Large 296.) This is from the Agricultural Appropriation Act of June 3, 1902, ch. 985. Similar provisions occur in prior Appropriation Acts. 31 U. S. Stat, at Laxge 930; 31 Stat, at Large 196; 30 U. S. Stat, at Large 951. See the similar though less specific power conferred upon the Secretary of the Treasury as to adulterated or unwholesome foods, drugs, etc., by the Act of August 30, 1890, ch. 839, §3. Inspection of Dairy Products. That the Secretary of Agriculture may construe the provisions of the Act of March 3, 1891, as amended March 2. 1895, for the inspection of live cattle and the products thereof, to include dairy products intended for exportation to any foreign country, and may apply, under rules and regu- lations to be prescribed by him, the provisions of said Act for inspection and certification appropriate for ascertaining the purity and quality of such products, and may cause the same to be so marked, stamped, or labeled as to secure their identity and make known in the markets of foreign countries to which they may be sent from the United States their 870 LAW OF PURE FOOD AND DEUGS. purity, quality, and grade; and all the provisions of said Act relating to live cattle and products thereof for export shall apply to dairy products so inspected and certiiied: . . . (32 U. S. Stat, at Large 290.) This is from the Agricultural Appropriation Act of June 3, 1902, eh. 985. The same provision occurs in the Appropriation Act of March 2, 1901, ch. 805, 31 U. S. Stat, at Large 926. APPENDIX E. TEA. AN ACT to prevent the importation of impure and unwholesome tea. [Act of March 2, 1897, eh. 358, 29 Stat, at Large 604.] Section 1. Inij>ortatiou of Inferior Tea. That from and after May 1, 1897, it shall be unlawful for any person or persons or corporation to import or bring into the United States any merchandise as tea which is inferior in purity, quality, and fitness for consumption to the standards provided in Section 3 of this Act, and the importation of all such merchandise is hereby prohibited. (29 U. S. Stat, at Large 604.) This Act is a valid exercise of the constitutional power of Congress to regulate commerce. Sang Lung v. Jackson, 85 Fed. Rep. 502; Butterfield v. Stranahan, 192 U. S. 420, 24 Sup. Ct. 349, 48 L. Ed. 525. Section Z. Board of Experts. That immediately after the passage of this Act, and on or before Feb- ruary 15th of each year thereafter, the Secretary of the Treasury shall appoint a board, to consist of seven members, each of whom shall be an expert in teas, and who shall prepare and submit to him standard samples of tea; that the persons so appointed shall be at all times subject to removal by the said Secretary, and shall serve for the term of one year; that vacancies in the said board occurring by removal, death, resignation, or any other cause shall be forthwith filled by the Secretary of the Treasury by appointment, such appointee to hold for the unexpired term; that said board shall appoint a presiding oflicer, who shall be the medium of all communications to or from such board; that each member of said board shall receive as compensation the sum of fifty dollars per annum, which, together with all necessary expenses while engaged upon the duty herein provided, shall be paid out of the appropriation for "expenses of collecting the revenue from customs." (29 U. S. Stat, at Large 605.) APPENDICES. 871 Sectiou 3. Standards — Samples. That the Secretary of the Treasury, upon the reeoramendation of said board, shall fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States, and shall procure and deposit in the custom houses of the ports of New York, Chicago, San Francisco, and such other ports as he may determine, duplicate sajnples of such standards; that said Secretary shall procure a sufiieient number of other duplicate samples of such standards to supply the importers and dealers in tea at all ports desiring the same at cost. All teas, or merchandise described as tea, of inferior purity, quality, and fitness for consumption to such standards shall be deemed within the prohibition of the first section hereof. (29 U. S. Stat, at Large 605.) In providing that the Secretary of the Treasury should estab- lish uniform standards, and that a board of skilled experts should be appointed. Congress did not delegate to the Secretary any of its legislative power. Sang Lung v. Jackson, 85 Fed. Rep. 502. By this Act the Secretary of the Treasury is authorized to adopt uniform standards "which would be adequate to exclude the lowest grades of tea, whether demonstrably of inferior purity or unfit for consumption, or presimiably or possibly so because of their inferior quality." Buttfield v. Bidwell, 96 Fed. Rep. 328, 37 C. C. A. 506. Section 4. Importer's Bond — Samples. That on making entry at the custom house of all teas, or merchandise described as tea, imported into the United States, the importer or con- signee shall give a bond to the collector of the port that such merchandise shall not be removed from the warehouse until released by the collector, after it shall have been duly examined with reference to its purity, quality, and fitness for consumption; that for the purpose of such examination samples of each line in every invoice of tea shall be submitted by the importer or consignee to the examiner, together with the sworn statement of such importer or consignee that such samples represent the true quality of each and every part of the invoice and accord with the specifications therein contained; or, in the discretion of the Secretary of the Treasury, such samples shall be obtained by the examiner and compared by him with the standards established by this Act; and in case where said tea, or merchandise described as tea, is entered at ports where there is no qualified examiner as provided in Section 7, the consignee or importer shall in the manner aforesaid furnish under oath a sample of each line of tea to the collector or other revenue officer to whom is committed the collection of duties, and said ofiScer shall also draw or cause to be drawn samples of each line in every invoice, and shall forward the same to a 872 LAW OF PUEE POOD AND DRUGS. duly qualified examiner as provided in Section 7; Promided, however. That the bond above required shall also be conditioned for the payment of all custom house charges which may attach to such merchandise prior to its being released or destroyed (as the case may be) under the pro- visions of this Act. (29 U. S. Stat, at Large 605.) "Manifestly the seizure of importations of teas purchased after the approval of this Act, and the establishment of regulations and standards thereunder, publicly promulgated and known to complainants, because falling below the standards prescribed, could inflict no other injury that what it must be assumed was antici- pated, and the interposition of a court of equity can not properly be invoked, under such circumstances, to determine in advance whether complainants, if they imported teas of that character, could escape the consequences on the ground of the invalidity of the law." Cruickshank v. Bidwell, 176 U. S. 73, 20 Sup. Ct. 280, 44 L. Ed. — . Certain tea, known in the trade as Canton tea, was rejected by the board of appraisers as not being pure or wholesome. Such board being the tribunal named in the Act, and the decision being on a question of fact, such decision was held not a subject for review by the courts upon any allegation of mistake either of law or fact, on the ground that no standard of quality for Canton tea was mentioned in the regulations adopted by the Secretary of the Treasury for the purpose of determining the quality of imported teas. Sang Lung v. Jackson, 85 Fed. Rep. 502. Section 5. Permit — Re-ezamination. That, if after an examination as provided in Section 4, the tea is found by the examiner to be equal in purity, quality, and fitness for consumption to the standards hereinbefore provided, and no reexamination shall be demanded by the collector as provided in Section 6, a permit shall at once be granted to the importer or consignee declaring the tea free from the control of the customs authorities; but if on examination such tea, or merchandise described as tea, is found, in the opinion of the examiner, to be inferior in purity, quality, and fitness for consumption to the said standards, the importer or consignee shall be immediately notified, and the tea, or merchandise described as tea, shall not be released by the custom house, unless on a reexamination called for by the importer or consignee the finding of the examiner shall be found to be erroneous; Provided, That should a, portion of the invoice be passed by the examiner, a permit shall be granted for that portion and the remain- der held for further examination, as provided in Section 6. 29 Stat, at Large 605.) APPENDICES. 873 Section 6. Re-examlnation — ^Permit — Bestniction. That in case the collector, importer, or consignee shall protest against the finding of the examiner, the matter in dispute shall be referred for decision to a board of three United States general appraisers, to be designated by the Secretary of the Treasury, and if such board shall, after due examination, find the tea in question to be equal in purity, quality, and fitness for consumption to the proper standards, a, permit shall be issued by the collector for its release and delivery to the importer; but if upon such final reexamination by such board the tea shall be found to be inferior in purity, quality, and fitness for consumption to the said standards, the importer or consignee shall give a bond, with security satisfactory to the collector, to export said tea, or merchandise described as tea, out of the limits of the United States within a period of six months after such final reexamination; and if the same shall not have been exported within the time specified, the collector, at the expiration of that time, shall cause the same to be destroyed. (29 U. S. Stat, at Large 606.) Where each of the complainants has his separate and distinct interest in the tea which the defendant, the collector of customs, threatens to destroy, under this Act, but they all have a common interest in the question whether he is authorized by law to destroy such tea, they all may, in order to prevent a multiplicity of suits, join together in an equitable action for injunction. Sang Lung v. Jackson, 85 Fed. Rep. 502. Section 7. Examination by ftualifled Examiner. That the examination herein provided for shall be made by a duly qualified examiner at a, port where standard samples are established, and where the merchandise is entered at ports where there is no qualified examiner, the examination shall be made at that one of said ports which is nearest the port of entry, and that for this purpose samples of the merchandise, obtained in the manner prescribed by Section 4 of this Act, shall be forwarded to the proper port by the collector or chief officer at the port of entry; that in all cases of examination or reexamination of teas, or merchandise described as tea, by examiners or boards of United States general appraisers under the provisions of this Act. the purity, quality, and fitness ^or consumption of the same shall be tested according to the usages and customs of the tea trade, including the testing of an infusion of the same in boiling water, and, if necessary, chemical analysis. (29 U. S. Stat, at Large 606.) Section 8. Procedure on Ke-examination. That in cases of reexamination of teas, or merchandise described as teas, by a board of United States general appraisers in pursuance of 874 LAW OF PUEE FOOD AND DEUGS. the provisions hereof, samples of the tea, or merchandise described as tea, in dispute, for transmission to such board for its decision, shall be put up and sealed by the examiner, in the presence of the importer or consignee if he so desires, and transmitted to such board, together with a, copy of the finding of ttie examiner, setting forth the cause of condemnation and the claim or ground of the protest of the importer relating to the same, such samples, and the papers therewith, to be distinguished by such mark that the same may be identified; that the decision of such board shall be in writing, signed by them, and transmitted, together with the record and samples, within three days after the rendition thereof, to the collector, who shall forthwith furnish the examiner and the importer or consignee with a copy of said decision or finding. The board of United States general appraisers herein provided for shall be authorized to obtain the advice, when necessary, of persons skilled in the examination of teas, who shall each receive for his services in any particular case a com- pensation not exceeding five dollars. (29 U. S. Stat, at Large 606.) Section 9. Rejected Teas, Be-importing. That no imported teas which have been rejected by a, customs examiner or by a board of United States general appraisers, and exported under the provisions of this Act, shall be reimported into the United States under the penalty of forfeiture for a. violation of this prohibition. (29 U. S. Stat, at Large 606.) Section 10. Regulations. That the Secretary of the Treasury shall have the power to enforce the provisions of this Act by appropriate regulations. (29 U. S. Stat, at Large 606.) Section 11. Tea on Shipboard. That teas actually on shipboard for shipment to the United States at the time of the passage of this Act shall not be subject to the pro- hibition hereof, but the provisions of the Act entitled "An Act to prevent the importation of adulterated and spurious teas," approved March 2, 1883, shall be applicable thereto. (29 U. S. Stat, at Large 607.) Section 12. Repeal. That the Act entitled "An Act to prevent the importation of adul- terated and spurious teas," approved March 2, 1883, is hereby repealed, such repeal to take effect on the date on which this Act goes into effect. (29 U. S. Stat, at Large 607.) 'il APPENDICES. 873 APPENDIX P. LABELS OR BRANDS AS TO STATE OF PRODUCTION. AN ACT to prevent a false branding or marking of food and dairy products as to the State or Territory in which they are made or produced. [Act of July 1, 1902, eh. 1357, 32 U. S. Stat, at Large 632.] Section 1. Dairy and Fruit Products — ^False Labeling. That no person or persons, company or corporation, shall introduce into any State or Territory of the United States or the District of Columbia from any other State or Territory of the United States or the District of Columbia, or sell in the District of Columbia or in any Terri- tory any dairy or food products which shall be falsely labeled or branded as to the State or Territory in which they are made, produced, or grown, or cause or procure the same to be done by others. ( 32 U. S. Stat, at Large 632.) Section 2. Penalty, Jurisdiction. That if any person or persons violate the provisions of this Act, either in person or through another, he shall be guilty of a misdemeanor, and shall be punished by a fine of not less than five hundred nor more than two thousand dollars; and that the jurisdiction for the prosecution ■of said misdemeanor shall be within the district of the United States court in which it is committed. (32 U. S. Stat, at Large 632.) APPENDIX G. IMPORTATION OF DRUGS, MEDICINES, ETC.— EXAMINATION. Section 2611. Oath of Examiners. Special examiners of drugs, medicines, chemicals, and so forth, shall, Ijefore entering upon their duties, take and subscribe an oath faithfully and diligently to perform such duties, and to use their best endeavors to ^jrevent and detect frauds upon the revenue of the United States; which, oath shall be administered by the collector of the port or district where "the examiner making it is employed. (K. S.) Section 2612. Instructions. The Secretary of the Treasury shall give to the collectors of districts for which an examiner of drugs, medicines, and chemicals is not provided by law, such instructions as he may deem necessary to prevent the impor- -tation of adulterated and spurious drugs and medicines. 876 LAW OF PURE FOOD AND DRUGS. Section 2933. Examination of Uedicines. All drugs, medicines, medical preparations, including medicinal essen- tial oils and chemical preparations, used wholly or in part as medicine, imported from abroad, shall, before passing the custom house, be exam- ined and appraised, as well in reference to their quality, purity, and fitness for medical purposes, as to their value and identity specified in the invoice. (E. S.) Section 2934. Names on medicines. All medicinal preparation, whether chemical or otherwise, usually imported with the name of the manufacturer, shall have the true name of the manufacturer, and the place where they are prepared, permanently and legibly affixed to each parcel by stamp, label, or otherwise; and all medicinal preparations imported without such names so afBxed shall be adjudged to be forfeited. (R. S.) Section 2935. Betum for Examination. If, on examination, any drugs, medicines, medicinal preparations, whether chemical or otherwise, including medicinal essential oils, are found, in the opinion of the examiner, to be so far adulterated, or in any manner deteriorated, as to render them inferior in strength and purity to the standard established by the United States, Edinburgh, London, French, and German pharmacopoeias and dispensatories, and thereby im- proper, unsafe, or dangerous to be used for medicinal purposes, a return eflFect shall be made upon the invoice, and the articles so noted shall not pass the custom house, unless, on a reexamination of a strictly analytical character, called for by the owner or consignee, the return of the examiner shall be found erroneous, and it is declared, as a, result of such analysis, that the articles may properly, safely, and without danger, be used for medicinal purposes. (R. S.) Section 2936. Appeal. The owner or consignee shall, at all times, when dissatisfied with the examiner's return, have the privilege of calling, at his own expense, for a reexamination, and the collector, upon receiving a deposit of such sum as he may deem suiBeient to defray such expense, shall procure some com- petent analytical chemist possessing the confidence of the medical pro- fession, as well as of the colleges of medicine and pharmacy, if any such institutions exist in the State in which the collection-district is situated, to make a, careful analysis of the articles included m the return, and a report on the same under oath. In case this report, which shall be final, shall declare 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. (R. S.) APPENDICES. 877 [Act of June 26, 1848, ch. 70, 9 U. S. Stat, at Large 238.] By the Act of February 27, 1877, ch. 69, 19 U. S. Stat, at Large 247, this section was amended to read as above given by inserting the words "to make" after the word "situated." Section 2937. Exportation of Rejected Articles. If the examiner's return, however, shall be sustained by the analysis and report, the articles shall remain in charge of the collector, and the owner or consignee, on payment of the charges of storage and other expenses necessarily incurred by the United States, and on giving a bond with sureties satisfactory to the collector to land the articles out of the limits of the United States, shall have the privilege of reexporting them at any time within the period of six months after the report of the analysis; but if the articles shall not be sent out of the United States within the time specified, the collector, at the expiration of that time, shall cause the same to be destroyed, and hold the owner or consignee responsible to the United States for the payment of all charges, in the same manner as if the articles had been reexported. (R. S.) Section 2938. Appraisers as Special Examiners. One of the assistant appraisers at the port of New York, to be appointed with special reference to his qualifications for such duties, shall, in addition to the duties that may be required of him by the appraiser, perform the duties of a special examiner of drugs, medicines, chemicals, and so forth. (R. S.) [Act of July 27, 1866, eh. 284, 14 U. S. Stat, at Large 302.] "Section 2938 implies that the appraiser, who revises and corrects the reports of an assistant appraiser (Section 2929), has a general supervision of the duties of examination or appraise- ment performed where specially qualified experts are requisite." 23 Op. Atty-Gen. 238. APPENDIX H. OPIUM. AN ACT to provide for the execution of the provisions of Article II of the treaty concluded between the United States of America and the Emperor of China on the 17th day of November, 1880, and proclaimed by the President of the United States on the 5th day of October, 1881. [Act of February 23, 1887, ch. 210, 24 U. S. Stat, at Large 409.] Section 1. Importation by Chinese That the importation of opium into any part of the ports of the 878 LAW OF PURE FOOD AND DRUGS. United States by any subject of the Emperor of China is hereby prohibited. Every person guilty of a violation of the preceding provision shall be deemed guilty of a, misdemeanor, and, on conviction thereof, shall be punished by a fine of not more than five hundred dollars nor less than fifty dollars, or by imprisonment for a period of not more than six months nor less than thirty days, or by both such fine and imprisonment, in the discretion of the court. (24 U. S. Stat, at Large 409.) Section 2. Forfeiture. That every package containing opium, either in whole or in part, imported into the United States by any subject of the Emperor of China, shall be deemed forfeited to the United States; and proceedings for the declaration and consequences of such forfeiture may be instituted in the courts of the United States as in other cases of the violation of the laws relating to other illegal importations. (24 U. S. Stat, at Large 409.) Section 3. Traffic in China — Fine — ^Forfeiture. That no citizen of the United States shall import opium into any of the open ports of China, nor transport the same from one open port to any other open port, or buy or sell opium in any of such open ports of China, nor shall any vessel owned by citizens of the United States, or any vessel, whether foreign or otherwise, employed by any citizen of the United States, or owned by any citizen of the United States, either in whole or in part, and employed by persons not citizens of the United States, take or carry opium into any of such open ports of China, or transport the same from one open port to any other open port, or be engaged in any traffic therein between or in such open ports, or any of them. Citizens of the United States offending against the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars nor less than fifty dollars, or by both such punishments, in the discretion of the court. The consular courts of the United States in China, con- currently with any district court of the United States in the district in which any offender may be found, shall have jurisdiction to hear, try, and determine all cases arising under the foregoing provisions of this section, subject to the general regulations provided by law. Every package of opium or package containing opium, either in whole or in part, brought, taken, or transported, tiaflicked, or dealt in contrary to the provisions of this section, shall be forfeited to the United States, for the benefit of the Emperor of China: and such forfeiture, and the declaration and consequences thereof, shall be made, had, determined, and executed by the proper authorities of the United States exercising judicial powers within the Empire of China. (24 Stat, at Large 409.) APPENDICES. 879 APPENDIX I. INSPECTION OF FOOD AND DRUGS IMPORTED OR EXPORTED. Section 1. Inspection — Powers and Duties of Secretary of Agriculture. . . . To investigate the adulteration, false labeling, or false brand- ing of foods, drugs, beverages, condiments, and ingredients of such articles, when deemed by the Secretary of Agriculture advisable, and report the result in the bulletins of the Department; and the Secretary of Agriculture, whenever he has reason to believe that such articles are being imported from foreign countries which are dangerous to the health of the people of the United States, or which shall be falsely labeled or branded either as to their contents or as to the place of their manufacture or production, shall make a request upon the Secretary of the Treasury for samples from original packages 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 notice to the owner or consignee of such articles, who may be present and have the right to introduce testimony; and the Secretary of the Treasury shall refuse delivery to the consignee of any such goods which the Secretary of Agriculture reports to him have been inspected and analyzed and found to be dangerous to health or falsely labeled or branded, either as to their contents or as to the place of their manufacture or production or which are forbidden entry or to be sold, or are restricted in sale in the countries in which they are made or from which they are exported, ... (33 Stat, at Large 874.) This is from the Agricultural Department Appropriation Act of March 3, 1905, ch. 1405, 33 Stat, at Large 874. Provisions somewhat similar were contained in the Acts of March 3, 1903, ch. 1008, 32 Stat, at Large 1157; April 23, 1904, ch. 1486, 33 Stat, at Large 288. After delivery to importer, the Department of Agriculture and the Treasury Department have no jurisdiction or power under the Act of March 3, 1903, to prevent or to punish the false label- ing or branding of dairy or food products after they have passed the custom house and are delivered to the owner or consignee. (1903) 24 Op. Atty-Gen. 675. The charges for storage of imported foods, etc., detained by order of the Secretary of the Treasury pending examination under these Acts can not be imposed upon the importer. United States V. Acker (1904), 133 Fed. Rep. 842. [INSPECTION OF DAIRY PRODUCTS INTENDED FOR EXPORTA- TION—DUTIES OF SECRETARY OF AGRICULTURE.] Tlie provisions of the Act of June 3, 1902, ch. 985, are repeated in the 880 LAW OF PURE FOOD AND DEUGS. Acts of March 3, 1903, ch. 1008, 32 Stat, at Large 1151; April 23, 1904, ch. 1486, 33 Stat, at Large 281; Marcli 3, 1905, ch. 1405, 33 Stat, at Large 865. Section 1. Nutrive Investigations. . . . . To enable the Secretary of Agriculture to investigate and report upon the nutritive value of the various articles and commodities used for human food, with special .suggestions of full, wholesome, and edible rations less wasteful and more economical than those in common use, including special investigations on the nutritive value and economy of the diet in public institutions; and the agricultural experiment stations are hereby authorized and directed to cooperate with the Secretary of Agriculture in carrying out said investigations in such maimer and to such extent as may be warranted by a due regard to the varying conditions and needs of the respective States and Territories, and as may be mutually agreed upon; and the Secretary of Agriculture is hereby authorized to require said stations to report to him the results of any such investiga- tions which they may carry out, whether in cooperation with said Secre- tary of Agriculture or otherwise, . . . dollars. ... (33 Stat, at Large 294.) This is from the Agricultural Department Appropriation Act of April 23, 1904, ch. 1486. APPENDIX J. OLEOIILAB&AKINE. Federal Statute. AN ACT defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine.i [Act of August 2, 1886, ch. 840, 24 Stat, at Large 209.] Section 1. Butter Defined. That for the purpose of this Act the word "butter" shall be under- stood to mean the food product usually known as butter, and which is 1 The government of the United States furnishes a pamphlet containing this statute, with full instructions and forms, and with notes construing its provisions. No charge is made for it. As it can be so easily obtained it was thought best to omit it here, except the bare statute. The subject matter of this statute is only incidentally connected with the subject of Pure Pood. APPENDICES. 881 made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter. Section 2. Oleomarg^arine Defined. That for the purposes of this Act certain manufactured substances, certain extracts, and certain mixtures and compounds, including such mixtures and compounds with butter, shall be known as designated as "oleomargarine," namely: All substances heretofore known as oleomar- garine, oleo, oleomargarine oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine-oil, but- terine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef-fat, suet, lard, lard-oil, vegetable oil, annotto, and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter. Section 3. Special Taxes. That special taxes are imposed as follows: Manufacturers of oleomargarine shall pay six hundred dollars. Every person who manufactures oleomargarine for sale shall be deemed a manu- facturer or oleomargarine. And any person that sells, vends, or furnishes oleomargarine for the use and consumption of others, except to his own family table without compensation, who shall add to or mix with such oleomargarine any artificial coloration that causes it to look like butter of any shade of yellow shall also be held to be a manufacturer of oleomargarine within the meaning of said Act, and subject to the provisions thereof. Wholesale dealers in oleomargarine shall pay four hundred and eighty dollars. Every person who sells or offers for sale oleomargarine in the original manufacturer's packages shall be deemed a wholesale dealer in oleomargarine. But any manufacturer of oleomargarine who has given the required bond and paid the required special tax, and who sells only oleomargarine of his own production, at the place of manufacture, in the original packages to which the tax-paid stamps are affixed, shall not be required to pay the special tax of a wholesale dealer in oleomargarine on account of such sales. Retail dealers in oleomargarine shall pay forty-eight dollars. Every person who sells oleomargarine in less quantities than ten pounds at one time shall be regarded as a retail dealer in oleomargarine. And Sections 3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241, 3243 of the Revised vStatutes of the United States are, so far as applicable, made to extend to and include and apply to the special taxes imposed by this section, and to the persons upon whom they are imposed: Provided further, That wholesale dealers who vend no other oleomargarine or PnBE Food — H<^. 882 LAW OF PUEE POOD AND DRUGS. ^butterine except that upon which a tax of one-fourth of one cent per pound is imposed by this Act, as amended, shall pay two hundred dollars; and such retail dealers as vend no other oleomargarine or butterine except that upon which is imposed by this Act, as amended, a, tax of one- fourth of one cent per pound shall pay six dollars. (As amended May 9, 1902.) Section 4. Penalty for Violations by Manufacturer. That every person who carries on the business of a manufacturer of oleomargarine without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less , than one thousand and not more than five thousand dollars; and every person who carries on the business of a wholesale dealer in oleomargarine without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than five hundred nor more than two thousands dollars; and every person who carries on the business of a retail dealer in oleomargarine without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than fifty dollars nor more than five hundred dollars for each and every offense. Section 5. Manufacturer's Notices, Inventories, Signs, Books, Etc. That every manufacturer of oleomargarine shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render sueh returns of materials and products, shall put up such signs and afSx such number to his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require. But the bond required of such manufacturer shall be with sureties satis- factory to the collector of internal revenue, and in a penal sum of not less than five thousand dollars; and the sum of said bond may be increased from time to time and additional sureties required at the discretion of the collector, or under instructions of the Commissioner of Internal Revenue. Section 6. Packing and Marking Oleomargarine — Penalty. That all oleomargarine shall be packed by the manufacturer thereof in firkins, tubs, or other wooden packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped, and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe; and all sales made by manufacturers of oleomargarine, and wholesale dealers in oleomargarine shall be in original stamped packages. Retail dealers in oleomargarine APPENDICES. 883 must sell only from original stamped packages, in quantities not exceeding ten pounds, and shall pack the oleomargarine sold by them in suitable wooden or paper packages which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasurj', shall prescribe. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages as above described, or who packs in any package any oleomargarine in any manner contrary to law, or who falsely brands any package or aflBxes a stamp on any package denoting a less amount of tax than that required by law shall be fined for each offense not more than one thousand dollars, and be imprisoned not more than two years. (Section 6, Act of August 2, 1886, 24 U. S. Stat, at Large 210.) Section 7. Label of Manufacturer — ^Penalty. That every manufacturer of oleomargarine shall securely affix, by pasting, on each package containing oleomargarine manufactured by him, a label on which shall be printed, besides the number of the manufactory and the district and State in which it is situated, these words: "Notice — ^The manufacturer of the oleomargarine herein contained has complied with all the requirements of law. Every person is cautioned not to use either this package again or the stamp thereon again, nor to remove the contents of this package without destroying said stamp, under the penalty provided by law in such cases.' Every manufacturer of oleomar- garine who neglects to affix such label to any package containing oleomar- garine made by him, or sold or offered for sale by or for him, and every person who removes any such label so affi-xed from any such package, shall be fined fifty dollars for each package in respect to which such offense is committed. Section 8. Tax on Manufacture — ^Stamps. That upon oleomargarine which shall be manufactured and sold, or removed for consumption or use, there shall be assessed and collected a tax of ten cents per pound, to be paid by the manufacturer thereof; and any fractional part of a pound in a package shall be taxed as a pound: Provided, When oleomargarine is free from artificial coloring that causes it to look like butter of any shade of yellow said tax shall be one-fourth of one cent per pound. The tax levied by this section shall be represented by coupon stamps; and the provisions of existing laws governing the engraving, issue, sale, accountability, effacement, and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by this section. (As amended May 9, 1902.) 884 LAW OF PUEE FOOD AND DEUGS. Section 9. Oleomargrarine Sold Without Stamps to Be Taxed. That whenever any manufacturer of oleomargarine sells, or removes for sale or consumption, any oleomargarine upon which the tax is required to be paid by stamps, without the use o:^ the proper stamps, it shall be the duty of the Commissioner of Internal Revenue, within a period of not more than two years after such sale or removal, upon satisfactory proof, to estimate the amount of tax which has been omitted to be paid, and to make an assessment therefore and certify the same to the collector. The tax so assessed shaU be in addition to the penalties imposed by law for such sale or removal. Section 10. Imported Oleomargarine. That all oleomargai'ine imported from foreign countries shall, in addition to any import duty imposed on the same, pay an internal revenue tax of fifteen cents per pound, such tax to be represented by coupon stamps as in the case of oleomargarine manufactured in the United States. The stamps shall be affixed and canceled by the owner or importer of the oleomargarine while it is in the custody of the proper custom- house officers; and the oleomargarine shall not pass out of the custody of said officers until the stamps have been so affixed and canceled, but shall be put up in wooden packages, each containing not less than ten pounds, as prescribed in this Act for oleomargarine manufactured in the United States, before the stamps are affixed; and the owner or importer of such oleomargarine shall be liable to all the penal provisions of this Act prescribed for manufacturers of oleomargarine manufactured in the United States. Whenever it is necessary to take any oleomargarine so imported to any place other than the public stores of the United States for the purpose of affixing and canceling such stamps, the collector of customs of the port where such oleomargarine is entered shall designate a bonded warehouse to which it shall be taken, under the control of such customs ofBfier as such collector may direct; and every officer of customs who permits any such oleomargarine to pass out of his custody or control without compliance by the owner or importer thereof with the provisions of this section relating thereto, shall be guilty of a misdemeanor, and shall be fined not less than one thousand dollars nor more than five thousand dollars, and imprisoned not less than six months nor more than three years. Every person who sells or offers for sale any imported oleo- margarine, or oleomargarine purporting or claimed to have been imported, not put up in packages and stamped as provided by this Act, shall be fined not less than five hundred dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than two years. APPEKDICES. 885 Section 11. Purchasing or Keceiving for Sale Oleomargarine not Stamped. That every person who knowingly purchases or receives for sale any oleomargarine which has not been branded or stamped according to law shall be liable to a penalty of fifty dollars for each such offense. Section 12. Purchasing from Manufacturer not Having Paid Special Tax. That every person who knowingly purchases or receives for sale any oleomargarine from any manufacturer who has not paid the special tax shall be liable for each offense to a penalty of one hundred dollars, and to a forfeiture of all articles so purchased or received, or of the full value thereof. Section 13. Stamps on Empty Packages to be Destroyed. That whenever any stamped package containing oleomargarine is emptied, it shall be the duty of the person in whose hands the same is to destroy utterly the stamps thereon; and any person who willfully neglects or refuses so to do shall for each such offense be fined not exceeding fifty dollars, and imprisoned not less than ten days nor more than six months. And any person who fraudulently gives away or accepts from another, or who sells, buys, or uses for packing oleomargarine, any such stamped package, shall for each offense be fined not exceeding one hundred dollars, and be imprisoned not more than one year. Any revenue officer may destroy any emptied oleomargarine package upon which the tax-paid stamp is found. Section 14. Appointment of Chemists and Microscopists — ^Decision in Contested Cases — ^Appeal. That there shall be in the office of the Commissioner of Internal Eevenue an analytical chemist and a microscopist, who shall each be appointed by the Secretary of the Treasury, and shall each receive a salary of two thousand five hundred dollars per annum; and the Com- missioner of Internal Revenue may, whenever in his judgment the neces- sities of the service so require, employ chemists and microscopists, to be paid such compensation as he may deem proper, not exceeding in the aggregate any appropriation made for that purpose. And such Commis- sioner is authorized to decide what substances, extracts, mixtures, or com- pounds which may be submitted for his inspection in contested cases are to be taxed under this Act; and his decision in matters of taxation under this Act shall be final. The Commissioner may also decide whether any substance made in imitation or semblance of butter, and intended for human consumption, contains ingredients deleterious to the public health; but in case of doubt or contest his decision in this class of cases may be appealed from to a. board hereby constituted for the purpose, acd com- 886 LAW OF PUKE FOOD AND DKUGS. posed of the Surgeon-General of the Army, the Surgeon-General of the Navy, and the Conunissioner [now Secretary] of Agriculture; and the decision of this board shall be final in the premises. Section 15. Forfeiture of Unstamped Packages and Deleterious Oleomar- garine — Removing Stamps. That all packages of oleomargarine subject to tax under this Act that shall be found without stamps or marks as herein provided, and all oleomargarine intended for human consumption which contains ingre- dients adjudged, as hereinbefore provided, to be deleterious to the public health, shall be forfeited to the United States. Any person who shall willfully remove or deface the stamps, marks, or brands on a. package containing oleomargarine taxed as provided herein shall be guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars nor more than two thousand dollars, and by imprisonment for not less than thirty days nor more than six months. Section 16. Oleomargarine for Export. That oleomargarine may be removed from the place of manufacture for export to a foreign country without payment of tax or affixing stamps thereto, under such regulations and the filing of such bonds and other security as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. Every person who shall export oleomargarine shall brand upon every tub, firkin, or other package containing such article the word "Oleomargarine," in plain Roman letters not less than one-half inch square. Section 17. Export Begulations. That whenever any person engaged in carrying on the business of manufacturing oleomargarine defrauds, or attempts to defraud, the United States of the tax on the oleomargarine produced by him, or any part thereof, he shall forfeit the factory and manufacturing apparatus used by him, and all oleomargarine and all raw material for the production of oleomargarine found in the factory and on the factory premises, and shall : be fined not less than five hundred dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than three years. Section 18. Failure to Comply with Regulations. That if any manufacturer of oleomargarine, any dealer therein, or any importer or exporter thereof shall knowingly or willfully omit, neglect, or refuse to do, or cause to be done, any of the things required by law in the carrying on or conducting of his business, or shall do any- thing by this Act prohibited, if there be no specific penalty or punishment APPENDICES. 887 imposed by any other section of thia Act for the neglecting, omitting, or refusing to do, or for the doing or causing to be done, the thing required or prohibited, he shall pay a penalty of one thousand dollars; and if the person so offending be the manufacturer of or a wholesale dealer in oleo- margarine, all the oleomargarine owned by him, or in which he has any interest as owner, shall be forfeited to the United States. > Section 19. Recovery of Fines. That all fines, penalties, and forfeitures imposed by this Act may be recovered in any court of competent jurisdiction. Section 20. Regulations. That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may make all needful regulations for the carrying into effect of this Act. Section 21. When Act takes Effect — Tax of Stock on Hand. That this Act shall go into effect on the ninetieth day after its passage; and all wooden packages containing ten or more pounds of oleo- margarine 'found on the premises of any dealer on or after the ninetieth day succeeding the date of the passage of this Act shall be deemed to be taxable under Section 8 of this Act, and shall be taxed, and shall have affixed thereto the stamps, marks, and brands required by this Act or by regulations made pursuant to this Act; and for the purpose of securing the affixing of the stamps, marks, and brands required by this Act, the oleomargarine shall be regarded as having been manufactured and sold, or removed from the manufactory for consumption or use, on or after the day this Act takes effect; and such stock on hand at the time of the taking effect of this Act may be stamped, marked, and branded under special regulations of the Commissioner of Internal Revenue, approved by the Secretary of the Treasury; and the Commissioner of Internal Revenue may authorize the holder of such packages to mark and brand the same and to afBx thereto the proper tax-paid stamps. AN ACT to make oleomargarine and other imitation dairy products sub- ject to the laws of any State or Territory, or the District of Columbia into which they are transported, and to change the tax on oleomargarine, and to impose a tax, provide for the inspection, and to regulate the manufacture and sale of certain dairy products, and to amend an Act entitled "An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine," approved August 2, 1886. [Act of May 9, 1902, ch. 784, 32 Stat, at Large 194.] 888 LAW OF PUKE FOOD AND DEUGS. Section 1. Imitation Dairy Products Subject to State Laws. That all articles known as oleomargarine, butterine, imitation, pro- cess, renovated, or adulterated butter, or imitation cheese, or any substance in the semblance of butter or cheese not the usual product of the dairy and not made exclusively of pure and unadulterated milk or cream, trans- ported into any State or Territory or the District of Columbia, and remaining therein for use, consumption, sale, or storage therein, shall, upon arrival within the limits of such State or Territory of the District of Columbia, be subject to the operation and effect of the laws of such State or Territory or the District of Columbia, enacted in the exercise of its police powers to the same extent and in the same manner as though such articles or substances had been produced in such State or Territory or the District of Columbia, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. APPENDIX K. Note. — This is the pamphlet issued by the United States government. All changes in the rules and regulations have been brought down to date by the author. They are inserted in brackets. REGULATIONS CONCERNING ABULTERATED BUTTER. (Definitions.) AN ACT defining butter, also imposing a, tax upon and regulating the manufacture, sale, importations, and exportation of oleomargarine. Approved, August 2, 1886. Butter Defined (Statute). Be it enacted by the Senate wnd House of Representatives of th0 United States of America in Congress assembled, That for the purpose of this Act the word "butter" shall be understood to mean the food product usually known as butter, and which is made exclusively from milk or cream, or both, with or without common salt, and with or without addi- tional coloring matter. Act of May 9, 1902 : Section 4. Adulterated Defined — Process or Renovated (Statute). That for the purpose of this Act "butter" is hereby defined to mean an article of food as defined in "An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and expor- tation of oleomargarine," approved August 2, 1886; that "adulterated' butter" is hereby defined to mean a grade of butter produced by mixing, reworking, rechurning in milk or cream, refining, or in any way producing APPENDICES. 889 a uniform, purified, or improved product from different lots or parcels of melted or unmelted butter or butter fat, in which any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the effect of deodorizing or removing therefrom rancidity, or any butter or butter fat with which there is mixed any substance foreign to butter as herein defined, with intent or effect of cheapening in cost the product, or any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk, or cream; that "process butter" or "renovated butter" is hereby defined to mean butter which has been subjected to any process by which it is melted, clarified, or refined and made to resemble genuine butter, always excepting "adulterated butter" as defined by this Act. Three Classes of Butter— First Class. The evident intent of this section is to define all products properly known or designated as butter, and to separate them into three classes for the purposes of the Act. The first paragraph of the section adopts the definition of "butter" used in the Act of August 2, 1886, as being "The food product usually known as butter, which is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter." All butter which does not come under the terms of this definition, therefore, necessarily falls into one of the other two classes, upon which a tax is laid. The next paragraph of the section defines "adulterated butter," the product which bears the higher rate of tax, in a long clause, which is evidently intended to describe with some particularity well-defined forms of adulteration as examples or guides. Second Class. Such are, first, "A grade of butter produced by mixing, reworking, rechurning in milk or cream, refining, or in anyway producing a uniform, purified, or improved product from different lots or parcels of melted or unmelted butter or butter fat, in which any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the effect of deodorizing or removing therefrom rancidity;'' second, "Any butter or butter fat with which there is mixed any substance foreign to butter as herein defined, with intent or effect of cheapening in cost the product, or any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk, or cream." Briefly stated, the first instance described reworked or renovated butter to which any substance has been added to "deodorize or remove rancidity;" the second instance describes butter cheapened in cost by 890 LAW OF PURE FOOD AND DRUGS. admixtures; and the third instance, made to "contain abnormal quantities of water, etc." (So-called emulsified or milk-blended butter.) Third Class. A third class of butter, defined as process or renovated butter, is the grade which has been subjected to any process by which it is melted, clarified, or refined and made to resemble genuine butter, always except- ing "adulterated butter." Adulterated Butter Further Defined. The definition of adulterated butter as contained in the Act of May 9, 1902, embraces butter in the manufacture of which any process or material is used whereby the product is made to "contain abnormal quantities of water, milk or cream," but the normal content of moisture permissible is not fixed by the Act. This being the case it becomes necessary to adopt a standard for moisture in butter, which shall in effect represent the normal quantity. It is therefore held that butter having sixteen percent or more of moisture contains an abnormal quantity and is classed as adulterated butter. [T. D. 1493.] [That part of the rule fixing the standard of butter so that it must not contain sixteen percent of moisture or over is void. United States V. Eleven Thousand One Hundred and Fifty Pounds of Butter, 188 Fed. 197. But exactly the contrary has been decided. Cooperville Co- operative Creamery Co. v. Lemon, 89 C. C. A. 595, 163 Fed. 145.] Ladled Butter Defined. The product commonly known as "ladled" butter is a grade of butter made by mixing and reworking different lots or parcels of butter so as to secure a uniform product. This is known by various names to the trade. This product will not be held to be renovated butter unless in addition to being reworked it is melted and refined. It will not be held to be adul- terated butter unless materials foreign to statutory butter are added to it or it is made to contain sixteen percent or more of moisture. Persons who engage in the production of "ladled" butter as a business will be held liable to special tax as manufacturers of renovated butter if they melt and refine their product, and to special tax as manufacturers of adulterated butter if they use in it substances foreign to statutory butter or produce a butter having sixteen percent or more of water. Persons who sell "ladled" butter which is adulterated will be liable to special tax as dealers in adulterated butter. Creamery Butter. Grades of butter produced in large establishments directly from milk or cream are known as creamery butter. The manufacturers of this butter APPENDICES. 891 will not be held liable to special tax unless they involve their product in one or the other rate of tax as set forth above vrith reference to "ladled" butter. The owners of such establishments must see that their product is statutory butter, and they must exercise particular care with reference to its water content. Addition of foreign Fats Makes Oleomargarine. The addition of small quantities of a foreign fat, lard, or oil to butter will render the product liable to tax as oleomargarine, and the producer thereof to special tax as manufacturer of oleomargarine. Whey Butter Defined. Whey butter is classed as adulterated butter when it contains sixteen percent or more of moisture. Sweet Butter. "Sweet" or unsalted butter is made and sold to some extent, especially in the large cities. When made by reworking country butter it must necessarily fall under the classification of "renovated butter," as the salt can not be removed except by a process of melting and separating. If the product reaches or exceeds the limit of sixteen percent of water content, or if materials foreign to butter are added to it for the purpose or with the effect of removing rancidity or of cheapening the product, it will be classed as "adulterated butter," or as oleomargarine if foreign fats are added. Sefinition of Manufacturer of Process or Renovated or Adulterated Butter. Special taxes are imposed as follows: Manufacturers of process or renovated butter shall pay fifty dollars per year and manufacturers of adulterated butter shall pay six hundred dollars per year. Every person who engages in the production of process or renovated butter or adulterated butter as a business shall be considered to be a manufacturer thereof. Wholesale Dealer in Adulterated Butter. Wholesale dealers in adulterated butter shall pay a tax of four hundred and eighty dollars per annum, and retail dealers in adulterated butter shall pay u tax of forty-eight dollars per annum. Every person who sells adulterated butter in less quantities than ten pounds at one time shall be regarded as a reail dealer in adulterated butter. 893 LAW OF PURE FOOD AND DEUGS. Sealer in Adulterated Bntter Defined. Every person who sells adulterated butter shall be regarded ajs a dealer in adulterated butter. And Sections 3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241, 3243 of Eevised Statutes. Notices, Inventories, and Bonds to be Filed. Section 4 of said Act of May 9, 1902, further provides: That every manufacturer of process or renovated butter or adulterated butter shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of material and products, shall put up such signs and afBx such number of his factory, and conduct his business under such surveillance of officers and agents, as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. But the bond required of such manu- facturer shall be with sureties satisfactory to the collector of internal revenue and in a penal sum of not less than five hundred dollars; and the sxmi of said bond may be increased from time to time and additional sureties required at the discretion of the collector or under instructions of the Commissioner of Internal Revenue. Books to oe £ept and Returns Made. Section 6 of said Act also provides: That wholesale dealers in oleomargarine, process, renovated, or adulterated butter shall keep such books and render such returns in relation thereto as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, • by regulation, require; and such books shall be open at all times to the inspection of any internal revenue officer or agent. And any person who willfully violates any of the provisions of this section shall for each offense be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six months. To carry into effect these provisions of the Act, the foregoing regula- tions respecting the filing of notices, bonds, and inventories; the keeping of books and rendering returns ; the numbering of factories and the placing of signs on such factories (in the case of manufacturers of oleomargarine), and the keeping of books and making returns (in the case of wholesale dealers in that article), including the duties of officers in relation thereto, are, so far as applicable, hereby extended and made to apply to the APPENDICES. 893 business carried on respectively by manufacturers of and wholesale dealers in adulterated butter, and manufacturers of process or renovated butter, as defined in said Act. The records and returns required in such cases will be numbered and designated as follows: Forms for Adulterated and Renovated Butter. Form No. 497 Adulterated butter manufacturer's monthly return (outside). - • 497 Adulterated butter manufacturer's monthly return (inside). 498 Monthly return of wholesale dealer in adulterated but- ter (outside). 498 Monthly return of wholesale dealer in adulterated but- ter ( inside ) . 499 Monthly return of manufacturer of renovated butter ( outside ) . 499 Monthly return of manufacturer of renovated butter (inside). 501 Eeport of persons who paid special tax as dealers in adulterated butter. 504 Collector's monthly return of adulterated butter account. 505 Notice by manufacturer of adulterated butter. 506 Bond of manufacturer of adulterated butter. 507 Notice by manufacturer of renovated butter. 508 Bond of manufacturer of renovated butter. 509 Inventory manufacturer of renovated butter. 510 Inventory manufacturer of adulterated butter. 511 Form of book to be kept by manufacturer of renovated butter. 512 Form of book to be kept by manufacturer of adul- terated butter. 513 Form of book to be kept by wholesale dealer in adul- terated butter. 515 Collector's monthly return of renovated butter account. Form A ( Cat. No. 549 ) . . Adulterated butter export bond. Form B (Cat. No. 550) . .Application for withdrawal of adul- terated butter for export. Note. — As "adulterated" butter and "process or renovated" butter are regarded, under the law, as distinct articles, and are subject to a different rate of tax, manufacturers of either or both of such articles will be required to keep separate records and to render separate returns for each of said articles. Wholesale 894 LAW OF PUEE FOOD AND DEUGS. dealers in adulterated butter are also required to keep books and make returns. Marking, Branding, etc., Adulterated Butter Packages.i Section 4 of said Act of May 9, 1902, further provides: That all adulterated butter shall be packed by the manufac- turer thereof in iirkins, tubs, or other wooden packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped, and branded as the Commissioner of In- ternal Revenue, with the approval of the Secretary of the Treas- ury, shall prescribe; and all sales made by manufacturers of adulterated butter shall be in original stamped packages. Dealers in adulterated butter must sell only original or from original stamped packages, and when such original stamped pack- ages are broken the adulterated butter sold from same shall be placed in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall pre- scribe. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any adulterated butter in any other form than in new wooden or paper packages as above described, or who packs in any package any adulterated butter in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law, shall be fined for each offense not more than one thousand dollars and be imprisoned not more than two years. Regulations Concerning Oleomargarine made Applicable. Pursuant to the above-quoted provisions of law, and in order to secure uniformity in the matter of marking, branding, and stamping packages containing articles taxable under said Act, the instructions relating to the marking, branding, and stamping of oleomargarine, so far as appli- cable, are hereby extended to packages containing adulterated butter as defined in Section 4 of said Act. Caution Labels — To be Affixed to Packages Containing Adulterated Butter. Section 4 of said Act also provides: That every manufacturer of adulterated butter shall securely aflix, by pasting, on each package containing adulterated butter 1 For provisions made for inspecting, marking, and branding process or renovated butter, see Section 5 of Act of May 9, 1902. APPENDICES. ,895 manufactured by him a label on which shall be printed, besides the number of the manufactory and the district and State in which it is situated, these words: "Notice. — That the manufacturer of the adulterated butter herein contained has complied with all the requirements of law. Every person is cautioned not to use either this package (for adulterated butter) again or the stamp thereon, nor to remove the contents of this package without destroying said stamp, under the penalty provided by law in such oases." Every manufacturer of adulterated butter who neglects to aflix such label to any package containing adulterated butter made by him, or sold or offered for sale for or by him, and every person who removes any such label so aifixed from any such package shall be fined fifty dollars for each package in respect to which such offense is committed. The instructions respecting the size of and manner of afiBxing like labels for packages containing oleomargarine, are hereby extended and made to apply to packages containing adulterated butter. Adulterated Butter for Export.i Upon every manufacturer's package of adulterated butter the law (Section i. Act of May 9, 1902) requires that there shall be securely afSxed, by pasting, a label, on which shall be printed the number of the manufactory and the district and State in which it is situated, together with the following notice: Notice. — ^That the manufacturer of the adulterated butter herein contained has complied with all the requirements of law. Every person is cautioned not to use either this package (for adulterated butter) again or the stamp thereon, nor to remove the contents of this package without destroying said stamp, under the penalty provided by law in such cases. The label on which the above notice is to be printed is required to be not less than four and not more than six inches long and not less than two and one-half inches in width, and the printing thereon must be in plain, open, and legible letters, in black ink on white paper, and in addition to the above requirements of law contain the words "For adulterated butter." These labels will be in the following form : 1 For rules governing the withdrawal free of tax for export of adul- terated butter, see Regulations, No. 29. 896 LAW OF PDEE FOOD AND DEUGS. Label for Adulterated Butter. Factory No. , District, State of . Notice. — The manufacturer of the adulterated butter herein contained has complied with all the requirements of law. Every person is cautioned not to use either this package (for adulterated butter) again or the stamp thereon again, nor to remove the con- tents of this package without destroying said stamp, under the penalty provided by law in suoh cases. The label must be securely aflBxed, by paste, across the side of the package in such a way as to be exposed to public view and easily read. Tax on Adulterated, and Process or Benovated Butter. Section 4 of said Act of May 9, 1902, provides : That upon adulterated butter, when manufactured or sold or removed for consumption or use, there shall be assessed and col- lected a tax of ten cents per pound, to be paid hy the manufac- turer thereof, and any fractional part of a pound shall be taxed as a pound, and that upon process or renovated butter, when manufactured or sold or removed for consumption or use, there shall be assessed and collected a tax of one-fourth of one cent per pound, to be paid by the manufacturer thereof, and any frac- tional part of a pound shall be taxed as a pound. The taic to be levied by this section shall be represented by coupon stamps, and the provisions of existing laws governing engraving, issuing, sale, accountability, eflFacement, . and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to the stamps provided by this section. That the provisions of Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 of "An Act defining butter, also imposing a tax upon and regulating the maniifacture, sale, importation, and exportation of oleomargarine," approved August 2, 1886, shall apply to manufacturers of "adulterated butter" to an extent necessary to enforce the marking, branding, identification, and regulation of the exportation and importation of adulterated butter. Oleomargarine Regulations made Applicable to Adulterated Butter. The provisions made in the foregoing regulations for the issuing, afiixing, and canceling tax-paid stamps for oleomargarine, and for the inspection, sampling, exportation, or importation of that article, are hereby extended and made to apply to adulterated butter taxable under said Act of May 9, 1902. APPENDICES. 897 Tax Paid Stamps. Appropriate tax-paid stamps to be affixed to packages containing Adulterated butter (subject to a tax of ten cents per pound) and for packages containing process or renovated butter (subject to tax at the rate of one-fourth of one cent per pound) will be furnished to collectors on requisition. While the Act does not prescribe the size of packages in which process or renovated butter shall be packed, it provides that any fractional part of a pound shall be taxed as a pound. Coupon stamps for such packages will be provided in denominations of ten, twenty, iorty, fifty, sixty, and one hundred pounds, each stamp having nine X!Oupons attached. Export Stamps. Export stamps for adulterated butter are printed in book form, each book containing four hundred stamps, and are issued to collectors on requisition. These stamps are similar to the oleomargarine export stamps and must be filled out, affixed and canceled in like manner. Collectors' Beturns. Each collector in whose district adulterated butter or process or renovated butter is manufactured will render monthly an account (in the case of adulterated butter) on Form 504, and (in case of process or renovated butter) on Form 515, which account, in each case, will be prepared and forwarded to the Commissioner of Internal Revenue, as in the case of monthly oleomargarine account. Forms 516 and 517. Wholesale dealers in process or renovated butter will not be required to keep books or render any returns in relation thereto until further advised. As the law does not define a wholesale dealer in process or renovated butter, nor impose a special tax on such business, it is possible it will not be necessary for them to keep any books or render returns. John G. Capees, Commissioner of Internal Revenue. Approved : J. B. Reynolds, Acting Secretary of the Treasury. PuBE Food — 57. 898 LAW OF PUKE FOOD AND DEUGS. APPENDIX L. REGULATIONS CONCERNING RENOVATED BUTTER UNDER INTERNAL REVENUE ACT APPROVED MAY 9, 1902. REVISED JULY, 1907. Note. — All changes since July, 1907, have been inserted by the author in brackets. RENOVATED BUTTER (OR "PROCESS BUTTER"). Section 4. Adulterated Butter Defined. Extracts from Act of May 9-, 1902: ******* That for the purpose of this Act "butter" is hereby defined to mean an article of food as defined in "An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine," approved August 2, 1886; that "adulterated butter" is hereby defined to mean a grade of butter produced by mixing, reworking, rechurn- ing in milk or cream, refining, or in any way producing a uniform, purified, or improved product from different lots or parcels of melted or unmelted butter or butter fat, in which any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the effect of deodorizing or removing therefrom rancidity, or any butter or butter fat with which there is mixed any substance foreign to butter as herein defined, with intent or effect of cheapening in cost the product or any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk, or cream; that "process butter" or "renovated butter" is hereby defined to. mean butter which has been subjected to any process by which it is melted, clarified, or refined and made to resemble genuine butter, always excepting "adulterated butter'' as defined by this Act. Special Taxes. That special taxes are imposed as follows: Manufacturers of process or renovated butter shall pay fifty dollars per year and manufacturers of adulterated butter shall pay six hundred dollars per year. Every person who engages in the production of process or renovated butter or adulterated butter as a business shall be considered to be a manufacturer thereof. APPENDICES. 899 Penalty for Selling Adulterated Butter. Every person who sells adulterated butter shall be regarded as a dealer in adulterated butter. And Sections 3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241, 3243 of the Revised Statutes of the United States are, so far as applicable, made to extend to and include and apply to the special taxes imposed by this section and to the person upon whom they are imposed. manufacturer — Penalty. That every person who carries on the business of a manu- facturer of process or renovated butter or adulterated butter without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than one thousand and not more than five thousand dollars; and every person who carries on the business of a dealer in adul- terated butter, without having paid the special tax therefor, as required by law, shall, besides being liable to the payment of the tax, be fined not less than fifty nor more than five hundred dollars for each offense. Filing Notice with Collector of Internal Revenue — Bond. That every manufacturer of process or renovated butter or adulterated butter shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of material and products, shall put up such signs and aifix such number of his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. But the bond required of such manu- facturer shall be vrith sureties satisfactory to the collector of internal revenue, and in a penal sum of not less than five hundred dollars and the sum of said bond may be increased from time to time and additional sureties required at the discretion of the collector or under instructions of the Commissioner of Internal Revenue. * * * * » * * that upon process or renovated butter, when manufactured or sold or removed for consumption or use, there shall be assessed and collected a, tax of one-fourth of one cent per pound, to be paid by the manufacturer thereof, and any fractional part of a pound shall be taxed as a pound. The tax to be levied by this sec- tion shall be represented by coupon stamps, and the provisions of existing laws governing engraving, issuing, sale, accountability, 900 LAW OF PURE FOOD AND DE0GS. eflfacement, and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to Sitamps provided by this section. Section 5. Inspection — Harking — Regulations — Penalty. All parts of an Act providing for an inspection of meats for exportation, approved August 30, 1890, and of an Act to provide for the inspection of live cattle, hogs, and the carcasses and products thereof which are the subjects of interstate commerce, approved March 3, 1891, and of amendment thereto approved March 2, 1895, which are applicable to the subjects and purposes de- scribed in this section shall apply to process or renovated butter. And the Secretary of Agriculture is hereby authorized and re- quired to cause a rigid sanitary inspection to be made, at such times as he may deem proper or necessary, of all factories and storehouses where process or renovated butter is manufactured, packed, or prepared for market, and of the products thereof and materials going into the manufacture of the same. All process or renovated butter and the packages containing the same shall be marked with the words "Renovated Butter" or "Process Butter" and by such other marks, labels, or brands and in such manner as may be prescribed by the Secretary of Agriculture, and no process or renovated butter shall be shipped or transported from its place of manufacture into any other State or Territory or the District of Columbia, or to any foreign country, until it has been marked as provided in this section. The Secretary of Agriculture shall make all needful regulations for carrying this section into effect, and shall cause to be ascertained and reported from time to time the quantity and quality of process or renovated butter manu- factured, and the character and the condition of the material from which it is made. And he shall also have power to ascer- tain whether or not materials used in the manufacture of said process or renovated butter are deleterious to health or unwhole- some in the finished product, and in case such deleterious or unwholesome materials are found to be used in product intended for exportation or shipment into other States or in course of exportation or shipment he shall have power to confiscate the same. Any person, firm, or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by impris- onment not less than one month nor more than six months, or by iDoth said punishments, in the discretion of the court. APPENDICES. 901 EEGX7LATI0NS PRESCRIBED IN REGARD TO "RENOVATED BUTTER," IN ACCORDANCE WITH THE ACT OF CONGRESS APPROVED MAY 9, 1902. Regulation 1. Terms. The Act of May 9, 1902, gives to the manufacturer of renovated or process butter the option to call the product "renovated butter" or to call it "process butter." For the sake of brevity the words "renovated butter" are used in these regulations as synonymous with the words "process butter." There- fore, any marking or branding with the words "renovated butter," required by these regulations, will be satisfied if the words "process butter" be used in lieu of the words "renovated butter." Regulation 2. Definition of Renovated Butter. The following explanation of the definition of renovated butter, as it occurs in the law, is adopted for guidance in connection with these regulations : (a) This grade or kind of butter may be made from one or more lots or parcels of butter, which has been or have been "subjected to any process by which it is melted, clarified, or refined, and made to resemble genuine butter, always excepting 'adulterated butter,' as defined by this Act." It may or may not have common salt and harmless artificial coloring added. (6) The law defines three processes of refining butter, which, if used, make the resultant article adulterated butter, in contradistinction to renovated butter, as follows: First, if in any way, any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the eflfect of deodorizing or removing therefrom rancidity; second, if there is mixed any substance foreign to butter with intent or efi'ect of cheapening in cost the product; and third, if, in any way, the product is made to contain abnormal quantities of water, milk, or cream. Butter which has been renovated and has sixteen percent or more of moisture will be held to contain abnormal quantities of water, milk, or cream, and will, therefore, be classed as adulterated butter. Regulation 3. Manufacturers Defined. Section 4 of the Act of May 9, 1902, provides: Manufacturers of process or renovated butter shall pay fifty dollars per year . . Every person who engages in the produc- tion of process or renovated butter ... as a business shall be considered to be a manufacturer thereof. 902 LAW OF PTJHE FOOD AND DRUGS. The special-tax year begins July 1st. The special tax of manufac- turers who commence business in the month of July will be reckoned for one year, and the tax of manufacturers who commence business after the month of Jtily will be reckoned proportionately from the first day of the month from which the liability to special tax commenced to the first day of July following. Regulation 4. Begistratiou — Stamp Tax. Every manufacturer of renovated butter, before commencing business (or at least within the month in which liability to special tax com- menced), must register with the collector of the district in which the business is to be carried on, his name, or firm or corporate name, place of residence, nature of business, and the place where such business is to be carried on, and procure a special-tax stamp at the rate of fifty dollars per annum, which stamp he shall place and keep conspicuously posted in his establishment or place of business; and on the first day of July in each year he must again so register and procure a new special-tax stamp and post it as above stated. Segulation S. Notice — Bond. Every manufacturer of renovated butter will be required to file with the collector a notice on Form 507, together with an inventory. Form 509, when making application for special-tax stamp as manufacturer. At the same time he will file a bond, Form 508, in a penal sum to be fixed by the collector of internal revenue for his district, but in no case less than five hundred dollars. Collectors of internal revenue will decline to approve the bond of a manufacturer of renovated butter until they are satisfied that the premises to be used for the manufacture of that article are entirely separate from those used for the manufacture of adulterated butter or oleomargarine, or for the handling or manipulation of butter not taxable under the Act of May 9, 1902. (See Treas. Dec. No. 588, Oct 6, 1902.) Regulation 6. Factory Number. Collectors will give to each manufacturer of renovated butter in their respective districts a factory number, the numbers to be consecutive and not thereafter changed. A new number should be given to a new factory. The change in ownership of a factory does not necessitate a change in the factory number. Regulation 7. Sign on Factory. Every manufacturer of renovated butter shall place and keep over the principal entrance of the factory wherein his business is carried on, so APPENDICES. 903 that it can be distinctly seen, a, sign, with letters thereon not less than three inches in height, printed in oil colors or gilded, giving his full name and business and the number of his factory, as follows: A B Mantjfactdreb op Renovated Butteb. Factory No. . Begulation 8. Tax Coupon Stamps. Under the provisions of Section 4 of Act of May 9, 1902, the tax of one-fourth of one cent per pound imposed thereby on renovated butter is to be represented by coupon stamps, to be provided by the Commissioner of Internal Revenue as authorized by existing laws. A fractional part of a pound shall be taxed as a pound. Regulation 9. Stamp Denominations. For this purpose tax-paid stamps will be furnished in denominations of ten, twenty, thirty, forty, fifty, sixty, and one hundred pounds, each stamp bearing nine coupons. Such stamps must contain the name of the collector, his district and State, and show thereon the date of payment of the tax, the number of pounds, and the number of the factory. Regulation 10. Affixing Stamps — Cancelling Stamps. On the withdrawal of a package of renovated butter the proper tax- paid stamp must be affixed thereto by the manufacturer, by the use of adhesive material, and if the package be of wood, not less than five tacks must be driven through each stamp, one in each corner and one in the middle of the stamp. The stamp when so affixed must be immediately cancelled. The blank spaces reserved for the manufacturer must be properly filled up by him in accordance with the plain requirements of the form of the stamp. This is not optional with the manufacturer, but a requirement. In the blank space in the lower left-hand corner of the stamp must be inserted the date when the stamp was affixed and can- celled. This is required to be done before the renovated butter is removed from the factory. The date of issue must be entered on the stamp by the collector at the time the same is issued. For the purpose of cancellation the manufacturer will use a stencil plate or rubber stamp, by which there shall be printed five parallel waved lines long enough to extend beyond each side of the stamp onto the package. The printing on the stamp must be plain and distinct, and the waved lines must be fine enough to avoid obliterating the reading matter and figures contained in the tax-paid stamp. The cancelling must be with 904 LAW OF PUEB FOOD AND DKUGS. blacking or other durable material over and across the stamp and in such manner as not to daub and make it illegible. Regulation' 11. Affixing Stamps. The stamp must be alExed to the side of the package, to a smooth surface, in such a manner as to be readily cancelled in the manner above described. When a package contains a number of pounds between ten and twenty, a ten-pound stamp with the necessary number of coupons attached will be issued to cover the net weight. Packages containing more than twenty pounds and less than thirty pounds will have attached a twenty-pound stamp with a, suitable number of coupons to represent the contents. Larger-sized packages will be similarly stamped. Eegulation 12. Label. Every manufacturer's package of renovated butter shall have affixed thereto a label on which shall be printed the number of the factory and the revenue district and State in which it is located, together with the following notice: FoEM FOB Renovated BtrrrBB. Factory No. , district. State of . Notice. — The manufacturer of the renovated butter herein contained has complied with all the requirements of the law and the regulations authorized thereby. Every person is cautioned not to use again either this package for renovated butter or tax stamp thereon or to remove the contents of this package without destroying said stamp, under penalty provided by law in such cases. This label or notice shall be printed in black upon white paper and shall be not less than five nor more than seven inches long and not less than three inches in width. The label must be securely afiSxed by paste to the side of the package and opposite or on a different side (not the top or bottom) from that to which the tax stamp is attached and in such a way as to be exposed to view and easily read. The words "Reno- vated butter" in this notice must be printed in one or two lines and in plain gothic letters at least three-eighths inch square. There must also be plainly marked or stenciled on the outside of every package the gross, tare, and net weight in pounds. Begulation 13. Manufacturer Keeping Books. Each manufacturer of renovated butter is required to keep books and make returns showing the quantity of materials received on the APPENDICES. 905 factory premises and the quantity of finished product removed therefrom. Sample pages of book (Form No. 511) to be kept by the manufacturers will be furnished to collectors, but the book must be provided by the manu- facturer, as the same is not supplied by the government. Regulation 14. Monthly Returns, Form. Form No. 499 has been prescribed for monthly returns of manu- facturers of renovated butter, and such forms vfill be furnished through the collectors of internal revenue. In preparing Form 499 manufacturers should note on pages 1 and 2, the quantities of materials used in producing renovated butter each day of the month and the quantity produced. On page 2 is a space provided for a special account or tax-paid renovated butter returned to the factory. On inside pages of Form 499 should be noted the date when renovated butter is sold, removed, or destroyed, together with the amount by packages and pounds; also to whom sold or consigned, giving the name, place of business, residence, county, and State. The last page of this Form contains a recapitulation of the quantity of renovated butter produced and disposed of during the month and the quantity on hand at the beginning and at the end of each month. This should be prepared with great care. The certificate in this form must be executed by the manufacturer, or his duly authorized repre- sentative, and be sworn to before a deputy collector or an oflicer author- ized to administer oaths generally. Regulation 15. Removing Tax Stamp from Empty Package. Whenever any manufacturer's package of renovated butter is empty it shall be the duty of the person who removes the contents thereof to destroy utterly the tax-paid stamp on each empty package. Any person having in his possession empty renovated butter packages the tax-paid stamps on which have not been destroyed will be liable to a heavy penalty. [Original packages of renovated butter for export only may be covered with cloth, jute, or burlap, provided that there be stenciled on the cover- ing of the package, in black letters on a white background, the words "Renovated Butter," in one or two lines, in full-faced, gothic letters not less than one inch square. The words "For export only'' must appear in one line one inch below the words "Renovated Butter," in full-faced gothic letters not less than three-eighths of an inch square. These markings are to be the only markings on one side or surface of the package. Where possible, inspection will be made before the outer covering is put on the packages. If, however, inspection be necessary after the outer coverings have been placed on the packages, the exporter, or his 906 LAW OF PUEE FOOD AND DRUGS. agent, will be required to remove the outer covering from any or all packages designated by the inspector. Nothing in this regulation shall be deemed to change or dispense Tvith the requirement of Regulation 25 hereof in any way. As amended Sep- tember 22, 1908. T. D. 1417.] The ruling by the Commissioner of Internal Revenue, under date of October 6, 1902, permitting the shipment of original packages of reno- vated butter covered with jute, burlap, or heavy paper from the place of manufacture or place of business of the wholesale dealer is hereby revoked, and all packages of renovated butter so covered or wrapped which may be found on the market on and after the date these regulations become effective will not be deemed in compliance with the law. Begulation 16. Exportation Free of Tax. Attention is called to the fact that the Act named makes no pro- vision for the exportation, free of tax, of renovated butter, nor any drawback on such articles when exported. Consequently all renovated butter for export must be stamped the same as for domestic market. The Act of May 9, 1902, neither defines nor imposes special taxes upon wholesale or retail dealers in renovated butter. Renovated butter must always bear or be accompanied by the evidence that the manu- facturer's tax thereon has been paid. Regulation 17. Inspecting Factories. OflScers or agents of the Department of Agriculture shall make a rigid sanitary inspection of all factories and storehouses where renovated butter is manufactured, packed, or prepared for market. The time of such inspection shall be at the discretion of the Secretary of Agriculture. Full report covering the sanitary conditions shall be made to the Secre- tary of Agriculture. Regulation 18. Inspecting KTaterials. Inspection shall also be made of the materials going into the manu- facture of renovated butter and the product thereof, and the inspector shall report the quantity and quality of renovated butter manufactured and the character and the condition of the materials from which it is made. If materials used in the manufacture of renovated butter are dele- terious to health or unwholesome in the finished product, they shall be confiscated. Regulation 19. When Adulterated. According to the Food and Drugs Act of June 30, 1906, if renovated butter consists in whole or in part of a filthy, decomposed, or putrid APPENDICES. 907 animal or vegetable substance it shall be deemed adulterated under that Act. Kegulation ZO. Brandings Packages. Each manufacturer's package containing ten pounds or more solid packed renovated butter must have branded into the upper surface of the renovated butter the words "Renovated butter," in one or two lines, the letters to be gothic style, not less than one-half inch square, and depressed not less than one-eighth of an inch. Prints, bricks, or rolls, must be similarly branded, the letters to be not less than three-eighths inch square. Begulation 21. Wrappers. All coverings or wrappers of prints, bricks, or rolls of renovated butter, whether paper or cloth, must have the words "Renovated butter," in one or two lines, marked, branded, stenciled, or printed thereon in black or nearly black upon white or light ground, in full-faced gothic letters, not less than three-eighths inch square, so placed as to be the only marking upon one side or surface of the parcel so packed. Begulation 22. Approval of Harks and Labels. Any marks, brands, or labels other than those mentioned in these Regulations, with the exception of the shipping marks used in commerce, must be approved by the Secretary of Agriculture before such marks, brands, or labels may be used by the manufacturers. Regulation 23. Filing Copies with Department. Copies of all approved marks, brands, or labels must be kept on file and accessible to the officer or agent of the Department of Agriculture, at the office or place of business of the manufacturer. Regulation 24. Food and Drags Act of 1906. While the Act of May 9, 1902, does not give the Secretary of Agri- culture authority to prescribe regulations for marking or branding other than manufacturers' packages, the Food and Drugs Act of June 30, 1906, prohibits the misbranding of all food articles entering into interstate commerce. An article is misbranded in the following cases: 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. Third. If in package form, and the contents are stated in terms of 908 LAW OF PURE FOOD AND DEUGS. weight or measure, they are not jjlainly and correctly stated on the outside of the package. Fourth. If the package containing it or its label shall bear any state- ment, design, or device regarding the ingredients of the substances contained therein, which statement, design, or device shall be false or misleading in any particular. Regulation 25. Branding Renovated Butter for Export. Renovated Butter for export must be marked and branded as for the domestic market. All renovated butter offered for export must be in- spected by duly authorisied officers or agents of the Department of Agri- culture. After such officer has determined its purity, quality, and grade, he shall, if said renovated butter be found pure and properly branded and marked, issue a certificate setting forth these facts. Regulation 26. Reports Concerning Renovated Butter Found on Market. Officers of the Department of Agriculture finding renovated butter on the market not bearing evidence that the tax thereon has been paid, or without the caution notice required, or butter suspected of being renovated or adulterated, will report the facts in the case to the nearest internal-revenue officer, and, if necessary, secure samples of the suspected product for transmission to the laboratory of the Internal Eevenue Bureau for chemical analysis. Likewise, revenue officers finding renovated butter on the marlcet which does not comply with these regulations should promptly notify the Department of Agriculture, or its nearest representative, of the location of such butter and the facts relating thereto. Regulation 27. Samples, How Taken. The following directions are given for taking samples of suspected . butter : At least a poimd sample should be taken, which should be made up of portions taken from various parts of the package by means of a spoon or trier. This sample should be at once transferred to the container in which it is to be shipped, which must be water-tight and perfectly dry. All wrappings of any kind must be removed before the sample is placed in the container. Glass fruit jars with tops that can be screwed down upon rubber rings, or tin fruit cans, with tops that can be readily soldered on, are satisfactory and readily obtainable. The container must be marked so that it can be identified by the officer taking the sample and it must be accompanied with a full descrip- tion of the sample as to origin and suspected adulteration, either as a letter of transmittal or with the sample. APPENDICES. 909 The proper sealing and shipping of the sample is of great importance, for if the analyst can not testify that it was received with seals unbroken the evidence is always open to attack. The sealing is best accomplished by placing the vessel containing the substance in a box or other suitable receptacle, and securing the latter with string or tape in such a manner that the package can not be opened without cutting or untying the tape; the knots and intersections of the latter should then be covered with sealing wax and impressed by means of a, broad die bearing letters or characters easily recognized. The sealing of the bottle or vessel itself is not desirable, as the wax is likely to get into the sample when it is opened. The sealed box may then be enclosed in another box for shipment, if desirable. The method of sealing ordinarily used by express agents will be satisfactory if it is done in the presence of the ofificer transmitting the sample, and may be applied to the outer box, no other sealing being necessary. This is the most convenient and economical method when a number of samples are transmitted at one time by express. Samples should be addressed to the Commissioner of Internal Revenue, care of Laboratory, Washington, D. C. Begulation 28. SefLnition of "Adulterated" Explained. The word "adulterated," herein used under the Act of May 9, 1902, refers to the definition of the taxable article as given in Regulation 2, while the same word employed in the Food and Drugs Act of June 30, 1906, has reference to the classification under that Act. Begulation 29. Correspondence. Correspondence and all administrative details under the Regulations numbered 3 to 16, inclusive, above, are assigned to the Commissioner of Internal Revenue, Treasury Department. All matters under Regula- tions 17 to 26, inclusive, are assigned to the Chief of the Bureau of Animal Industry, Department of Agriculture. Begulation 30. To Become Effective, When. These regulations shall become and be efl'ective on and after August 15, 1907. John Gr. Capers, Commissioner of Internal Revenue. Approved : Geo. B. Cobtelyott, Secretary of the Treasury. James Wilson, Secretary of Agriculture. July 2, 1907. 910 LAW OB PUKE FOOD AND DBDGS. (T. D. 1498.) ADTTITERATED BUTTER. Modification of regulations relating to procuring samples of adulterated butter, and permitting payment of tax due on adulterated butter under seizure by the owner or custodian of the same. TBEA.ST3BT DEPAETMENT, Office of Commissionee of Ijtteei^al Ebventib, Washington, D. C, May 17, 1909. To Collectors, Internal-Eevenue Agents, and Others: Upon representations by a committee of those engaged in the butter trade, and after a careful investigation into the subject through oflScers and agents of this Bureau in the field, the conclusion has been reached that under the conditions existing the inspection, sampling, seizure, and formalities incident to the enforcement of the Act of May 9, 1902, defining and imposing a tax upon butter as adulterated which contains an abnormal percent of moisture, have in many cases worked a hardship upon those engaged in this industry, and to obviate this it has been decided to adopt the following plan for the execution of this work in the future: First, no samples of butter which, upon preliminary tests by the oflScers taking the same, show less than sixteen percent of moisture should be forwarded to the laboratory of this oflBce, and only one sample out of every ten, or from every tenth package, found to contain abnormal moisture, if the owner of the butter agrees to accept the preliminary test as conclusive, will be so forwarded; otherwise a sample out of every package will be taken and submitted to this office. The samples taken by officers for the preliminary tests should not exceed three ounces in quantity, while those to be forwarded to the laboratory of this office should not exceed one-half pound, taken after the method or manner prescribed in T. D. 1449 of January 2, 1909. The preliminary tests should be made immediately by those taking the samples, and if found to be less than sixteen percent moisture the goods should be at once released, provided detention or seizure has formally, or by agreement, been made. ■Second, for the purpose of relieving those in the butter trade of the loss or burden through the delay and formalities incident to forwarding samples to this office for analysis, formal seizures of the butter found upon the, preliminary tests to contain sixteen percent or more of moisture, and its. detention until payment of the tax thereon has been made, officers are instructed to release all the butter thus found to be adulterated upon the payment of the tax due thereon by the ostensible owner or person in whose custody the same shall be, upon condition that said butter shall be reworked and the excess of moisture removed therefrom before the same is sold. Goods may be thus released without waiting for the report of the APPENDICES. 91i ollicial chemist upon the sample forwarded to this office, which, if corrob- orative of the preliminary test, would in no wise affect the status of the case, but if in contradiction to the preliminary test analysis proved that the butter did not contain abnormal moisture a claim for the refund of the amount overpaid will be entertained upon presentation through the office of the collector to whom such overpayment was made. Collectors will be required to see that adulterated butter so released is not placed on the market for sale until the excess of moisture is removed or proper steps taken for the necessary reworking. Officers taking samples of butter are directed to use great care to avoid mutilation and consequent loss to the owners of the goods sampled, and they are authorized to pay for the actual quantity taken and found to be not adulterated at the current wholesale price of the particular grade or brand of goods and include this expenditure in their accounts. In all cases before taking samples officers should notify the owners of the butter, or the person having custody of the same, of their intention to sample the goods, so as to allow the owners to be present, and also to take samples of the butter in question, if they so desire, but as these duplicate samples will not be necessary in the government test the expense of same will have to be borne by the owner. All rules or decisions heretofore published in conflict with the above are hereby modified and revoked insofar as is necessary. A strict com- pliance with this decision by the officers in the field charged with the enforcement of the law will obviate much of the delay and burden com- plained of by those engaged in the butter business. EoBT. Williams, Jb., Acting Commissioner. Approved: Fbanklin MacVeagh, Secretary of the Treasury. (T. D. 1576.) ADULTERATED BTTTTER. Acceptance by holders or owners of butter of preliminary tests showing excessive moisture, on payment of tax and to secure immediate release of such butter, should be duly executed in writing and a, copy thereof forwarded to the office of the Commissioner of Internal Eevenue. Samples from every tenth package found to be adul- terated should also be forwarded, even though acceptance is made of preliminary tests. Tbbastjet Depabtment, OincB OF CoMias SIGNER or Internal Revenue, Washington, D. C, December 21, 1909. To Collectors of Internal Eevenue, Revenue Agents, and Others Concerned: Attention is called to the provisions of T. D. 1498, dated May 17, 912 LAW OF PtJEB FOOD AND DRUGS. 1909, providing for the release of butter found upon preliminary tests by officers in the field to contain abnormal moisture, on payment of the tax due on amount thus shown to be adulterated and its return to the factory to be put in legal condition. This decision further provided that no samples which "show less than sixteen percent of moisture should be forwarded to the laboratory of this office, and only one sample out of every ten or from every tenth package found to contain abnormal moisture, if the ovmer of the butter agrees to accept the preliminary test as conclusive, will be so forwarded; otherwise a sample out of every package will be taken and submitted to this office." The above ruling was intended to relieve the butter trade of the delay incident to the forwarding of samples to this office, and perhaps deprecia- tion of the product in value, pending analysis and formal release of the goods, but it was not intended to do away with the forwarding of samples out of every tenth package containing abnormal moisture if the preliminary tests are accepted. In all cases where such tests are accepted by the holders or owners of the butter, a sample from every tenth package found to be adulterated should be forwarded, even though the butter is released upon agreement. This agreement should be duly executed in writing and a copy thereof forwarded for file in this office. Royal E. Cabell, Commissioner. [The tax of ten cents per pound on butter found to contain sixteen percent or more of moisture is due when "manufactured or sold or removed for consumption or use," and will be assessed after removal of the product from the factory, whether discovered or in storage or not. T. D. 1522.] Notice of Violation of Rules. [If an officer of the Department of Agriculture finds a package of renovated butter without a revenue stamp he must inform the owner not to dispose of or remove such butter, and then inform the nearest internal revenue officer of the fact. So any officer of the internal revenue who finds renovated butter that does not comply with the rules of the Agricultural Department must promptly notify such Department or its nearest representative, of the location of such butter and the facts relating to it. (Internal Revenue Decisions 625, 641.)] How Handled by Jobbers — ^TTnpackingf. Jobbers and wholesalers can handle renovated butter only in the original manufacturer's packages, and dispose of it without breaking those packages for any purpose or in any way changing the form and markings. A package can not be emptied for the purpose of using while APPENDICES. 913 moving in trade between the factory and the retailer. (Internal Revenue Decision 654.) Seizure. The Commissioner of Internal Revenue has power to make and enforce a regulation requiring the seizure and forfeiture of renovated butter, removed by retail dealers from original packages and kept on sale outside such packages. (Internal Revenue Decision 847.) Where the tax on renovated butter has been regularly paid and the butter is stamped and separated from the original packages in the hands of dealers, it is not seized. (Internal Revenue Decision 864.) Tax. "Creamery butter," "ladled butter," "whey butter," and "sweet butter" classed as "adulterated butter" is taxable at ten cents per pound when made to contain moisture to the extent of sixteen percent or more. (T. D. 1009. Cooperville Co-operative Creamery Co. v. Lemon, 89 C. C. A. 595, 163 Fed. 145, T. D. 1371.) Merchants selling butter found to contain sixteen percent or more of moisture on contract and not upon commission are held to make an outright purchase and are liable to the special tax. The manufacturer is not. (T. D. 1247.) When a merchant or broker has become the actual owner of adul- terated butter, by purchase or otherwise, and has sold it for his own account, the liability to a special tax as a dealer is his, and is reported by revenue agents and collectors for assessment. If the sales are made by the manufacturer through an agent, broker or commission merchant, for the account of the manufacturer, the tax as a dealer is reported against such manufacturer and not as against the agent so selling. (T. D. 1238.) State laws. Renovated or adulterated butter or imitation cheese, is subject to the requirements of the laws of the State or Territory or the District of Columbia into which it is transported and remains therein for use, consumption, sale or storage. Act May 9, 1902. (T. D. 1240.) Power to Adopt Regulations. Congress had the power to authorize the Secretary of the Treasury to adopt the regulations he did on the subject of adulterated butter, and the rule providing that butter having sixteen percent or more of moisture contains an abnormal quantity and is adulterated butter as valid. Coop- erville Co-operative Creamery Co. v. Lemon, 89 C. C. A. 595, 163 Fed. 145, T. D. 1371. PxiEE Food — 58. 914 LAW OF PUEB FOOD AND DRUGS. Intent to Hake Adulterated Butter. The question whether the manufacturer intended to make adulterated butter is not material if the process had that effect. Cooperville Co-opera- tive Co. V. Lemon, 89 C. C. A. 595, 163 Fed. 145, T. D. 1371. Water in Butter, Adulteration. If by absorption of a quantity of moisture which added to that already in the butter the percentage of the gross amount of water reaches sixteen percent or over, the butter is adulterated. Cooperville Co-operative Cream- ery Co. V. Lemon, 89 C. C. A. 595, 163 Fed. 145, T. D. 1371. Forwarding Samples. Sajuples of butter, which on preliminary or unoflScial tests are shown to contain excessive moisture should be forwarded by the official making the test for official analysis by the Division of Chemistry of the Treasury Department. (T. D. 1421.) Samples Forwarded. Officers must secure more than one sample from unbroken original packages, if possible, before recommending an assessment of taxes, and samples from partly emptied or retail packages are forwarded to the Commissioner of Internal Revenue only as corroborative evidence. (T. D. 1539.) Release. Acceptance by holders or owners of butter of preliminary tests show- ing excessive moisture, on payment of the tax to secure immediate release of such butter, must duly execute the prescribed form and a copy thereof be forwarded to the office of Commissioner of Internal Revenue. Samples Forwarded. Samples from every tenth package foimd to be adulterated must also be forwarded, even though acceptance is made of the preliminary tests. (T. D. 1576.) Tax, When Due. The tax of ten cents per pound on butter found to contain sixteen percent or more of moisture is due when "manufactured or sold or removed for consumption or use," and is assessed by the Commissioner of Internal Revenue after the removal of the product from the factory, whether dis- covered in transit or storage.] APPENDICES. 915 APPENDIX M. MEAT INSPECTION. Note. — This is the pamphlet issued by the United States government. Additions by the author are inserted in brackets. Extract from an Act of Congress entitled "An Act making appro- priations for the Department of Agriculture for the fiscal year ending June 30, 1907," approved March 4, 1907. (34 U. S. Stat, at Large 1260.) THE MEAT-INSPECTION AMENDMENT. [Section 1. Inspectors — Inspections.] That, hereafter, for the pur- pose of preventing the use in interstate or foreign commerce, as hereafter provided, of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, the Secretary of Agri- culture, 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; and all cattle, swine, sheep, and goats found on such inspection to show symptoms of disease shall be set apart and slaughtered separately from all other cattle, sheep, swine, or goats, and when so slaughtered the carcasses of said cattle, sheep, swine, or goats, shall be subject to a careful examination and inspection, all as provided by the rules and regulations to be prescribed by the Secre- tary of Agriculture as herein provided for. [34 Stat, at Large 1260.] [Sec. 2. Inspection — Marking — Condemned Meat Destruciion.] That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose, as here- inafter provided, a post-mortem examination and inspection of the car- casses and parts thereof of all cattle, sheep, swine, and goats to be prepared for hvmian consumption at any slaughtering, meat-canning, salt- ing, packing, rendering, or similar establishment in any State, Territory, or the District of Columbia for transportation or sale as articles of interstate or foreign commerce; and the carcasses and parts thereof of all such animals found to be sound, healthful, wholesome, and fit for human food shall be marked, stamped, tagged, or labeled as "Inspected and Passed;" and said inspectors shall label, mark, stamp, or tag as "Inspected and Condemned," all carcasses and parts thereof of animals found to be unsound, unhealthful, unwholesome, or otherwise unfit for human food; and all carcasses and parts thereof thus inspected and condemned shall be destroyed for food purposes by the said establishment in the presence of an inspector, and the Secretary of Agriculture may remove inspectors from any such establishment which fails to so destroy any such condemned 916 LAW OF PUEE FOOD llND DEUGS. carcass or part thereof, and said inspectors, after said first inspection shall, when they deem it necessary, reinspect said carcasses or parts thereof to determine whether since the first inspection the same have beeorne unsound, unhealthful, unwholesome, or in any way unfit for human food, and if any carcass or any part thereof shall, upon examina- tion and inspection subsequent to the first examination and inspection, be found to be unsound, unhealthful, unwholesome, or otherwise unfit for human food, it shall be destroyed for food purposes by the said estab- lishment in the presence of an inspector, and the Secretary of Agriculture may remove inspectors from any establishment which fails to so destroy any such condemned carcass or part thereof. [34 Stat, at Large 1261.] [Sec. 3. AppUcation of Statute.] The foregoing provisions shall apply to all carcasses or parts of carcasses of cattle, sheep, swine, and goats, or the meat or meat products thereof which may be brought into any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and such examination and inspection shall be had before the said carcasses or parts thereof shall be allowed to enter into any department wherein the same are to be treated and prepared for meat food products; and the foregoing provisions shall also apply to all such products which, after having been issued from any slaughtering, meat- canning, salting, packing, rendering, or similar establishment, shall be returned to the same or to any similar establishment where such inspection is maintained. [34 Stat, at Large 1261.] [Sec. 4. Access to Establishments — Branding — Packing for Foreign Purchasers.} That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment; and said inspectors shall mark, stamp, tag, or label as "Inspected and Passed" all such products found to ibe sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as "Inspected and Condemned" all such products found unsound, unhealthful, and unwhole- some, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwhole- some, or unfit for human food, and all such condemned meat food products shall be destroyed for food purposes, as hereinbefore provided, and the Secretary of Agriculture may remove inspectors from any establishment which fails to so destroy such condemned meat food products: Provided, That, subject to the rules and regulations of the Secretary of Agriculture, the provisions hereof in regard to preservatives shall not apply to meat APPENDICES. 917 food products for export to any foreign country and which are 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 to be exported; 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 all the other provisions of this Act. [34 Stat, at Large 1261.] [SiE«. 5. Form of Label.] That when any meat food product prepared for interstate or foreign commerce which has been inspected as hereinbefore provided and marked "Inspected and Passed" shall be placed or packed in any can, pot, tin, canvas, or other receptacle or covering in any estab- lishment where inspection under the provisions of this Act is maintained, the person, firm, or corporation preparing said product shall cause a label to be attached to said can, pot, tin, canvas, or other receptacle or covering, under the supervision of an inspector, which label shall state that the contents thereof have been "Inspected and Passed" under the provisions of this Act; and no inspection and examination of meat or meat food products deposited or inclosed in cans, tins, pots, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this Act is maintained shall be deemed to be complete until such meat or meat food products have been sealed or inclosed in said can, tin, pot, canvas, or other receptacle or covering under the supervision of an inspector, and no such meat or meat food products shall be sold or offered for sale by any person, firm, or corporation in interstate or foreign commerce under any false or deceptive name; but established trade name or names which are usual to such products and which are not false and deceptive and which shall be approved by the Secretary of Agriculture are permitted. [34 Stat, at Large 1262.] [Sec. 6. Inspection — Regulations.] The Slecretary of Agriculture shall cause to be made, by experts in sanitation or by other competent inspectors, such inspection of all slaughtering, meat-canning, salting, packing, rendering, or similar establishments in which cattle, sheep, swine, and goats are slaughtered and the meat and meat food products thereof are prepared for interstate or foreign commerce as may be necessary to inform himself concerning the sanitary conditions of the same, and toi prescribe the rules and regulations of sanitation under which such estab- lishments shall be maintained; and where the sanitary conditions of any such establishment are such that the meat or meat food products are- rendered unclean, unsound, unhealthful, unwholesome, or otherwise unfit, for human food, he shall refuse to allow said meat or meat food products to be labeled, marked, stamped, or tagged as "Inspected and Passed." [34 Stat, at Large 1262.] [Sec. 7. Inspection.] That the Secretary of Agriculture shall cause- an examination and inspection of all cattle, sheep, swine, and goats, and the food products thereof, slauglitered and prepared in the establishments. S18 LAW OF PUEB FOOD AND DEUGS. hereinbefore described for the purposes of interstate 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 conducted during the nighttime. [34 Stat, at Large 1262.] [Sec. 8. Transportation Forbidden.] That on and after October 1, 1906, no person, firm, or corporation shall transport or ofifer for transpor- tation, and no carrier of interstate 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 cr 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 and regulations prescribed by the Secretary of Agri- culture: Provided, That all meat and meat food products on hand on October 1, 1906, at establishments where inspection has not been main- tained, or which have been inspected under existing law, shall be examined and labeled under such rules and regulations as the Secretary of Agricul- tur shall prescribe, and then shall be allowed to be sold in interstate or foreign commerce. [34 Stat, at Large 1262.] [Sec. 9. Counterfeiting Label.] That no person, firm, or corporation, or officer, agent, or employee thereof, shall forge, counterfeit, simulate, or falsely represent, or shall without proper authority use, fail to use, or detach, or shall knowingly or wrongfully alter, deface, or destroy, or fail to deface or destroy, any of the marks, stamps, tags, labels, or other identification devices provided for in this Act, or in and as directed by the rules and regulations prescribed hereunder by the Secretary of Agri- culture, on any carcasses, parts of carcasses, or the food product, or containers thereof, subject to the provisions of this Act, or any certificate in relation thereto, authorized or required by this Act or by the said rules and regulations of the Secretary of Agriculture. [34 Stat, at Large 1263.] [Sec. 10. Inspecting Arwmals.] That the Secretary of Agriculture shall cause to be made a careful inspection of all cattle, sheep, swine, and goats intended and offered for export to foreign countries at such times and places, and in such manner as he may deem proper, to ascertain whether such cattle, sheep, swine, and goats are free from disease. [34 Stat, at Large 1264.] [Sec. 11. Inspectors.] And for this purpose he may appoint inspec- tors who shall be authorized to give an ofiicial certificate clearly stating the condition in which such cattle, sheep, swine, and goats are found. 134 Stat, at Large 1263.] [Sec. 12. Clearance for Vessels.] And no clearance shall be given to any vessel liaving on board cattle, sheep, swine, or goats for export to a foreign country until the owner or shipper of such cattle, sheep. APPENDICES. 919 swine, or goats lias a certificate from the inspector herein authorized to be appointed, stating that the said cattle, sheep, swine, or goats are sound and healthy, or unless the Secretary of Agriculture shall have waived the requirement of such certificate for export to the particular country to which such cattle, sheep, swine, or goats are to be exported. [34 Stat, at Large 1263.] [Sec. 13. Inspecting Carcasses.] That the Secretary of Agriculture shall also cause to be made a careful inspection of the carcasses and parts thereof of all cattle, sheep, swine, and goats, the meat of which, fresh, salted, canned, corned, packed, cured, or otherwise prepared, is intended and offered for export to any foreign country at such times and places and in such manner as he may deem proper. [34 Stat, at Large 1263.] [Sec. 14. Inspectors.] And for this purpose he may appoint inspectors who shall be authorized to give an official certificate stating the condi- tion in which said cattle, sheep, swine, or goats, and the meat thereof, are found. [34 Stat, at Large 1263.] [Sec. 15. Clearance for Vessels.] And no clearance shall be given to any vessel having on board any fresh, salted, canned, corned, or packed beef, mutton, pork, or goat meat, being the meat of aniinals killed after the passage of this Act, or except as hereinbefore provided for export to and sale in a foreign country from any port in the United States, until the owner or shipper thereof shall obtain from an inspector appointed under the provisions of this Act a, certificate that the said cattle, sheep, swine, and goats were sound and healthy at the time of inspection, and that their meat is sound and wholesome, unless the Secretary of Agri- culture shall have waived the requirements of such certificate for the country to which said cattle, sheep, swine, and goats or meats are to be exported. [34 Stat, at Large 1263.] [Sec. 16. Inspectors' Poioers.] That the inspectors provided for herein shall be authorized to give official certificates of the sound and wholesome condition of the cattle, sheep, swine, and goats, their carcasses and products as herein described, and one copy of every certificate granted under the provisions of this Act shall be filed in the Department of Agri- culture, another copy shall be delivered to the owner or shipper, and when the cattle, sheep, swine, and goats or their carcasses and products are sent abroad, a third copy shall be delivered to the chief officer of the vessel on which the shipment shall be made. [34 Stat, at Large 1263.] [Sec. 17. Sale of Meat without Compliance with Law.] That 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 or 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 920 LAW OF PUEE FOOD AND DRUGS. is located unless and until said person, firm, or corporation shall have complied with all of the provisions of this Act. [34 Stat, at Large 1264.] [Sec. 18. Penalties.] That any person, firm or corporation, or any oflBcer or agent of any such person, firm, or corporation, who shall violate any of the provisions of this Act shall be deemed guilty of a misdemeanor; and shall be punished on conviction thereof by a fine of not exceeding ten thousand dollars or imprisonment for a period not more than two years or by both such fine and imprisonment, in the discretion of the court. [34 Stat, at Large 1264.] [Sec 19. Inspectors — Appointment — Duties.'i That the Secretary of Agriculture shall appoint from time to time inspectors to make examina- tion and inspection of ail cattle, sheep, swine, and goats, the inspection of which is hereby provided for, and of all carcasses and parts thereof, and of all meats and meat food products thereof, and of the sanitary conditions of all establishments in which such meat and meat food prod- ucts hereinbefore described are prepared; and said inspectors shall refuse to stamp, mark, tag, or label any carcass or any part thereof, or meat food product therefrom, prepared in any establishment hereinbefore men- tioned, until the same shall have actually been inspected and found to be sound, healthful, wholesome, and fit for human food, and to contain no dyes, chemicals, preservatives, or ingredients which render such meat food product unsound, unheal thful, unwholesome, or unfit for human food; and to have been prepared under proper sanitary conditions, hereinbefore provided for; and shall perform such other duties as are provided by this Act and by the rules and regulations to be prescribed by said Secre- tary of Agriculture shall, from time to time, make such rules and regula- tions as are necessary for the eflicient execution of the provisions of this Act, and all inspections and examinations made under this Act shall be such and made in such manner as described in the rules and regulations prescribed by said Secretary of Agriculture not inconsistent with the provisions of this Act. [34 Stat, at Large 1264.] [Sec. 20. Bribery.'] That any person, firm, or corporation, or any agent or employee of any person, firm, or corporation, who shall give, pay, or offer, directly or indirectly, to any inspector, deputy inspector, chief inspector, or any other officer or employee of the United States authorized to perform any of the duties prescribed by this Act or by the rules and regulations of the Secretary of Agriculture any money or other thing of value, with intent to influence said inspector, deputy inspector, chief inspector, or other officer or employee of the United States in the discharge of any dutj' herein provided for, shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by a fine not less than five thousand dollars nor more than ten thousand dollars and by imprisonment not less than one year nor more than three years; and any inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this Act who shall accept any money, gift, or other thing APPENDICES. 931 of value from any person, firm, or corporation, or officers, agents, or employees thereof, given with intent to influence his official action, or who shall receive or accept from any person, firm, or corporation engaged in interstate or foreign commerce any gift, money, or other thing of value given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office and shall be punished by a fine not less than one thousand dollars nor more than ten thousand dollars and by imprisonment not less than one year nor more than three years. [34Stat. at Large 1264.] [Sec. 21. Animals Slaughtered on Farms — Retail Butchers.] That the provisions of this Act requiring inspection to be made by the Secre- tary of Agriculture shall not apply to animals slaughtered by any farmer on the farm and sold and transported as interstate or foreign commerce, nor to retail butchers and retail dealers in meat and meat food products, supplying their customers: Provided, That if any person shall sell or ofl'er for sale or transportation for interstate or foreign commerce any meat or meat food products which are diseased, unsound, unhealthful, unwholesome, or otherwise unfit for human food, knowing that such meat food products are intended for human consumption, he shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or by ' imprisonment for a, period of not exceeding one year, or by both such fine and imprisonment: Provided, also, That the Secretary of Agriculture is authorized to maintain the inspection in this Act provided for at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment notwithstanding this exception, and that the persons operating the same may be retail butchers and retail dealers or farmers; and where the Secretary of Agriculture shall establish such inspection then the provisions of this Act shall apply, notwithstanding this exception. [34 Stat, at Large 1265.] [Sec. 22. Submit Statement.] And the Secretary of Agriculture shall, in his annual estimates made to Congress, submit a statement in detail, showing the number of persons employed in such inspections and the salary or per diem paid to each, together with the contingent expenses of such inspectors and where they have been and are employed. [34 Stat. at Large 1265.1 [The above statute appeared word for word in the Appropriation Act of June 30, 1906, 34 Stat, at Large 674, except an appropriation of $3,000,000 for the inspectors' expenses was made.] 933 LAW OS PUKE FOOD AND DEUGS. [B. A. I. Order 150.] BEGUIATIONS GOVERNING THE MEAT INSFECIION OF THE UNITED STATES DEPARTMENT OF AGRICULTURE. [This is the Government's OflScial Pamphlet.] Regulation 1. Scope of Inspection. WHAT MUST BE INSPECTED. WHAT MAY BE EXEMPTED. Section 1. All slaughtering, packing, meat camiing, salting, render- ing, or similar establishments, except as hereinafter provided, the meat or meat food products of which, in whole or in part, enter into interstate or foreign commerce, shall have inspection under these regulations. The Secretary of Agriculture may exempt from inspection establishments op- erated by farmers, retail butchers, or retail dealers supplying their cus- tomers, but in the absence of such exemption inspection is required. BRANCH HOUSES. Sec. 2. Branch houses of official establishments, when such branch houses are engaged in interstate or foreign commierce and slaughter ani- mals or process meat, shall be considered a part of the parent house, and products received into such branch houses or sent from them shall be sub- ject to these regulations, and inspection shall be maintained therein. Regulation 2. Organization of Force. civn. seevice ceetieication. Section 1. Paragraph 1. All permanent employees of the Depart- ment of Agriculture engaged in the work of meat inspection are appointed upon certification of the Civil Scffvice Commission that they have passed the examination prescribed by that Commission. Promotions in all classes are made on the basis of efficiency, deportment, and length of service. Such employees include: inspectors in chabqe. Paragraph 2. Inspectors in charge. — These are inspectors assigned by the Bureau of Animal Industry to supiervise official work at each offi- cial station. Such employees report directly to the Chief of the Bureau of Animal Industry and are chosen by reason of their fitness for responsi- bility as determined by th;eir records in the service. At stations where slaughtering is conducted, only veterinary inspectors are placed in charge. vetebinabt inspectors. Paragraph 3. Veterinary inspectors. — All applicants examined for APPENDICES. 923 these positions must be graduates of rlecognized veterinary colleges having a course of not less than three years leading to the degree. All final ante-mortem and post-mortem examinations are conducted by veterinarians. At some stations the veterinarians are assisted in making preliminary examinations by trained laymen known as inspectors' assistants. TEAVEUNG YETEEEINAEY INSPBCTOES. Paragraph 4. Traveling veterinary inspectors. — To observe the con- ditions of sanitation of the establishments at the various stations, note the processes of ante-mortem and post-mortem inspection, confer with and instruct inspectors regarding it, with a view to a uniform system through- out thle country, and to report these matters to the Washington office, constitute the principal duties of these emiployees. LABOEATOET INSPECTOES. Paragraph 5. Laboratory inspectors. — These employees possess tech- nical training in microscopical and chemical examination of meat food prod- ucts, and their inspections are conducted in laboratories located at various slaughtering centers. Pathological laboratories are also maintained, to which diseased specimens m^ay be sent when necessary for diagnosis. MEAT INSPECTOES. Paragraph 6. Meat inspectors. — ^These employees are laymen, experi- enced in the curing, canning, packing, or otherwise preparing the meat; they supervise that work and the use of permitted presiervatives described in Regulation 22. TEAVEUCNG MEAT INSPECTOES. Paragraph 7. Traveling meat inspectors. — These employees perform a service similar to that i;equired of traveling veterinary inspectors, but along the line of the preparation and handling of meat products. INSPECTOES' ASSISTANTS. Paragraph 8. Inspectors' assistants. — ^These employees are laymen, who are first assigned to routine duties and are promoted through ex- amination to higher duties, such as assisting in conducting ante-mortem and post-mortem examinations. PATEOLMEN. Paragraph 9. Patrolmen. — Patrolmen are employed to patrol the establishments at night, to oversee the receipts and shipments of meat. 9.24 LAW OF PUEE FOOD AND DEUGS. and to observe any operations conducted at night. They consist of veterinarians, Inspectors' assistants, or meat inspectors, according to the character of the work where assigned. SKIIiED LABOI^^S. Paragraph 10. Skilled laborers. — ^These employees supervise the mark- ing of meat and meat containers, and perform similar work. They are eligible for promotion only through examination. Regulation 3. Interpretation and Definition of Words and Terms. DEPINITIOIiTS. Wherever in these regulations the following words, names, or terms are used they shall be construed as follows: OFFICIAI. ESTABLISHMENT. Section 1. Official establishment. — This term shall mean any slaugh- tering, meat-canning, salting, rendering, or similar establishment at which inspection is maintained under the meat-inspection law approved June 30, 1906 (34 Stat., 674). INSPBCTOBS AND DEPARTMENT EMPLOYEES. Sec. 2. Inspectors and Depa/rtment employees. — These terms shall mean, respectively, inspectors and employees of the Bureau of Animal Industry. "INSPECTED AND PASSED." Sec. 3. "Inspected and Passed." — This phrase, or any authorized ab- breviation thereof, shall mean that the carcasses, parts of carcasses, meat, and meat food products so marked have been inspected and passed for food under these regulations. RENDERED INTO LARD OR TALLOW. Sec. 4. Rendered into lard or tallow. — This phrase shall mean that the carcasses, parts of carcasses, meat, and meat food products so desig- nated are allowed to hie made into edible lard or edible tallow. INSPECTED AND CONDEMNED. Sec. 5. "U. S. Inspected and Condemned." — This phrase shall mean that the carcasses, parts of carcasses, meat, and meat food products so marked aire unfit for food and shall be destroyed for food purposes. APPENDICES. 925 Sec. 6. Carcass. — ^This word shall apply to the carcass of an animal that has been killed under these regulations and shall include all parts which are to be used for food. PBIMAL PAKTS. Sec. 7. Primal parts of carcasses. — This phrase shall mean the usual sections or cuts of the dressed carcass commonly known in the trade, such as sides, quarters, shoulders, hams, backs, bellies, etc., and beef tongues, beef livers, and beef tails, before they have been cut, shredded, or other- wise subdivided preliminary to use in the manufacture of meat food products. MEAT FOOD PRODUCTS. Sec. 8. Meat food products. — Paragraph 1. A meat food product, within the meaning of the meat-inspection act and of these regulations, is considered to be any article of food intended for human use which is derived or prepared in whole or in part from any edible portion of the carcass of cattle, sheep, swine, or goats, if the said edible portion so used is a considerable and definite portion of the finished food. MIXTUBES, ETC. Paragraph 2. Mia>twre. — ^A mixture of which meat is an ingredient will not be considered a meat food product unless the meat contained there- in is a definite and considerable portion of the said mixture. But where such mixture is prepared in a part of an oflBcial establishment, the sani- tation of that part of the establishment will be supervised by the Depart- ment, and the meat or meat food product will be inspected before it enters the said mixture. The mixture shall not bear the meat-inspection legend or any simulation thereof. If any reference is made to Federal inspection it shall be in the following form: "The meat contained herein has been inspected and passed at an establishment where Federal inspec- tion is maintained." Mixtures such as mince-meat, soups, etc., which come under this description and which are not officially labeled, are al- lowed in interstatle and foreign commerce without further inspection, and without certificates, subject to the provisions and requirements of the Food and Drugs Act of June 30, 1906, and the regulations made there- under. MEDICAI. MEAT PBODUCTS. Sec. 9. Medical meat products. — Products such as meat juice, meat extract, etc., which are intended only for medicinal purposes and are ad- vertised only to the medical profession, are not considered meat food prod- ucts within thie meaning of this order. 936 LAW OF PURE FOOD AND DRUGS. Sec. 10. Vinegar. — ^The word vinegar, as used herein, shall mean cider vinegar, wine vinegar, malt vinegar, sugar vinegar, glucose vinegar, or spirit vinegar. Begulation 4. Inspection or Exemption. APPUCATION FOB INSPECTION OE EXEMPTION. Section 1. The proprietor or operator of each slaughtering, packing, meat-canning, rendering, or similar establishment engaged in the slaughter- ing of cattle, sheep, swine, or goats, or in the packing, canning, or other preparation of any meat food product for interstate or foreign commerce, shall make application to the Secretary of Agriculture for inspection or for exemption from inspection, except in cases where inspection or exemp- tion is already in eflfeet. In case of ohiange of ownership or change of location of an establishment already having inspection, a new applica- tion shall be made. Exemption under the law can be given only to estab- lishments operated by retail butchers and netail dealers. Such applica- tion shall be in writing addressed to the Secretary of Agriculture, Wash- ington, D. C, shall state the location of the establishment, and shall be made on blanks which will be fumished by the chief of the Bureau of Animal Industry upon request. CONDITIONS. Sec. 2. Inspection shall not be begun if an establishment is not in a sanitary condition, nor unless the establishment provides and guarantees to maintain adequate facilities for conducting such inspection. EXEMPTION. Sec. 3. If in the judgment of the Secretary of Agriculture the re- tail butcher or retail dealer who is operating an establishment and en- gaged in supplying his customers through the medium of interstate or foreign commerce is entitled to exemption from Federal inspection, a num- bered certificate of exemption will be furnished to the applicant for use with transiportation oomipaniies and other companies and persons in secur- ing the movement of his products. If an establishment, including both market and slaughterhouse of such retail butcher or dealer, is not in a sanitary condition a certificate of exemption will not be issued. exempted establishments to conform to BEGUIiATIONS. Sec. 4. Exempted establishments shall be open to the inspectors of the Bureau of Animal Industry, shall be maintained in a clean condition, and shall conform to the same regulations as govern ofiicial establish- APPENDICES. 937 ments in regard to labeling, dyes, chemicals, and preservatives, and un- sound, unwholesome and unfit meat. Regulation 5. Official Number. OFnCIAI. NtTMBEB. Section 1. Paragraph 1. When inspection is established the Secre- tary of Agriculture will give the establishment a number, and this num- ber shall be used to mark the meat and meat food products of the estab- lishment as hereafter prescribed. MOBE THAN ONE ESTABLISHMENT UNDER SAME OWNEESHIP. Paragraph 2. Two or more official establishments under the same ownership or control may use the same establishment number, provided a serial letter is added in each case to designate the establishment and to enable its product to he identified. SUBSmiAET COMPANIES. Paragraph 3. Persons, firms, or corporations awning subsidiary com- panies having legal entity may use the names of such companies, provided application has been made for inspection and it has been granted, the inspection legend in such case to bear the official establishment number of the parent firm or corporation. SEPARATION OF INSPECTED FBOM UNINSPECTED ESTABLISHMENTS. Paragraph 4. Each official establishment must be separate and dis- tinct from any other establishment or department in which animal prod- uts are handled at which inspection is not maintained. When two or more companies prepare their products in the same official establishment they must obtain inspection under the same number. The name of the distributer may appear upon the label. Regulation 6. Assignment or Inspectors, etc. ASSIGNMENT OF INSPBCTOES, ETC. Section 1. The Chief of the Bureau of Animal Industry vrill desig- nate an inspector to take charge of the inspection at each official estab- lishment, and will assign to said inspector such assistants as may be neces- sary. ACCESS TO ESTABLISHMENT. Sec. 2. For the purpose of enforcing the law and regulations all em/ployees of the Bureau of Animal Industry shall have access at all ,9'28 LAW OF PUEB POOD AND DEUGS. times, Iby day or night, whether the establishment be operated or not, to every part of the establishment. BADGES. Sec. 3. Each employee of the Bureau of Animal Industry working under these regulations will be furnished with a numbered badge, which he shall wear over the left breast on the outer clothing while in the per- formance of his oflficial duties, and which shall not be allowed to leave his possession. This official badge, shall be sufficient identification to entitle him to admittance at all regular entrances and to all parts of the establishment and premises. orricE BOOM. Sec. 4. Office room, including light and heat, shall he provided by proprietors of establishments, rent free, for the exclusive use, for official purposes, of the inspector and other employees of the Department as- signed thereto. The room or rooms set apart for this purpose must be properly ventilated, conveniently located, and provided with lockers suit- able for the protection and storage of such supplies as may be required.; all to meet the approval of the inspector in charge. Begultiou 7. All Carcasses and Products Inspected. NO EXCEPTION TO INSPECTION IN OFFICIAL ESTABUSHMENTS. Section 1. All cattle, sheep, swine, or goats slaughtered at an offi- cial establishment, and all meat and meat food products prepared therein, shall be inspected, handled, prepared, and marked as required by these regulations. Segulation 8. Notice of Daily Operations, etc. NOTICE OF OPEEATION. — TREASONABLE HOURS AND SPEED. Section 1. The manager of each official establishment shall inform the inspector in charge, or his assistant, when work has been concluded for the day, and of the day and hour when work will be resumed. Under no circumstances shall any department of an establishment be operated ex- cept under the supervision of an employee of the Bureau of Animal In- dustry. All slaughtering of animals and the preparation of meat and meat food products shall be done within reasonable hours, and with reason- able speed, the facilities of the establishment being considered. INSPECTOR MAT DESIGNATE HOURS. Sec 2. Where one inspector is detailed to conduct the work at two or more small establishments where few animals are slaughtered or APPENDICES. 929 wliere but a small quantity of meat or meat food products is prepared, the inspector in charge may designate the hours for work. NO WOEK ON DAYS PEOHIBITED BY LAW. Sec 3. No work shall be performed at official establishments during any day on which such work is prohibited by the law of the State or Territory in which the establishment is located. However, the Depart- ment will require that it be judicially determined that such work is pro- hibited by the State law. Regulation 9. Bribery. BEIBEHY, ETC. Section 1. It is a felony, punishable by fine and imprisonment, for any person, firm, or corporation to give, pay, or offer, directly or indi- rectly, to any Department employee authoried to perform any duty under these regulations any money or other thing of value with intent to in- fluence said employee in the discharge of his duty under these regula- tions. It is also a felony, punishable by fine and imprisonment, for any Department employee engaged in the performance of duty under these r^ulations to receive or accept from any person, firm, or corpora- tion engaged in interstate or foreign commerce any gift, money, or other thing of value given with any purpose or intent whatsoever. Be^ulation 10. Sanitation. PBEUMINABY EXAMINATION OF ESTABLISHMENTS. Section 1. After the receipt of an application for inspection or exemption an esamination of the establishment and premises will be made and the requirements for sanitation and the necessary facilities for inspection will he specified. PXANS AND SPBCIITCATIONS OF PLANTS. Sec. 2. Plans and specifications, in duplicate, of plants for which application for inspection is made, also of new plants and plants to be remodeled, should be submitted to the Secretary of Agriculture. LIGHT, VENTILATION, DRAINAGE, ETC. Sec 3. Official establishments and establishments to which certifi- cates of exemption have been issued shall be suitably lighted and venti- lated and maintained in a sanitary condition, and shall be provided with efficient drainage, having properly trapped or other approved sewer con- Pdbe Food — 59. 930 LAW OS PUKE FOOD AND DEUGS. nections. Rooms in which inspection is carried on shall, by heating or other means, be kept reasonably free from steam and other vapors, in order that proper inspection oan be made. All work in such establiahments shall be performed in a cleanly and sanitary manner. CEILINGS, WAILS, FL00E8, APPB0ACHE8, ETC. Sec. 4. Oilings, walls, pillars, partitions, etc., shall be kept in a sanitary condition, and when necessary they shall be washed, scraped, painted or otherwise treated as required. Where floors or other parts of a building, or tables or other parte of the equipment, are so old or in such poor condition that they can not be readily made sanitary they shall be removed and replaced by suitable materials. All floors upon which meats are piled during the process of curing shall be so constructed that they can be kept in a clean and sanitary condition, and all meat piled upon floors shall be suitably protected from trucks, etc. Walks and platforms or approaches leading into establishments shall be kept clean to prevent tracking dirt into the same. EEOEPTACLES, UTENSILS, MACHINIST, VEHICLES, ETC. Sec. 5. All trucks, trays, and other respectacles, all chutes, plat- forms, racks, tables, etc., and all knives, saws, cleavers, and other tools, and all utensils, machinery, and vehicles used in moving, handling, cut- ting, chopping, mixing, canning, or other processes shall be thoroughly cleaned before using. EMPLOYEES AND THEIE CLOTHING. Sec. 6. Managers of establishments must require employees to be cleanly. The aprons, simocks, or other outer clothing worn by employees who handle meat or meat food products shall be of a material that is readily cleansed and made sanitary, and only clean garments shall be worn. Persons who handle meat or meat food products shall be required to keep their hands clean, and they shall be required also to pay particular attention to the cleanliness of their boots or shoes. DISEASED EMPLOYEES. Sec. 7. Persons affected with tuberculosis or any other communicable disease shall not be employed in any of the departments of establishments where carcasses are dressed, meat is handled, or meat food products are prepared; and any employee of such establishment who may be suspected of being so affected shall be reported by the inspector in charge to the manager of the establishment and to the Chief of the Bureau of Animal Industry. APPENDICES. 931 WATEB-OLOSBTS, TOILETS, AND DRESSING BOOMS. Sec. 8. All water-closets, toilet rooms, and dressing rooms shall be entirely separated from compartments in which carcasses are dressed or meat or meat food products are cured, stored, packed, handled, or pre- pared. Where such rooms open into compartments in which meat or meat food products are handled they must, when this is considered necessary, b3 provided with properly ventilated vestibules and with automatically closing doors. They shall be conveniently located, sufficient in number, ample in size, and fitted with modem lavatory accommodations, includ- ing toilet paper, soap, running hot and cold water, towels, etc. They shall be properly lighted, suitably ventilated, and kept in a sanitary condition. Convenient and sanitary urinals shall be provided; and washstands, near at hand, shall also be provided. OBJECTIONABLE ODOBS, SCEEENIN6, OTJSPIDOES. Sec. 9. The rooms or compartments in which meat or meat food products are prepared, cured, stored, packed, or otherwise handled shall be free from orders from toilet rooms, catch basins, casing departments, tank rooms, hide cellars, etc. and shall be kept free from flies and other vermin by screening or other methods. All rooms or compartments shall be provided with cuspidors of such shape as not readily to be upset and of such material and construction as to be readily disinfected, and em- ployees who expectorate shall be required to use them. NUISANCES ON PREMISES. Sec. 10 The feeding of hogs or other animals on the refuse of slaughterhouses shall not be permitted on the premises of an exempted establishment or an official establishment, and no use incompatible with proper sanitation shall be made of any part of the premises on which such establishment is located. All yards, fences, pens, chutes, alleys, etc., belonging to the premises of such establishments, whether they are used or not, shall be maintained in a sanitary condition, and no nuisance shall be allowed in the establishment or on its premises. DISINFECTION AFTER HANDLING DISEASED CARCASSES. Sec. 11. Butchers who dress or handle diseased carcasses or parts shall cleanse their hands of all grease and then immerse them in a pre- scribed disinfectant and rinse them in clear water before dressing or handling healthy carcasses. All butchers' implements used in dressing diseased carcasses shall be sterilized either in boiling water or by immer- sion in a prescribed disinfectant, followed by rinsing in clear water. Fa- cilities for such cleansing and disinfection, approved by the inspector in charge, shall be provided by the establishment. Separate sanitary trucks. 932 LAW OF PUEE FOOD AKD DEU6S. etc., which shall be appropriately and distinctively marked, shall be fur- nished for handling diseased carcasses and parts. Following the slaughter of any animal affected with an infectious disease, a stop shall be made until the implements have been cleansed and disinfected, unless other clean implements are provided. IMPLEMENTS USBS) BY INSPEOTOBS. Sec. 12. Inspectors are required to furnish their own implements or use in dissecting, incising, or examining diseased carcasses or unsound parts, and are required to use the same means for disinfecting imple- ments, hands, etc., that are prescribed for employees of the establishment. SOILED MEAT. Sec. 13. Due care must be taken to prevent meat and meat food products from falling on the floor; and in the event of their having so fallen, they must be condemned or the soiled portions removed and con- demned. When meat or meat food products are being emptied into tanks, some deivioe, such as a metal funnel, must be used. INFLATION WITH AIE, ETC. Sec. 14. Carcasses shall not be inflated with air from the mouth, and no inflation of carcasses except by mechanical means shall be allowed. Carcasses shall not be dressed with skewers, knives, etc., that have been held in the mouth. Skewers shall be cleaned before being used again. Spitting on whetstones or steels when sharpening knives shall not be allowed. WATEB AND ICE. Sec. 15. Only good, clean, and wholesome water and ice shall be used in the preparation of carcasses, parts, meat, or meat food products. Whenever there is any doubt regarding the sanitary condition of the water supply, notice ?hall be sent immediately to the Chief of the Bureau of Animal Industry. WAGONS AND CABS. Sec. 16. Wagons or oars in which meat or meat food products are transported shall be kept in a clean and santiary condition. The wagons used in transporting loose meat between official establishments shall be so closed and covered that the contents shall be kept clean, and so con- structed that the may, when necessary, be locked and sealed with Govern- ment seals, which seals shall be affixed and broken only by employees of ihe Department. APPENDICES. 933 SKINS AND HIDES. Sec. 17. Skins and hides from animals condemned for tuberculosis or any other disease infectious to man, but showing no outward appear- ance of disease, may be removed (except ais provided in Regulation 13, Section 2) for tanning or other uses in the arts when disinfected as fol- lows: Each skin and hide must be immersed for not less than five min- utes in a five percent solution of liquor cresolis compositus, or o, five percent solution of carbolic acid, or a, one to one thousand solution of bichlorid of mercury. The process of skinning and dipping must be con- ducted entirely in the retaining room, or other specially prepared place, approved by the inspector in charge, for final inspection. Regulation 11. Ante-mortem Examination and Inspection. ANTE-MOETEM INSPECTION; WHEN MADE, ETC. Section 1. An ante-mortem examination and inspection shall be made of all cattle, sheep, swine, and goats about to be slaughtered before they shall be allowed to be killed in an official establishment. Satisfactory facilities for conducting said inspection and for separating and holding apart from passed animals those marked "U. S. Suspect" shall be pro- vided. SUSPECTED ANIMAIS. Sec. 2. All animals showing symptoms or suspected of being affected with any disease or condition which, under these regulations, would probably cause their condemnation in whole or in part when slaughtered shall be marked by aflSxing to the animal a metal tag bearing the words "U. S. Suspect." All such animals, except as hereinafter provided, shall be set apart and slaughtered separately from other animals at an official establishment. PEEGNANT, PAETTJBIENT, AND VACCINE ANIMALS. Sec. 3. Animals which have been tagged for pregnancy or for hav- ing recently given birth to young, and which have not been exposed to any infectious or contagious disease, and vaccine animals with unhealed lesions accompanied by fever and which have not ibeen exposed to any other infectious or contagious disease, are not required to be slaughtered, but before any such animal is removed the tag shall be detached by a Department employee and returned with his report to the inspector in charge. QUESTION OP TEMPEBATUEE. Sec. 4. If any pathological condition is suspected in which the ques- tion of temperature is important, such as Texas fever, anthrax, pneumonia, blackleg, or septicemia, the exact temperature should be taken. Due con- 934 .LAW OF PUEE FOOD AND DEUGS. sideration, liowever, must be given to the fact that extremely high tem- perature may be found in otherwise normal hogs when subjected to exer- cise or excitement, and a similar condition may obtain to a less degree among other classes of animals. DOWNERS AND CEIPPLBS. Sbc. 5. Animals commonly termed "downers,"' or crippled animals, shall be tagged before slaughter as provided for in Eegulation 17, Section 1, for the purpose of identification at the time of slaughter, and shall be passed upon in accordance with these regulations. Begnlation 12. Post-mortem Inspection at Time of Slaughter. PAETS RETAINED, ETC. Sec. 1. A careful inspection shall be made of all animals at the time of slaughter. The head, tongue, tail, thymus gland, and all viscera, and all parts and blood used in the preparation of meat food or medical products, shall be retained in such manner as to preserve their identity until after post-mortem examination has been completed, in order that they may be identified in case of condemnation of the carcass. Stiitable racks or metal receptacles shall be provided for retaining such parts. SOUND CABCASSES. Sec. 2. Carcasses and parts thereof found to be sound, healthful, wholesome, and fit for human food shall be passed and marked as pro- vided in these regulations. UNSOUND CABCASSES. Sec. 3. Should any lesion of disease or other condition that would render the meat or any organ unfit for food purposes be found on post- mortem examination, the carcass, part or organ shall be marked immedi- ately with a tag, as provided in Regxilation 17, Section 3. Carcasses which have been so marked shall not be washed or trimmed unless such washing or trimming is authorized by the inspector. Regulation 13. Disposal of Diseased Carcasses and Organs. 6ENEBAL STATEMENT. Section 1. The carcasses or parts of carcasses of all animals slaugh- tered at an official establishment and found at time of slaughter or at any subsequent inspection to be affected with any of the diseases or condi- tions named below shall be disposed of according to the section of this regulation pertaining to the disease or condition. It is to be understood, APPENDICES. 935 however, that owing to the fact that it is impracticable to formulate rules covering every case, and to designate at just what stage a process becomes loathsome or a disease noxious, the decision as to the disposal of all carcasses, parts, or organs not specifically covered by these regu- lations shall be left to the veterinary inspector in charge. ANTHRAX OE CHAEBON. Sec. 2. All carcasses showing lesions of anthrax or charbon, regard- less of the extent of the disease, and including the hide, hoofs, horns, viscera, fat, blood, and all other portions of the animal, shall be con- demned and immediately incinerated. The killing bed upon which the animal was slaughtered shall be disinfected with a ten percent solution of formalin, and all knives, saws, cleavers, and other instruments which have come in contact with the carcass shall be treated as provided in Regulation 10, section 11, before being used upon another carcass. BLACKLEG. Sec. 3. Carcasses of animals showing lesions of blackleg shall be condemned. HEMOBKHAGIC SEPTICEMIA. Sec. 4. Carcasses of animals affected with hemorrhagic septicemia shall be condemned. PTEMLA. AND SEPTICEMIA. Sec. 5. Carcasses showing lesions of pyemia or septicemia shall be condemned. vaccina. Sec. 6. Carcasses of vaccine animals mentioned under Regulation 11, Section 3, shall be condemned. BABIES. Sec. 7. Carcasses of animals which showed symptoms of rabies be- fore slaughter shall be condemned. TKTANIIS. Sec. 8. Carcasses of animals which showed symptoms of tetanus before slaughter shall be condemned. MALIGNANT EPIZOOTIC CATAEBH. Sec. 9. Carcasses of animals affected with malignant epizootic ca- 936 LAW OF PUEE FOOD AND DBUGS. tarrh and showing generalized inflammation of the mueous membranes shall be condemned. HOG CHOLEEA AND SWINE PLAGUE. Sec. 10. Paragraph 1. Carcasses showing well-marked and progres- sive lesions of hog cholera or swine plague in more than two of the organs (skin, kidneys, tones, or lymphatic glands) shall be condemned. Paragraph 2. Provided they are well nourished, carcasses showing slight and limited lesions of these diseases may be passed. Paragraph 3. Carcasses which reveal lesions more numerous or ad- vanced than those for carcasses to be passed, but not so severe as the lesions described for carcasses to be condemned, may be rendered into lard, provided they are cooked by steam for four hours at a temperature not lower than 220 degrees Fahrenheit, or at a pressure of four pounds. Paragraph 4. In inspecting carcasses showing lesions of hog cholera or swine plague in the skin bones, kidneys, or lymphatic glands, due con- sideration shall be given to the extent and severity of the lesions found in the viscera.- ACTINOMYCOSIS OE LUMPT JAW. Sec. 11. Paragraph 1. If a carcass affected with actinomycosis or limipy jaw is in a well nourished condition and there is no evidence upon post-mortem examination that the disease has extended from a primary area of infection in the head, the carcass may be passed, but the head including the tongue shall be condemned. Paragraph 2. Carcasses of animals showing uncomplicated localized actinomycotic lesions other than, or in addition to, those specified in para- graph 1 of this section may be passed after the infected organs and parts have been removed and condemned. Paragraph 3. Carcasses of animals showing a generalized actinomy- cosis shall be condemned. CASEOUS LYMPHADENITIS. Sec. 12. When the lesions of caseous lymphadenitis are limited to the superficial lymphatic glands or to a few nodules in an organ, involving also the adjacent lymphatic glands, and the carcass is well nourished, the meat may be passed after the aflfeoted parts are removed and condemned. If extensive lesions, vrith or without pleuritic adhesions, are found in the lungs, or if several of the visceral organs contain caseous nodules and the carcass is emaciated, it shall be condemned. TUBEBCULOSIS. Sec. 13. Paragraph 1. The following principles are declared for guidance in passing on carcasses affected with tuberculosis: APPEKDICES. 937 FUNDAMENTAL THOUGHT. Principle A. — ^The fundamental thought is that meat should not be used for food if it contains tubercle bacilli, if there is a reasonable possi- bility that it may contain tubercle bacilli, or if it is impregnated with toxic substances of tuberculosis or associated septic infections. LESIONS LOCALIZED AND NOT NUMEKOITS. Principle B. — On the other hand, if the lesions are localized and not numerous, if there is no evidence of distribution of tubercle bacilli through the blood, or by other means, to the muscles or to parts that may be eaten with the muscles, and if the animal is well nourished and in good condition, there is no proof, or even reason to suspect, that the flesh is unwholesome. 6ENEEALIZED TUBERCULOSIS. Principle C. — Evidences of generalized tuberculosis are to be sought in such distribution and number of tuberculous lesions as can be explained only upon the supposition of the entrance of tubercle bacilli in consid- erable number into the systemic circulation. Significant of such generali- zation are the presence of numerous uniformly distributed tubercles throughout both lungs, also tubercles in the spleen, kidneys, bones, joints, and sexual glands, and in the lymphatic glands connected with these organs and parts, or in the splenic, renal, prescapular politeal, and inguinal glands, when several of these organs and parts are coincidentally affected. LOCALIZED TUBEBCULOSIS. Principle D. — By localized tuberculosis is understood tuberculosis limited to a single or several parts or organs of the body without evi- dence of recent invasion of numerous bacilli into the systemic circulation. EULES FOE DISPOSAL OF TUBEEOULOUS MEAT. — ENTIEE CABCASS CONDEMNED. Paragraph 2. The following rules shall govern the disposal of tuber- culous meat: Rule A. — The entire carcass shall be condemned — (a) When it was observed before the animal was killed that it was suflfering with fever. (b) When there is a tuberculous or other cachexia, as shown by anemia and emaciation. (c) When the lesions of tuberculosis are generalized, as shown by their presence not only at the usual seats of primary infection, but also in parts of the carcass or the organs that may be reached by the bacilli of tuberculosis only when they are carried in the systemic circulation. Tuberculosis lesions in any two of the following-mentioned organs are to be accepted as evidence of generalization when they occur in addition 938 LAW OF PURE FOOD AND DRUGS. to local tuberculous lesions in the digestive or respiratory tracts, includ- ing the lymphatic glands connected therewith: spleen, kidney, uterus, udder, ovary, testicle, adrenal gland, brain, or spinal cord or their mem- branes. Numerous uniformly distributed tubercles throughout both lungs also afford evidence of generalization. (d) When the lesions of tuberculosis are found in the muscles or intermuscular tissue or bones or joints or in the body limphatic glands as a result of draining the muscles, bones, or joints. (e) When the lesions are extensive in one or both body cavities. (f) When the lesions are multiple, acute, and actively progressive. (Evidence of active progress consists in signs of acute inflammation a/bout the lesions, or liquefaction necrosis, or the presence of young tubercles.) PAST OF CAECASS CONDEMNED. Bule B. — ^An organ or a part of a carcass shall be condemned — (a) When it contains lesions of tuberculosis. (to) When the lesion is immediately adjacent to the flesh, as in the case of tuberculosis of the parietal pleura or peritoneum, not only the membrane or part affected but also the adjacent thoracic or abdominal wall is to be condemned. (c) When it has been contaminated by tuberculous material, through contact with the floor, a soiled knife, or otherwise. (d) All heads showing lesions of tuberculosis shall be condemned. (e) An organ shall be condemned when the corresponding lymphatic gland is tuberculous. CABCASS PASSED. Rule O. — The carcass, if the tuberculous lesions are limited to a single or several parts or organs of the body (except as noted in Rule A), without evidence of recent invasion of tubercle bacilli into the systemic circulation, shall be passed after the parts containing the localized lesions are removed and condemned in accordance with Rule B. CAECASS EENDEEBD INTO LAED OE TALLOW. Rule D. — Carcasses which reveal lesions more numerous than those described for carcasses to be passed ( Rule C. ) , but not so severe as the lesions described for carcasses to be condemned ( Rule A. ) , may be ren- dered into lard or tallow if the distribution of the lesions is such that all parts containing tuberculous lesions can be removed. Such carcasses shall be cooked by steam at a temperature not lower, than 220 degrees Fahrenheit for not less than four hours. Texas tevee. Sec. 14. Carcasses showing lesions to warrant the diagnosis of Texas fever shall be condemned. APPENDICES. 939 PABASITIC ICTEBO-HEItrMATDEIA. Sec. 15. Carcasses of sheep afiFected with parasitic ictero-heiimaturia shall be condemned. MANGE OB SCAB. Sec. 16. Carcasses of animals aflfected with mange, or scab, in ad- vanced stages, or showing emaciation or extension of the inflammation to the flesh, shall be condemned. When the disease is slight the carcass may be passed. TAPEWOEM CrSTS. Sec. 17. Paragraph 1. Carcasses of animals aflfected with tapeworm cysts, known as Gysticercus bovis and C. Celluloae, shall be rendered into lard or tallow, unless the infestation is excessive, in which case the car- cass shall be condemned. Paragraph 2. Carcasses of animals found infested with gid bladder- worm {Coenurus cereiralis, Multiceps socialis) may be passed after con- demnation of the infected organ ( brain, spinal cord ) . Paragraph 3. Carcasses or parts of carcasses found infested with the hydatid cyst ( echinococcus ) may be passed after condemnation of the infected part or organ. INFECTIONS THAT MAT CAUSE MEAT POISONING. Sec. 18. All carcasses of animals so infected that consumption of the meat or meat food products thereof may give rise to meat poisoning shall be condemned. This section covers all carcasses showing signs of — (a) Acute inflammation of the lungs, pleura, pericardium, perito- neum, or meninges. (b) Septicemia or pyemia, whether puerperal, traumatic, or without any evident cause. (c) Severe hemorrhagic or gangrenous enteritis or gastritis. (d) Acute diffiuse metritis or mammitis. ( e ) Polyarthritis. (f) Phlebitis of the umbilical veins. (g) Traumatic pericarditis. (h) Any other inflammation, abscess, or suppurating sore if asso- ciated with acute nephritis, fatty and degenerated liver, swollen soft spleen, marked pulmonary hyperemia, general swelling of lymphatic glands, and diffuse redness of the skin, either singly or in combination. Immediately after slaughter of any animal so diseased the premises and implements used must be thoroughly disinfected as prescribed else- where in these regulations. The part of any carcass coming in contact with the carcass or any part of the carcass of any animal covered by this section, other than those affected with the diseases mentioned in (a) above, or with the place where such animal was slaughtered, or with 940 LAW OF PUKE FOOD AND DRUGS. the implements used in the slaughter, before thorough disinfection of such place and implements has been accomplished, or with any other con- taminated object, shall be condemned; in caae the contaminated part is not removed from the carcass within two hours after such contact the whole carcass shall be condemned. Sec. 19. Carcasses affected with icterus and showing an intense yellow or greenish yellow discoloration after proper cooling shall be con- demned. Carcasses which exhibit a yellowish tinge directly after slaugh- ter, but lose this discoloration on chilling, may be passed for food. tTEBMIA AND SEXUAL ODOB. Sec. 20. Carcasses which give off the ordor of urine or a strong sexual odor shall be condemned. UETICAEIA, ETC. Sec. 21. Hogs affected with urticaria (diamond skin disease) Tinea tonsurans, Demodeao follioulorum, or erythema m.ay be passed after detaching and condemning the skin, if the carcass is otherwise fit for food. MELANOSIS, ETC. Sec. 22. Carcasses of animals showing any disease, such as general- ized melanosis, pseudo-leukemia, etc., which affects the system of the ani- mal, shall be condemned. TUMOES, BRUISES, ABSCESSES, LIVER FLUKES, ETC. Sec. 23. Any organ or part of a carcass which is badly bruised or which is affected by tumors, malignant or benign, abscesses, suppurating sores, or liver flukes shall be condemned; but when the lesions are so extensive as to affect the whole carcass, the whole carcass shall be con- demned. emaciation and anemia. Sec. 24. Carcasses of animals too emaciated or anemic to produce wholesome meat, and carcasses which show a slimy degeneration of the fat or serious infiltration of the muscles, shall be condemned. MILK PEVEB and EACLBOAD SICKNESS. Sec. 25. Carcasses of animals showing symptoms of milk fever or railroad sickness at the time of slaughter shall be condemned, as the flesh of such animals is frequently darker in color and more watery than APPENDICES. 941 is natural, and the present view of the pathology of at least the first disease suggests autointoxication. PBEGNANCT AND PABTTJKITION. Sec. 26. Carcasses of animals in advanced stages of pregnancy (show- ing signs of parturition), also carcasses of animals which have within ten days given birth to young and in which there is no evidence of septic infection, may be rendered into lard or tallow if desired by the manager of the establishment; otherwise they shall be condemned. IMMATURITY. Sec. 27. Carcasses of animals too immature to produce wholsome meat, all unborn and stillborn animals, also carcasses of calves, pigs, kids, and lambs under three weeks of age, shall be condemned. DISEASED PAETS. Sec. 28. In all cases where carcasses showing localized lesions of disease are passed or rendered into lard or tallow, the diseased parts must be removed before the "U. S. Retained" tag is taken from the carcass, and such parts shall be condemned. SUFFOCATION. Sec. 29. Hogs which have been allowed to pass into the scalding vat alive or have been suffocated in other ways shall be condemned. DEAD ANIMALS. Sec. 30. All animals that die in abattoir pens, and those in a dy- ing condition before slaughter, shall be condemned and tagged as pro- vided in Eegulation 17, Section 2. In conveying to the tank animals which have died in the pens of the establishment, they shall not be al- lowed to pass through compartments in which food products are pre- pared. No dead animals shall be brought into an establishment for ren- dering from outside the premises of said establishment unless permission is first obtained from the Chief of the Bureau of Animal Industry. BEUISED PAETS. Sec. 31. When a portion of a carcass is to be condemned on account of slight bruises, the bruised portion shall be removed immediately and tanked, and the remainder of the carcass shall be marked "Inspected and Passed." When desired, a retaining room may be provided in one part of the cooler for the retention of such carcasses until after they are chilled, when the bruised portion may be removed. 94:2 LAW QF PUEE FOOD AND DBUG8. POBTIONS OF INTESTINES. Seo. 32. Portions of intestines that show evidences of infestation with esophagostoma or other nodular affections shall be condemned. EVISCEEATION OP DISEASED HOGS. Sec. 33. Hog carcasses found before evisceration has taken place to be affected with an infectious or contagious disease, including tubercu- losis, shall not be eviscerated at the regular killing bed or bench, but shall be taken, separate from other carcasses, to the retaining room or other specially prepared place and there opened and examined. Begulation 14. "Ketainiug" Booms. EBTAININQ ROOMS; DESCEIPTION. Sec. 1. Separate compartments, to be known as "retaining rooms," or other special places for final inspection, shall be set apart at all oflS- cial establishments, and all carcasses and parts marked with a "U. S. Ee- tained" tag shall be held in these rooms pending final inspection. These rooms shall be rat proof, large enough for carcasses to hang separately, furnished with abundant light, and provided with sanitary tables and other necessary apparatus; the floors shall be of cement, asphalt, metal, or brick laid in cement, and shall have proper sewer connections. They shall be provided with facilities for locking, and locks for this purpose will be furnished by the Department. The keys to such locks shall remain in the custody of the inspector or his assistant. In establishments where it is impracticable or undesirable to have refrigeration in the retaining room, rooms may be constructed in the cooler for the reception and chill- ing of carcasses not affected with infectious diseases but which require further inspection. AFTEE FINAL INSPECTION. Sec. 2. Betained carcasses shall be subjected to a final inspection, and immediately after this is completed those found to be wholesome and fit for human food shall be released by the veterinary inspector conduct- ing the inspection, who shall remove the "U. S. Retained" tags, and the carcasses shall be removed from the retaining room and marked "Inspected and Passed," as provided in Regulation 17, Section 5. DISINFECTION. Sec. 3. The floors and walls of all retaining rooms shall be washed with hot water and disinfected after diseased animals are removed and before any "'retained" carcasses are again placed therein. APPENDICES. 943 Begulation IS. "Condemned" Booms. CONDBIMNED BOOMS; DESOBtPTION. Section 1. In each establishment at which condemned carcasses or meat food products are held imtil the day following their condemnation there shall be provided a room entirely separate from all other rooms in the establishment. This room shall be secure, rat proof, and shall be provided with a lock, the key of which shall remain in the custody of a Department employee. This room shall be known as the "condemned room," and shall be kept locked at all times except when condemned meat or meat food product is being taken into or from the said room under the supervision of a Department employee. The condemned room shall be kept clean. DISPOSAL OF UNFIT CABUASSES OE PABTS. Sec. 2. Carcasses or parts of carcasses found on final inspection to be unsound, unhealthful, unwholesome, or otherwise unfit for human food shall be marked "U. S. Inspected and Condemned," as provided in Regulation 17, Section 4, and shall be immediately removed from the retaining room to the "condemned room," if such condemned room is provided. In case no condemned room is provided they shall be locked in the retaining room and shall be tanked at or before the close of the day on which they are condemned. SPEEDY DISPOSAL OP CONDEMNED CABOASSES. Sec. 3. Condemned carcasses shall not be allowed to accumulate, but shall be removed from the "condemned room," denatured as provided in Regulation 16, Section 3, or tanked within a reasonable time after con- demnation. TEUCKS PEOVIDBD. Sec 4. A truck or trucks of sufficient capacity, plainly marked, and which can be looked or sealed, shall, when required by the inspector in charge, be provided for handling condemned meat. Regulation 16. Tank Booms, Tanks, and Tanking. TANKS, ETC.; SEPAEATE COMPABTMENTS. Sec. 1. All tanks and equipment used for rendering and preparing edible product shall be in compartments separate from those used for rendering inedible product, and there shall be no connection by means of pipes or otherwise between the tanks or departments containing inedible product and those containing edible product. This provision must be complied with on or before October 1, 1908. 944 LAW OS PUKE SOOD AND DBUGS. METHOD OF TANKENQ. Sec. 2. Paragraph. 1. All condemned carcasses, parts of carcasses, and meat food products shall be tanked as follows: Paragraph 2. After the lower opening and the draw-off valves of the tank have been securely sealed by an employee of the Department and the condemned carcasses, parts, and meat food products are placed therein in his presence, the upper opening shall be likewise securely sealed by such employee, whose duty it shall be then to see that a sufficient force of steam (not less than 40 pounds, producing a temperature of 288 degrees Fahrenheit) is turned into the tank and maintained a sufficient time (not less than six hours) effectually to render the contents unfit for any edible product. Wire and lead seals are provided by the Department for sealing tanks. Proprietors of establishments are required to equip all tanks used for condemned products so that they may be securely sealed in the manner above specified. Paragraph 3. A sufficient quantity of coloring matter or other sub- stance to be designated by the Department shall be used in connection with the rendering of all condemned carcasses, parts of carcasses, meat, or meat food products to destroy them effectually for food purposes. Paragraph 4. The seals of tanks containing condemned meat or the tankage thereof shall be broken only by an employee of the Department, and such employee shall supervise the drawing off of the contents of such tanks and the marking of the tallow and grease as inedible. Paragraph 5. If an official establishment fails to permit the treat- ment and tanking of condemned carcasses, parts of carcasses, meat, or meat food products as required hy these regulations, the inspector in charge shall report that fact to the Department, in order that inspection may be withdrawn from such establishment. IN THE ABSENCE OP TANKING FACILITIES. Sec. 3. Any meat or meat food products condemned at establish- ments which have no facilities for tanking shall be freely slashed with a knife and then denatured with crude carbolic acid or other prescribed agent, and then removed to an establishment indicated by the inspector in charge and there tanked and rendered under the supervision of an employee of the Department; or such meat or meat food products may be destroyed by incineration under the supervision of an employee of the Department. Begulatlon 17. Tags, Brands, Stamps. "u. s. suspect" TA&. Section 1. To each animal inspected under Regulation 11 which shows symptoms or is suspected of being affected with any disease or APPENDICES. 945 condition which under these regulations may cause its condemnation in whole or in part on post-mortem inspection there shall be affixed by a De- partment employee at the time of inspection a numbered metal tag bear- ing the words "U. S. Suspect," which shall remain upon the animal until final post-mortem inspection, when the carcass shall be marked according to the conditions found, and disposed of as elsewhere provided in these regulations. "u. s. coisidbmned" tag. Sec. 2. To the ear of each animal which is found in a dying condi- tion or dead on the premises of an establishment there shall be affixed by a Department employee a numbered tag bearing the words "U. S. Con- demned." The ear bearing the tag shall not be removed from the carcass. The number of this tag shall be reported to the inspector in charge by the employee who affixes it. This tag shall accompany the condemned carcass into the tank, and the Department employee who is supervising the tanking shall make a report of the number to the inspector in charge. "v. s. retained" tag. Sec. 3. Upon «ach carcass,, or part or detached organ, thereof, in- spected under Regulation 12, in which any lesion of disease or other con- dition is found that might render the meat or any organ unfit for food purposes, and which for that reason would require a subsequent inspec- tion, there shall be placed by a Department employee at the time of in- spection a tag, numbered in duplicate, bearing the words "U. S. Retained," and such other marks of identification shall be used as shall be approved by the Chief of the Bureau of Animal Industry. The inspector who at- taches this "U. S. Retained" tag shall detach the numbered stub thereof and forward it with his report to the inspector in charge. The other portion shall accompany the carcass to the retaining room. "v. S. INSPECTED AND CONDEMNED." Sec. 4. Each carcass, or part or detached organ thereof, which is found on final inspection to be unsound, unhealthful, unwholesome, or otherwise unfit for human food shall be marked conspicuusly by a De- partment employee at the time of inspection with the words "U. S. In- spected and Condemned." The "U. S. Retained" tag shall accompany the carcass into the tank, and the number thereof shall be reported by the employee who supervises the tanking. If, however, upon final inspection the carcass or part thereof is passed, the "U. S. Retained" tag shall be removed and returned to the inspector in charge. A record of the tag showing the serial number, the final disposal of the carcass or part to which it was affixed, the date, and the name of the inspector shall be forwarded with the regular reports to the inspector in charge. Puke Food — 60. 946 LAW OF PUEB FOOD AND DHUGS. MARKING PASSED CARCASSES. Sec. 5. Upon all passed carcasses slaughtered under inspection there shall be placed by an employee of the Department, or by an employee of the establishment under the supervision of an employee of the Depart- ment, meat-inspection marks bearing the words "Inspected and Passed," or an authorized abbreviation thereof, and such other matter as may be required by the Department. The number of marks, their location on the carcass, and the time they shall be aflBxed, shall be determined by the Chief of the Bureau of Animal Industry. MARKING PRIMAL PARTS. Sec. 6. Paragraph 1. Each passed primal part or the true container thereof must be marked under the supervision of a Department employee, with the words "Inspected and Passed," or an authorized abbreviation thereof, and the ofBcial establishment number, except as provided in para- graphs 2 and 3 of this section and in Section 12 of Regulation 25. PRIMAL PARTS BETWEEN ESTABIJSHMENTS. Paragraph 2. When primal parts are shipped from one official estab- lishment to another for further processing, it is not obligatory that the inspection legend appear on such primal parts, but the container thereof in the case of a, package shall be marked as specified in Section 9 of this regulation, ' and in the case of a car shall be sealed ; in such cases the primal parts, after processing, shall show plainly the inspection legend and the number of the official establishment at which the processing was completed. EXPORT PORK. Paragraph 3. Passed primal parts of pork intended for export need not be marked with the authorized marks of inspection, but all outside containers shall bear the meat-inspection stamp. BRANDING IRONS. Sec. 7. The inspection legend or an authorized abbreviation thereof may be affixed, under the supervision of a Department employee, to hams, bacon, and similar primal parts with a hot branding iron, and when so affixed will be recognized as the official mark of inspection. When hot branding irons are used to affix trade brands or descriptions, such brand or description must be distinct and apart from the inspection legend. MARKING KEINSPECTED MEATS AND MEAT POOD PRODUCTS. Sec. 8. Upon all meat food products which are suspected on rein- spection of being unsound, unhealthful, unwholesome, or otherwise unfit for human food, or upon the containers thereof, there shall be placed by a Department employee at the time of reinspection the "U. S. Retained" APPENDICES. 947 tags hereinbefore described. The employee who afiixea the tax shall send the numbered stub with his report to the inspector in charge. These tags shall accompany the said meats or meat food products to the retaining room or other special place for final inspection. When the final inspec- tion is made, if the meat or meat food product be condemned, the "U. S. Retained" tag shall be stamped "U. S. Inspected and Condemned," and shall accompany the condemned meat or meat food product to the tank, and the inspector shall report his action to the inspector in charge. If, however, upon final inspection the meat or meat food product is passed for food, the inspector shall stamp the retained tag "Inspected and Passed" and return the tag with his report to the inspector in charge. DOMESTIC MEAT LABEL. Sec. 9. When meat products for domestic trade have been inspected and passed, the outside containers of such meat shall bear (in lieu of meat-inspection stamp) a domestic meat label which has been submitted to and approved by the Department, showing the official establishment number and the following legend: "The meat contained herein has been inspected and passed under the provisions of the Act of June 30, 1906." The firm name may also appear on the label if desired. The dimensions of the label shall be not less than 4 inches by 2% inches. Outside con- tainers if bearing approved trade labels are not required to be provided with the label above described. Domestic meat labels sha,ll be affixed to packages in the manner prescribed in Regulation 24 for affixing labels to export packages. MARKING EXPORTS. Sec. 10. Each outside container (except cloth wrappings) of export meat or meat food products shall be marked with a meat-inspection stamp. The cloth wrappings of inspected and passed meat which is so marked shall be marked with an authorized mark of inspection. "PKESEEVATIVE" STAMP. Sec. 11. Upon each container of meat or meat food products, such as ham, bacon, etc., prepared for export with preservatives under Regu- lation 22, Section 3, Paragraph 1, there shall be placed, under the personal supervision of a Department employee, a special stamp for marking such meats, known as the "Preservative" stamp. All outside containers of such meat or meat food products shall bear the "Preservative" stamp. Regulation 18. Trade Labels. TRADE LABELS. Section 1. Upon each can, pot, tin, canvas, or other receptacle or covering containing any meat or meat food product, which meat or meat 948 LAW OF PURE FOOD AND DRUGS. food product does not bear the marks "Inspected and Passed," there shall be securely aflSxed, under the supervision of a Department employee, a trade label before such meat or meat food product leaves an official es- tablishment. This trade label shall contain, in plain letters and figures of uniform size, the words "U. S. Inspected and Passed," the number of the official establishment at which the meat or meat food product is last processed, and the true name of the meat or meat food product contained in such package. The words "under the Act of CJongress of June 30, 1906," may be placed upon the label after the words "U. S. Inspected and Passed." An inspector shall not allow trade labels ailBxed until he is satisfied that the contents of the package are sound, healthful, wholesome, and fit for human food, in accordance with the statements on the label." PBOOFS TO BE APPEOVED, ETC. Sec. 2. Duplicate copies of each trade label in the form of sketches or proofs shall first be submitted to the Department, and no trade label shall be used until a sketch or proof thereof has been approved. After trade labels are printed from approved proofs or sketches they shall be forwarded in triplicate to the Department for approval and filing. WHEN NOT TO BE TJSED. Sec. 3. No trade label bearing the words "U. S. Inspected and Passed," or any abbreviation or simulation thereof, shall be used on meat or meat food products which have not been inspected and passed under these regulations, and no trade label bearing the inspection legend, or any abbreviation or simulation thereof, shall be placed upon meat or meat food products except under the supervision of an inspector. TIN CONTAINEES EMBOSSED OB LITHOGEAPHED. Sec. 4. Tin containers, embossed or lithographed with the label as prescribed in Section 1, will be considered as bearing trade labels. On and after October 1, 1908, all sealed tin containers must have the number of the official establishment where packed embossed, lithographed, or printed thereon. ESSENTIAL PEATUEBS. Sec. 5. The essential features of a trade label are as follows, and shall appear upon each label: The true name of the product. The inspection legend. The establishment number. THE INSPECTION LEGEND. Sec. 6. The inspection legend "U. S. Inspected and Passed," or an APPENDICES. 949 authorized abbreviation thereof, and the official establishment number in plain characters of uniform size, which shall be in proper proportion to the general lettering of the label, must be separately and prominently embodied in all trade labels. STICKEBS, DETAOHABLB DEVICE, ETC. Seo. 7. In the case of meat contained in cartons, or in wrappers of paper, cloth, or other similar substance, the inspection legend and the official establishment number may be embodied in a sticker or seal of proportionate size prominently displayed with the trade label but not necessarily a part of the trade label, such stickers or seals to be approved by the Department of Agriculture. It is not permissible to affix to meat or meat food products a detachable device of any kind which bears the inspection legend. EXPORT LABELS AND BEANDS. Sec. 8. While labels to be affixed for foreign shipment may be printed in a foreign language, the same rules shall apply with reference to false labeling and the naming of ingredients as shall apply to goods prepared for domestic use. The inspection legend and the official estab- lishment number must in all cases appear in English; but if desired they may in addition, literally translated, appear in the language of the country to which the package is destined. PEODTJCTS PREPABED FOB ANOTHER ESTABLISHMENT. Sec. 9. Paragraph 1. When an article is prepared by an official establishment for another firm or individual, if the name of the said firm or individual is to appear upon the label the statement must be made that the article was "prepared for" or "manufactured for" the firm or individual. Names of subsidiary companies which have legal entity may be used without the prefix "prepared for" or "manufactured for." Paragraph 2. When a firm or individual not operating under Federal inspection desires to reship inspected and passed meat that has been pro- cessed only under Government inspection and is eligible under these regu- lations for interestate shipment he may afiix to the package the follow- ing statement: "The meat contained herein has been inspected and passed at an establishment where Federal inspection is maintained." FALSE OE DECEPTIVE NAMES. Sec 10. No meat or meat food products shall be sold or offered for sale by any person, firm, or corporation under any false or deceptive name; but the established trade name or names which are usual to such products, which are not false and deceptive and which shall be approved by the Secretary of Agriculture, are permitted. 950 LAW OF PURE FOOD AND DRUGS. MISLEADING PICTUBES, DESIGNS, OE DEVICES. Sec. 11. No picture, design, or device which gives any false indica- tion of origin or quality shall be used upon any label. The law prohibits any statement, design, or device false in any particular regarding the virtues or properties of the materials contained in the package. THE PRINCIPAL INGREDIENT. Sec. 12. A meat food product when composed of more than one ingredient shall not bear a trade label with a name stating or purporting to show that the said meat food product is a substance which is not the principal ingredient contained therein, even though such name be an established trade name. ADDED substance. Sec. 13. A meat food product that contains a substance or sub- stances, including water, added for the purpose of adulteration and which lessens its food value shall bear a label stating that such substance or substances have been added. STATEMENT OP WEIGHT. Sec. 14. When any weight is given upon the true container it must be the correct weight, and it must be stated whether this weight is the net weight or the gross weight. Regulation 19. Reinspection. BEINSPECTION OP PASSED CABCASSES AND PAETS. Section 1. Immediately before shipment and at such other times as may be deemed necessary all carcasses or parts thereof, whether fresh or cured, that have been previously inspected and passed shall be rein- spected by the inspector in charge or his assistants, in such manner as shall be prescribed by the Chief of the Bureau of Animal Industry, and if upon any such reinspection any carcass or part thereof is found to have become unsound, unhealthful, unwholesome, or in any way unfit for human food the original mark, stamp, tag, or label shall be destroyed or defaced and the carcass or part shall be condemned. BEINSPECTION OP INSPECTED MEAT EECEIVED AT OFFICIAL ESTABLISHMENTS. Sec. 2. Except as provided in Regulation 20, only carcasses and parts thereof, meat, or meat food products which have not been processed except under Government supervision, and which can by marks, seals, brands, or labels be identified as having been previously inspected and passed by a Department employee, shall be taken into or allowed to enter an official establishment. All such carcasses, parts, meat, or meat food APPENDICES. 951 products which are brought into one official establishment from another, or which are returned to the establishment from which they issued, shall be identified and reinspected at the time of receipt, and shall be subject to further reinspectiou in such manner and at such times as may be deemed necessary. If upon any such reinspectiou any carcass or part thereof, or meat or meat food product, is found to have become unsound, unhealthful, unwholesome, or in any way unfit for human food, the orig- inal mark, stamp, tag, or label shall be defaced or destroyed, and the car- cass, part, meat, or meat food product shall be condemned. SPECIAI. PLACES FOB BECEBPT AND INSPECTION. Sec. 3. Special docks and receiving rooms shall be designated by the establishment for the receipt and inspection of all meat or meat food products, and no meat or meat food products shall be allowed to enter the establishment except in the presence of a Department employee. EinniBNED FATS FBOM INSPECTED CABCASSES. Sec. 4. Unrendered fats from carcasses which have been inspected and passed may be returned and received into official establishments, pro- vided the fats have been handled in a sanitary manner after leaving the establishment, and provided further that upon inspection the fats are found to be clean, sweet, wholesome, and fit for human food. However, the return of such fats to official establishments and the manner in which they shall be handled from the time they leave such establishments until their return thereto shall be governed by such specific instructions as may be issued from time to time by the Chief of the Bureau of Animal Industry. INEDIBLE PATS. Sec. 5. Inedible fats may be received only into the tank room pro- vided for inedible products, and when so received they shall not enter any compartment used for edible products. MARKET INSPECTION. — ^EACH CITY ASSIGNED A NUMtBEB. Sec. 6. Paragraph 1. In order to provide for the interstate trans- portation, from public markets and other places, of portions of inspected and passed carcasses, parts, and meat food products which, when cut or otherwise removed from a marked carcass, part, or container, do not show the inspection mark and can not therefore be identified as having been inspected and passed, market inspection may be furnished. Each city in which market inspection is established will be assigned a number, and all products forwarded under such inspection shall bear the inspection legend and the official number assigned to the city. 953 LAW OF PUEE FOOD AND DKUGS. TJNMAEKED PORTIONS MARKED. Paragraph 2. Unmarked portions which are cut from the marked carcass or part, or are removed from the marked container for interstate transportation, shall be marked by a Department employee. Wherever practicable the brand shall be applied to the meat itself; where this can not be done the true container of the meat or meat food product shall be marked as required by the Chief of the Bureau of Animal Industry. REQUIREMENTS OF SANITATION, ETC. Paragraph 3. All market stalls or other places which are given mar- ket inspection shall be maintained in a sanitary condition and shall also conform to the requirements of the Department governing the use of drugs, chemicals, dyes, and preservatives. Kegulation 20. Carcasses of Animals not Inspected Ante-Mortem. CARCASSES OF ANIMALS NOT INSPECTED ANTE-MORTEM. Section l.i Carcasses of animals which have had no ante-mortem in- spection by inspectors of the Bureau of Animal Industry will not, except as hereinafter provided, be admitted into an official establishment. The exception to this rule applies only to carcasses to which the head and all viscera, except the stomach, bladder, and intestines, are held by the natural attachments. Such carcasses, if oflfered for admission into official estab- lishments, shall be inspected, and if found to be free from disease and other- wise sound, healthful, wholesome, and fit for human food they shall be marked "Inspected and Passed" and admitted. If found to be diseased, unsound, unhealthful, unwholesome, or otherwise unfit for human food, they shall be marked "U. S. Inspected and Condemned," and the proprietor of the establishment shall be required to destroy them for food purposes, as provided in Regulation 16, Section 2. Regulation 21. Tank Gars. TANK CARS; MUST BE SEALED. Section 1. Tank cars carrying edible meat food products into inter- state or foreign commerce shall be provided with proper appliances for sealing and be securely sealed with seals furnished by the Department and affixed by Department employees. TRANSFER OF CONTENTS TO BOATS. Sec. 2. When such products for export are transferred from tank cars to other containers on boats, such transfer shall be under Govern- ' Formerly Regulation 62, B. A. I. Order 137. APPENDICES. 953 ment supervision, and the said containers on boats shall likewise be sealed. Regulation 22. Dyes, Chemicals, and Preservatives. DYES, PBESEEVATIVES, ETC.; WHAT PKOHIBITED. Section 1. No meat or meat food product shall contain any substance which lessens its wholesomeness, nor any drug, chemical, dye, or preserva- tive, except as hereinafter provided. WHAT IS PERMITTED. Sec. 2. Paragraph 1. There may be added to meat or meat food products common salt, sugar, wood smoke, vinegar, pure spices, and salt- peter. Only such coloring matters as may be designated by the Secretary of Agriculture as being harmless may be used, and these only in such manner as the Secretary of Agriculture may designate. Paragraph 2. Substances necessary for the preparation, clarification, or refining of meat food products will be permitted to be used subject to the approval of the Secretary of Agriculture, provided they are elimin- ated from the meat food products during the further process of manu- facture. PBESEEVATIVES PEBMITTED FOB EXPOBT PBODUCTS. Sec. 3. Paragraph 1. In accordance with the written direction of the foreign purchaser or his agent, meat or meat food products prepared for export may contain preservatives of a kind and in proportions which do not conflict with the laws of the foreign country to which they are to be exported, but when such meat or meat food products are prepared for export under this regulation they shall be prepared in compartments of the establishment separate and apart from those in which meat or meat food products are prepared for the domestic trade, and such products shall be kept separate. Distinctive export certificates and stamps will be issued for meat or meat food products of this character, but, if the products are not exported, under no circumstances shall they be allowed to enter domestic trade. PBOCESS OF PACKING WHEN CERTAIN PBESEEVATIVES ABE USED. Paragraph 2. The packing of meat which is prepared, as provided in paragraph 1 of this section, with any preservative not permitted by paragraph 1, section 2, may be done in the regular packing room, pro- vided that no other meat is allowed in the packing room during the time of such packing. After such packing is completed the packing room shall be thoroughly cleansed of the preservative before the packing of other meat therein is resumed. A separate compartment constructed of tight partitions or walls shall be set apart of storing the preservative 954 LAW OF PUKE FOOD AND DRUGS. trays and other appliances used in connection with the packing. The Department will furnish a lock and key for this compartment, and the packing of all meat under this section shall be conducted under the per- sonal supervision of an employee of this Department. Kegttlation 23. Preparation of Meat and Heat Food Products. PROCESSES, APPUANCES, ETC. Section 1. All processes used in curing, pickling, rendering, can- ning, or otherwise preparing meat or meat food products in official estab- lishments shall be supervised by Department employees. No fixtures or appliances, such as tables, trucks, trays, tanks, vats, machines, imple- mentsi cans, or containers of any kind shall be used unless they are clean and sanitary. All steps in the process of manufacture shall be conducted carefully and with strict cleanliness. All salt pickling fluids, and other solutions or substances used in curing meat must be clean. STERILIZATION, KBCOOKING, ETC., OF CANNED PEODTTCTS. Sec. 2. Canned meat or meat food products which require sterili- zation to preserve them must be subjected to this process on the same day that the cans are filled. Defective or leaking cans discovered after the process of sterilization has been completed shall not be repaired or repacked (unless such repairing or repacking is done within six hours of the time of original sterilization ) , but the contents of such cans shall be removed and condemned. POTATO FLOtTE, CBEEALS, WATEE. Sec. 3. Potato flour shall not be used in the preparation of sausage, nor shall excessive quantities of cereals or water be used. EENDKEING. Sec. 4. Paragraph 1. The manufacture of all fats into lard, tallow, oils, and stearin at official establishments shall be closely supervised by employees of the Department, who shall see that all portions of carcasses rendered into edible products are clean and wholesome. Paragraph 2. Heads rendered into edible product shall first be split, cross sectioned, and thoroughly washed and cleaned. HOGS' PEBT. Paragraph 3. When hogs' feet are used for lard, the hair, hoofs, and the tissues of the interdigital spaces must be removed. APPENDICES. 955 PIPES OP DIFFEEENT COLORS FOE EDIBLE AND INEDIBLE FATS. Paragraph 4. All pipes and similar conveyers used in conducting edible fats from one receptacle or container to another shall be of a dis- tinctly different color from the pipes and similar conveyers used in con- ducting inedible fats from one receptacle or container to another. DIAGRAMS OF PIPE LINES. Paragraph 5. Blueprints or other accurate diagrams showing all underground pipe lines or other conveyers used to conduct edible and in- edible products at official establishments and also those extending from official establishments to other establishments, either official or unofficial, with a description giving the exact location, terminals, and dimensions of such pipes, or other conveyers, and of all gates, valves, or other con- trolling apparatus, shall be filed with the Department, and a copy of such prints or diagrams shall be filed with the inspector in charge. The prints or diagrams should designate the lines used for conveying edible products and those used for conveying inedible products. If no such underground pipes or conveyers are used for the purposes above indicated, a written statement certifying to this fact and duly signed by the management of each establishment shall be filed with the Department. CONTAINERS OF INEDIBLE PRODUCTS TO BE MARKED. Paragraph 6. All containers, such as vats and tierces, in which white grease or other inedible meat products are placed, shall be plainly marked "inedible" in such a manner that they can be readily identified. PERMANENT CONTAINERS. Paragraph 7. Final containers, such as tierces, shall be appropriately marked on both ends immediately after filling. CASINGS. Sec. 5. The only animal casings that may be used as containers in the manufacture of sausage under these regulations are those from cattle, hogs, sheep, or goats. Regulation 24. Stamps for Export Packages. EXPORT STAMPS. Section 1. Paragraph 1. Numbered meat-inspection stamps shall be affixed to packages (except those in cloth wrappings) containing meat or meat food products to be shipped or otherwise transported in foreign trade. 956 LAW OF PUKE FOOD AND DKUGS. PROTECTION FOE STAMPS. Paragraph 2. Stamps shall be affixed in the following manner, and when they have been affixed they shall be covered immediately with a coating of transparent varnish or other similar substance. IN A GBOOVEaj SPACE. (a) The stamp may be affixed in a grooved space made by remov- ing a portion of the wood of sufficient size to admit the stamp. ON THB ENDS. (b) The stamp may be placed on either end of the package, pro- vided that the sides are made to project at least one-eighth of an inch to afford the necessary protection from abrasion. FOB INEDIBLE PEODUCTS. Sec. 2. Inedible-product stamps and certificates may, upon request, be issued to accompany shipments for export of casings, bladders, bungs, hoofs, and other similar inedible animal products. Regulation 25. Transportation.! EXPORT CEETIFICATES ; WHEN ISSUED. Section 1. Upon the application of the exporter the inspector in charge of an establishment is authorized to issue certificates for export shipments of inspected and passed meat or meat food products. The cer- tificate should be issued at the time the product leaves the establishment; if, however, the certificate is not issued at that time, it can only be issued upon identification and reinspeetion of the product. form and matteb. Sec. 2. These certificates shall be issued in serial numbers and in triplicate form. Each certificate shall show the names of the exporter, and the consignee, the destination, the numbers of the stamps attached to the article t6 be exported, the shipping marks, the kind of product, and the weight. one ceeitficate for each consignment. Sec. 3. Only one certificate shall be issued for each consignment unless otherwise directed by the Chief of the Bureau of Animal Industry. 1 The transportation of meat or meat food product from one point in a State or Territory to another point in the same State or Territory, when in course of shipment the meat or meat food product is taken through another State or Territory, is interstate commerce. APPENDICES. 957 DISPOSAL or ORIGINAI, AND DUPLICATE CEETIPICATES. Sec. 4. Both the original and duplicate certificates shall be delivered by the inspector to the shipper. The copy of certificate provided by law to be delivered to the chief officer of the vessel shall be the duplicate copy and shall be filed with the customs officers at the time of filing the master's manifest or the supplemental manifest. CERTIFICATE NECESSAEY TO PBOCUKE TEANSPOETATION. Sec. 5. No master of any steam or sailing vessel shall receive for transportation or transport from the United States to Great Britain or Ireland, or any of the countries of continental Europe, or to Argentina or Mexico, any carcass, part of carcass, or meat food product of cattle, sheep, swine, or goats, except ship stores, unless and until a certificate of inspec- tion covering the same has been issued and delivered as provided in this regulation. The requirement of export certificates is waived for meat and meat food products to foreign countries other than those hereinbefore named. INEDIBLE 6SEASE AND INEDIBLE TAULOW. Sec. 6. When inedible grease, inedible tallow, or inedible stearin derived from cattle, sheep, swine, or goats is offered for export, the col- lectors of customs, under instructions from the Secretary of Commerce and Labor, will require an affidavit from the exporter that the products to be exported are inedible and are not intended for food purposes. EEQUIEEMENT OF CEETIFICATBS. Sec. 7.1 No person, firm, or corporation shall receive for transpor- tation or transport from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia, any carcass, part of carcass, or meat food product of cattle, sheep, swine, or goats unless and until a certificate is made and furnished in one of the forms pre- scribed in sections 11, 12, 13, and 14 of this regulation, showing that such meat or meat food product has been either inspected and passed or exempted from inspection, according to Act of Congress of June 30, 1906 : Provided, That printed certificates in the forms formerly required and now on hand may be used for this purpose. It is necessary, as old stocks of printed certificates are exhausted, that new ones be printed in the new forms. MOVEMENT IN PART FOREIGN. Sec. 8.1 When any shipment of meat or meat food products covered by these regulations is offered to any common carrier for carriage within 1 Formerly Regulation 52, B. A. I. Order 137. 958 LAW OF PURE FOOD AjVD DRUGS. the United States as a part of a foreign movement, the same certificate shall be required as if the shipment was destined to a point within the United States. DIVERSION OF SHIPMENT AND BREAKING OF SEALS IN EMERGENCY. Sec. 9.1 Paragraph 1. Shipments of inspected and passed meat oi meat food products that are so marked may be diverted from the original destination without a reinspection of the product, if a new certificate showing the changed destination be given to the carrier by the owner or shipper, who may or may not be the original shipper; or in a case of a wreck or other extraordinary emergency the carrier may divert such shipments from the original destination without a new shippers' certificate. Paragraph 2. The Government seals on a car containing inspected and passed meat or meat food products may be broken toy the carrier in case of wreck or other extraordinary emergency, and if necessary the product may be reloaded into another car or the shipment may be diverted from the original destination without another shippers' certificate; but in all such cases the carrier shall immediately report the transaction by telegraph to the Chief of the Bureau of Animal Industry, Washington, D. C. Such report shall include the information indicated below: (a) Nature of the emergency. (b) Place where seals were broken. (c) Original points of shipment and destination. (d) Number and initials of the original car. (e) Number and initials of the car into which the product is re- loaded. (f) New destination of the shipment. (g) Kind and amount of product. EESHIPMENT OF INSPECTED PEODTJCTS. Sec. 10.1 Eeshipments of inspected meat or meat food products which are sound and wholesome at the time of reshipment may be made without reinspection when the meat or meat food products, or the con- tainers thereof, are marked "Inspected and Passed," and the meat or meat food products have not been processed since they were originally shipped under section 11 of this regulation. Also jobbers, wholesalers, or others who do no processing, and who receive "Inspected and Passed" meat or meat food products, may break bulk, repack, and reship the same into interstate commerce under Section 11 of this regulation, if each piece of meat or meat food product in the unmarked package bears the original authorized mark of Government inspection. Inspection shall be main- tained at the establishments of all such jabbers, wholesalers, or others , who do any processing. 1 Formerly Meat Inspection Rulings 1 A. APPENDICES. 959 CEBTrFICATE FOR INSPECTED MEAT AND MEAT FOOD PRODUCTS. Sec. 11.1 When any carcass, part of carcass, or meat food product of cattle, sheep, swine, or goats which has been inspected and passed and so marked under these regulations is oflfered to any common carrier for transportation from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia for interstate shipment only, or for interstate shipment as part of a foreign movement, or for foreign shipment, the person, firm, or corporation offering such carcass, part of carcass, or meat food product shall make a certificate in the following form and deliver the same to the said common carrier, except as provided in section 12 of this regulation. Date 190 . . Name of common carrier Shipper Point of shipment Consignee Destination I hereby certify that the meat or meat food products described herein, which are oflfered for shipment in interstate or foreign com- merce, have been inspected and passed according to Act of Con- gress of June 30, 1906, are so marked, and at this date are sound, healthful, wholesome, and fit for human food. Kind of product. Amount and weight. ( Signature of shipper. ) (Address of shipper.) This certificate may be stamped upon or incorporated in any form which is regularly or ordinarily used in the shipment of meat or meat food products. shipments between inspected establishments, railroad car. Sec. 12.1 Paragraph 1. An oflficial establishment may ship from the said establishment to any other oflBcial establishment any meat or meat food product which has been inspected and passed under these regulations without marking the same "Inspected and Passed," if such shipment be placed in a, railroad car which is sealed by an employee of the Bureau of Animal Industry, and provided that not less than twenty-five percent 1 Formerly Regulation 53, B. A. I. Order 137. 1 Formerly Regulation 54, B. A. I. Order 137. 960 LAW OF PTJHE FOOD AND DFUGS. of the contents of each car consists of meat or meat food products not marked "Inspected and Passed." Paragraph 2. Wagons so equipped that they can be securely sealed by a Department employee may be considered as true containers. CEETIFICATE. Paragraph 3. When shipments are made under paragraph 1 of this section the shipper shall make for each car and deliver to the common carrier in duplicate a certificate in the following form: Date 190. . Name of common carrier Establishment number of consignor Point of shipment Establishment number of consignee Destination Car number and initials I hereby certify that the following-described meat or meat food products have been inspected and passed according to Act of Con- gress of June 30, 1906. They are not marked "Inspected and Passed," but have been placed in the above car under the super- vision of an employee of the Bureau of Animal Industry which was sealed by him with Government seals Nos and Kind of product. Amount and weight. ( Signature of shipper. ) ( Address of shipper. ) The duplicate certificate shall be forwarded immediately by the ini- tial carrier to the Chief of the Bureau of Animal Industry, Washington, D. C. Attention is directed to the law which provides a penalty of fine and imprisonment for any unauthorized person who breaks a seal of such cars. When shipments are made under this section the inspector in charge at point of origin shall duly notify the Chief of the Bureau of Animal Industry and the inspector in charge at point of destination. RETAIL BUTCHERS AND DEALERS. Sec. 13.1 When any carcass, part of carcass, or meat food product 1 Formerly Regulation 55, B. A. I. Order, 137. / APPENDICES. 961 of cattle, sheep, swine, or goats which has not been inspected under these regulations is offered for shipment from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia by any retail butcher or retail dealer who holds a certificate of exemption issued by the Secretary of Agriculture, the common carrier shall require a certificate to be made in duplicate in the following form by said retail butcher or retail dealer, which certificate shall in all cases show the exemption number designated by the Secretary of Agriculture for said retail butcher or retail dealer: Date 190.. Name of common carrier Shipper Point of shipment Consignee Destination Number of exemption certificate I hereby certify that I am a retail butcher or a retail dealer in meat or meat food products; that the following-described meat or meat food products are offered for shipment in interstate com- merce to a customer, as exempted from inspection according to Act of Congress of June 30, 1906, under certificate issued to me by the United States Department of Agriculture, and that at this date they are sound, healthful, wholesome, and fit for human food, and contain no preservative or coloring matter or other substance prohibited by the regulations of the Secretary of Agriculture gov- erning meat inspection. Kind of product. Amount and weight. ( Signature of shipper. ) (Address of shipper.) The duplicate certificate shall be forwarded immediately by the initial carrier to the Chief of the Bureau of Animal Industry, Washington, D. C. This certificate shall be separate and apart from any waybill, bill of lading, or other form ordinarily used in the shipment of meat. FAEMERS' PSODUCTS. Sec. 14.1 When any cattle, sheep, swine, or goats have been slaugh- tered by any farmer on the farm, and the carcasses, parts of carcasses, 1 Formerly Regulation 56, B. A. I. Order 137. PUEE Food — 61. 962 L4.W OF PURE FOOD A?;T) DUUU3. or meat food products thereof are offered to any common carrier for trans- portation from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia, the common car- rier may so transport such carcasses, parts of carcasses, or meat food products as long as the same may be identified as of animals slaughtered by any farmer on the farm. The common carrier shall require a certificate in duplicate in the fol-' lowing form: Date 190.. Name of common carrier Shipper Consignee Point of shipment Destination I hereby certify that the following-described uninspected meat or meat food products are from animals slaughtered by- a farmer on the farm, and are offered for transportation in interstate commerce as exempted from inspection according to Act of Con- gress of June 30, 1906, and that at this date they are sound, healthful, wholesome, and fit for human food, and contain no pre- servative or coloring matter or other substance prohibited by the regulations of the Secretary of Agriculture governing meat inspec- tion. Kind of product. Amount and weight. ( Signature of shipper. ) ( Address of shipper. ) The duplicate certificate shall be forwarded immediately by the initial carrier to the Chief of the Bureau of Animal Industry, Washington, D. C. OEIGINAL OEBTIFICATES FILED BY INITIAL CARKIEE. Sec. 15.1 AH original certificates delivered to the common carrier, as required by this regulation, shall be filed and retained for one year' by the initial carrier, in order that they may be readily checked by this Department in such manner as the Secretary of Agriculture may from time to time prescribe.i 1 Formerly Regulation 57, B. A. I. Order, 137. 1 Stocks of printed cei'tificates now on hand may be used, but as new supplies are printed they should conform to the forms prescribed. APPENDICES. 963 WATBICLS, ESC. Sec. 16.2 All waybills, transfer bills, running slips, or conductor's cards accompanying an interstate or foreign shipment of meat or meat food product must have embodied in, stamped upon, or attached to it a signed statement which shall be evidence to connecting carriers that the proper shipper's certificate as required by Sections 11, 12, 13, and 14 of this regulation is on file with the initial carrier, and no connecting carrier shall receive for transportation or transport any interstate or foreign shipment of meat or meat food product unless the waybill, transfer bill, running slip, or conductor's card accompanying the same includes the aforesaid signed statement in one of the following forms: When shipment is made under Section 11 or 12: (Name of transportation company.) United States inspected and passed as evidenced by shipper's certificate on file with initial carrier. (Signed) , Agent. When shipment is made under Section 13 or 14: (Name of transportation company.) Exempted from inspection as evidenced by shipper's certificate on file with initial carrier. (Signed) , Agent. SHIPMENT BT FEBET. Sec. 17.3 Paragraph 1. When any carcass, part of carcass, or meat food product of cattle, sheep, swine, or goats loaded on a truck, wagon, cart, or other vehicle, or otherwise prepared for shipment, is offered for transportation or transported by ferry such ferry being the initial carrier from one State, Territory, or the District of Columbia to another State, Territory or District of Columbia, the person, firm, or corporation offering such carcass, part of carcass, or meat food product shall, except as here- inafter provided by paragraph 5, make a certificate in one of the forms hereinafter indicated and deliver the certificate to said common carrier; and no person, firm, or corporation operating a ferry line as aforesaid shall receive for transportation or transport any carcass, part of carcass, or meat food product of cattle, sheep, swine, or goats loaded on a truck, wagon, cart, or other vehicle, or in any other manner prepared for trans- portation, unless a certificate in one of the forms referred to is properly filled out and delivered by the shipper as herein required. Paragraph 2. When the shipment consists of inspected and passed meat or meat food products, the form of certificate shown in Section 11 of this regulation shall be used. 2 Formerly Eegulation 58, B. A. I. Order, 137. 3 Formerly Regulation 65, B. A. I. Order 137. 964 LAW OF PURE If OOP AND DRUGS. Paragraph 3. When the shipment is made under exemption and eon- sits of meat or meat food product which has not been inspected and passed, the form of certificate shown in Section 13 of this regulation shall be used, and a duplication shall be forwarded immediately by the ferry company to the Chief of the Bureau of Animal Industry, Washington, D. C. Paragraph 4. When the shipment consists of meat ox meat food products from animals slaughtered by a farmer on the farm and which have not been inspected and passed, the form of certificate shown in Sec- tion 14 of this regulation shall be used, and a duplicate shall be forwarded immediately by the ferry company to the Chief of the Bureau of Animal Industry, Washington, D. C. Paragraph 5. When a shipper's certificate for meat or meat food products has been issued and is on file with the initial carrier and that fact is shown by notation on the billing, the ferry company need not re- quire another certificate. IMPOETED PEODUCTS. Sec. 18.1 Imported meat or meat food products which have not been mixed or compounded with or added to domestic meat or meat food prod- ucts may be transported by any common carrier from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia if the packages containing them are marked "Inspected under the Food and Drugs Act of June 30, 1906," when re- ceived for transportation. SHIPMENT OF PEODTJCTS AiLBGED OE KNOWN TO BE UNFIT FOE POOD. Sec. 19.2 Paragraph 1. Meat or meat food products which have been inspected and passed and so marked, and which have been trans- ported from the establisihments in which they were prepared into the channels of trade, and which are alleged or knovm to have become un- sound, unwholesome, or otherwise unfit for human food, may be trans- ported in interstate commerce only under the following restrictions : TO AN inspected ESTABUSHMENT. Paragraph 2. Meat or meat food products inspected and passed and so marked and which are alleged to be unsound, unwholesome, or other- wise unfit for human food may be shipped from one State or Territory or the District of Columbia to any ofiicial establishment in the same or a diflferent State or Territory if a written permit in duplicate for such 1 Formerly Eegulation 64, B. A. I. Order, 137. 2 Formerly Eegulation 61, B. A. I. Order 137. APPENDICES. 965 shipment be first obtained from the inspector in charge of the establish- ment to which the shipment is destined. In all such shipments both the original and duplicate copies of the permits shall be surrendered to the carrier accepting the meat or meat food product, and the carrier shall require the shipper to furnish three copies of the form of certificate here- inafter given. One of these certificates and the duplicate copy of the permit shall be retained by the carrier; another copy of the certificate, together with the original permit, shall be mailed by the carrier to the Chief of the Bureau of Animal Industry, Washington, D, C, and the third copy of the certificate shall be addressed and mailed by the carrier to the Bureau of Animal Industry inspector in charge at the point to which the shipment is consigned. Upon the arrival of the shipment at the estab- lishment the inspector in charge shall cause a careful inspection to be made of the shipment, to determine whether or not it is unsound, un- wholesome, or otherwise unfit for food. Should the meat or meat food product contained in the shipment prove to be unsound, unwholesome, or otherwise unfit for human food, it shall at once be stamped "U. S. In- spected and Condemued" and be immediately tanked or removed to the condemned room. If the meat or meat food product contained in the ship- ment shall prove to be sound, wholesome, and fit for human food, the inspector shall allow the meat or meat food products to enter the estab- lishment. Meat or meat food products at an ofl&cial establishment alleged or known to be unsound, unwholesome or otherwise unfit for human food shall not be shipped under this paragraph, but must be disposed of at the establishment. TO JOBBEE, WHOLESALBE, OB DEAtEE. Paragraph 3. Meat or meat food products which have been inspected and passed and are so marked and are alleged to be unsound, unwholesome, or otherwise unfit for human food may be returned from one State or Ter- ritory or the District of Columbia to any jobber, wholesaler, or other dealer from whom the said meat or meat food product was purchased, if a written permit, in duplicate, for such shipment be first obtained from the Chief of the Bureau of Animal Industry. In all such shipments both the original and duplicate copies of the permits shall be surrendered to the carrier accepting the meat or meat food product, and the carrier shall require the shipper to furnish two copies of the form of certificate hereinafter given. One of these certificates and the duplicate copy of the permit shall be retained bj the carrier, and the other copy of the cer- tificate, together with the original permit, shall be mailed by the carrier to the Chief of the Bureau of Animal Industry, Washington, D. C. If the meat or meat food product which is shipped under this section shall prove to be unsound, unwholesome, or otherwise unfit for human food it may not be reshipped in interstate commerce as a food product. 966 LAW OF PURE FOOD AND DRUGS. roEM OF shipper's certificate. Paragraph 4. The shipper's certificate required by paragraphs 2 and 3 of this section shall be in the following form, and shall in all cases show a, description and the weight of the meat or meat food product :i Date 19.. Name of common carrier Consignor Point of shipment Consignee » Destination Number of permit I hereby certify that the following-described meat or meat food products have been inspected and passed according to the Act of Congress of June 30, 1906, and are so marked. It is alleged that the said meat or meat food products are unsound, unhealthful, unwholesome, and unfit for human food. Kind of product. Amount and weight. ( Signature of shipper. ) ( Business or occupation of shipper. ) ( Address of shipper. ) As evidence to connecting carriers that the proper shipper's certificate as required by this paragraph is on file with the initial carrier, the way- bills, transfer bills, running slips, or conductors' cards accompanying the shipments of meat or meat food products, made under paragraphs 2 and 3 of this section, must have embodied in, stamped upon, or attached to the same a signed statement in the following form: (Name of railroad company.) Meat or meat product alleged to be unsound, unwholesome, or otherwise vmfit for food, as evidenced by shipper's certificate on file with initial carrier. ,. . . (Signed) ., Agent.^ 1 Attention is directed to the meat-inspection law, which provides a penalty of a fine of $10,000 and imprisonment for two years for any per- son who ships for human consumption in interstate or foreign trade any meat or meat food product which is unsound, unwholesome, or otherwise unfit for human food. APPENDICES. 967 FOB INDUSTKEAl PtXEtPOSES. Paragraph 5. Uninspected meat or meat food product, or meat or meat food product inspected ..and marked and which is known to have become unsound, unwholesome, or otherwise unfit for human food, or in- edible grease or tallow or other fat, may he shipped from one State or Territory or the District of Columbia to another State or Territory or the District of Columbia or to a foreign country for industrial purposes. No such shipment shall be accepted by any carrier unless and until the product wmch is known to be unsound, unwholesome, or otherwise un- fit for food shall have been denatured or otherwise rendered unavailable for food purposes. The carrier shall require the shipper to certify in writing that the meat or meat food product has been so denatured or otherwise rendered unavailable for food purposes. This certificate of the shipper that the meat or meat food product has been denatured shall be forwarded by the carrier to the Chief of the Bureau of Animal Industry, Wlashington, D. C. It is suggested that the shipper's certificate of de- naturing required for shipments made under this paragraph be in the following form: Date 19.. Name of common carrier Consignor Point of shipment Consignee ' Destination I hereby certify that the following-described inedible meat or meat food products have been denatured or otherwise rendered un- available for food purposes. Kind of product. Amount and weight. ( Signature of shipper. ) (Business or occupation of shipper.) (Address of shipper.) As evidence to connecting carriers that the proper shipper's certifi- cate is on file with the initial carrier, the waybills, transfer bills, running slips, or conductors' cards accompanying the shipment of meat or meat food product under this paragraph must have embodied in, stamped upon, or attached to the same a signed statement in the following form: 968 LAW OP PURE FOOD AND DEUGS. (Name of railroad company.) Unsound, unwholesome, or otherwise unfit for food, and de- natured or otherwise rendered unavailable for food purposes, as evidenced by shipper's certificate on file with the initial carrier. ( Signed) , Agent. Paragraph 6. When inedible grease, tallow, or other fat for indus- trial use is of such a nature or is intended for such an industrial use that it is impracticable to denature the same or that denaturing will make it impossible to put the product to the desired industrial use, such inedible grease, tallow, or other fat may be shipped from one State or Territory or the District of Columbia to another State or Territory or the District of Calum.bia, or to a foreign country, without denaturing if the outside container of the said inedible grease, tallow, or other fat be marked as follows: The end of the containers shall be painted white and conspicu- ously stenciled or burned with the true name of the product and the word "Inedible." No such shipment shall be accepted by any carrier unless and until the shipper shall certify in writing that the said inedible grease, tallow, or other fat is of such a character or is intended for such use that denaturing is impossible or will render said inedible grease, tallow, or other fat un- available for the desired industrial use. The shipper's certificate shall be in the following form: Date 19.. INEDIBLE FAT. Name of common carrier Consignor Point of shipment Consignee Destination I hereby certify that the following-described fat is inedible and is not intended for food purposes, and that the said fat is of such a character or is intended for such a use that denaturing is im- possible or will render said fat unavailable for the desired indus- trial use. Kind of product. Amount and weight. ( Signature of shipper. ) (Business or occupation of shipper.) (Address of shipper.) APPENDICES. 96& As evidence to connecting carriers that the proper shipper's certifi- cate is on file with the initial carrier, the waybills, transfer bills, running slips, or conductors' cards accompanying such shipments must have embodied in, stamped upon, or attached to the same a signed statement in the fol- lowing form: (Name of carrier) Inedible and not intended for food purposes, as evidenced by shipper's certificate on file with the initial carrier. (Signed) , Agent. The shipper's certificate will be made in duplicate, and one copy shall be immediately forwarded by the carrier to the Chief of the Bureau of Animal Industry, Washington, D. C. Begnlation 26. Counterfeiting, Etc. PENALTIES. Section 1. It is a misdenieanor, punishable by fine and imprison- ment, for any person, firm, or corporation, or oflBcer, agent, or employee- thereof, to forge, counterfeit, simulate or falsely represent or without proper authority to use, fail to use, or detach, or knowingly or wrongfully to alter, deface, or destroy, or to fail to deface or destroy, any of the marks, stamps, tags, labels, or other identification devices provided for by law or by these regulations, on any carcasses, parts of carcasses, or the food product, or the containers thereof or wrongfully to use, deface, or destroy any certificate provided for by law or by these regulations. Begulation 27. Reports. OF WOBK. Section 1. Reports of the work of inspection carried on in every official establishment shall be forwarded to the Department by the in- spector in charge, on such blank forms and in such manner as may be specified by the Chief of the Bureau of Animal Industry. INFOBMATION FEOM PBOPEIBTOBS. Sec. 2. The proprietors of official establishments shall furnish daily to the Department employees detailed to the various departments accur- ate information regarding receipts, shipments, and amounts of products on which to base their daily reports. ON SANITATION. Sec. 3. Reports on sanitation shall be made at stated times by the Department employees in charge of the various departments to the in- .970 LAW OF PUKE EOOD AND DEUGS. spector in charge of the station, and by the inspector in charge to the Chief of the Bureau of Animal Industry. If any insanitary conditions are aetected by any Department employee, such conditions shall be reported immediately to the inspector in charge, who, after investigation, shall report them to the Chief of the Bureau. Kegulation 28. Appeals. SEC3TI0N 1. When the action of any inspector in condemning any carcass or part thereof, meat, or meat food product is questioned, appeal may be made to the inspector in charge, and from his decision appeal may be made to the Chief of the Bureau of Animal Industry or to the Secretary of Agriculture, whose decision shall be final. Regulation 29. Cooperation with Municipal Authorities. MUNICrPAl, ATJTHOKITIES TO BE NOTIFIED. Section 1. Inspectors in charge are directed to notify the municipal authorities of the character of inspection, and upon request to advise with such authorities with a view to preventing the entry into the local markets of diseased animals or their products. The details of any proposed co- operative arrangement must be first submitted to and approved by the Chief of the Bureau of Animal Industry. APPENDIX N. THE INSECTICIDE ACT OF 1910. [This is the Government's Official Pamphlet.] Issued December 10, 1910. UNITED STATES DEPARTMENT OF AGRICULTURE, Office of the Secretary — Circular No. 34. RULES AND REGULATIONS FOR CARRYING OUT THE PROVISIONS OF THE INSECTICIDE ACT OF 1910. Including the collection and examination of specimens of Insecticides, Paris Greens, Lead Arsenates, and Fungicides 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 which shall be received from any for- eign country or intended for shipment to any foreign country, or which may be submitted for examination by the director of the APPENDICES. 971 experiment station of any State, Territory, or the District of Colum- bia (acting under the direction of the Secretary of Agriculture), 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. LETTER OF TRANSMITTAL. Washington, D. C, December 8, 1910. The Secretaries of the Treasury, of Agriculture, and of Commerce and Labor. SlES: The committee appointed to represent your several departments in the formulation of uniform rules and regulations for the enforcement of the Insecticide Act of 1910 respectfully submits the attached regu- lations and recommends their adoption. Geo. p. McCabe. R. E. Cabell, Chas. Eael. RULES AND REGULATIONS— GENERAL. Kegulation 1. Original ITnbroken Package. (Sections 2 and 10.) The term "Original unbroken package,'' as used in this Act, means the original package as defined by the federal courts with respect to articles of interstate commerce. In general, an original unbroken pack- age is the package delivered by the shipper to the carrier at the initial point of interstate shipment, in the exact condition in which it was shipped, as distinguished from the unit package ordinarily displayed on the shelves of retailers. Regulation 2. Collection of Samples, (Section 4.) (a) Samples shall be collected only by authorized agents of the De- partment of Agriculture, by the directors of agricultural experiment sta- tions, or by agents of any State, Territory, or the District of Columbia, when commissioned by the Secretary of Agriculture for the purpose. (b) Samples may be purchased in the open market, and the marks, brands, or tags upon the package, carton, container, wrapper, or accom- panying printed or written matter shall be noted. The collector shall also note the names of the vendor and the agent of the vendor who made the sale, together with the date of the purchase. The collector shall purchase representative samples. 973 LAW OF PUKE FOOD AND DRUGS. (c) A sample taken from bulk gooda shall be divided into three parts and each shall be labeled with identifying marks. (d) If a package be less than four pounds, or in volume less than two quarts, three packages shall be purchased when practicable, and the marks and tags upon each noted as above. When three samples are pur- chased, or when a sample is taken from bulk goods as in (c) and divided into three parts, one sample or part, as the case may be, shall be delivered to such chemist or examiner as may be designated by the Secretary of Agriculture for analysis or examination; and the other two samples or parts shall be held under seal by the Secretary of Agriculture, who, upon the request of the party against whom prosecution may lie under this Act, on account of the shipment, manufacture, or sale of the product, or the making of a guaranty covering the product, shall deliver one of the samples or parts to such party. Such disposition of the third sample or part shall be made as the Secretary of Agriculture may deem proper. (e) 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 the parties interested. (f) All samples or parts of samples shall be sealed by the collector with a seal provided for that purpose and marked with identifying marks. Regulation 3. Methods of Analysis. (Section 4.) The methods of examination or analysis employed shall be those pre- scribed by the Secretary of Agriculture. Regulation 4. Hearings. (Section 4.) (a) If, from the examination or analysis, a sample appears to be adulterated or misbranded within the meaning of this Act, notice thereof shall be given to the party from whom such sample was obtained and to such other interested 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 or per- sons as he may direct. The hearings shall be had at places designated by the Secretary of Agriculture most convenient for all parties concerned. These hearings 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. At the hearing the party cited shall, upon request, be .informed of the findings of the analyst or examiner. (b) If, after hearing held, it still appears that a violation of the Act APPENDICES. 973 has been committed, the Secretary of Agriculture shall, through the Attorney General, inform the United States attorney in whose district the offense appears to have been committed. (c) Any director of an agricultural experiment station or agent of any State, Territory, or the District of Columbia, duly authorized to co- operate in the enforcement of this Act, who shall obtain satisfactory evi- dence of any violation of its provisions, shall report the same to the Secretary of Agriculture in order that he may take such steps as are warranted by this report. Kegulation 5. Publication. (Section 4.) Publication shall be given of notices of judgment of the courts in cases arising under this Act in the form of such circulars, notices, or bulletins as the Secretary of Agriculture ibay direct. Publication shall be made not less than thirty days after judgment, and, if an appeal be taken from the judgment of the court before such publication, notice of appeal shall accompany the publication. Regulation 6. Beport of Violations. (Section 5.) Requests for institution of prosecutions under Sections 1 and 2 of the Act, and, where practicable for proceedings, under Section 10 of the Act, will be made by the Secretary of Agriculture to the Attorney General. Where immediate action is necessary to secure the seizure of articles un- der Section 10 and delay will result by reporting the facts to the Attorney General, the Secretary of Agriculture will communicate directly with the United States attorneys. In such cases, however, the Secretary of Agri- culture will promptly furnish the Attorney General with a copy of the communication to the United States attorney. Regulation 7. Report of Violation by State Officials. (Section 5.) The directors of experiment stations or agents of any State, Territory, or District of Columbia, designated by the Secretary of Agriculture to investigate offenses under the Act, shall transmit to the Secretary of Agriculture all evidence collected by them relating to violations of Sec- tions 1 and 2 of the Act, and also evidence to sustain proceedings for forfdture and condemnation of articles under Section 10 of the Act, and suchi evidence shall be submitted to the solicitor of the Department of Agriculture for examination into its sufSciency to sustain a prosecution. 974 L.VW OF PURE FOOD AND DEUGS. Regulation 8. Character of Kaw Uaterial. (Section 7.) The Secretary of Agriculture, when he deems it necessary, shall examine the raw material used in the manufacture of insecticides and fungicides in order to determine whether and under what conditions any of them are harmful to animals or are injurious to vegetation upon which they are intended to be used. From time to time the Secretary of Agri- culture will publish in form of circulars or bulletins, as he shall deem adequate, the results of his investigations of the injurious effects of articles used as insecticides and fungicides. Regulation 9. Abstraction of Valuable Constituents. (Section 7.) (a) A valuable constituent of an article is wholly abstracted there- from, in the contemplation of the Act, whenever the designation of the article imports its presence therein and the constituent has been wholly omitted therefrom in the preparation of the article or has been wholly removed from the completed article. (b) A valuable constituent of an article is partly abstracted there- from, in the contemplation of the Act, whenever the designation of the article imports its presence therein and the constituent is not present in the usual or customary amount. MISBRANDING AND ADULTERATION. Regulation 10. Definition of Label. (Section 8.) The term label, as used in the Act, includes any legend and descrip- tive matter or design printed, stenciled, stamped, seared, or impressed upon the article or its container, and also includes circulars, pamphlets, etc., which are packed and go with the articles into the hands of the pur- chaser, and such letters, circulars, pamphlets, etc., to which reference is made either on the label attached to the package or on the package itself, or any circulars, pamphlets, etc., which accompany the package. Regulation 11. When Labels Required. (Section 8.) Whenever by the terms of the Act, information is required to be on the label of an insecticide or fungicide, such as the statement of per- centage of arsenic contained therein, a label must be placed on the article in order that the statement can be made and the omission of a label does not excuse the absence of the required statement. APPENDICES. 975 Regulation 12. Statements on Labels. (Sections 7 and 8.) All matter required by the Act to be stated on the label of an article must be plainly and correctly stated on the face of the principal label in type sufficiently clear and in position sufficiently prominent to attract the immediate attention of the purchaser. Regulation 13. Definition of Package. (Section 8.) The term "package," as used in the Act, includes every carton, box, barrel, or other receptable into which an insecticide or fungicide, Paris green, or lead arsenate is placed for use, handling, removal, shipment, or conveyance, and also a single container of such article or articles or several containers packed together. Regulation 14. Definition of Insect. (Section 6.) The term "insect,'' as used in the Act and these regulations, is understood to mean any of the numerous small invertebrate animals gen- erally having the body more or less obviously segmented, for the most part belonging to the class Insecta, comprising six-legged, usually winged forms, as beetles, bugs, bees, flies, etc., and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as spiders, mites, ticks, centipedes, wood lice, etc. Regulation 15. False Statements in Circulars, etc. (Section 8.) An insecticide, fungicide, Paris green, or lead arsenate is misbranded under the provisions of the Act if the package containing it is accom- panied by any circular, advertising or descriptive matter in or upon which there is any false, deceptive, or misleading statement, design, or device, or if such false, deceptive, or misleading statement, design, or device appears on any letter, circular, design, or descriptive matter to which reference is made on the label attached to the package or in any paper accompanying the package. Regulation 16. Ingredients Required to be Declared. (Section 8.) (a) Insecticides (other than Paris greens and lead arsenates) and fungicides containing arsenic in any of its combinations or in the ele- 976 LAW OF PURE FOOD AND DRUGS. mental form must bear a statement on the label showing the total amount of arsenic present {expressed as per centum of metallic arsenic) and also the amount present in water-soluble form (expressed as per centum of metallic arsenic ) . (b) Insecticides (other than Paris greens and lead arsenates) and fungicides containing inert substances, which do not prevent, destroy, re- pel, or mitigate insects or fungi, must bear a statement on the label of the name and percentage of each inert substance therein, unless the name and percentage of each active ingredient of the article is plainly and cor- rectly stated, in which case it will be sufficient to state upon the label that the article contains inert substances, giving the correct percentage thereof. Segulation 17. False and Misleading Statements on labels, (Section 8.) The use of any false or misleading statement, design, or device ap- pearing on any part of the label shall not be justified by any statement given as the opinion of an expert or other person, nor toy any descriptive matter explaining the use of the false or misleading statement, design, or device. Regulation 18. Name and Address of Manufacturer. (Section 8.) ( a ) The name of the manufacturer or producer or the place of manu- facture need not be given upon the label, but if given must be the true name and true place. The words "Packed for * * *," "Distributed hj * * *," or some equivalent phrase, shall be added to the label in ease the name which a.ppears upon the label is not that of the actual manufacturer or producer. (b) When a person, firm, or corporation actually manufactures or produces an insecticide, fungicide, Paris green, or lead arsenate in two or more places the actual place of manufacture or production of each particular package need not be stated on the label except when, under the peculiar circumstances of the particular case, the mention of any such place to the exclusion of the others misleads the public. (c) The use of a geographical name shall not be permitted in con- nection with an insecticide or fungicide not manufactured or produced in that place, when such name indicates that the article was manufactured or produced in that place. (d) The use of a geographical name in connection with an insecti- cide or fungicide will not be deemed a misbranding when, by reason of long usage, it has come to represent a generic term and is used to indi- cate a style, type, or brand, or where it has come to represent a specific substance rather than the place of manufacture, but in all such cases the APPENDICES. 977 place where any such article is manufactured or produced shall be stated upon the principal label. (e) 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 or quality of manufacture, and then only when so qualified that it is not offered for sale under the name of a foreign article. Regulation 19. Substitution. (Sections 7 and 8.) When a substance of a recognized quality commonly used in the preparation of an insecticide or fungicide is replaced in part or in whole by another substance, the name of the substituted substance shall appear upon the label. FORM OF GTTARANTY. Regulation 20. Guaranty. (Section 9.) A general guaranty may be filed with the Secretary of Agriculture by the manufacturer or dealer and be given a serial number, which serial number should appear on every package of goods sold under such guaranty, with the words "Guaranteed by (insert name of guarantor) under the Insecticide Act of 1910." The following form of guaranty is suggested: I (we), the undersigned, do hereby guarantee that the insecti- cides, Paris greens, lead arsenates, and fungicides manufactured, packed, distributed, or sold by me (us) (describing the same as fully as possible) are not adulterated or misbranded within the meaning of the Insecticide Act of 1910. (Signature.) (Place of business.) (Date.) If the guaranty be not filed with the Secretary of Agriculture it should identify and be attached to the bill of lading, invoice, bill of sale, or other schedule giving the description and amount of the article sold. [Section 10. The provisions of these regulations relating to the collection of samples and hearings before the Secretary of Agriculture or his representative have no application to proceed- ings instituted under Section IQ of the statute.] PCBE Food — 62. 978 LAW OP PUKE SOOD AND DEUGS. lUPOSTATIONS. Kegulation 21. Imports. (Section 11.) All Paris green and lead arsenate imported into the United States will be considered to be intended for use as insecticides and treated ac- cordingly, unless the contrary is shown. Regulation 22. Imports — ^Declaration. (Section 11.) All invoices of insecticides, Paris greens, lead arsenates, and fungi- cides imported into the United States shall be accompanied by a declara- tion of the shipper, made before a United States consular oflScer, as fol- lows: I, , the imdersigned, do here- (Name in full.) by declare that I am the \ .of the (Manufacturer or shipper.) merchandise herein mentioned, which consists of insecticides, Paris greens, lead arsenates, or fungicides. None of this merchandise is falsely labeled in any respect, nor dangerous to the health of the people of the United States, nor forbidden entry into, nor sale in, nor restricted in sale in, the country in which it is made or from which it is exported. The merchandise was manufac- tured in by (Country.) (Name of manufacturer.) , and is exported from consigned (City.) to (City.) (Signature.) Done at this day of 191 . . Regulation 23. Imports — Release on Bond. (Section 11.) Consignments of insecticides, Paris green, lead arsenates, or fungi- cides sought to be imported into the United States may be delivered to the consignee before examination to determine whether they are adulter- ated or misbranded, upon the execution and delivery by the consignee of a penal bond in a sum equivalent to the invoice value of the consignment, including the duty, conditioned upon the prompt return of the consign- ment to customs custody, upon demand by the Secretary of the Treasury or his representative. APPENDICES. 979 Begulation 24. Imports — Hearingr. (Section 11.) If upon examination or analysis of a sample from a consignment ot insecticides, Paris greens, lead arsenates, or fungicides adulteration or misbranding appear, the owner or consignee shall be promptly notified of the nature of the charge and the time and place at which consideration as to the disposition of the consignment will take place, in order that he may appear and introduce evidence. Regulation 25. Imports — Detention. (Section 11.) A reasonable time will be allowed the owner or consignee to secure evidence for consideration in connection with cnarges of misbranding or adulteration. If after examination or analysis of a sample from a con- signment of insecticides, Paris greens, lead arsenates, or fungicides, such sample has been found not to comply with the provisions of the Act and, after a hearing granted to the owner or consignee of the goods shall have been held, all the evidence in the case, including the sample, shall be transmitted to such oflScial stationed in Washington as the Secretary of Agriculture may designate for examination or analysis. If it then ap- pears that the consignment may not lawfully be imported into the United States in consideration of the results of the analysis or examination of the said sample, the Secretary of Agriculture shall report to the Secre- tary of the Treasury that the particular importation is adulterated or misbranded, as the case may be, under the provisions of the Insecticide Act of 1910. REVIEW, AMENSIKCENT, AND ENFORCEMENT OF REGULATIONS. Regulation 26. Review. (Section 11.) Application for review of decisions regarding the adulteration or mis- branding of insecticides, Paris greens, lead arsenates, or fungicides shall b« addressed to the Secretary of Agriculture, and all vouchers for reim- bursement for samples should be addressed to such officer of the Depart- ment of Agriculture as the Secretary of Agriculture may direct. Regulation 27. Amendment of Regulations. These regulations may be amended at any time without notice, with the concurrence of the Secretary of the Treasury, the Secretary of Agrl- cultur, and the Secretary of Commerce and Labor. 980 LAW OF PURE FOOD AND DEC6S. Begulation 28. Enforcement of Regulations. Regulation 12 will not be enforced until January 1, 1912. Prior to that time all matter required by the Act to be stated on the label may be added to the principal label in type sufficiently clear to attract the immediate attention of the purchaser by means of a sticker or paster or supplemental label in such a way as not to render the principal label deceptive or misleading. (As amended July 13, 1911.) FeanklIn MacVeagh, Secretary of the Treasury. James Wilson, Secretary of Agriculture. Chablbs Nagel, Secretary of Commeroe and Labor. Washington, D. C, December 9, 1910. STATUTE. An Act for preventing the manufacture, sale, or transportation of adulter- ated or miabranded Paris greens, lead arsenates, and other insecti- cides, and also fungicides, and for regulating traffic therein, and for other purposes. (36 Stat., 331.) Be it eruKted by the Senate and Bouse 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 insecticide, Paris green, lead arsenate, or fungicide which is adulter- ated 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 shall, upon conviction thereof, be fined not to exceed two hundred dollars for the first offense, and upon conviction for each sub- sequent offense be fined not to exceed three hundred dollars, or sentenced to imprisonment for not to exceed one year, or both such fine and imprison- ment, 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 District of Colum- bia, or from any foreign country, or shipment to any foreign coimtry, of any insecticide, or Paris green, or lead arsenate, or fungicide which is adulterated or misbranded within the meaning of this Act is hereby pro- hibited; 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 any 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 per- APPENDICES. 981 son who shall sell or offer for sale in the District of Columbia or any Territory of the United States and such adulterated or misbranded in- secticide, or Paris green, or lead arsenate, or fungicide, 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: Provided, 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; but if said articles 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 uniform rules and regulations for carrying out the provisions of this Act, includ- ing the collection and examination of specimens of insecticides, Paris greens, lead arsenates, and fungicides 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 which shall be received from any foreign country or intended for shipment to any foreign country, or which may be submitted for examination by the director of the experiment station of any State, Territory, or the District of Columbia (acting under the direction of the Secretary of Agriculture ) , 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 examination of specimens of insecticides, Paris greens, lead arsenates, and fungicides shall be made in the Department of Agriculture, by such existing bureau or bureaus as may be directed by the Secretary, for the purpose of determining from such examination 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 are 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 oflSeer. After 982 LAW OJ? PUEE FOOD AND DKDGS. judgment of the court, notice shall be given by publication in such man- ner 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 director of experiment station or agent of any State, Ter- ritory, or the District of Columbia, under authority of the Secretary of Agriculture, shall present satisfactory evidences 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. 6. That the term "insecticide" as used in this Act shall include any substance or mixture of substances intended to be used for prevent- ing, destroying, repelling, or mitigating any insects which may infest vegetation, man or other animals, or households, or be present in any environment whatsoever. The term "Paris green" as used in this Act shall include the product sold in commerce as Paris green and chemically known as the aceto-arsenite of copper. The term "lead arsenate" as used in this Act shall include the product or products sold in commerce as lead arsenate and consisting chemically of products derived from arsenic acid (H AsO ) by replacing one or more hydrogen atoms by lead. That the term "fungicide" as used in this Act shall include any substance or mixture of substances intended to be used for preventing, destroying, re- pelling, or mitigating any and all fungi that may infest vegetation or be present in any environment whatsoever. Sec. 7. That for the purpose of this Act an article shall be deemed to be adulterated — In the case of Paris green: First, if it does not contain at least fifty per centum of arsenious oxide; second, if it contains asenie in water- soluble forms equivalent to more than three and one-half per centum of arsenious oxide; third, if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. In the case of lead arsenate: First, if it contains more than fifty per centum of water; second, if it contains total arsenic equivalent to less than twelve and one-half per centum of arsenic oxide (As O ) ; third, if it contains arsenic in water-soluble forms equivalent to more than seventy-five one hundredths per centum of arsenic oxide (As ) ; fourth, if any substances have been mixed and packed with it so as to reduce, lower, or injuriously aflfect its quality or strength: Provided, however, That extra water may be added to lead arsenate (as described in this paragraph) if the resulting mixture is labeled lead arsenate and water, the percentage of extra water being plainly and correctly stated on the label. In the case of insecticides or fungicides, other than Paris green and lead arsenate: First, if its strength or purity fall below the professed standard or quality under which it is sold; second, if any substance has been substituted wholly or in part for the article; third, if any valuable APPENDICES. 983 constituent of the article has been wholly or in part abstracted; fourth, if it is intended for use on vegetation and shall contain any substance or substances which, although preventing, destroying, repelling, or miti- gating insects, shall be injurious to such vegetation when used. Sec. 8. That the term "misbranded" as used herein shall apply to all insecticides, Paris greens, lead arsenates, or fungicides, or articles which enter into the composition of insecticides or fungicides, 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 all insecticides, Paris greens, lead arsenates, 'or fungicides which are falsely branded as to the State, Territory, or country in which they are manufactured or produced. That for the purpose of this Act an article shall be deemed to be misbranded — In the case of insecticides, Paris greens, lead arsenates, and fungi- cides: First, if it be an imitation or offered for sale under the name of another article; second, if it be labeled or branded so as to deceive or mislead the purchaser, 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; 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. In the case of insecticides (other than Paris greens and lead arsen- ates) and fungicides: First, if it contains arsenic in any of its com- binations or in the elemental form and the total amount of arsenic pres- ent (expressed as per centum of metallic arsenic) is not stated on the label; second, if it contains arsenic in any of its combinations or in the ■elemental form and the amount of arsenic in water-soluble forms (ex- pressed as per centum of metallic arsenic) is not stated on the label; third, if it consists partially or completely of an inert substance or sub- stances which do not prevent, destroy, repel, or mitigate insects or fungi and does not have the names and percentage amounts of each and every one of such inert ingredients plainly and correctly stated on the label: Provided, however. That in lieu of naming and stating the preoentage amount of each and every inert ingredient the producer may at his discretion state plainly upon the label the correct names and percentage amounts of each and every ingredient of the insecticide or fungicide having insecti- cidal or fungicidal properties, and make no mention of the inert ingre- dients, except in so far as to state the total percentage of inert ingredi- "ents present. Sec. 9. That no dealer shall be prosecuted under the provisions of this Act when he can establish a guaranty signed by the wholesaler, job- Tier, manufacturer, or other party residing in the United States, from whom he purchased such articles, to the effect that 'the same is not adul- terated or misbranded within the meaning of this Act, designating it. 984 LAW OV PUEB FOOD AND DEUGS. Said guaranty, to afford proteetion, 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 prosecu- tions, fines, and other penalties which would attach in due course to the dealer under the provisions of this Act. Sec. 10. That any insecticide, Paris green, lead arsenate, or fungi- cide that is adulterated or misbranded' within the meaning of this Act and is being transported from one State, Territory, or District, 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 Dis- trict of Columbia or any Territory of the United States or if it be im- ported from a foreign country for sale, shall be liable to be proceeded against in any district court of the United States within the district wherein 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, within the meaning of this Act, the same shall be disposed of by de- struction 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 jurisdic- tion contrary to the provisions of this Act or the laws of that jurisdic- tion: Provided, however. That upon the payment of the costs of such libel proceedings and the execution and delivery of a good and sufficient bond to the effect that such articles shall not be sold or otherwise dis- posed of contrary to the provisions of this Act or the laws of any State, Territory, or District, the court may by order direct that such articles be delivered to the owner thereof. The proceedings of such libel cases shall conform, as near as may be, to the proceedings in admiralty, ex- cept that either party may demand 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. Sec. 11. That the Secretary of the Treasury shall deliver to the Sec- retary of Agriculture, upon his request, from time to time, samples of insecticides, Paris greens, lead arsenates, and fungicides 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 insecticide, or Paris green, or lead arsenate, or fungicide 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 rfe- stricted 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 re- fuse delivery to the consignee and shall cause the destruction of any APPENDICES. 985 good refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regula- tions 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 aiiy 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 payment 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 include the District of Alaska and the insular possessions of the United States. The word "person," as used in this Act, shall be construed to impart both the plural and the singular, as the case demands, and sihall include corporations, companies, societies, and associations. When construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association, as well as that of the other person. Sec. 13. That this Act shall be known and referred to as "The Insecti- cide Act of 1910." Sec. 14. That this Act shall be in force and effect from and after the first day of January, nineteen hundred and eleven. Approved, April 26, 1910. Issued August 26, 1911. UNITED STATES DEPARTMENT OF AGEICXTLTUEE. Office of the Secretary. INSECTICIDE DECISION NO. 1. Insect Powder. Many requests have been received from manufacturers and dealers for a decision giving the position of the department regarding the use of "insect flower stems" in preparations designated "Insect powder." A decision upon this point must necessarily depend in great measure upon the meaning of the term "insect powder." There are a number of powdered substances on the market which are widely used as insecticides. As examples there may be mentioned pow- D86 LAW OF PDEB FOOD AND DEtiOS. dered hellebore, powdered tobacco, and the powdered flowers of certain species of chrysanthemum. At first thought it would seem that the term "insect powder" might properly be applied to all of these as well as to any other powder which possesses inseoticidal properties. A study of the sub- ject, however, has convinced the board that such a broad and indefinite appli- cation of the term is not justifiable because common usage and trade practice have resulted in a limitation of the term so that, standing alone, it now signifies one definite thing, namely, the powdered flowered heads of certain species of chrysanthemum. The reasons which have led us to this conclusion are briefly as follows: The popular and scientific works of reference are in substantial agreement in declaring that "insect powder" commonly signifies the powdered fiower heads of certain species of chrysanthemum. Inquiries made by the board have developed the fact that among manufacturers and dealers generally the term "insect pow- der" is held to signify the powdered fiowers of certain species of chrysan- themum ( pyrethrum ) . Furthermore, the board has evidence from expert scientists supporting this, position completely. The board holds that the term "insect powder" is used in both a generic and a specific sense, the former applying in cases where no attempt is made to designate a particular article. A similar condition exists in the use of the word "flour." There may ibe rye flour and rice flour, but the word "flour," standing alone and used to designate a, specific article, means "wheat flour.'' Similarly, there may be hellebore insect powder and tobacco insect powder, but the term "insect powder" used without qualification signifies a definite article, as follows: The term "insect powder," when used without qualification, means an insecticide made from the powdered flower heads of the following species of chrysanthemum: 1. Chrysanthemum (pyrethrum) cinerarieaefoUum (Trev.) Bocc. 2. ChrysanthemAim {pyrethrum) roseum Web. & Mohr. 3. Chrysanthemum marshalUi Aschers. (Synonym: Pyrethrum carneum M. B. ) It naturally follows, from this interpretation, that the term "insect powder," unqualified, can not properly be applied to an article which consists in whole or in part of, insect flower stems. The use of powdered stems under such conditions would constitute an adulteration under the law. (Sec. 7: "That for the purpose of this Act an article shall be deemed to be adulterated * * *. In the case of insecticides or fungi- cides, other than Paris green and lead arsenate: First, if its strength or purity fall below the professed standard or quality under which it is sold; second, if any substance has been substituted wholly or in part for the article.") In designating a mixture of powdered flowers and stems the term "insect powder" may be used, provided this is immediately qualified by APPENDICES. 987 word or phrase so as to indicate clearly the nature of the article. The qualifying word or phrase should appear in type sufELciently clear and in position sufficiently prominent to attract the immediate attention of the purchaser. In a case of this kind, where the constituent substances are named, the predominating substance should be named first in order. The principles laid down above governing the use of the term "insect powder," when applied to substances consisting in whole or in part of powdered stems, are to be applied in like manner to all powdered sub- stances intended to be used as insecticides. The department has been requested to decide whether powdered insect flower stems will be regarded as "inert ingredients" under the terms of the Insecticide Act. Investigations to determine the precise value of these powdered stems are now under way. From the information at hand at the present time it appears that powdered stems have a certain inseeti- cidal value though distinctly less than the powdered flower heads. In view of this fact the declaration of powdered stems as inert ingredients will not be required unless further investigation shows this position to be erroneous, in which event suitable notice will be given to the trade. The terms "Pyrethrum" and "Pyrethrum powder" are, when ap- plied to insecticides, synonymous with "Insect powder." M. Dorset, M. B. Waite, A. L. QUAINTANCE, J. K. Haywood, Insecticide a/nd Fungicide Board. Approved : James Wilson, Secretary of Agriculture. Washington, D. C, July 15, 1911. 988 LAW OP PUKE POOD AND DRUGS. APPENDIX 0. STANDARDS OF PURITY FOR FOOD PRODUCTS. [Note. — This is the official pamphlet of the Department of Agriculture.] Circular No. 19, Superseding Circulars Nos. 13 and 17. SUPPLEMENTAL' PEOCLAMA.TION. Referring to Circular No. 13 of this office, dated December 20, 1904, and to Circular No. 17 of this office, dated March 8, 1906, the following food standards are hereby established as superseding and supplemental to those proclaimed on the dates above named. James Wilson, Secretary of Agriculture. Washington, D. C, June 26, 1906. LETTER OF SUBMITTAL. The Honorable the Secretary of Agriculture. Sir: The undersigned, representing the Association of Official Agri- cultural Chemists of the United States and the Interstate Food Com- mission, and commissioned by you, under authority given by the Act of Congress approved March 3, 1903, to collaborate with you "to estab- lish standards of purity for food products and to determine what are regarded as adulterations therein," respectfully report that they have carefully reviewed, in the light of recent investigations and correspond- ence, the standards earlier recommended by them, and have prepared a set of amended schedules, in which certain changes have been intro- duced for the purpose of securing increased accuracy of expression and a, more perfect correspondence of the chemical limits to the normal materials designated, and from which standards previously proclaimed for several manufactured articles have been omitted because of the un- satisfactory condition of trade nomenclature as applied thereto; and also additional schedules of s.tandards for ice creams, vegetables and vegetable products, tea and coflFee. They respectfully recommend that the standards herewith submitted be approved and proclaimed as the established standards, superseding and supplementing those established on December 20, 1904, and March 8, 1906. The principles that have guided us in the formulation of these standards are appended hereto. The several schedules of additional standards recommended have been submitted in a tentative form, to the manufacturing firms and the APPENDICES. 989 trade immediately interested, and also to the State food-control offi- cials for criticism. Respectfully, W ttt.ta m Feeae, Edwaed H. Jenkins, M. A. ScovEii, H. A. Webee, H. W. Wiley, Committee on Food Standards, Association of Oflacial Agricultural Chemists. RiCHABD FiSCHEE, Representing the Interstate Food Commission. Washington, D. C, June 26, 1906. PRINCIPIiES ON WHICH THE STANDARDS ARE BASED. The general considerations which have guided the committee in pre- paring the standards for food products are the following: 1. The standards are expressed in the form of definitions, with or without accompanying specifications of limit in composition. 2. The main classes of food articles are defined before the subor- dinate classes are considered. 3. The definitions are so framed as to exclude from the articles defined substances not included in the definitions. 4. The definitions , include, where possible, those qualities which make the articles described wholesome for human food. 5. A term defined in any of the several schedules has the same meaning wherever else it is used in this report. 6. The names of food products herein defined usually agree with existing American trada or manufacturing usage; but where such usage is not clearly established or where trade names confuse two or more articles for which specific designations are desirable, preference is given to one of the several trade names applied. 7. Standards are based upon data representing materials produced under American conditions and manufactured by American processes or representing such varieties of foreign articles as are chiefly imported for American use. 8. The standards fixed are such that a, departure of the articles to which they apply, above the maximum or below the minimum limit prescribed, is evidence that such articles are of inferior or abnormal quality. 9. The limits fixed as standard are not necessarily the extremes authentically recorded for the article in question, because such extremes are commonly due to abnormal conditions of production, and are usu- ally accompanied by marks of inferiority or abnormality readily per- ceived by the producer or manufacturer. 99.'y LAW OF PUKE FOOD AND DKUGS. FOOD STANDARDS. I. Animal PKODtrcrs. A. MEATS AND THE PEINCrPAL MEAT PEODUCTSi a. Meats. 1. Meat, flesh, is any clean, sound, dressed and properly prepared edible part of animals in good health at the time of slaughter, and if it bears a name descriptive of its kind, composition or origin, it corre- sponds thereto. The term "animals," as herein used, includes not only mammals, but fish, fowl, crustaceans, mollusks and all other animals used as food. 2. Fresh meat is meat from animals recently slaughtered and prop- erly cooled until delivered to the consumer. 3. Cold storage meat is meat from animals recently slaughtered and preserved by refrigeration until delivered to the eonsumer.i 4. Salted, pickled and smoked meats are unmixed meats preserved by salt, sugar, vinegar, spices or smoke, singly or in combination, wheth- er in bulk or in suitable containers.2 6. Marmfactured Meats. 1. Manufactured meats are meats not included in paragraphs 2, 3 and 4, whether simple or mixed, whole or comminuted, in bulk or in suitable containers,^ with or without the addition of salt, sugar, vinegar. 1 The establishment of proper periods of time for cold storage is re- served for future consideration when the investigations on this subject, authorized by Congress, are completed. 2 Suitable containers for keeping moist food products, such as sirups, honey, condensed milk, soups, meat extracts, meats, manufac- tured meats, and undried fruits and vegetables, and wrappers in con- tact with food products, contain on their surfaces, in contact with the food product, no lead, antimony, arsenic, zinc or copper or any com- pounds thereof or any other poisonous or injurious substance. If the containers are made of tin plate they are outside-soldered, and the plate in no place contains less than one hundred and thirteen (113) milli- grams of tin on a piece five (5) centimeters square or one and enght- tenths (1.8) grains on a piece two (2) inches square. The inner coating of the containers is free from pin-holes, blisters and cracks. If the tin plate is lacquered, the lacquer completely covers the tinned surface within the container and yields to the contents of the con- tainer no lead, antimony, arsenic, zinc or copper or any compounds thereof, or any other poisonous or injurious substance. APPENDICES. 991 spices, smoke, oils or rendered fat. If they bear names descriptive of kind, composition or origin, they correspond thereto, and when bearing such descriptive names, if force or flavoring meats are used, the kind and quanitity thereof are made known. e. Meat Extracts, Meat Peptones, etc. (Schedule in preparation.) d. La/rd. 1. Lard is the rendered fresh fat from hogs in good health at the time of slaughter, is clean, free from rancidity, and contains, necessarily incorporated in the process of rendering, not more than one (1) per- cent of substances other than fatty acids and fat. 2. Leaf lard is lard rendered at moderately high temperatures from the internal fat of the abdomen of the hog, excluding that adherent to the intestines, and has an iodin nimiber not greater than sixty (60). 3. 'Neutral lard is lard rendered at low temperatures. B. MILK AND ITS PEODUCTS. o. Milks. 1. Milk is the fresh, clean, lacteal secretion obtained by the com- plete milking of one or more healthy cows, properly fed and kept, ex- eluding that obtained within fifteen days before and ten days after calving, and contains not less than eight and one-half (8.5) percent of solids not fat, and not less than three and one-quarter (3.25) percent of milk fat. 2. Blemded milk is milk modified in its composition so as to have a definite and stated percentage of one or more of its constituents. 3. Shim milk is milk from which a part or all of the cream has been removed and contains not less than nine and one-quarter (9.25) percent of milk solids. 4. Pasteurized milk is milk that has been heated below boiling but sufficiently to kill most of the active organisms present, and immedi- ately cooled to 50° Fahr. or lower. 5. Sterilized mdlk is milk that has been heated at the temperature of boiling water or higher for a length of time sufficient to kill all or- ganisms present. 6. Condensed milk, evaporated milk, is milk from which a consid- erable portion of water has been evaporated and contains not less than twenty-eight (28) percent of milk solids, of which not less than twenty- seven and five-tenths (27.5) percent is milk fat. 7. Sweetened condensed milk is milk from which a considerable portion of water has been evaporated and to which sugar (sucrose) has d'yZ LAW OP PURE POOD AND DRUGS. been added, and contains not less that twenty-eight (28) percent of milk solids, of which not less than twenty-seven and five-tenths (27.5) per- cent is milk fat. 8. Condensed skim milk is skim milk from which a considerable portion of water has been evaporated. 9. Buttermilk is the product that remains when butter is removed from milk or cream in the process of churning. 10. Ooo/t's milk, ewe's mdlk, et cetera, are the fresh, clean, lacteal secretions, free from colostrum, obtained by the complete milking of healthy animals other than cows, properly fed and kept, and conform in name to the species of animal from which they are obtained. 6. Greamu. 1. Cream is that portion of milk, rich in milk fat, which rises to the surface of milk on standing, or is separated from it by centrifugal force, is fresh and clean, and contains not less than eighteen (18) per- cent of milk fat. 2. Evaporated creams, clotted cream,, is cream from which a con- siderable portion of water has been evaporated. c. Milk Fat or Butter Fat. 1. Milk fat, Gutter fat, is the fat of milk, and Jias a Keichert- Meissl number not lesis than twenty-four (24) and a specific gravity not less than 0.905 /40^X ^40° c.y d. Butter. 1. Butter is the clean, non-rancid product made by gathering in any manner the fat of fresh or ripened milk or cream into a mass, which also contains a small portion of the other milk constituents, with or without salt, and contains not less than eighty-two and five-tenths (82.5) percent of milk fat. By Acts of Congress approved August 2, 1886, and May 9, 1902, butter may also contain added coloring matter. 2. Renovated iutter, process hutter, is the product made by melt- ing butter and reworking, without the addition or use of chemicals or any substances except milk, cream or salt, and contains not more than sixteen (16) percent of water and at least eighty-two and five-tenths (82.5) percent of milk fat. e. Cheese. 1. Cheese is the sound, solid and ripened product made from milk or cream by coagulating the casein thereof with rennet or lactic acid, APPENDICES. 993 with or without the addition of ripening 'ferments and seasoning, and contains, in the water-free substance, not less than fifty (50) percent of milk fat. By Act of Congress approved June 6, 1896, cheese may also contain added coloring matter. 2. Skim milk cheese is the sound, solid and ripened product, made from skim milk by coagulating the casein thereof with rennet or lactic acid, with or without the addition of ripening ferments and seasoning. 3. Goat's milk cheese, ewe's m,ilk cheese, et cetera, are the sound, ripened products made from the milks of the animals specified, by coag- ulating the casein thereof with rennet or lactic acid, with or without the addition of ripening ferments and seasoning. /. Ice Creams. 1. Ice cream is a frozen product made from cream and sugar, with or without a natural flavoring, and contains not less than fourteen (14) percent of milk fat. 2. Fruit ice cream is a frozen product made from cream, sugar and sound, clean, mature fruits, and contains not less than twelve (12) percent of milk fat. 3. Nut ice cream is a frozen product made from cream, sugar and sound, non-rancid nuts, and contains not less than twelve (12) percent of milk fat. g. Miscellaneous Milk Products. 1. Whey is the product remaining after the removal of fat and casein from milk in the process of cheese-making. 2. Kumiss is the product made by the a'ccholic fermentation of mare's or cow's milk. II. Vbgetaele Peoducts. A. GEAIN PRODTJCTS. a. Grains and Meals. 1. Grain is the fully matured, clean, sound, air-dry seed of wheat, maize, rice, oats, rye, buckwheat, barley, sorghum, millet or spelt. 2. Meal is the clean, sound product made by grinding grain. 3. Flour is the fine, clean, sound product mode by bolting wheat meal, and contains not more than thirteen and one-half (13.5) percent of moisture, not less than one and twenty-five hundredths (1.25) per- cent of nitrogen, not more than one (1) percent of ash, and not more than fifty hundredths (0.50) percent of fiber. 4. Graham flour is unbolted wheat meal. 5. Gluten flour is the clean, sound product made from flour by the PUBB Food — 63. 994 LAW OF PUKE FOOD ANT) DKUGS. removal of starch, and contains not less than five and six-tenths (5.6) percent of nitrogen and not more than ten (10) percent of moisture. 6. Maize meal, corn meal, Indian corn meal, is meal made from sound maize grain, and contains not more than fourteen (14) percent of moisture, not less than one and tvFelve hundredths (1.12) percent of nitrogen, and not more than one and six-tenths (1.6) percent of ash. 7. Rice is the hulled, or hulled and polished grain of Oryza sativa. 8. Oatmeal is meal made from hulled oats and contains not more than twelve ( 12 ) percent of moisture, not more than one and five-tenths (1.5) percent of crude fiber, not less than two and twenty-four hun- dredths (2.24) percent of nitrogen, and not more than two and two- tenths (2.2) percent of ash. 9. Bye flour is the fine, clean, sound product made by bolting rye meal, and contains not more than thirteen and one-half ( 13.5 ) percent of moisture, not less than one and thirty-six hundredths (1..36) per- cent of nitrogen, and not more than one and twenty-five hundredths (1.25) percent of ash. 10. Buckwheat flour is bolted buckwheat meal and contains not more than twelve (12) percent of moisture, not less than one and twenty-eight hundredths (1.28) percent of nitrogen, and not more than one and seventy-five hundredths (1.75) percent of ash. B. rKUITS ASfD VEGETABLES. a. Fruit amd Fruit Products. (Except fruit juices, fresh, sweet and fermented, and vinegars.) 1. Fruits are the clean, sound, edible, fleshy fructifications of plants, distinguished by their sweet, acid and ethereal flavors. 2. Dried fruif^ is the clean, sound product made by drying mature, properly prepared, fresh fruit in such a way as to take up no harmful substance, and conforms in name to the fruit used in its prepara- tion; sun-dried fruit is dried fruit made by drying without the use of artificial means; evaporated fruit is dried fruit made by drying with the use of artificial means. 3. Evaporated apples are evaporated fruit made from peeled and cored apples, and contain not more than twenty-seven (27) percent of moisture, determined by the usual commercial method of drying for four (4) hours at the temperature of boiling water. (Standards for other dried fruits are in preparation.) 4. CoMned fruit is the sound product made by sterilizing clean. 1 The subject of sulphurous acid in dried fruits is reserved for con- sideration in connection with the schedule "Preservatives and Coloring Matters." APPENDICES. 995 sound, properly matured and prepared fresh fruit, by heating, with or without sugar (sucrose) and spices, and keeping in suitable, clean, hermetically sealed containers, and conforms in name to the fruit used in its preparation. 5. Preserve^ is the sound product made from clean, sound, prop- erly matured and prepared fresh fruit and sugar (sucrose) sirup, with or without spices or vinegar, and conforms in name to that of the fruit used, and in its preparation not leas than forty-five (45) pounds of fruit are used to each fifty-five (55) pounds of sugar. 6. Honey preserve'^ is preserve in which honey is used in place of sugar (sucrose) sirup. 7. Glucose preserve^ is preserve in which a glucose product is used in place of sugar (sucrose) sirup. 8. Jam, marmalade,^ is the sound product made from clean, sound, properly matured and prepared fresh fruit and sugar (sucrose), with or without spices or vinegar, by boiling to a pulpy or semisolid con- sistence, and conforms in name to the fruit used, and in its prepara- tion not less than forty-five (45) pounds of fruit are used to each fifty- flve (55) pounds of sugar. 9. Glucose jam, glucose m^rmalade,^ is jam in which a, glucose product is used in place of sugar (sucrose). 10. Fruit hutter^ is the sound product made from fruit juice and clean, sound, properly matured and prepared fruit, evaporated to a semi- solid mass of homogenous consistence, with or without the addition of sugar and spices or vinegar, and conforms in name to the fruit used in its preparation. 11. Glucose fruit butter^ is fruit butter in which a glucose product is used in place of sugar (sucrose). 12. Jelly^ is the sound, semisolid, gelatinous product made by boil- ing clean, sound, properly matured and prepared fresh fruit with water, concentrating the expressed and strained juice, to which sugar (sucrose) is added, and conforms in name to the fruit used in its preparation. 13. Glucose jelly'' is jelly in which a glucose product is used ip place of sugar (sucrose). 6. Vegetables and Vegetable Products. 1. Vegetables are the succulent, clean, sound, edible parts or herbaceous plants used for culinary purposes. 2. Dried vegetables are the clean, sound products made by drying properly matured and prepared vegetables in such a way as to take up no harmful substance, and conform in name to the vegetables used = Products made with mixtures of sugar, glucose and honey, or any two thereof, are reserved for future consideration. 996 LAW OP PUEE FOOD AND DRUGS. in their preparation; swra-ffo-ietJ vegetables are dried vegetables made by drying without the use of artificial means; evaporated vegetables are dried vegetables made by drying with the use of artificial means. 3. Canned vegetables, are sound, properly matured and prepared fresh vegetables, with or without salt, sterilized by heat, with or with- out previous cooking in vessels from which they take up no metallic substance, kept in suitable, clean, hermetically sealed containers, are sound and conform in name to the vegetables used in their preparation. 4. Pickles are clean, sound, immature cucumbers, properly pre- pared, without taking up any metallic compound other than salt, and preserved in any kind of vinegar, with or without spices; pickled onions, pickled beets, pickled beans, and other pickled vegetables are vegetables prepared as described above, and conform in name to the vegetables used. 5. Salt pickles are clean, sound, immature cucumbers, presea^red in a solution of common salt, with or without spices. 6. Sweet pickles are pickled cucumbers or other vegetables in the preparation of which sugar (sucrose) is used. 7. Sauerkraut is clean, sound, properly prepared cabbage, mixed with salt, and subjected to fermentation. 8. Catchup {ketchup, catsup) is the clean, sound product made from the properly prepared pulp of clean, sound, fresh, ripe tomatoes, with spices and with or without sugar and vinegar; mushroom catchup, walnut catchup, et cetera, are catchups made as above described, and conform in name to the substances used in their preparation. C. SUGARS AND EBXATED SUBSTANCES. a. Sugar and Sugar Products. Sugar. 1. Sugar is the product chemically known as sucrose (saccharose), chiefly obtained from sugar cane, sugar beets, sorghum, maple and palm. 2. Gramulated, loaf, cut, milled and powdered sugars are different forms of sugar and contain at least ninety-nine and five-tenths (99.5) percent of sucrose. 3. Maple sugar is the solid product resulting from the evaporation of maple sap, and contains, in the water-free substance, not less than sixty-five one-hundredths (0.65) percent of maple sugar ash. 4. Massecuite, melada, mMsh sugar, and concrete are products made by evaporating the purified juice of a sugar-producing plant, or a solution of sugar, to a solid or semisolid consistence, and in which the sugar chiefly exists in a crystalline state. APPENDICES. 991! Molasses and Refiners' Sirup. 1. Molasses is the product left after separating the sugar from massecuite, melada, mush sugar or concrete, and contains not more than twenty-five (25) percent of water and not more than five (5) percent of ash. 2. Refiners' sirup, treacle, is the residual liquid product obtained in the process of refining raw sugars, and contains not more than twenty-five (25) percent of water and not more than eight (8) percent of ash. 1. Sirup is the sound product made by purifying and evaporating the juice of a sugar-producing plant without removing any of the sugar. 2. Sugar-cane sirup is sirup made by the evaporation of the juice of the sugar-cane or by the solution of sugar-cane concrete, and con- tains not more than thirty (30) percent of water and not more than two and five-tenths (2.5) percent of ash. 3. Sorghum sirup is sirup made by the evaporation of sorghum juice or by the solution of sorghum concrete, and contains not more than thirty (30) percent of water and not more than two and five- tenths (2.5) percent of ash. 4. Maple sirup is sirup made by the evaporation of maple sap or by the solution of maple concrete, and contains not more than thirty- two (32) percent of water and not less than forty-five hundredths (0.45) percent of maple sirup ash. 5. Sugar sirup is the product made by dissolving sugar to the con- sistence of a sirup, and contains not more than thirty-five (35) percent of water. 6. Glucose Products. 1. Starch sugar is the Solid product made by hydrolyzing starch or a starch-containing substance until the greater part of the starch is converted into dextrose. Starch sugar appears in commerce in two forms, anhydrous starch sugar and hydrous starch sugar. The former, crys- tallized without water of crystallization, contains not less than ninety- five (95) percent of dextrose and not more than eight- tenths (0.8) per- cent of ash. The latter, crystallized with water of crystallization, is of two varieties: 70 sugar, also known as brewers' sugar, contains not less than seventy (70) percent of dextrose and not more than eight- tenths (0.8) percent of ash; 80 sugar, climax or acme sugar, contains not less than eighty (80) percent of dextrose and not more than one and one-half (1.5) percent of ash. The ash of all these products consists almost entirely of chlorides and sulphates. 998 LAW OF PUEE FOOD AND DRUGS. 2. Ghicoae, mixing glucose, confectioner's glucose, is a thick, sirupy, colorless product made by incompletely hydrolyzing starch, or a starch- containing substance, and decolorizing and evaporating the product. It varies in density from forty-one (41) to forty-live (45) degrees Baumg at a temperature of 100° Fahr. (37.7° C), and conforms in density, within these limits, to the degree Baumfi it is claimed to show, and for a density of forty-one (41) degrees Baum€ contains not more than twenty-one (21) percent, and for a density of forty-five (45) degrees not more than fourteen (14) percent of water. It contains on a basis of forty-one (41) degrees Baumg not more than one (1) percent of ash, consisting chiefly of chlorides and sulphates. c. Candy. 1. Candy is a product made from a saccharine substance or sub- stances with or without the addition of harmless coloring, flavoring or filling materials, and contains no terra alba, barytes, talc, chrome yel- low, or other mineral substances, or poisonous colors or flavors, or other ingredients deleterious or detrimental to health, or any vinous, malt or spirituous liquor or compound, or narcotic drug. d. Honey. 1. Honey is the nectar and saccharine exudations of plants gath- ered, modified and stored in the comb by honey bees [Apis mellifica and A. dorsata) ; is laevo- rotatory, and contains not more than twenty-five (25) percent of water, not more than twenty-five hundredths (0.25) percent of ash, and not more than eight (0.8) percent of sucrose. 2. Comb honey is honey contained in the cells of comb. 3. Extracted honey is honey which has been separated from the un- crushed comb by centrifugal force or gravity. 4. Strained honey is honey removed from the crushed comb by straining or other means. D. CONDIMENTS (EXCEPT VINEGAR AND SALT). 1. Spices are aromatic vegetable substances used for the seasoning of food and from which no portion of any volatile oil or other flavoring principle has been removed, and which are clean, sound and true to name. 2. Allspice, pimento, is the dried fruit of the Pinwnta pimenta (L.) Karst., and contains not less than eight (8) percent of quercitan- nic acidji not more than six (6) percent of total ash, not more than five-tenths (0.5) percent of ash insoluble in hydrochloric acid, and not more than twenty -five (25) percent of crude fiber. 3. Anise is the fruit of the Pimpinella anisum L. 1 Calculated from the total oxygen absorbed by the aqueous extract. APPENDICES. 999 4. Bay leaf is the dried leaf of Laurus noUlis L. 5. Capers are the flower buds of Gapparis spinosa L. 6. Caraway is the fruit of Carum carvi L. Cayenne and Red Peppers. 7. Red pepper is the red, dried, ripe fruit of any species of Cap- sicum. 8. Cayenne pepper, cayenne, is the dried ripe fruit of Capsicum frutescens L., Capsicum haccatum L., and some other small-fruited spe- cies of Capsicum, and contains not less than fifteen (15) percent of nonvolatile ether extract; not more than six and five-tenths (6.5) per- cent of total ash; not more than five-tenths (0.5) percent of ash in- soluble in hydrochloric acid; not more than one and five-tenths (1.5) percent of starch, and not more than twenty-eight (28) percent of crude fiber. 9. Paprika is the dried ripe fruit of Capsicum wnnuum L., or some other large-fruited species of Capsicum,, excluding seeds and stems. 10. Celery seed is the dried fruit of Apium graveolens L. 11. CinrMmon is the dried bark of any species of the genus Cin- namomum from which the outer layers may or may not have been re- moved. 12. True dnmamon is the dried inner bark of Cinnamonvum zey- lanicum Breyne. 13. Cassia is the dried bark of various species of Cinnamomum, other than Cinnamom/um zeylanicum, from which the outer layers may or may not have been removed. 14. Cassia buds are the dried immature fruit of species of Cinna- momum,. 15. Groimd dnna/mon, ground cassia, is a, powder consisting of cinnamon, cassia, or cassia buds, or a mixture of these spices, and con- tains not more than six (6) percent of total ash and not more than two (2) percent of sand. 16. Cloves are the dried flower buds of Caryophyllus aromaticus L., which contain not more than five (5) percent of clove stems; not less than ten (10) percent of volatile ether extract; not less than twelve (12) percent of quercitannic acid ;i not more than eight (8) percent of total ash; not more than five-tenths (0.5) percent of ash insoluble in hydrochloric acid, and not more than ten (10) percent of crude fiber. 17. Coriander is the dried fruit of Coriandrum sativum L. 18. Cumin seed is the fruit of Guminum cyminum L. 19. Dill seed is the fruit of Anethum graveolens L. I Calculated from the total oxygen absorbed by the aqueous extract. 1000 LAW OF PDEB FOOD AND DRUGS. 20. Fennel is the fruit of Foemicuhiin foemculum (L.) Karst. 21. Ginger is the washed and dried or decorticated and dried rhizome of Zinsiber zingiber (L.) Karst., and contains not less than forty -two (42) percent of starch; not more than eight (8) percent of crude fiber, not more than six (6) percent of total ash, not more than one (1) percent of lime, and not more thaji three (3) percent of ash insoluble in hydrochloric acid. 22. Limed ginger, bleached ginger, is whole ginger coated with car- bonate of lime and contains not more than ten (10) percent of ash, not more thaoa four (4) peroent of carbonate of lime, and conforms in other respects to the standard for ginger. 23. Horse-radish is the root of Roripa wrmoracia (L.) Hitchcock, either by itself or ground and mixed with vinegar. 24. Moce is the dried ariUus of Myristica fragrans Houttuyn, and contains not less than twenty (20) nor more than thirty (30) percent of nonvolatile ether extract, not more than three (3) percent of total ash, and not more than five-tenths (0.5) percent of ash insoluble in hydrochloric acid, and not more than ten (10) percent of crude fiber. 25. Macassar mace, Papua mace, is the dried arillus of Myristica argentea Wanb. 26. Bombay mace is the dried arillus of Myristica malabarica Lamarck. 27. Marjoram is the leaf, flower and branch of Majorana major- ana ( L. ) Karst. 28. Mustard seed is the seed of Sinapis alba L. (white mustard), Brassica nigra (L.) Koch (black mustard), or Brassica juneea (L.) Oosson ( black or brown mustard ) . 29. (jhround nvustard is a powder made from mustard seed, with or without the removal of the hulls and a portion of the fixed oil, and contains not more than two and five-tenths (2.5) percent of starch and not more than eight (8) percent of total ash. 30. Prepared mustard, German mustard, French mustard, mustard paste, is a paste composed of it. mixturfe of ground mustard seed or mustard flour with salt, spices and vinegar, and, calculated free from water, fat and salt, contains not more than twenty-four (24) percent of carbohydrates, calculated as starch, determined according to the official methods, not more than twelve (12) percent of crude fiber nor less than thirty-five (35) percent of protein, derived solely from the materials namedl 31. Nutmeg is the dried seed of the Myristica fragrans Houttuyn, deprived of its testa, with or without a thin coating of lime^ and contains not less than twenty-five (25) percent of nonvolatile ether extract, not more than five (5) percent of total ash, not more than five-tenths (0.5) percent of ash insoluble in hydrochloric acid, and not more than ten (10) percent of crude fiber. APPENDICES. 1001 32. Macassar nutmeg, Papua nutmeg, male nutmeg, long nutmeg, is the dried seed of Myristica argentea Warb. deiprived of its testa. Pepper. 33. Black pepper is the dried immature berry of Piper nigrum L. and contains not less than six (6) percent of nonvolatile ether extract, not less than twenty-five (25) percent of starch, not more than seven (7) percent of total ash, not more than two (2) percent of ash in- soluble in hydrochloric acid, and not more than fifteen (15) percent of crude fiber. One hundred parts of the nonvolatile ether extract contain not less than three and one-quairter (3.25) parts of nitrogen. Ground tlack pepper is the product made by grinding the entire berry and contains the several parts of the berry in their normal proportions. 34. Long pepper is the dried fruit of Piper longum L. 35. White pepper is the dried mature berry of Piper nigrum L. from which the outer coating or the outer and inner coatings have been removed and contains not less than six (6) percent of nonvolatile ether extract, not less than fifty (50) percent of starch, not mx)re than four (4) percent of total ash, not more than five-tenths (0.5) percent of ash insoluble in hydrochloric acid, and not more than five (5) percent of crude fiber. One hundred parts of the nonvolatile ether extract contain not less than four (4) parts of nitrogen. 36. Saffron is the dried stigma of Crocus sativus L. 37. Sage is the leaf of Salvia officinalis L. 38. Savory, summer savory, is the leaf, blossom, and branch of Satureja hortensis L. 39. Thyme is the leaf and tip of blooming branches of Thymus vulgaris 1 . 6. Flavoring Extracts. 1. A flavoring eostracf^ is a solution in ethyl alcohol of proper strength of the sapid and odorous principles dierived from an aromatic plant, or parts of the plant, with or without its coloring matter, and conforms in name to the plant used in its preparation. 2. Almond extract is the flavoring extract prepared from oil of bitter almonds, free from hydrocyanic acid, and contains not less than one (1) percent by volume of oil of bitter almonds. 2a. Oil of litter almonds, commercial, is the volatile oil obtained from the seed of the hitter almond (Amygdalus communis L.), the apricot (Prunus armeniaca L.), or the peach (Amygdalus persica L.) iThe flavoring extracts herein described are intended solely for food purposes and are not to be confounded with similar preparations described in the Pharmacopoeia for medicinal purposes. 1002 LAW OF PURE FOOD AND DRUGS. 3. Anise extract is the flavoring extract prepared from oil of anise, and contains not less than three (3) percent by volume of oil of anise. 3a. Oil of anise is the volatile oil obtained from the anise seed. 4. Celery seed extract is the flavoring estraet prepared from celery seed or the oil of celery seed, or both, and contains not less than thi-ee-tenths (0.3) percent by volume of oil of celery s*d. 4a. Oil of celery seed is the volatile oil obtained from celery seed. 5. Cassia extract is the flavoring extract prepared from oil of cassia and contains not less tlian two (2) percent by volume of oil of cassia. 5a. Oil of cassia is tlie lead-free volatile oil obtained from the leaves or bark of Cinnamomum cassia BI., and contains not less than seventy-five (75) percent by weight of oinnamic aldehyde. 6. Cinnamon extract is the flavoring extract prepared from oil of cinnamon, and contains not less than two (2) percent by volume of oil of cinnamon. 6a. Oil of cinnamon is the lead-free volatile oil obtained from thie bark of the Ceylon cinnamon {Cinnamomum zeylanicum Breyne), and contains not less than sixty-five (65) percent by weight of cinnamie aldehyde and not more than ten (10) percent by weight of eugenol. 7. Clove eeetract is the flavoring extract prepared from oil of oloves, and contains not less than two (2) percent by volume of oil of cloves. 7a. Oil of cloves is the lead-free volatile oil obtained from cloves. 8. Ginger extract is the flavoring extract prepared from ginger and contains in each one hundred (100) cubic centimeters, the alcohol- soluble matters from not less than twenty (20) grams of ginger. 9. Lemon extract is the flavoring extract prepared from oil of lemon, or from lemon peel, or both, and contains not less than five (5) percent by volume of oil of lemon. 9a. Oil of lemon is the volatile oil obtained, by expression or alcoholic solution, from the fresh peel of the lemon {Citrus limomtm L.), has an 'optical rotation (25° C.) of not less than +60° in a 100- mllUmeter tube, and contains not less than four (4) percent by weight of citral. 10. Terpeneless extract of lemon is the flavoring elxtract prepared by shaking oil of lemon with dilute alcohol, or by dissolving terpene- less oil of lemon in dilute alcohol, and contains not less than two- tenths (0.2) percent by weight of citral derived from oil of lemon. 10a. Terpeneless oil of lemon is oil of lemon from which all or nearly all of the terpenes have been removed. 11. Nutmeg extract is the flavoring extract prepared from oil d nutmeg, and contains not less than two (2) percent by volume of oil of nutmeg. 11a. Oil of nutmeg is thie volatile oil obtained from nutmegs. APPENDICES. 1003 12. Orange emtract is the flavoring extract prepared from oil of orange, or from orange peel, or both, and contains not less than fivte (5) percent by voliime of oil of orange. 12a,. Oil of orange is the volatile Oil obtained, by expression or alcoholic solution, from the fresh peel of the orange {Citrus aurantium L.) and has an optioal rotation (25° C.) of not less than +95° in a lOO-milltmeter tube. 13. Terpeneless extract of orange is the flavoring extract prepared by shaking oil of orange with dilute alcohol, or by dissolving -ferpene- less oil of orange in dilute alcohoL and corresponds in flavoring strength to orange extract. 13a. Terpeneless oil of orange is oil of orange from which all or nearly all of the terpenes have been removed. 14. Peppermint extract is the flavoring extract prepared from oil of peppermint, or from peppermint, or both, and contains not less than three (3) percent by volume of oil of peppermint. 14a. Peppermint is the leaves and flowering tops of Mentha piperita L. 14b. Oil of peppermint is the volatile oil obtained from pepper- m.int and contains not less than fifty (50) percent by weight of menthol. 15. Rose extract is the flavoring extract prepared from otto of roses, with or without red rose petals, and contains not less than four- tenths (0.4) percent by volume of otto of roses. 15a. Otto of roses is the volatile oil obtained from the petals of Rosa damascena Mill., R. centifolia L., or R. moschata Herrm. 16. Savory extract is the flavoring extract prepared from oil of savory, or from savory, or both, and contains not less than thirfcy-flve hundredths (0.35) percent by volume of oil of savory. 16a. Oil of savory is the volatile oil obtained from savory. 17. Spearmint extract is the flavoring extract prepared from oil of spearmint, or from spearmint, or both, and contains not less than three (3) percent by volume of oil of spearmint. 17a. Spearmint is the leaves and flowering tops of Mentha spicata L. 17b. Oil of spearmint is the volatile oil obtained from spearmint. 18. Star anise extract is the flavoring extract prepared from oil of star anise, and contains not less than three (3) percent by volume of oil of star anise. 18a. Oil of star anise is the volatile oil distilled from the fruit of the star anise (Illicium verum Hook). 19. Sweet lasil extract is the flavoring extract prepared from oil of sweet basil, or from sweet basil, or both, and contains not less than one-tenth (0.1) percent by volimie of oil of sweet basil. 19a. Sweet hasil, tasil, is the leaves and tops of Ocymum iasili- cum L. 1004 LAW OF PTJEE FOOD AND DRUGS. 19J>. Oil of sioeet iasil is the volatile oil obtained from basil. 20. Sweet marjoram extract, marjoram, extract, is the flavoring extract prepared from the oil of marjoram, or from marjoram, or both, and contains not less than one (1) percent by volume of oil of mar- joram. 20a. Oil of marjoram is the volatile oil obtained from marjoram. 21. Thyme extract is the flavoring extract prepared from oil of thjTnie, or from thyme, or both, and contains not less than two-tenths (0.2) percent by .volume of oil of thyme. 21a. Oil of thyme is the volajtile oil obtained from thyme. 22. Tonka extract is the flavoring extract prepared from tonka bean, with or without sugar or glycerin, and contains not less thaJti one-tenth (0.1) percent by weight of eoumarin extracted from the tonka bean, together with a corresponding proportion of the other soluble matters thereof. 22a. Tonka bean is the seed of Coumarouna odorata Aublet {Dip- teryx odorata (Aubl.) Willd.). 23. Vanilla extract is the flavoring extract prepared from vanilla bean, with or without sugar or glycerin, and contains in one hundred ( 100 ) cubic centimeters the soluble matters from not less than ten ( 10 ) grams of the vanilla bean. 23a. Vamlla bean is the dried, cured fruit of VoMilla plamfoUa Andrews. 24. Wintergreen extract is the flavoring extract prepared from oil of wintergreen, and contains not less than three (3) percent by volume of oil of wintergreen. 24a. Oil of wintergreen is the volatile oil distilled froan the leaves of the Gaultheria procumbens L. c. Edible Vegetable Oils and Fats. 1. Olive oil is the oil obtained from the sound, mature fruit of the cultivated olive tree {Olea europoea L.) and subjected to the usual refining processes; is free from rancidity; has a refractive index (25° C.) not less than one and forty-six hundred and sixty ten- thousandths (1.4660) and not exceeding one and forty-six hundred and eighty ten thousandths (1.4680); and an iodin number not less than seventy-nine (79) and not exceeding ninety (90). 2. Virgin olive oil is olive oil obtained from the first pressing of carefully selected, hand-picked olives. 3. Cotton-seed oil is the oil obtained from the seeds of cotton plants {Gossypium hirsutum. L., G. barbadense L.. or G. herbaceum L.) and subjected to the usual refining processes; is free fiiom rancidity; has a refractive index (25° C.) not less than one and forty-seven hundred ten-thousandths (1.4700) and not exceeding one and forty- seven hundred and twenty-five ten- thousandths (1.4725); and an iodin APPENDICES. 1005 rnimber not less than one hundred a,nd four (104) and not exceeding one hundred and ten (110). 4. "Winter-yelloib" cotton-seed oil is expressed ootton-seed oil from which a portion of the stearin has been separated by chilling and pressure, and has an iodin nxunber not less than one hundred and ten (110) and not exceeding one hundred and sixteen (116). 5. Peanut oil, arachis oil, earthnut oil, is the oil obtained from the peanut (Arachis hypogaea L.) and subjected to thie usual refining processes; is free from rancidity; has a refractive index (2-5° 0.) rot less than one and forty-six hundred and ninety ten-thousajidths (1.4690) and not exceeding one and forty-seven hundred and seven ten-thou- sandths (1.4707); and an iodin nimiber not less than eighty-seven (87) and not exceeding one hundred (100). 6. "Gold-drawn" peanut oiU is peanut oil obtained by pressure ■without heating. 7. Sesame oil, gingili oil, teel oil, is the oil obtained froim the seeds of the sesame plants {Sesamum orientale L. and 8. radiatum Schum. and Thonn.) and subjected to the usual refining processes; is free from rancidity; has a refractive index (25° C.) not less than one and forty seven hundred and four ten-thousandths (1.4704) and mot exceeding one and forty-seven hundred and seventeen ten-thousandths (1.4717); and an iodin number not less than one hundred and three (103) and not exceeding one hundred and twelve (112). 8. "C'old-draum" sesame oil^ is sesame oil obtained by pressure without heating. 9. Poppy-seed oiP- is the oil obtained from the seed of the poppy (Papaver somniferum L.) subjected to the usual refining processes and free from rancidity. 10. White poppy-seed oil, "cold-drawn" poppy-seed oil,^ is poppy- seed oil of the first pressing without heating. 11. Coconut oiU is the oil obtained from the kernels of the coco- nut (Cocos nucifera L.) and subjected to the usual refining processes and free from rancidity. 12. Cochin oil is coconut oil prepared in C!ochin (Malabar). 13. Ceylon oil is coconut oil prepaJled in Ceylon. 14. Copra oil is coconut oil prepared from copra, the dried kernels of the coconut. 15. Ra^ie-seed oil, colza oil,^ is the oil obtained from the seeds of the rape plant (Brassica napus L.) and subjected to the usual re- fining processes and free from rancidity. 16. "Cold-drawn" rape-seed oiU is rape-seed oil obtained by the first pressing without heating. 17. Sunflower oiP- is the oil obtained from the seeds of the sun- iThe fixing of limits for chemical and physical properties is reserved for future consideration. 1006 LAW OF PURE FOOD AND DEUGS. flower (Helianthus annuus L.) and subjected to the usual refining processes and free from rancddity. 18. "Cold-drawn" sunflower oiU is sunflower odl obtained by the first pressing without hieating. 19. Maize oil, corn oili is the oil obtained from the germ of the maize {Zea mays L.) aad subjected to the usual refining processes ajid free from rancidity. 20. Cocoa butter, cacao butter, is the fat obtained from roasted, sound cocoa beans, and subj,ected to the usual refining processes; is free from rancidity; has a refractive index (40° C.) not less than one and forty-five hundred and sixty-six ten-thousandths (1.4566) and not ex- ceeding one and forty-five hundred and ninety-eight ten- thousandths (1.4598), an iodin number not less than thirty-three (33) and not exceeding thirty-eight (38) ; and a, melting point not lower than 30° C. nor higher than 35° C. 21. Cotton-seed oil stearin is the solid product made by chilling ootton-seed oil and separating the solid portion by filtration, with or without pressure, and having an iodin number not less than eighty- five (85) and not more than one hundred (100). E. Tea, Coffee, and Cocoa Products. a. Tea. 1. Tea is the leaves and leaf buds of different species of Thea, prepared by the usual trade processes of fermenting, drying, and firing; meets the provisions of the Act of Congress approved March 2, 1897, and the regulations made in conformity therewith (Tileasury Depart- ment Circular 16, February 6, 1905) ; conforms in variety and place of production to the name it bears; and contains not less than four (4) nor more than seven (7) percent of ash. 6. Coffee. 1. Coffee is the seed of Coffee arabica L. or Coffee liberiea, BuD., freed from all but a small portion of its spermoderm, and conforms in variety and place of production to the name it bears. 2. Boasted coffee is cofl'ee which by the action of the heat has be- come brown and developed its characteristic aroma, and contains not less than ten (10) percent of fat and not less than three (3) percent of ash. c;. Cocoa and Cocoa Products. 1. Cocoa beans are the seeds of the cacao tree, Theobronw. cacao, L. 2. Cocoa nibs, cracked cocoa, is the roasted, broken cocoa bean freed from its shell or husk. 1 The fixing of limits for chemical and physical properties is reserved for future consideration. APPENDICES. 1007 3. Chocolate, plain chocolate, bitter chocolate, chocolate liquor, Utter chocolate coatings, is the solid or plastic mass obtained by grinding oocoa nibs without the removal of fat or other constituents except the gierm, and contains not more thaji three (3) percent of ash insoluble in water, three and fifty-hundredths (3.50) percent of crude fiber, and nine (9) percent of starch, and not less than forty-five ( 5) percent of cocoa fat. 4. Sweet chocolate, sweet chocolate coatings, is chocolate mixed with sugar (sucrose), with or without the addition of cocoa butter, spices, or other flavoring materials, and contains in the sugar and fat-free residue no higher percentage of either ash, fiber, or starch than is found in the sugar and fat-fr'ee residue of chocolate. 5. Cocoa, poxcdered cocoa, is oocoa nibs, Avith or without the germ, deprived of a portion of its fat and finely pulverized, and eon- tains percentages of ash, crude fiber, ajid starch corr^ponding to those in chocolate after correction for fat removed. 6. Sweet cocoa, sweetened, cocoa, is cocoa mixed with sugar (su- crose), and contains not more than sixty (60) percent of sugar (su- crose), 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 iat- free residue of chocolate. F. Beverages. o. Fruit Juices — Fresh, Sweet, and FermenleJ. 1. Fresh, and 2. Sweet. (Schedules in preparation.) 3. Fermented Fruit Juices. 1. Wine is the product made by the normal alcoholic fermenta- tion of the juice of sound, ripe grapes, and the usual cellar treat- ment, and contains not less than seven (7) nor more than sixteen (16) percent of alcohol, by volume, and, in one hundred (100) cubic centi- meters (20° C), not more than one tenth (0.1) gram of sodium chlorid nor more than two- tenths (0.2) gram of potassium sulphate; and for red wine not more than fourteen hundredths (0.14) gram, and for white wine not more than twelve hundredths (0.12) gram of volatile acids produced by fermentation and calculated as acetic acid. Red leine is wine containing the red coloring matter of the skins of grapes. White mine is wine made from whit- grapes or the expressed fresh juice of other grapes. 2. Dry wine is wine in which the fermentation of the sugars is practically complete and which contains, in one hundred (100) cubic centimeters (20° C), less than one (1) gram of sugars, and for dry 1008 LAW OF PUKE FOOD AND DKUGS. red wine not less than sixteen hundredths (0.16) gram of grape ash and not less than one and S'ix-tenths (1.6) grams of sugar-free grape solids, and for dry white wine not less than thirteen hundredths (0.13) gram of grape ash and not less than one and four tenths (1.4) grams of sugar-free grape solids. 3. Fortified dry wine is dry wine to which brandy has been added, but which conforms in all other particulars to the standard of dry wine. 4. Sweet wine is wine in whicih the alcoholic fermentation has been arrested, and which contains, in one hundred (100) cubic centi- meters (20° C), not less than one (1) gram of sugars, and for sweet red wine not less than sixteen hundredths (0.16) gram of grape ash, and for sweet white wine not less than thirteen hundredths (0.13) gram of grape ash. 5. Fortified sweet wine is sweet wine to which wine spirits have been added. By Act of Congrtess, "sweet wine" used for making forti- fied sweet wine and "wine spirits" used for such fortification are defined as follows (Sec. 43, Act of October 1, 1890, 26 Stat. 567, as amended by Section 68, Act of August 27, 1894, 28 Stat. 509, and further amended by Act of Congress approved June 7, 1906) : "That the wine spirits mentioned in Section 42 of this Act is the product resulting from the distillation of fermented grape juice to which water may have been added prior to, during, or after fermentation, for the sole purpose of facilitating the fermentation and economical distilla- tion thereof, and shall be held to include the products from grapes, or their residues, commonly known as grape brandy; and the pure sweet wine, which may be fortified free of tax, as provided in said section, is fermented grape juice only, and shall contain no other substance whatever introduced before, at the time of, or after fer- mentation, except as herein expressly provided; and such sweet wine shall contain not less than four (4) percentum of saccharine matter, which saccharine strength may be determined by testing with Balling's saccharometer or must scale, such sweet wine, after the evaporation of the spirits contained therein, and restoring the sample tested to orig- inal volume by addition of water: Promded, that the addition of pure boiled or condensed grape must or pure crystallized cane or beet sugar or pure anhydrous sugar to the pure grape juice aforesaid, or the fermented product of such grape juice prior to the fortification pro- vided by this Act for the sole purpose of perfecting sweet wine ac- cording to commercial standard, or the addition of water in such quantities only as may be necessary in the mechanical operation ef grape conveyors, crushers, and pipes leading to fermenting tanks, shall not be excluded by the definition of pure sweet wine aforesaid: Pro- vided, however, that the cane or beet sugar, or pure anhydrous sugar, or water, so used shall not in either case be in excess of ten (10) APPENDICES. 1009 peroentum of the weight of the wine to be fortified under this Aet: And provided further, that the addition of water herein authorized shall be under such regulations and limitations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may from time to time prescribe; but in no case shall such wines to which water has been added be eligible for fortification under the provisions of this Act where the same, after fermentation and before fortification, havle an alcoholic strength of less than five (5) percentum of their volume." 6. Sparkling wine is wine in which the aifter part of the fer- mentation is completed in the bottle, the sediment being disgorged and its place supplied by wine, or sugar liquor, and which contains, in one hundred (100) cubic centimeters (20° C), not less than twelve himdredths (0.12) gram of grape ash. 7. Modified wine, ameliorated vjine, corrected wine, is the product made by the alcoholic fermentation, with the usual cellar treatment, of a mixture of the juice of sound, ripe grapes with sugar (sucrose), or a syrup containing not less than sixty-five (65) percent of sugar (sucrose), and in quantity not more than enough to raise the alcoholic strength after fermentation to eleven (11) percent by volume. 8. Raisin wine is the product made by the alcoholic fermentation of an infusion of dried or evaporated grapes, or of a mixture of such infusion or of raisins with grape juice. 6. Mead, Root Beer, etc. (Schedule in preparation.) c. Malt Liquors. ( Schedule in preparation. ) d. Spirituous Liquors. (Schedule in preparation.) e. Carhonated Waters, etc. ( Schedule in preparation. ) G. ViNEGAB. 1. Vinegar, cider vinegar, apple vinegar, is the product made by the alcoholic and subsequent acetous fermentations of the juice of apples, is laevo-rotatory, and contains not less than four (4) grams of acetic acid, not less than one and six tenths (1.6) grams of apple solids, of which not more than fifty (50) percent are reducing sugars, PUBE EOOD — 64. 1010 LAW OF PUBB FOOD AND DRUGS. and not less than twenty-five hundredths (0.25) gram oiE apple ash in one hundred (100) cubic centimeters (20° C.) ; and the water-soluble ash from one hundred (100) cubic centimeters (20° C.) of the vinegar contains not less than ten (10) milligrams of phosphoric acid (P ), and requires not less than thirty (30) cubic centimeters of decinormal acid to neutralize its alkalinity. 2. Wine vinegar, grape vinegar, is the product .made by the alco- holic and subsequent acetous fermentations of the juice of grapes and contains, in one hundred (100) cubic centimeters (20° C), not less than four (4) grams of acetic acid, not less than one (1.0) gram of grape solids, and not less than thirteen hundredths (0.13) gram of grape ash. 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, is dextro-rotatory, and contains, in one hundred (100) cubic centimieters (20° C), not less than four (4) grams of acetic acid, not less than two (2) grajns of solids, and not less than two tenths (0.2) gram of ash; and the water-soluble ash from one hundred (100) cubic centi- meters (20° C.) of the vinegar contains not less than nine (9) milli- grams of phosphoric acid (P 0_), and requires not less than four (4) cubic centimeters of decinormal acid to neutralize its alkalinity. 4. Sugar vinegar is the product made by the alcoholic and subse- quent acetous fermentations of solutions of sugar, sirup, molasses, or refiners' syrup, and contains, in one hundred ( 100 ) cubic centimeters (20° C), not less than four (4) grams of acietic acdd. 5. Glucose vinegar is the product made by the alcoholic and sub- sequent acetous fermentations of solutions of starch sugar or glucose, is dexitro-rotatory, and contains, in one hundred (100) cubic centi- meters (20° C), not less than four (4) grams of acetic acid. 6. Spirit vinega/r, distilled vinegar, grain vinegar, is the product made by the acetous fermentation of dilute distilled alcohol, and con- tains, in one hundred (100) cubic centimeters (20° C), not less than four (4) grams of acetic acid. III. Salt. 1. Table salt, dairy salt, is fine-grained crystalline salt containing on a water-free basis, not more than one and four-tenths (1.4) percent of calcium sulphate (CaSO ), nor more than five-tenths (0.5) percent of calcium and magnesium chlorids (CaCl., and MgCl ), nor more than one-tenth (0.1) percent of matters insoluble in water. IV. Preservatives and Coloring Matters. (Schedules in preparation.) TABLE OF CASES NOTE.— The abbreviation "N. J." means "Notice of Judgment," which is issued by the Department of Agriculture. [References are to pages.] Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518, - 16, 18, 67, 82, Altschul V. State, 8th Ohio Cir. Ct. Eep. 214, American Print Works v. Law- rence, 21 N. J. L. 248, Antoine v. Buncombe, 8 Ont. Wkly. Eepr. 719, Appleby v. State, 45 N. J. L. 161, Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. E. A. 864, 8, 9, 95, 104, 128, Armour & Co. v. Augusta, 134 Ga. 178, 67 S. E. 417, 27 L. R. A. (N. S.) 677, 110, 112, Armour & Co. v. Bird, 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616, 679, Armour Packing Co. v. Snyder, 84 Fed. 136, 7, 37, 83, Armour etc. Co. v. State Dairy etc. Co., 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616, Ash V. People, 11 Mich. 351, Atlantic City v. Abbott, 73 N. J. L. 281,' 62 Atl 999, Ausin V. Boston, 7 Wall. 694, 19 L. Ed. 224, affirming 14 Allen, 359, Austin V. Austin City Cemetery Assn., 87 Tex. 330, 28 S. W. 528, 47 Am. St. 114, Austin V. Tennessee, 179 U. S. 343; 31 Sup. Ct. 132, 45 L. Ed. 244, affirming 101 Tenn. 563, 50 L. R. A. 478, 70 Am. St. 703, 48 S. W. 305, 152, 153, 157, 137 708 90 796 800 158 127 680 105 115 97 13 125 127 161 Bacon v. Callow Park Dairy Co., 66 J. P. 804, 87 L. T. 70, 18 T. L. R. 573, 727, 732 Bainbridge v. State, 30 Ohio St 264, 671, 709 Bakewell v. Davis [1894], 1 Q. B. 296, 58 J. P. 228, 67 L. J. M. C. 93, 69 L. T. 832, 625, 627, 662 Banks v. Wooler, 64 J. P. 245, 81 L. T. 785, 19 Cox C. C. 432, 646 Barnes v. Chipp, 3 Ex. Div. 47, 47 L. J. M. C. 85, 38 L. T. 570, 26 W. R. 675, 593, 631 Barney v. Burstenbinder, 7 Lans. 224, 801 Bayles v. Newton, 50 N. J. L. 549. 18 Atl. 77, 700, 746 Bayley v. Pearks, Gunston & Tea Co., 66 J. P. 790, 87 L. T. 67, 746 Bayley v. Cooke, 69 J. P. 139, 92 L. T. 170, 53 W. R. 410, 20 Cox C. C. 779, 3 L. G. R. 304, 627 Bear v. Cedar Rapids, 147 la. 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150, 29, 75, 127, 131, 826, 828 Beckwith v. Oatman, 43 Him 265, 796, 824, 825 Beha v. State, 67 Neb. 27, 93 N. W. 155, 8, 33, 34 Beine, In re, 42 Fed. 545, 152, 153 Bennett v. Carr, 134 Mich. 243, 96 N. W. 26, 10 Det. L. N. 407, 48, 747 Bennett v. Tyler, 64 J. P. 119, 81 L. T. 787, 19 Cos C. C. 434, 194, 786 1011 1013 TABLE OF CASES. [References are to pages.] Bent V. Ormerod [1901], 2 K. B. 290, 65 J. P. 646, 70 L. J. K. B. 747, 84 L. T. 719, 49 W. R. 684, 716 Bertram v. Commonwealth, 108 Va. 902, 62 S. E. 969, 9, 137 Betts V. Armstead, 20 Q. B. Div. 771, 52 J. P. 471, 57 L. J. M. C. 100, 58 L. T. 811, 36 W. E. 720, 16 Cox C. C. 418, 708 Binns v. United States, 194 U. S. 486, 24 Sup. Ct. 816, 48 L. Ed. 1087, 581, 583 Birdsall v. Smith, 158 Mich. 990, 122 N. W. 626, 16 Det. L. N. 648, 665 Birmingham v. Gtoldstein, 151 Ala. 473, 44 So. 113, 125 Am. St. 33, 9, 77, 80, 133 Bishop V. Weber, 139 Mass. 410, 52 Am. Rep. 715, 801, 802, 803, 825 Bissman v. State, 9 Ohio Cir. Ct. Rep. 714, 9, 706, 707, 741 Blanke v. Board of Health, 64 N. J. L. 42, 44 Atl. 847, 75 Blazier v. Miller, 10 Hun. 435, 51, 71, 83 Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. 324, 800, 802, 804, 806 Blue V. Beech, 155 Ind. 121, 56 N. E'. 89, 29 Boornworth v. Bridge, 36 Sol. J. 594, 791 Boot's Cash Chemists v. Cowl- ing, 67 J. P. 195, 19 T. L. R. 370, 274, 278 Borden's Condensed Milk Co. v. Montelair (N. J. L.), 80 Atl. 30, 13, 18, 20, 21, 40, 63 67, 68, 70, 103, 105 Boston Dairy Co. v. J. H. Jones Corporation (N. Y.), 129 N. y. Supp. 70, 833 Bower v. Holzworth, 138 Fed. 28, 615 Bowling Green v. Carson, 10 Bush. 65, 97 Braniflf v. Weaver, 72 Iowa 641, 34 N, W. 456, 784 Brennan v. United States, 73 N. J. L. 729, 65 Atl. 165, 118 Am. St. 727, 9 L. R. A. (N. S.) 254, 9 A. & B. Am. Cas. 727, 800 Bridge v. Howard [1897], 1 Q. B. 80, 60 J. P. 790, 65 L. J. M. C. 229, 75 L. T. 300, 45 W. E. 78, 18 Oox C. C. 421, 626, 662 Brimmer v. Eebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862, afBrming 41 Fed. 867, 98, 108, 145 Brosuahan, In re, 18 Fed. 62, 7, 30, 34, 105 Brown v. Galveston, 97 Tex. 1, 75 S. W. 488 80 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392, 796, 807, 821, 824 Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678 162, 163, 167 Brown v. State, 14 Ind. App., 24, 42 N. E. 244, 762 Brundage, In re, 96 Fed. 963, 99, 703 Brunswig v. White, 70 Tex. 504, 8 S. W. 85, 812, 817, 823, 824 Bueh V. Seabury, 8 John. 418, 97 Buckingham v. Plymouth Water Co., 142 Pa. 221, 21 Atl. 824, 831 Buckler v. Wilson [1896], 1 Q. B. 83, 60 J. P. 118, 65 L. J. M. C. 18, 73 L. T. 580, 44 W. R. 220, 591, 629, 632 Buffalo V. Schleifer, 2 N. Y. Misc. Rep. 216, 21 K. Y. Supp. 913, 136 Buffalo V. Webster, 10 Wend. 100, 97 Bundy v. Lewis, 72 J. P. 489, 99 L. T. 833, 7 L. G. R. 55, 695 Burch V. Spenser, 15 Hun 504, 826, 827 Burgess v. Sims Drug Co., 114 Iowa 275, 86 N. W. 307, 54 L. R. A. 364, 825 Burk V. Creamery Package Mfg. Co., 126 Iowa 730, 102 N. W. 793, 106 Am. St. 377, 397, 811 Burlington v. Bumgardner, 42 Iowa, 673, 76 TABLE 01' OASES. 1013 [References a/re to pages.'] Burlington v. Unterkirchier, 99 Iowa 404, 68 N. W. 795, 80 Bumby v. BoUet, 16 M. & W. 644, 17 L. J. Exch. 190, 11 Jur. (0. S.) 827, 5, 94, 826, 828, 829 Burton v. Mattison, 66 J. P. 628, 86 L. T. 770, 746 Butler V. Chambers, 36 Minn. 69, 30 N. W. 308, 1 Am. St. 644, 7, 8, 24, 34, 36 Butterfield v. Smellenburg (Pa.), 79 Atl. 980, 795, 796, 808, 812, 816, 820 Butterfield v. Stranahan, 192 U. S. 470, 24 Sup. Ot. 349, 48 L. Ed. 525, 190 Buttfield V. Bidwell, 192 U. S. 498, 24 Sup. Ct. 356, 48 L. Ed. 536, 190 Byrd, Ex parte, 84 Ala. 17, 4 So. 397, 5 Am. St. 328, 9, 135 Byrne v. Chicago General E. Co., 169 111. 75, 48 N. E. 703, affirming 63 111. App., 438, 81 O Cache County v. Jensen, 21 Utah 207, 61 Pac. 303, 81 Campbell v. Segars, 81 Ala., 259, 1 So. 714, 118 Cantee v. State, 10 S. W. 757, 707 Canto, Ex parte, 21 Tex App. 61, 97 Capital City Dairy Co. v. Ohio, 183 U. S. 238, 22 SUp. Ct. 120, 46 L. Ed. 171, affirming 62 Ohio St. 350, 57 L. E. A. 181, 57 N. E. 62, 33, 45, 125 Carberrv v. People, 39 111. App. 506 ' 784, 785 Carr v. Augusta, 124 6a. 116, 52 S. E. 300, 88 Carter v. Green, 127 La. 490, 53 So. 729, 31 L. R. A. (N. S.) 1055, 110 Carter v. Harden, 78 Me. 528, 801 Carter v. State, 122 Ga. 175, 50 S. B. 64, 770 Cecil V. Green, 161 111. 265, 43 N. E. 1105, 32 Ii. E. A. 566, affirming 60 111. App. 61, 786 Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492, 125 Charleston v. Werner, 46 S. C. 323, 24 S. E. 207, 137 Cheadle v. State, 4 Ohio St. 477, 640 Chicago V. Bartie, 100 111. 57, 76, 79 Chicago V. Bowman Dairy Co., 234 111. 294, 84 N. E. 913, 17 L. E. A. (N. S.) 684, 123 Am. St. 100, 124, 153, 164, 674, 744 Chicago V. Hobson, 52 111. 482, 639 Chicago V. Schmidinger, 243 111. 167, 190, 90 N. E. 369, 372, 8, 122, 123 Childs V. Bemus. 17 R. I., 230, 21 Atl. 539, 12 L. E. A. 57, 86, 88 Church of Holy Trinity v. United States, 143 U. S. 457, 12 Sup. Ct. 571, 36 L. Ed. 226, reversing 36 Eed. 303, 215, 581, 583 Cicero Lumber Co. v. Cicero, 176 111. 27, 51 N. E. 764, 42 L. R. A. 704, 68 Am. St. 163 131 Cincinnati Inclined Plane E. Co. V. Cincinnati, 52 Ohio St. 609, 44 N. E. 327, 81 Cincinnati St. Ey. Co. v. Cin- cinnati, 8 Ohio N. P. 80, 81 Clarke v. Stancliffe, 7 Exch. 439, 826, 828 Clarkin v. McCartan, 22 Irish L. T. 95, 629 Cleason, In re, 140 U. S. 200, 11 Sup. a. 735, 35 L. Ed. 409, 616 Cloud V. Hewitt, 3 Cranoh C. C. 199, Fed. Cas. No. 2904, 640 Collett V. Walker, 59 J. P. 600, 64 L. J. M. C. 267, 117, 683 Collins V. Hills, 77 Iowa 181, 41 N. W. 571, 3 L. E. A. 110, 154, 155 Collins V. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 L. Ed. — , 7, 37, 103 Commonwealth v. Andrews, 24 Pa. Super. Ct. 571, 127 1014 TABLE OF CASES. [References are to pages.l Oonunonwealth v. Bean, 148 Mass., 172, 19 N. E. 163, 699 Commonwealth v. Bearce, 150 Mass. 389, 23 N. E. 99, 88 Commonwealth v. Boston White Cross Milk Co. (Mass.), 95 N. E. 85, 651 Commonwealth v. Bowers, 140 Mass. 483, 5 N. E. 469, 661, 705, 724, 769 Commonwealth v. Boynton, 2 Alien 160, 705 Commonwealth v. Boynton, 12 Gush. 499, 763 Commonwealth v. Byrnes, 158 Mass. 172, 33 N. E. 343, 718, 722, 781 Commonwealth v. Callahan, 12 Pa. Co. Ct. Rep. 170, 721 Commonwealth v. Carter, 132 Mass. 12, 71, 73, 74 Commonwealth v. Caulfield, 211 Pa. 644, 61 Atl. 243, 33, 130, 747, 776 Commonwealth v. Chase, 125 Mass. 202, 758 Commonwealth v. Coleman, 157 Mass. 460, 32 N. E. 662, 620 Commonwealth v. Crane, 158 Mass. 218, 33 N. E. 388, 699, 700 Commonwealth v. Davison, 11 Pa. Super. Ct. Eep. 130, 774 Commonwealth v. Diefenbacher, 14 Pa. Super. Ct. Eep. 264, 7, 33 Cbmmonwealth v. Dougherty, 39 Pa. Super. Ct., 338, 8, 789, 790 Commonwealth v. Ducey, 126 Mass. 269, 74 Commonwealth v. Evans, 132 Mass. 11 8, 12, 34, 50, 705 Commonwealth v. Farren, 9 Allen 489, 52, 56, 706, 707, 761 763, 768, 779 Commonwealth v. Flannelly, 15 Gray, 195, 707, 709, 764 Commonwealth v. Fuller, 2 Walk. (Pa.) 550, 784 Commonwealth v. Gardner, 16 Montg. Co. Law Eep. 171, 704 Commonwealth v. Gay, 153 Mass. 211, 26 N. E. 852, 617, 654, 661, 673, 705, 708 709, 738, 768, 774 Commonwiealth v. Goodman, 97 Mass. 117, 705 Commonwealth v. Gordon, 159 Mass. 8, 33 N. E. 709, 3, 645, 672 Commonwealth v. Hallett, 103 Mass. 452, 705 Commonwealth v. Hartman, 19 Co. Ct. Eep. 97, 6 Pa. Dist. Eep, 136, 3, 645, 652 Commonwealth v. Haynes, 107 Mass. 194, 703, 741 Commonwealth v. Hendley, 7 Pa. Super. Ct. Eep. 356, 28 Pitts. L. J. (N. S.) 401, 751 Commonwealth v. Holt, 146 Mass. 38, 14 N. E. 930, 664, 675 Commonwealth v. Hough, 1 Pa. Dist. Rep. 51, 658, 665, 739, 778 Commonwealth v. Hovious, 112 Ky. 491, 66 S. W. 3, 23 Ky. L. Eep. 1724, 783, 784 Commonwealth v. Hufnal, 4 Pa. Super. Ct. 301, 40 W. N. C. 360 656, 657 Commonwealth v. Hufnal, 185 Pa. 376, 39 Atl. 1052, 42 W. N. C. 78, 652 Commonwealth v. Huntley, 156 Mass. 236, 30 N. E. 1127, 15 L. E. A. 839, 9, 33, 36, 748 Commonwealth v. Johnson, 144 Pa. St. 377, 24 Atl. 703, 784 Commonwealth v. Kebort, 212 Pa. 289, 61 Atl. 895, 3, 130, 789 Commonwealth v. Kebort, 26 Pa. Super. Ct. 584, 9 Commonwealth v. Kenan, 139 Mass. 193, 29 N. E. 477, 645, 769 Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761, 663, 760 Commonwealth v. Kevin, 202 Pa. 23, 51 Atl. 594, 90 Am. St. 613, 8, 18, 19, 20, 789 Commonwealth v. King, 1 Whart. 448, 639 Commonwealth v. Kninsley, 133 Mass. 578, 86, 88 Commonwealth v. Kolt, 13 Pa. Super. Ct. Rep. 347 708, 746, 767 Commonwealth v. Lockhart, 144 Mass. 132, 10 N. E. 511, 619, 639 Commonwealth v. Luscomb, 130 Mass. 42, 779 TABLE OF CASES. 1015 [References are to pages.] Commonwealth v. McCance, 176 Mass. 292, 57 N. E. 603, 665, 705 Commonwealth v. McCann, 14 Pa. Super. Ct. 221, 7, 26 Commonwealth v. MoCarron, 2 Allen, 157, 764 Commonwealth v. McDermott, 37 Pa. Super. Ct. 1, 7, 34, 766, 777 Commonwealth v. McDonnell, 157 Mass. 407, 32 N. E. 361, 774, 777 Commonwealth v. Mellett, 27 Pa. Super, a. Eep. 41, 747, 776 Commonwealth v. Mills, 157 Mass. 405, 32 N. E. 360, 777 Commonwealth v. Miller, 131 Pa. 220, 18 Atl. 938, 6 L. R. A. 633, 17 Am. St. 798, 703, 751, 754, 765, 766 Commonwealth v. Mullen, 176 Mass. 132, 57 N. E. 331, 760, 774 Commonwealth v. Nichols, 10 Allen, 109, 663, 705, 761 Commonwealth v. O'Donnell, 1 Allen, 593, 764 Commonwealth v. Paul, 170 Pa. 284, 33 Atl. 85, 50 Am. St. 776, 8, 34, 100, 102 Commonwealth v. Proctor, 165 Mass. 38, 42 N. E. 335, 51, 673, 742 Commonwealth v. Raymond, 97 Mass. 567, 721, 763 Commonwealth v. Richards, 16 Montg. Co. Law Rep. 176, 743 Commonwealth v. Riddle, 3 Pa. Law Jour. 487, 639 Commonwealth v. Rowell, 146 Mass. 128, 15 N. E. 154, 779 Commonwealth v. Russell, 162 Mass. 520, 39 N. E. 110, 700 Commonwealth v. Savery, 145 Mass. 212, 13 K. E. 611, 708 Commonwealth v. Schaffner, 146 Mass. 512, 16 N. E. 280, 654, 664, 672, 770, 789 Commonwealth v. Schmidt, 13 Pa. Co. Ct. Rep. 28, 721 Commonwealth v. Schollenber- ser, 156 Pa. 201, 27 Atl. 30, 36 Am. St. 32, 22 L. R. A. 155, " Commonwealth v. SehoUenber- ger, 1 Pa. Dist. Rep. 437, 153 Pa. St. 625, 25 Atl. 999, 721 Commonwealth v. Seller, 20 Pa. Super. Ct. 260, 7, 34, 43, 113 Commonwealth v. Smith, 103 Mass. 444, 709 Commonwealth v. Smith, 141 Mass, 135, 6 N. E. 89, 638 Commonwealth v. Smith, 143 Mass. 169, 9 N. E. 631, 779 Commonwealth v. Smith, 149 Mass. 9, 20 N. E. 161, 699 Commonwealth v. Spear, 143 Mass. 172, 9 N. E. 632, 620, 663 Commonwealth v. Spencer, 28 Pa. Super. Ct. Rep., 301, 9, 774 Commonwealth v. Stewart, 159 Mass. 506, 39 N. E. 187, 700 Commonwealth v. Stratton, 114 Mass. 703, 19 Am. Rep., 350, 819 Commonwealth v. Tobias, 141 Mass. 129, 6 N. E. 217, 659, 661, 761, 769 Commonwealth v Uhrig, 138 Mass. 492, 708 Commonwealth v. Van Dyke, 9 Pa. Dist. Rep. 41, 105 Commonwealth v. Van Dyke, 13 Pa. Super. Ct. Rep., 484, 7, 747, 748 Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577, 673, 703, 706, 741, 742 Commonwealth v. Waite, 11 Allen 264, 87 Am. Dec. 711, 12, 43, 52, 53, 663 Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308, 56, 673, 703, 705 Commonwealth v. Weiss, 139 Pa. 247, 21 Atl. 10, 23 Am. St. 182, 11 L. R. A. 530, 706, 707, 709, 724 Commonwealth v. Wentworth, 118 Mass. 441, 705 Commonwealth v. Witherbee, 153 Mass. 159, 26 N. E. 414, 652, 658, 672 Commonwealth v. Zacharias, 5 Pa. Dist. Ct. Rep. 475, 137 Connor v. Butler [1902], 2 Irish Rep. 569, 629 1016 lABLE OF CASES. [References are to pages.] Conklin v. E. P. & J. H. Staats, 70 N. J. L. 773, 59 Atl. 144, 66 L. R. A. 595, 800 Cook V. Marshall, 119 Iowa 384, 93 N. W. 772, 104 Am. St. 283, 161 Cook V. Marshall, 196 U. S. 261, 25 Sup. Ct. 233, 49 L. Ed. 471, affirming 119 Iowa 384, 104 Am. St. 283, 93 N. W. 372, 156 Cook V. Pennsylvania, 97 U. S. 566, 24 L. Ed. 1015, 163 Cook V. People, 125 111. 278, 17 N. E. 849, 784, 786 Cook V. State, 110 Ala. 40, 20 So. 360, 9, 30, 33, 752 758, 775 Coopersville Cooperative Cream- ery Co. V. Lemon, 163 Fed. 145, 210 Copas V. Anglo-American Pro- vision Co., 73 Mich. 541, 41 N. W. 690, 826, 827 Copland v. Boston Dairy Co. 189 Mass. 342, 75 N. B. 704, 665 Craft V. Parker W. & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139, 800, 801, 825, 826 Crane v. Lawrence, 25 Q. B. Div. 152, 54 J. P. 474, 59 L. J. M. C. 110, 63 L. T. 197, 38 W. R. 620, 6 T. L. R. 370, 718 Grossman v. Lurman, 192 U. S. 189, 24 Sup. a. 234, 48 L. Ed. 401, affirming l7l N. Y. 329, 63 N. E. 1097, 8, 17, 19, 26, 98, 103, 104 158, 832, 833 Grossman v. Lurman, 171 N. Y. 329, 63 N. E. 1097, affirm- ing 57 N. Y. App. 393, 68 N. Y. Supp. 311, 8, 45 Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620, 86 Cullen v. McNair, 72 J. P. 376, 99 L. T. 358, 24 T. L. R. 692, 6 L. G. R. 753, 671 Cullinan, In re, 94, N. Y. App. Div. 445, 88 N. Y. Supp. 164, 88 Cullinan v. New Orleans, 28 La. 102, 80 Cundig V. Le Coceq, 53 L. J. M. C. 125, 13 Q. B. Div. 207, 763 Cunningham v. C. R. Peace House Furnishing Co., 74 N. H. 435, 6 Atl^ 120, 20 L. R. A. { N. S.) 236, 800, 807 Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 23 Am. St. 220, 10 L. R. A. 322, 797 D Dabold v. Chronicle Pub. Co., 107 Wis. 357, 83 N. W. 639, 832 Dargie v. Dunbar, 11 Rettie (J. C.) 37, 622 Davidson v. MeLeod, 42 J. P. 43, 5 Rettie (J. C.) 1, 3 Coup. 511, 274, 713, 714, 715 Davidson v. Nichols, 11 Allen 514, 802, 814, 820 Davis V. Guarnieri, 45 Ohio St. 470, 4 Am. St. 548, 15 N. E. 350, 803, 807, 809, 811 820, 821,824 Davis V. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71, affirming 162 Mass. 510, 26 L. R. A. 712, 44 Am. St. Rep. 389, 39 N. E. 113, 7 Dawes v. Wilkinson [1907], 1 K. B. 278, 71 J. P. 23, 76 L. J. K. B. 182, 96 L. T. 26, 23 T. L. R. 34, 21 Cox C. C. 340, 5 L. G. R. 1, 683, 688 Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 Am. St. 339, 5, 6, 51, 83, 131, 137 Delaware, L. & W. R. Co. v. Solnan, 39 N. J. L. 299, 23 Am. Rep. 214, 800 Dent V. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623, 86 Dibble v. Hathaway, 11 Hun 571, 701 Diokins v. Randerson [1901], 1 K. B. 437, 65 J. P. 262, 70 L. J. K. B. 344, 84 L. T. 204, 19 Cox C. C. 643, 274 TABLE OF CASES. 1017 [References are to pages.'i Dickey, Ex parte, 144 Cal. 234, 77 Pac. 924, 66 L. E. A. 928, 103 Am. St. 82, 119 Diersing v. State, 29 Ohio Cir. Ct. Rep. 469, 738, 742, 779 Dietrick, Ex parte, 149 Cal. 104, 84 Pac. 770, 5 L. R. A. (N. S.) 873, 9, 119 Dilley v. People, 4 Bradw. (111.), 52, 707 Dinkelbihler v. State, 7 Ohio Dec. 99, 4 Ohio N. P. 96, 704 District of Columbia v. Garri- son, 25 D. C. 563, 619 Divine v. McCormick, 50 Barb. 116, 826, 827 Dobbins v. United States, 96 U. S. 395, 24 L. Ed. 637, 613 Dorsey v. State, 38 Tex. Cr. 527, 44 S. W. 514, 40 L. R. A. 201, 70 Am. St. 762, 8, 42, 758, 759 Draper v. Newnham, 102 L. T. 280, 74 J. P. 124, 8 L. G. R. 144, 738 Drexel, Ex parte, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 588, 119 Duncan v. Landls, 106 Fed. 839, 615 Dyke v. Gower [1892], 1 Q. B. 220, 56 J. P. 168, 61 L. J. M. C. 70, 65 L. T. 760, 17 Cox C. C. 421, 8 L. G. R. 117, 692, 708 E East St. Louis Board of Trade V. People, 105 111. 382, 638 Elder v. Dryden, 72 J. P. 355, 99 L. T. 20, 6 L. G. R. 786, 636, 662 Elder v. Smithson, 57 J. P. 809, 728, 732 Elliott V. Pileher [1901], 2 K. B. 817, 65 J. P. 743, 70 L. J. K. B. 795, 85 L. T. 50, 20 Cox C. C. 18, 726, 727, 732, 733 Elliott V. Toeppner, 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200, 615 Emerson v. Brigham, 10 Mass. 197, 828 Emert v. Missouri, 156 U. S. 296; 15 Sup. Ct. 367, 39 L. Ed. 223, 100 Emmerton v. Mathews, 7 H. & N. 586, 826, 828 Engle V. Nowlin, 94 Fed. 646, 709 Enniskillen Union v. Hilliard, 14 L. R. Ir. 214, 591, 629, 630 Evans v. Chicago & N. W. Ry. Co., 109 Minn. 64, 122 N. W. 876, 8, 105, 107, 110 Evans v. Weatheritt [1907], 2 K. B. 80, 71 J. P. 228, 76 L. J. K. B. 628, 96 L. T. 641, 23 T. L. R. 424, 21 Cox C. C. 415, 5 L. G. R. 608, 727, 734 Ewing v. Webster City, 103 Iowa 226, 72 N. W. 511, 127 F Fairbank Canning Co. v. Metz- ger, 43 Hun 71, 828 Farley v. Higginbotham, 42 Sol. J. 309, 634, 635 Farmers' etc. Dairy Co. v. Ste- venson, 55 J. P. 407, 6 L. J. M. C. 70, 63 L. T. 776, 17 Cox C. C. 201, 727, 728, 730 Farthing v. Parkinson, 68 J. P. 353, 90 L. T. 783, 20 Cox C. C. 661, 2 L. G. R. 989, 737 Fath V. Koeppel, 72 Wis. 289, 39 N. W. 539. 641 Feat V. Walsh [1891], 2 Q. B. 304, 55 J. P. 726, 60 L. J. M. C. 143, 65 L. T. 82, 39 W. R. 525, 17 Cox C. C. 322, 722, 771 Feigen v. McGuire, 64 N. J. L. 152, 44 Atl. 972, 764 Felford v. Fyfe [1908], Sess. Cas. (J.) 83, 771 Findlav v. Haas, 67 J. P. 198, 88 L. T. 465, 19 T. L. R. 353, 1 L. G. R. 377, 626 Firth V. McPhail, 74 L. J. K. B. 458, [1905] 2 K. B. 300, 763 Fisher v. Golladay, 38 Mo. App. 531, 811 Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018, 60 Fitzgerald v. Leonard, 32 L. E. Irish Rep. 675, 709 Plander v. People, 4 Alb. L. Jr. 316, 704 1018 TABLE OF CASES. [References are to pages.'i Fleet V. Hollenkamp, 13 B. Mon. 219, 56 Am. Dec. 563, 795, 796, 807 Foot V. Findlay [1909], 1 K. B. 1, 72 J. P. 494, 78 L. J. K. B. 48, 99 L. T. 798, 25 T. L. R. 10, 6 L. G. E. 1129, 624 Ford V. Urquhart, 21 Vict. L. R. 688, 17 Aust. L. T. 297, 2 Aust. L. R. 110, 636, 738 Fortune v. Hanson [1896], 1 Q. B. 202, 60 J. P. 88, 6S L. J. M. C. 71, 74 L. T. 145, 44 W. R. 431, 18 CoK C. C. 258, 625, 662 Fowle V. Fowle, 60 J. P. 758, 75 L. T. 514, 18 Cox C. C. 462, 195, 786 Fowler v. Randall, 99 Mo. App. 407, 73 S. W. 931, 786, 810, 816 Fox V. State, 94 Md. 143, 50 Atl. 700, 89 Am. St. 419, 709, 765 Frederick v. State (Neb.), 131 N. W. 618, 120 Frencli v. Card, 73 J. P. 389, 101 L. T. 428, 635, 659 French v. Vining, 102 Mass. 132, 3 Am. Rep., 440, 826, 827, 831 French Silver Dragee Co. v. United States, 179 Fed. 824, — N. J. 543, 198, 219 Frew V. Gunning, 3 Fraser (J. C.) 51, 3 Adam 339, 38 Sc. L. R. 555, 657, 694 Friend v. Mapp, 68 J. P. 589, 2 L. G. R. 1317, 716 Frost V. Chicago, 178 111. 250, 52 N. E. 869, 49 L. R. A. 657, 69 Am. Bt. 301, 95 Fyfe V. Cochrane, 660 Fyfe V. Hamilton,- 1 Adam 484, 622, 636 G Gaertner v. Fond du Lac, 34 Wis. 497, 88 Gage V. Elsey, 10 Q. B. Div. 518, 47 J. P. 391, 52 L. J. M. C. 44, 48 L. T. 226, 31 W. R. 501, 683, 688 Gaines v. Waters, 64 Ark. 609, 44 S. W. 353, 90 Gardner v. Michigan, 199 U. S. 325, 26 Sup. Ot. 106, 27 L. Ed. 1107, 13 Garforth v. Esam, 56 J. P. 521, 590, 630 George v. Skivington, 5 Exch., — , 798, 804, 808 Georgetown v. Davidson, 6 D. C. 278, 639 Getty V. Rountree, 2 Pinney, 379, 2 Chand. 28, 54 Am. Dee. 138, 826 Gibbons v. Ogdeu, 9 Wheat. 1, 6 L. Ed. 23, reversing 17 Johns. 488, 148 Gibson v. Coraopolis, 22 Pittsb. L. J. (N. S.) 64, 80 Gill V. Kaufman, 16 Kan. 571, 155 Gillespie v. People, 188 111. 176, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. 176, 8 Giroux V. Stedman, 145 Mass. 439, 14 N. E. ' 538, 7 Am. Rep. 472, 828, 830 Gloversville v. Enos, 35 N. Y. Misc. 724, 72 N. Y. Supp. 398, affirmed 70 N. Y. App. Div. 326, 75 N. Y. Supp. 245, 8, 135 Goad V. Johnson, 6 Heisk. 340, 826, 827, 828 Goldberg v. Hegeman & Co., 60 N. Y. Misc. Rep. 107, 111 N. Y. Supp. 679, 813 Goldrieh v. Ryder, 3 E. D. Smith, 324, 828 Goll V. United States, 166 Fed. 419, 92 C. C. A. 171, 703, 777 Gooch, In re, 42 Fed. 276, 10 L. R. A. 830, 99 Goodrich v. People, 19 N. Y. 574, 3 Park Cr. Rep. 622, 761, 764, 780 Gordon v. Livingston, 12 Mo. App., 267, 642 Goulder v. Rook [1901], 2 K. B. 290, 65 J. P. 646, 70 L. J. K. B. 747, 84 L. T. 719, 49 W. R. 684, 716, 791 Grav V. Cox, 6 Dowl. & R. 200, 8 Dowl. & R. 220, 827 Grav V. Wilmington, 2 Marv. (Del.) 257, 43 Atl. 94, 75 Great Northern Ry. Co. v. Walsh, 47 Fed. 406, 640 TABLE OF CASES. 1019 [References a/re to pages.1 Green v. State, 49 TeK. Cr. Rep. 380, 92 S. W. 847, 784 Griswold v. New York Ins. Co., 1 Johns. 205, 639 Greenland v. State, 6 Ohio Dee. 313, 4 Ohio N. P. 122, 788 Grofif V. State, 171 Ind. 547, 85 N. E. 769, 34, 708, 740, 741 Grosvenor v. Duffy, 121 Mich. 220, 80 N. W. 19, 130 Guckenheimer v. Sellers, 81 Fed. 997, 152, 154 Guilder v. State, 26 Ohio Cir. Ct. Eep., 221, 675 Guudling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 623, 44 L. Ed. 725, 6, 78, 131, 217 Gwynn v. DuflSeld, 61 Iowa 64, 15 N. W. 594, 47 Am. Rep. 802, 818, 819 Haas V. People, 27 111. App. 416, 758, 784, 785 Hale V. Cole, 55 J. P. 376, 629, 634 Haley v. State, 42 Neb. 556, 60 N. W. 962, 47 Am. St. 718, 154 Hall Y. Rankin, 87 Iowa, 261, 54 N. W. 217, 795 Hall V. State, 9 Lea. 574, 671 Hallowell, Ex parte, 8 Cal. App. 563, 97 Pac. 320, 783 Hancock v. State, 89 Md. 724, 43 Atl. 934, 751 Hancock v. Sturges, 13 Johns. 331, 639 Hansford v. Payne, 11 Bush 380, 820 Hargroves v. Spackman, 72 J. P. 52, 98 L. T. 41, 24 T. L. R. 173, 21 Cox O. C. 541, 6 L. G. R. 145, 735 Harmon, In re, 43 Fed. 372, 154 Harris v. May, 12 Q. B. Div. 97, 48 J. P. 261, 53 L. J. M. C. 39, 727, 729, 732 Harris v. People, 7 Colo. App. 467, 43 Pac. 1047, 9, 49, 113, 136 Harris v. Williams Co., 6 T. L. R. 47, 591 Harrisburg v. East Harrisburg Pass. E. Co., 4 Pa. Dist. Rep. 683, 81 Harrison v. Richards, 45 J. P. 552, 662 Hart V. United States, 183 Fed. 368, 705 Hart V. Wright, 17 Wend. 267, 826, 827, 828 Harvey v. Newton, 52 N. J. L. 369, 19 Atl. 793, 738 Hasbrook v. Armour & Co. (Wis.), 112 N. W. 157, 23 L. R. A. (N. S.) 876, 803 Hatch V. Robinson, 26 Vt. 737, 640 Hathaway v. McDonald, 27 Wash. 659, 68 Pac. 376, 91 Am. St. 889, 130 Hawkins v. Williams, 59 J. P. 533, 731 Hawthorn v. People, 109 111. 302, 50 Am. Rep. 610, 41 Havden, Ex parte, 147 Cal. 649, 82 Pac. 315, 1 L. R. A. (N. S.) 184, 109 Am. St. 183, 9, 83, 112, 117, 118, 119 Hayes v. Porter, 22 Me. 371, 640, 642 Hayes v. Rule, 87 L. T. 133, 18 T. L. R. 535, 683, 697, 690 Health Department v. Knoll, 70 N. Y. 530, 29 Hecht V. Wright, 31 Colo. 117, 72 Pac. 48, 675, 832 Heider v. State, 4 Ohio Dec. 227, 702, 738, 768 Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. 206, 7, 13, 21, 96 Henderson v. Mayor, 92 U. S. 259, 23 L. Ed. 543, 37 Henkel v. Mullard, 97 Md. 24, 54 Atl. 657, 783 Hennen v. Long, 68 J. P. 237, 90 L. T. 387, 20 Cox C. C. 608, 735 Hewitt V. Taylor [1896], 1 Q. B. 287, 60 J. P. 311, 65 L. J. M. C. 68, 74 L. T. 51, 44 W. R. 431, 18 Oox C. C. 226, 636, 660 Hewson v. Gamble, 56 J. P. 534, 635 1020 TABLE OF CASES. [References are to pages.'] Heyman v. Southern Ry. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, reversing 122 Ga. 608, 50 S. B. 342, 168 Heywood v. Whitehead, 76 L. T. 781, 657, 695 Hiett V. Ward, 58 J. P. 461, 70 L. T. 374, 10 T. L. K. 284, 768 Higgins V. Hall, 51 J. P. 293, 683 Hildreth v. Crawford, 65 Iowa 339, 21 N. W. 667, 785 Hipolite Egg Co. v. United States, 220 U. S. 49, 31 Sup. Ct. 364, 55 L. Ed. — , 142, 150, 166, 175, 177, 615 Hobbs V. Winchester Corp., 79 L. J. K. B. 1123 [1910], 2 K. B. 271, 102 L. T. 841, 74 J. P. 413, 8 L. G. E. 1072, 26 T. L. R. 557, 712, 763 Hoe V. Sanborn, 21 N. Y. 552, 78 Am.' Dec. 163, 826 Hoffman. Ex parte, 155 Gal. 114, 99 Pac. 517, 647 Hollajid V. Chicago, 108 111. 496, 80 Holtgreive v. State, 7 Ohio N. P. 389, 5 Ohio S. & C. P. Dee. 166, 7, 34 Hopkins v. Lewis, 84 Iowa, 690, 51 N. W. 255, 15 L. R. A. 397, 155 Horder v. Meddings, 44 J. P. 234, 696 Horder v. Scott, 5 Q. B. Div. 552, 44 J. P. 520, 795, 48 L. J. M. C. 97, 42 L. T. 660, 590 629 Horst V. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750, 812, 813, 814, 825 Hotchin v. Hindmarsh [1891], 2 Q. B. 181, 57 J. P. 775, 60 L. J. M. C. 146, 65 L. T. 149, 39 W. R. 607, 591, 629 Houghton V. Mundy, 103 L. T. 60, 74 J. P. 377, 8 L. G. E. 838, 738, 740, 743 Houghton V. Toplin, 13 T. L. R. 386, 195, 786 Hover v. Peters, 18 Mich. 51. 826 Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608, 826, 828 Howe V. Knowles, [1909] Sess. Cas. (J.) 61 46 Sc. L. R., 881, 633 Howes V. Rose, 13 Ind. App. 674, 42 N. E. 303, 795, 807, 808, 820, 821 Hoyle V. Hitchman, 4 Q. B. Div. 233, 43 J. P. 431, 48 L. J. M. C. 97, 40 L. T. 252, 27 W. R. 487, 274, 713, 715 Hudson v. Bridge, 67 J. P. 186, 19 T. L. R. 369, 274, 277, 624, 636 Huesing v. Rock Island, 128 111. 465, 21 N. E. 558, 15 Am. St. 129, reversing 25 111. App. 600, 107, 638 Hull V. Horsnell, 68 J. P. 591, 92 L. T. 81, 20 Cox C. C. 759, 21 T. L. R. 32, 2 L. G. R. 1280, 624, 627 Humphreys v. Comline, 8 Blackf . 516, 826, 828 Hunter v. State, 1 Head 160, 73 Am. Dec. 164, 738, 739 Hunter v. Wintrup, 7 Eraser (J. C.) 22, 4 Adam 741, 42 Sc. L. R. 277, 624 Huset V. J. I. Case Threshing Co., 57 C. C. A. 237, 120 Fed. 865, 61 L. R. A. 303, 800 Hutchin v. Hindmarsh [1891], 2 Q. B. 181, 57 J. P. 775, 60 L. J. M. C. 146, 65 L. T. 149, 39 W. R. 607, 728, 735, 736 Hutchinson v. Stevenson, 4 Eraser (J. C.) 69, 3 Adam 651, 39 Sc. L. R. 789, 633 Hvland v. Sherman, 2 E. D. "Smith, 234, 826. 828 lorns V. Van Tromp, 59 J. P. 246, 64 L. J. M. C. 171, 72 L. T. 449, 18 Cox C. C. 132, 727, 731, 732 Irving V. Callow Park Dairy Co., 66 J. P. 804, 87 L. T. 70, 736 Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228, 6, 21, 29, 129, 130, 670, 705 706, 712, 760, 770, 774 TABLE OF CASES. 1021 IReferenees are to pages.'\ Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 97 Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, affirming 183 Mass. 242, 67 L. E. A. 85, 66 N. E. 719, 6, 13 Jager, In re, 29 S. C. 438, 7 S. E. 605, 784 James v. Jones, 58 J. P. 230, 194 Jeutzseh, Ex parte, 112 Cal. 468, 44 Pae. 803, 32 L. R. A. 664, 119 Jewett Bros. v. Small, 20 S. D. 232, 105 N. W. 738, 9, 34 Jones V. Bertram, 58 J. P. 116, 735 Jones V. Board, 52 Kan. 95, 34 Pac. 453, 638 Jones V. Davis, 57 J. P. 808, 69 L. T. 497, 693 Jones V. Jones, 58 J. P. 653, 686, 696, 697 Jones V. Murray, 3 T. B. Mon. 83, 826, 828 Jones V. Root, 6 Gray, 435, 74 Johnston v. Maoon, 62 Ga. 645, 80 K Kamman v. Lane, 55 Mich. 426, 21 N. W. 872, 640, 642 Kansas City v. Cook, 34 Mo. App., 669, 50, 53, 56, 137 Kansas City v. Mar«h Oil Co., 140 Mo. 458, 41 S. W. 943, 131 Keeloma Dairy Co. v. Jones, 70 J. P. 533, 5 L. G. R. 246, 755 Keith V. State, 91 Ala. 2, 8 So. 353, 10 L. R. A. 430, 154 TCelly V. Lonsdale [1906], 2 K. B. 486, 70 J. P. 441, 75 L. J. K. B. 822, 95 L. T. 427, 4 L. G. R. 949, 726 Kelly V. State, 1 Ohio N. P. 238, 2 Ohio Dec. 239, 709, 710 Xelso, In re, 147 Cal. 609, 82 Pac. 241, 2 L. R. A. (N. S.) 796, 109 Am. St. 178, 119 Kench v. O'SuIlivan, 10 N. S. W. 605, 27 W. K (N. S. W.) 137, 149, 204, 408, 648 709, 714, 782 Kenn v. Bell [1910], S. C. (J.) 13, 725, 762 Kennedy v. Plank, 120 Wis. 197, 97 N. W. 895, 808, 812, 813 Kentucky Board of Pharmacy V. Cassidy, 115 Ky. 690, 74 S. W. 730, 25 Ky. L. Rep. 102, 785 Kentucky Board of Pharmaxjy V. Lordier, 109 Ky. 119, 58 S. W. 531, 22 Ky. L. Rep. 621, 784 Kerr v. Clason, 2 Ohio Dec. 666, 4 West L. Men. 488, 795 816 Kidd V. Pierson, 128 U. S. l' 5 Sup Ct. 6, 32 L. Ed. 32, affirming 72 Iowa 348, 34 N. W. 1, 573 Kilbourne v. Thompson, 103 U. S. 168, 26 L. Ed. 377, 125 Kimbolt Fowler Cereal Co. v. Chapman & Dewey Lumber Co., 125 Mo. App., 326, 102 S. W. 625, 831 Kinsley v. Chicago, 124 111. 359, 16 N. E. 260, 76 Kirk v. Coates, 16 Q. B. Div. 49, 50 J. P. 148, 55 L. J. M. C. 182, 54 L. T. 178, 34 W. R. 205, 656, 694 Knickerbocker Ins. Co. v. Com- stock, 16 Wall. 258, 21 L. Ed. 493, 615 Knight V. Bowers, 14 Q. B. Div. 845, 49 J. P. 614, 54 L. J. M. C. 108, 53 L. T. 234, 33 W. R. 613, 15 Cox C. C. 728, 716 Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600, 795, 796, 813, 821, 823, 824 Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747,44 L.Ed. 969, 125 Knox City v. Tliompson, 19 Mo. 523, 80 Kohler, Ex parte, 74 Cal. 38, 15 Pac. 436, 10 Kollock, In re, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813, 125 L Laidlaw v. Wilson [1894], 1 Q. B. 74, 63 L. J. M. C. 37, 42 W. R. 78, 727, 729, 730 732, 733 1022 TABLE OF CASES. [References are to pagea.'i Lammond v. Volena, 14 Hun 263, 722 Lane v. Collins, 14 Q. B. Div. 193, 49 J. P. 89, 54 L. J. M. C. 76, 52 L. T. 257, 33 W. R. 365, 655, 714 Langridge v. Levy, 2 Mees. & W. 519, 4 Mees. & W. 337, 800 Lansing v. State, 73 Neb. 124, 102 N. W. 254, 652, 708, 763, 767, 769 Latum V. Bolton Drug Co. (N. y.) 93 N. Y. Supp. 1035, 816 Laurel Hill Cemetery Co. v. San Francisco, 216 U. S. 358, 30 Sup. Ct. 501, 54 L. Ed. — , 13 Lawton v. Steele, 152 V. S. 133, 14 Sup. Ct. 499, 38 L. Ed. — , 90 Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482, 801 Le Claire v. Davenport, 13 Iowa, 210, 97 Lee V. Bent [1901], 2 Q. B. 290, 65 J. P. 646, 70 L. J. K. B. 747, 84 L. T. 719, 49 W. R. 684, 626 Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. R. A. 128, reversing 78 lovira 286, 43 N. W. 188, 99, 109, 146, 153 154, 162, 165 IJewis V. Brennan, 6 Ga. App. 419, 65 S. E. 189, 784 Lewis V. Weatheritt, 73 J. P. 164, 100 L. T. 367, 25 T. L. R. 226, 7 L. 6. R. 502, 731, 732, 735 Leyman, In re, 160 N. Y. 96, 54 N. E. 57, 86 License Cases, 5 How. 462, 12 L. Ed. 256, aiBrming 24 Pick. 374, 1 R. I. 193, 13 N. H. 536, 125, 153, 163, 165 Lichterateiger v. State (Neb.), 131 N. W. 623, 120 Lick Co. V. Hopkins, 118 U. S. 370, 6 Sup. Ct. 1064, 30 L. Ed. 226, 12 Liddiard v. Eeece, 44 J. P. 233, 696 Lindsay v. Rook, 58 J. P. 735, 63 L. J. M. C. 231, 730 Littlefield v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 588, 74, 76, 79 Londry's Appeal, 79 Conn. 1, 63 Atl. 293, 88 Lottery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492, 147, 149 Low V. Austin, 13 Wall. 29, 20 L. Ed. 517, 151, 163, 167 Lowe V. Conroy, 120 Wis. 151, 97 N. W. 942, 102 Am. St. 983, 66 L. R. A. 907, 90 Lowery v. Halla,rd [1906], 1 K. B. 398, 70 J. P. 57, 75 L. J. K. B. 249, 93 L. T. 884, 54 W. R. 520, 21 Cox C. C. 73, 4 L. G. R. 189, 589, 632 Luck V. Sears, 29 Ore. 421, 54 Am. St. 804, 137 Lukens v. Freund, 27 Kan. 664, 41 Am. Rep. 429, 826, 831 Lyman, In re, 26 N. Y. Misc. 30, 56 N. Y. Supp. 1020, 88 M McAllister, In re, 51 Fed. 282, 103, 153, 170 McAlister v. State, 72 Md. 390, 20 Atl. 143, 8, 23, 34, 36 McAllister v. State, 94 Md. 290, 50 Atl. 1046, 7, 103 McCann v. Commonwealth, 198 Pa. 509, 48 Atl. 470, 7, 33, 40, 48, 105 McCarty v. Gtordon, 16 Kan. 35, , 155 McClardy v. Chandler, 2 Wkly Law Gaz. 1, 815 MeClure v. Klein, 60 Tex. 168, 819 MeCrary v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, 18, 30, 35, 43 125, 127 McCubbin v. Hastings, 27 La. Ann. 713, 808, 824 McGinley's Licenses, In re, 32 Pa. Super. Ct. Rep., 324, 88 McHugh V. McGrath [1894], 2 Irish Rep. 71, 27 Irish L. T. 102, 634 McKennan v. Bodine, 6 Phila. 582, 64a TABLE OF CASES. 1033 [References are to pages.l McKibbin v. F. E. Box & Co., 79 Neb. 577, 113 N. W. 158, 13 L. R. A. (N. S.) 646, 126 Am. St. 677, 815 McNair v. Horan, 68 J. P. 518, 91 L. T. 555, 20 Cox C. C. 729, 2 L. G. R. 1239, 116, 680 McNaughton v. Joy, 1 W. N. C. 470, 826 McRoy V. Wright, 25 Ind. 22, 828 McVeigh v. Gentry, 72 N. Y. App. Div. 598, 76 N. Y. Supp. 535, 818 Macauley v. Mackirdy, 3 White's Rep. (Sc.) 464, 591, 630 Mach V. Lee, 13 R. I. 293, 155 Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909, 616 Maeoon v. Cumberland, 92 Md. 451, 48 Atl. 136, 76 MacLeod v. O'Neil, 9 Rettie (J. C.) 32, 636, 662 Maguire v. Porter [1905], 2 Ir. Kep. l4V, 116, 680 Mallinson v. Carr, 60 L. J. M. C. 34 [1891] 1 Q. B. 48, 763 Manners v. Tyler [1902], 1 K. B. 901, 71 L. J. K. B. 585, 86 L. T. 716, 50 W. R. 604, 736 Mantel v. State, 55 Tex. Cr. App. 456, 117 S. W. 855, 131 Am. St. 818, 8. 24 Margate Pier Co. v. Hannam, 3 B. & Aid. 266, 583 Margolius v. State, 1 Ohio N. P. 264, 718, 773 Martin v. State, 23 Neb. 371, 36 N. W. 554, aflSrmed on re- hearing, 27 Neb. 325, 43 N. W. 108, 88 Marvin Safe Co. v. Ward, 46 N. J. L. 19, 800 Marxen v. State, 44 Tex. Cr. App. 41, 68 S. W. 277, 764, 780 Mason v. Cowdray [1900], 2 Q. B. 419, 64 J. P. 662, 69 L. J. Q. B. 667, 82 L. T. 802, 49 W. R. 28, 19 Cox C. C 536, 589, 632 Massey v. Kelso, 4 Fraser (J. C.) 73, 39 Sc. L. R. 645, 591, 630 Mattoon v. Rice, 102 Mass. 236, 828 May V. New Orleans, 178 U. S. 496, 20 Sup. Ct. 976, 44 L. Ed. 1165, affirming 51 La. Ann. 1064, 25 So. 959, 153, 154, 155 Mayher v. Lexington, 8 Ky. L. Rep. 138, 75 Meriam v. New Orleans, 14 La. 318, 80 Merrill v. State, 65 Neb. 509, 91 N. W. 418, 130 Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. 441, 801, 826 Metropolitan Board v. Barrie, 34 N. Y. 667, 86 Metropolitan Board v. Heister, 37 N. Y. 661, ■ 29, 86 Metropolitan Milk and Cream Co. v. New York, 113 N. Y. App. Div. 377, 98 N. Y. Supp. 894, affirmed 186 N. Y. 533, 78 N. E. 1107, 9, 84, 85 Meyer v. King, 72 Miss. 1, 16 So. 245, 35 L. R. A. 474, 815 Mever v. State, 1 Ohio N. P. 241, 2 Ohio Dec. 233, 758, 781 Meyer v. State (Ohio St.), 43 N. E. 164, 673, 738, 741, 743 Meyer v. State, 134 Wis. 156, 114 N. W. 501, 14 L. R. A. (N. S.) 1061, 48, 776 Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 Am. St. 850, 10 L. R. A. 116, 90 Miller v. Scherder, 2 N. Y. 262, 828 Minner v. Scherpich, 5 N. Y. St. Rep. 851, 802, 808, 820 Minnesota v. Barber, 136 XJ. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455, affirming 39 Fed. 641, 98, 108, 145 Minor, In re, 69 Fed. 233, 103 Miranda, Ex parte, 73 Cal. 365, 14 Pac. 888, 81 Moesehke v. State, 14 Ind. App. 393, 42 N. E. 1029, 763 Monnier v. Godbold, 116 La. 165, 40 So. 604, 784 Moore v. McKinley, 5 Cal. 471, 826 1024 TABLE OP CASES. [References are to pages.] Moore v. Pearce Dining etc. Rooms [1895], 2 Q. B. 657, 15 Eep. 611, 59 J. P. 805, 65 L. J. M. C. 7, 73 L. T. 400, 44 W. R. 94, 18 Cox C. C. 196, 719 Morano \. New Orleans, 2 La. 217, 136 Morgan's Steamship Co. v. Lou- isiana, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237, af- firming 36 La. Ann. 666, 37 Morris v. Askew, 57 J. P. 724, 683, 689, 691 Morris v. Corbett, 56 J. P. 649, 692, 708 Morris v. Johnson, 54 J. P. 612, 683, 689 Morton v. Fyfe, 24 Rettie (J. C.) 9, 2 Adam 174, 34 Se. L. R. 55, 629 Morton v. Green, 8 Rettie (J. C.) 36, 4 Coup. 437, 274, 716 Moses V. Mead, 1 Denio, 378, 47 Am. Dec. 673, 826, 828 Mugler V. Kansas, 123 U. S. 623, 31 L. Ed. 648, 8 Sup. Ct. 273, 6, 124 Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413, 784, 785 Myer v. State, 10 Cir. Ct. Rep. Ohio, 9, 704, 705, 707, 738, 743 Myer v. State, 3 Ohio Dec. 198, 705, 707 N National Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621, 808 Needham v. Dial, 4 Tex. Civ. App. 141, 23 S. W. 240, 829 Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288, 6 A. & E. Ann. Cas. 237, 802 Nelson v. Minneapolis, 112 Minn. 16, 127 S. W. 445, 29 L. R. A. (N. S.) 260, 67 Newby v. Sims [1894], 1 Q. B. 478, 58 J. P. 263, 63 L. J. M. C. 228, 70 L. T. 105, 625, 626 New Orleans v. Stafford, 27 La. Am. 417, 21 Am. Rep. 563, 97 New Orleans v. Chorouleau, 121 Iia. 890, 46 So. 911, 18 L. R. A. (N. S.) 368, 126 Am. St. 332, 67 Newport v. South Covington etc. R. Co., 89 Ky. 29, 11 S. W. 954, 11 Ky. L. Eep. 319, 81 Newson v. Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. R. A. 797, 97 Newton v. Connell, 9 N. J. L. Jr. 316, 707 Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. 385, 137 Newton v. Reed, 10 N. J. Law Jr. 175, 738, 739 New York v. Broadway and 8th Ave. R. Co., 97 N. Y. 275, 81 New York v. Forty-second etc. R. Co., 52 How. Pr. 106, 81 New York v. Third Ave. R. Co., 42 N. Y. Misc. 599, 87 N. Y. Supp. 584, affirmed 115 N. Y. App. Div. 899, 101 N. Y. Supp. 1116, 81 New York v. Third Ave. R. Co. 117 N Y. 406, 22 N. E. 755, 81 New York City v. Reesing, 77 N. Y. App. Div. 417, 79 N. Y. Supp. 331, affirming 38 N. Y. Misc. 129, 77 N. Y. Supp. 82, 80 Nickerson v. Thompson, 33 Me. 433, 640, 641 Nicol V. Ames, 173 U. S. 509, 19 Sup. Ct. 622, 43 L. Ed. 786, affirming 89 Fed. 144, 125 Nicholls V. Johnston, 2 Harris (Pa.) 279, 639 Noel V. People, 187 111. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. 238, 8, 137, 784 Norfolk V. Flynn, 101 Va. 473, 44 S. B. 717, 99 Am. 918, 8, 51, 78, 79, 80, 82 83, 131, 132 North American Cold Storage Co. V. Chicago, 211 U. 8. 306, 29 Sup. Ct. 101, 53 L. Ed., modifying 151 Fed. 120, 8, 26, 83, 90 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, 800, 803, 807, 820 TABLE OF OASES. 1035 {.References are to pages.] O Ohio V. Thomas, 173 U. S. 276, 19 Sup. Ct. 453, 43 L. Ed. 699, affirming 87 Fed. 453, 31 C. C. A. 80, 58 U. S. App. 431, affirming 82 Fed. 304, 42 Orleans Parish v. Nougues, 11 La. Ann. 739, 82 Osgood V. Lewis, 2 Harr. & 6. 495, 18 Am. Dec. 317, 826 Oshkosh V. State, 59 Wis. 425, 18 N. W. 324, 88 Otter V. Edgley, 57 J. P. 457, 696 Pacific Insurance Co. v. Soule, 7 Wall. 433, 19 L. Ed. 95, 125 Pain V. Boughtwood, 24 Q. B. Div. 35.3, 54 J. P. 469, 59 L. J. M. C. 45, 62 L. T. 284, 38 W. E. 428, 16 Cox C. C. 747, 6 T. L. K. 167, 56, 691, 708 Palestine v. Barnes, 50 Tex. 538, 97 Palmer v. State, 39 Ohio St. 236, 48 Am. Rep. 529, 30, 694 Palmer v. Tyler, 61 J. P. 389, 691 Parkinson v. McNair, 69 J. P. 399, 93 L. T. 553, 21 Cox C. C. 42, 3 L. G. R. 982, 116, 681 Parkinson v. United States, 121 U. S. 281, 7 Sup. Ct. 886, 30 L. Ed. 959, 616 Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732, 615 Parsons v. Birmingham Co., 9 Q. B. Div. 172, 46 J. P. 727, 51 L. J. M. C. 111. 30 W. R. 748, 591, 593, 631 Pashler v. Stevenitt, 41 J. P. 136, 35 L. T. 862, 715 Patapsco Guano Co. v. Board, 171 U. S. 345, 18 Sup. Ct. 757, 43 L. Ed. 191, 105, 107 Patton V. Brady, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, 125 Payne v. Hach, 58 J. P. 165, 634 Pearks, Gunston & Tee v. Houghton [1902], 1 K. B. 889, 66 J. P. 422. 71 L. J. K. B 385, 86 L. T. 325, 50 W. R. 605, 683, 687, 690 713, 755 Pure Food — 65. Pearson & Purkett, 15 Pick. 264, 640, 641 Pearson v. Zehr, 138 111. 48, 29 N. E. 854, 32 Am. St. 113, 90 Peart v. Barstow, 44 J. P. 699, 624, 630 Peckham v. Holman, 11 Pick. 384, 830 Peirce v. New Hampshire, 5 How. 504, 12 L. Ed. 256, affirming 13 N. H. 536, 1 R. I. 193, 24 Pick. 374, 153, 163, 164, 165 People V. Abraham, 116 N. Y. App. Div. 58, 44 N. Y. Supp. 1077, 787 People V. Albion Cider & Vine- gar Co., 118 N. Y. Supp. 15, 793 People V. Arenberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483, 15, 23, 36, 49, 90 747, 748, 749, 793 People V. Bailey, 136 N. Y. App. Div. 130, 120 N. Y. Supp. 618, 619, 664 People V. James Battler, 134 N. Y. App. Div. 986, 118 N. Y. Supp. 849, 697 People V. Beaman, 102 N. Y. App. Div. 151, 92 N. Y. Supp. 295, 619 People V. BerghoflF, 112 N. Y. App. Div. 772, 99 N. Y. Supp. 201, affirming 47 N. Y. Misc. Rep. 1, 95 N. Y. Supp. 257, 782 People v. Berghoff, 41 N. Y. Misc. Rep. 1, 95 N. Y. Supp. 257, affirmed 112 N. Y. App. Div. 772, 99 N. Y. Supp. 201, 699 People V. Berwind, 38 N. Y. Misc. Rep. 315, 77 N. Y. Supp. 859, 752, 775 People V. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534, af- firming 58 N. Y. App. Div. 391, 68 N. Y. Supp. 1067, which affirms 33 N. Y. Misc. Rep. 35, 68 N. Y. Supp. 134, 6, 19, 20, 25, 52, 64, 66 90, 91, 113 1026 TABLE OF CASES. [References are to pages.'] People V. BishoflF, 14 N. Y. St. Eep. 581, 700, 789 People V. Blshopp, 44 N. Y. Misc. Kep. 12, 89 N. Y.Supp. 709, 96 People V. Bishopp, 106 N. Y. App. Div. 266, 94 N. Y. Supp. 773, affirming 44 N. Y. Misc. Eep. 12, 89 N. Y.Supp. 709, 9, 106, 114, 115 People V. Board of Health, 140 N. Y. 1, 35 N. E. 320, 37 Am. St. 522, 23 L. R. A. 481, 86, 87, 90 People V. Bosch, 129 N. Y. App. 660, 114 N". Y. Supp. 65, 646, 661, 706 People V. Bowen, 182 N. Y. 1, ' 74 N. E. 489, reversing 97 N. Y. App. Div. 642, 90 N. Y. Supp. 1108, 27, 647, 671 People V. Braested (N. Y.), 51 N. Y. Supp. 824, 8 People V. Braested, 30 N. Y. App. Div. 401, 51 N. Y. Supp. 824, 8, 91, 774, 793 People V. Bremer, 69 N. Y. App. Div. 1, 74 N. Y. Supp. 570, 751 People v. Briggs, 114 N. Y. 56, 20 N. E. 820, 760, 781 People V. Briggs, 193 N. Y. 457, 86 N. E. 522, reversing 121 N. Y. App. Div. 927, 106 N, Y. Supp. 1140, 620 People V. Buell, 85 N. Y. App. Div. 141, 83 N. Y. Supp. 143, 770 People V. Burns, 53 Hun 274, 6 N. Y. Supp. 611, 7 N. Y. Crim. Eep. 92, 761, 764 People V. Cipperly, 101 N. Y. f>34, 4 N. E. i07, reversing 37 Hun 324, 8, 17, 34, 50, 52, 56 60, 645, 705, 706 People V. Cipperly, 37 Him 319, 13 People V. Dennis (N. Y), 114 N. Y. Supp. 7, 96, 106 People V. Dodd, 63 Hun 583, IS N. Y. Supp. 643, 49, 724 People V. Eddy, 59 Hun 615, 12 N. Y. Supp. 628, 8, 34, 56, 60, 705 People V. Fauerback, 5 Parker Cr. Eep. 311, 724 People V. Fichten (N. Y.), 130 N. Y. Supp, 704, 756 People V. Fisher, 83 111. App. 114, 784, 786 People V. Flynn, 110 N. Y. App. Div. 279, 96 N. Y. Supp. 655, affirmed 184 N. Y. 579, 77 N. E. 1194, 88 People V. Fox, 4 N. Y. App. Div. 38, 38 N. Y. Supp. 635, 703, 751 People V. Freeman, 242 111. 373, 90 N. E. 366, 7, 34 People V. Fried, 133 N. Y. App. Div. 889, 118 N. Y. Supp. 1131, affirming People v. Hale, 62 N. Y. Misc. Eep. 240, 114 N. Y. Supp. 914, 7, 750 People V. Friedman, 138 N. Y. App. Div. 29, 122 N. Y. Supp. 500, affirmed 200 N. Y. 591, 90 N. E. 1096, 27, 673, 705, 709 People V. FuUe, 1 N. Y. Cr. Rep. 172, 712 People V. Fuller, 2 Abb. N. C. 196, 768 People V. Gibson, 109 N. Y. 389, 17 N. E. 343, 4 Am. Eep. 465, 6 People V. Oilman (N. Y.), 103 N. Y. Supp. 954, 9, 76, 133 People V. Grilmor, 73 N. Y. App. Div. 483, 77 N. Y. Supp.- 273, 619, 778 People V. Girard, 145 N. Y. 105, 39 N. E. 823, 45 Am. St. 595, affirming 73 Hun 457, 26 N. Y. Supp. 272, 75 Hun 213, 27 N. Y. Supp. 1118, 6 24 90 People V. Gottfried (N. ' Y.' App.) 113 N. Y. Supp. 1086, 751 People V. Greenberg, 134 N. Y. App. Div. 599, 119 N. Y. Supp. 325, 704, 725 People V. Griffin (N. Y.), 128 N. Y. Supp. 946, 27, 33, 347, 699 People V. Hale, 62 N. Y. Misc. Eep. 240, 114 N. Y. Supp. 914, affirmed People v. Fried, 133 N. Y. App. Div. 889, 118 N. Y. Supp. 1131, 7, 34, 724, 750 People V. Harris, 135 Mich. 136, 97 N. W. 402, 10 Det. Leg. N. 694, 698 TABLE OF CASES. 1037 [References are to pages.'] People V. Harris, 54 Hun 638, 7 N. Y. Supp. 773, 761, 771 People V. Hawkins, 157 N. Y. 1, 51 N. E. 257, 68 Am. St. 736, 42 L. R. A. 490, 118 People V. Health Department, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894, 87 People V. Heim, 90 N. Y. App. Div. 408, 86 N. Y. Supp. 141, 793 People V. Hill, 64 N. Y. App. Div. 584, 72 N. Y. Supp. 340, 8, 723 People V. Hillman, 58 N. Y. App. Div. 571, 69 N. Y. Supp. 66, 15 N. Y. Cr. Rep. 394, 707, 708, 749 People V. Hinshaw, 135 Mich. 378, 97 N. W. 758. 10 Det. Leg. News 794, 35, 782, 789 People V. Hoduett, 68 Hun 341, 22 K. Y. Supp. 809, 646, 663 People V. Jackson, 36 N. Y. Misc. Rep. 282, 73 N. Y. Supp. 461, 96, 106 People V. Jennings, 132 Mich. 669, 94 N. W. 216, 10 Det. Leg. N. 39, 781, 790 People V. Kellina, 23 N. Y. Misc. Rep. 134, 50 N. Y. Supp. 653, 673, 723 People V. Kibler, 106 N. Y. 321, 12 N. E. 795, 51, 52, 56, 705, 706, 709 People V. Koek, 19 N. Y. Misc. Rep. 634, 44 N. Y. Supp. 387, 778 People V. Laesser, 79 N. Y. App. Div. 384, 79 N. Y. Supp. 470, 8, 72, 620, 664, 705, 779 People v. Lamb, 85 Hun 171, 32 N. Y. Supp. 584, 774 People V. Laning, 40 N. Y. App. Div. 227, 57 N. Y. Supp. 1057, OzB, 750, 765 People V. Lewis. 131 N. Y. App. Div. 336, 115 N. Y. Supp. 909, 760, 766 People V. Liberman Dairy Con. (N. Y.) 109 N. Y. Supp. 1067, 770 People V. Luke. 122 N. Y. App. Div. 64, 106 N. Y. Supp. 621, 9, 17, 684 People V. McDennitt-Bunger Dairy Co., 38 N. Y. Misc. 365, 77 N. Y. Supp. 888, 620, 673, 704 People V. Mack, 97 N. Y. App. Div. 474, 89 N. Y. Supp. 1004, 115, 681 People V. Mahaney, 41 Hun 26, 707, 708, 754, 776 People V. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29, 6, 15, 90, 100 People V. Meyer, 89 N. Y. App. Div. 185, 85 N. Y. Supp. 834, 21, 25, 45, 105, 754 People V. Meyer, 44 N. Y. App. Div. 1, 60 N. Y. Supp. 415, 33, 49, 708, 749, 777 People V. Moorman, 86 Mich. 433, 49 N. W. 263, 784 People V. Morse, 131 Mich. 68, 90 N. W. 673, 9 Det. Leg. N. 618, 743 People V. Mulholland, 19 Hun 548, affirmed 82 N. Y. 324, 37 Am. Rep. 568, 76, 79, 136 People V. Nedrow, 16 Bradw. (HI.) 192, 784, 785 People V. Niagara Fruit Co., 173 N. Y. 629, 66 N. E. 1114, affirming 75 N. Y. App. Div. 11, 75 N. Y. Supp. 805, 8, 91, 107, 793 People V. Owen (N. Y.), 116 N. Y. Supp. 502, 8, 29, 134 People V. Park, 60 N. Y. App. Div. 255, 69 N. Y. Supp. 1120, 791 People V. Parker. 38 N. Y. 85, 97 Am. Dec. 774, 721 People V. Phillips, 135 Mich. 395, 91 N. W. 616, 9 Det. Leg. N. 393, 749 People V. Redding (N. Y. App.), 126 N. Y. Supp. 977, 756, 766 People V. Reicherter, 128 N. Y. App. Div. 675, 112 N. Y. Supp. 936, 13 People V. Rickard, 48 N. Y. App. Div. 408, 63 N. Y. Supp. 165, 661 People V. Rotter, 131 Mich. 250, 91 N. W. 167, 9 Det. Leg. N. 284, 7, 25, 33, 130 1028 TABLE OF CASES, [References are to pages.'\ People V. Routney, 51 Hun 640, 4 N. Y. Supp. 235, 6 N. Y. Cr. Rep. 249, 784, 785 Pieople V. Salisbury, 2 N. Y. App. Div. 39, 39 N. Y. Supp. 420, 646, 653, 663, 778 People V. SchaeflFer, 41 Hun 23, 56, 705, 707 People V. Schintzius, 61 N. Y. Misc. 410, 113 N. Y. Supp. 313, 623, 747 People V. Seeor (N. Y. App.) 113 N. Y. Supp. 487, 712, 752 People v. Sheriff, 79 N. Y. Supp. 783, 78 N. Y. App. Div. 46, 762 People V. Simpson-Crawford Co., 62 N. Y. Misc. 240, 114 N. Y. Supp. 945, affirmed (N. Y. App. Div.) 126 N. Y. Supp. 1141, 7, 23, 25, 30, 34, 103 724, 747, 750 People V. Skillman, 129 Mich. 618, 89 N. Wi. 330, 8 Det. leg. N. 1090, 743 People V. Snowburger, 113 • Mich. 86, 71 N. W. 497, 64 Am. St. 449, 708, 743 People V. Spees, 18 N. Y. App. Div. 617, 46 N. Y. Supp. 995, 658, 772 People V. Steers & Menke (N. Y.) 113 N. Y. Supp. 486, 720 People V. Teele, 131 N. Y. App. Div. 87, 115 N. Y. Supp. 212, 703 722, 750, 775 People V. Terwilliger, 59 N. Y. Misc. 617, 110 N. Y. Supp. 1034, 619, 738, 742, 780 People V. The Justices, 7 Hun 214, 29 People V. Thompson, 60 Hun 582, 14 N. Y. Supp. 819, 778 People V. Timmerman, 179 N. Y. 550, 71 N. E. 1136, af- firming 79 N. Y. App. Div. 565, 80 N. Y. Supp. 282,, 672, 720 People v. Van de Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305, affirming 175 N. Y. 440, 67 N. E. 913, 108 Am. St. 781, affirming 81 N. Y. App. Div. 128, 80 N. Y. Supp. 1108, 6, 29, 77 People V. Wagner, 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, 24 Am. St. 141, 122, 137 People V. Wahle, 124 N. Y. App. Div. 762, 109 N. Y. Supp. 629, 750 People V. Walters, 114 N. Y. App. Div. 669, 100 N. Y. Supp. 177, affirmed 188 N. Y. 632, 81 N. E. 1171, 116 People V. Waters, 188 N. Y. 632, 81 N. E. 1171, affirming 114 N. Y. App. Div. 669, 100 N. Y. Supp. 177, 9, 43, 680 People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452, affirming 44 Hun 162, 27, 53, 705, 771 People V. Wiudholz, 92 N. Y. App. Div. 569, 86 N. Y. Supp. 1015, 8, 91, 128, 759 People V. Worden Grocery Co., 118 Mich. 604, 77 N. W. 315, 7, 17, 20, 91, 709, 743, 763, 792 People V. Wright, 19 N. Y. Misc. Rep. 135, 43 N. Y. Supp. 290, 11 N. Y. Cr. Rep. 479, 672, 778 Petchey v. Taylor, 62 J. P. 360, 78 L. T. 501, 19 Cox C. C. 38, 656, 657, 686, 693 Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. 909, 795, 802, 808 Peterson v. Westmann, 103 Mo. App. 672, 77 S. W. 1015, 810 817 Phillips V. Meade, 75 111. 334, 672, 709 Pierce v. Aurora, 81 111. App. 674, 79 Pierce v. State, 63 Md. 592, 8, 24, 34, 112, 773 Pierce Viaus Maple Co. v. Bird, 154 Mich. 73, 117 N. W. 553, 789 Plaisted v. Walker, 77 Me. 459, 1 Atl. 356, 784 Piatt V. Tyler, 58 J. P. 71, 656, 685, 693 Plumas Countv v. Wheeler, 149 Oal. 758, 89 Pac. 909, af- firmed 196 U. S. 562, 25 Sup. Ct. 316, 49 L. Ed. 509, 80 TABLE OB CASES. 1039 [References are to pages.] Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839. 7, 24, 30, 39, 40, 45, 98, 99 100, 103, 104, 153, 158 Plummer v. Commonwealth, 1 Bush, 26, 88 Polinsky v. People, 73 N. Y. 65, affirming 11 Hun 390, 29, 52, 761 Powell, In re, 10 N. J. L. Jour. 25, 33, 36 Powell V. Cbmmonwealth, 114 Pa. 265, 7 Atl. 913, 60 Am. Rep. 350, 1 Pa. Co. Rep. 94, 18, 24, 26, 30, 34, 36, 124 Powell V. Commonwealth, 127 U. S. 678, 8 Sup. Ot. 992, 1257, 32 L. Ed. 253, affirm- ing 114 Pa. 265, 7 Atl. 913, 60 Am. Rep. 350, 5 Cent. Rep. 890, 7, 10, 12, 18, 24 26, 30, 34, 36 Poyer v. Desplaines, 22 111. App. 576, 80 Pratt Food Co. v. Bird, 148 Mich. 631, 112 N. W. 701, 14 Det. Leg. N. 304, 118 Am. St. 601, 130, 832 Q Quinn v. Moore, 15 N. Y. 432, 802, 808 R Rabe v. Sommerbeek, 94 Iowa 656, 63 N. W. 458, 796 Raher, In re, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, reversing 43 Fed. 556, 99, 100, 146 Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, revers- ing 60 Mo. 226, 98, 109 Ransick v. State, 15 Ohio Cir. Ct. Rep. 371, 8 Ohio Dec. 306, 748 Rasch V. State, 89 Md. 755, 43 Atl. 931, 765 Ra,v V Burbank, 61 Ga. 505, 34 Am. Rep. 103, 814, 816 Raymond v. Kibbe, 23 Tex. Civ. App. 727, 90 Reading v. Bitting, 167 Pa. 21, 31 Atl. 359, 82 Red C. Oil Mfg. Co. v. Board, 172 Fed. 695, 8, 103, 105, 107 109, 127 Reduction Company v. Sanitary Works, 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204, 13 Rees V. Davis, 72 J. P. 375, 24 T. L. R. 735, 6 L. G. R. 1038, 734 Regina v. Admiral Field, 11 C. 28, 819 Regina v. Button, 8 C. & P. 660, 819 Regina v. Field, 64 L. J. M. C. 158, 717 Regina v. Foster, 2 Q. B. 301, 41 J. P. 295, 5, 830 Regina v. Loch, 12 Cox C. C. 244, 819 Reeina v. Sinclair, 13 Cox C. C 28 819 Regina v. Smith [1896], 1 Q. B. 596, 60 J. P. 372, 65 L. J. M. C. 104, 74 L. T. 348, 44 W. R. 492, 18 Cox C. C. 307, 623, 630, 636 Regina v. Stevenson, 3 F. & F. 106, 5, 94 Reid V. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92, 159 Reiter v. State, 109 Md. 235, 71 Atl. 975, 648, 658, 659 Renfro v. Lloyd, 64 Ala. — , 118 Rex v. Dixon, 3 M. & S. 11, 4 Cowp. 12, 15 R. R. 381, 5, 94 Rex V. Mahoney [1909], 2 Ir. Rep. 490, 591, 629, 630 Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, reversing 99 Iowa 496, 58 N. W. 887, 24 L. R. A. 245, 147, 153 Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. 180, 131 Rider v. Bacchus Marsh, etc. Co. [1905], Vict. L. R. 147, 26 Aust. L. T. 156, 11 Aust. L. R. 37, 714, 717, 722 1030 TABLE OF CASES. [References a/re to pages.] Kider v. Freebody, 24 Viet. L. R. 429, 29 Aust. L. T. 115, 4 Aust. L. E. 251, 700, 714, 717 Rigbers v. Atlanta, 7 Ga. App. 411, 66 S. E. 991, 8, 18, 19, 21, 135, 136 Rinschler v. Jellflfe, 9 Daly, 469, 828, 829 R. M. Hughes & Co. v. Com- monwealth (Ky.), 101 S. W. 1194, 31 Ky. L. Rep. 179, 758 Roberts v. Leeming, 69 J. P. 417, 3 L. G. R. 1031, 636, 648, 715, 746 Robertson v. Harris [1900], 2 Q. B. 117, 64 J. P. 565, 69 L. J. Q. B. 526, 82 L. T. 536, 48 W. R. 571, 19 Cox C. C. 495, 731, 733 Robinson, Ex parte, 29 Tex. App. 186, 15 S. W. 603, 639 Rochester v. Rood, Hill & De- nio, 146, 136 Rolfe V. Thompson [1892], 2 Q. B. 196, 56 J. P. 425, 61 L. J. M. C. 184, 67 L. T. 295, 17 Cox C. C. 551, 620, 629 Ronker v. St. John, 21 Ohio Cir. Ct. Rep. 39, 11 Ohio C. T>. 434, 811 Rook V. Hopley, L. R. 3 Exch. Div. 209, 42 J. P. 551, 47 L. J. M. C. 118, 38 L. T. 649, 26 W. R. 663, 726, 729 Roscorla v. Thomas, 3 Q. B. 234, 11 L. J. Q. B. 214, 726 Rose V. State, 11 Ohio Cir. a. Rep. 87, 1 Ohio C. D. 72, ) reversing 2 Ohio N. P. 270, 1 Ohio C. D. 44, 694, 790 Rosiwell V. Vaughan, Cro. Jac. 196, 825 Rouch V. Hall, 6 Q. B. Div. 17, 45 J. P. 220, 50 L. J. M. C. 6, 29 W. R. 204, 629, 631, 742 Rouch V. State, 89 Md. 755, 43 Atl. 934, 746 Ryan v. State, 5 Ohio Cir. Ct. Rep. 486, 766 Evder v. Neitge, 21 Minn. 70, 826, 828 Sadler v. People, 188 111. 243, 58 N. E. 906, 8, 137 Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650, 90 Salmon v. Libby, McNeill & Libby, 219 111. 421, 76 N. E. 573, 800, 801 Salt Lake City v. Howe, 37 Utah — , 106 Pa. 705, 8, 77, 135 Sanchez v. State, 27 Tex. App. 14, 10 S. W. 756, 707 Sanders v. Commonwealth, 117 Ky. 1, 25 Ky. L. Rep. 1165, 77 S. W. 358, 1 L. R. A. (N. S.) 932, HI Am. St. 219, 6, 63 Sanders v. Sadler, 71 J. P. 3, 95 L. T. 872, 5 L. G. R. 240, 736 Sandys V; Jackson, 69 J. P. 171, 92 L. T. 646, 3 L. G. R. 285, 657, 694 Sandys v. Rhodes, 67 J. P. 352, 715 Sandys v. Small, 3 Q. B. Div. 449, 42 J. P. 550, 47 L. J. M. C. 115, 39 L. T. 118, 26 W. R. 814, 683, 688 San Lung v. Jackson, 85 Fed, 502, 190 Savage v. Scovell, 171 Fed. 566, 3, 4, 112, 786, 787 Scheitlin, In re, 99 Fed. 272, 103, 105 Scherer v. Schlaberg, 18 N. D. 421, 122 N. W. 1000, 818 Schick V. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 43, 125, 127 Schlesinger v. Stratton, 9 R. I. 578, 155 Schmidt v. State, 78 Ind. 41, 711, 721, 762, 763 SchoUenberger v. Common- wealth, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, revers- ing 170 Pa. 284, 30 L. R. A. 396, 33 Atl. 82, 5 Inters. Com. Rep. 506, 170 Pa. 296, 33 Atl. 85, 7, 30, 37, 102, 108 153, 164 Schubert v. J. R. Clark Co., 49 Minn. 331, 51 JST. W. 1103, 15 L. R. A. 818, 32 Am. St. 559, 800 TABLE OF CASES. 1031 [References are to pages.] Soonyers v. State, 6 Ga. -App. 804, 65 S. E. 814, 784 Scott, Ex parte, 66 Fed. 45, 49, 100, 103 Scott V. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632, 108 Scully V. Bird, 209 V. S. 481, 28 Sup. Ct. 597, 52 L. Ed. — , 128 Seattle v. Erickson, 55 Wash. 675, 104 Pac. 1128, 25 L. R. A. (N. S.) 1027, 658, 705 Seabright v. State, 2 W. Va. 591, 700, 780 Shawnee Milling Co. v. Temple, 179 Fed. 517, N. J. 497, 141, 149, 603 ShefiFer v. Willoughby. 163 111. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. 486, 830 Sherlock v. Ailing, 93 U. S. 99, 23 L. Ed. 819, affirming 44 Ind. 84, 99, 146 Shivers v. 'Mewton, 45 N. J. L. 469, 71, 660 Shortt V. Robinson, 68 L. J. Q. B. 352, 63 J. P. 295, 80 L. T. 201, 19 Cox C. C. 243, 654, 717, 791 Shortt V. Smith, 11 T. L. R. 325, 194, 786 Sierra County v. Flanigan, 149 Cal. 769, 87 Pac. 913, 81 Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. 459, 58 Am. Rep. 327, 826, 827 Smart v. Watts [1895], 1 Q. B. 219, 59 J. P. 54, 64 L. J. M. C. 89, 71 L. T. 768, 13 W. R. 379, 18 Cox C. C. 62, 593, 630, 632 Smith V. Alabama, 124 U. S. 463, 31 L. Ed. 508, 8 Sup. Ct. 564, affirming 76 Ala. 69, 146 Smith V. Alphin, 150 N. C. 425, 64 S. E. 210, 8, 18, 19, 833 Smith V. Baker, 40 L. T. (N. S.) 261, 826, 828 Smith V. Brown, 1 Wend. 231, 640, 709 Smith V. Hays, 23 111. App. 244, 795, 808, 820, 824 Smith V. Louisville, 9 Ky. L. Rep. 779, 6 S. W. 911, 80 Smith V. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. 308, 808, 809, 810, 824 Smith V. Savage [1905], 2 K. B. 88, 69 J. P. 245, 74 L. J. K. B. 576, 92 L. T. 775, 53 W. R. 477, 20 Cox C. C. 847, 3 L. G. R. 582, 590, 632 Smith V. Stace, 45 J. P. 141, 590, 629 Smith V. State, 54 Ark. 248, 15 S. W. 882, 154 Smith V. Wisden, 66 J. P. 150, 85 L. T. 760, 274, 716 Smithies v. Bridge [1902], 2 K. B. 13, 66 J. P. 740, 87 L. T. 167, 50 W. R. 686, 646, 655 Sneath v. Taylor [1901], 2 K. B. 376, 65 J. P. 548, 70 L. J. K. B. 879, 49 W. R. 719, 624 Snider v. Koeller, 17 Kan. 422, 155 Somerset v. Miller, 54 J. P. 614, 631 Souter V. Kerr [1907], Sess. Cas. (J.) 49, 5 Adam 260, 635 Souter V. Lean, 6 Eraser (J. C.) 20, 4 Adam 280, 684 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763, 125 Spiekler, In re, 43 Fed. 653, 10 L. R. A. 451, 99 Spiers v. Bennett [1896] 2 Q. B. 65, 60 J. P. 437, 65 L. J. M. C. 144, 74 L. T. 697, 44 W. R. 510, 18 Cox C. C. 332, 693, 708 Spiegler v. Chicago, 216 111. 114, 74 N". E. 718, 80 Splinter v. State, 140 Wis. 567, 123 N. W. 97, 673, 760 Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 197, 88 St. Louis V. Ameln (Mo.) 139 N. W. 429, 3, 20, 43, 49, 53, 54, 55, 134, 645 647, 654, 661, 674, 676, 771 St. Louis V. Austin (Mo), 139 S. W. 429, 4 St. Louis V. Bippen, 201 Mo. 528, 100 S. W. 1048, 9, 26, 49, 52, 58, 133, 660, 769 1032 TABLE OF CASES. [References are to pages."] St. Louis V. Birches, 76 Mo. 431, affirming 7 Mo. App. 169, 80 St. Louis V. Grrafeman Dairy Co., 190 Mo. 492, 89 S. W. 617, 1 L. E. A. (JN. S.) 936, 9, 52, 57, 58, 59, 78 79, 131, 133 St. Louis V. Jud (Mo.), 139 S. W. 441, 20, 24, 49, 55, 61 652, 654, 673, 677 St. Louis V. Kellman (Mo.), 139 S. W. 443, 49, 55, 134, 677 St. Louis V. Klausmeier, 213 Mo. 119, 112 S. W. 516, 8, 17, 19, 49, 55, 133, 134 St. Louis V. Kruempeler (Mo.), 139 S. W. 446, 18, 43, 49, 55, 134, 199, 206, 610, 654, 659, 677, 782 St. Louis V. Liessing, 190 Mo. 464, 89 S. W. 611, 1 L. R. A. (N. S.) 918, 109 Am. St. 774, 9, 16, 49, 52, 56, 57, 58, 61 71, 74, 129, 131, 646, 647 St. Louis V. Meyer (Mo.) 139 S. W. 438, 20, 49, 55, 654, 659, 677 St. Louis V. Niehaus ( Mo. ) , 139 S. W. 450, 49, 55, 106 659, 677 St. Louis V. Polinsky, 190 Mo. 516, 89 S. W. 625, 9, 22, 24, 52, 66 78, 133, 672 St. l/ouis V. Reuter, 190 Mo. 514, 89 S. W. 628, 9, 49, 57, 134 St. Louis V. Scheer (Mo.), 139 S. W. 434, 19, 20, 43, 49, 55 57, 134 St. Louis V. Schottell (Mo.), 100 S. W. 1049, 9 St. Louis T. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928, 9, 12, 26, 65, 66, 78, 132, 133 St. Louis V. Schulte (Mo.), 139 S. W. 449, 19, 55, 134, 137, 677 St. Louis V. Shands, 20 Mo. 149, 638 St. Louis V. Union Dairy Co., 213 Mo. 148, 112 S. W. 525, 8, 17, 19, 133, 134 St. Louis V. Weber, 44 Mo. 549, 97, 131 St. Louis V. Wortman, 213 Mo. 131, 112 S. W. 20, 66, 652, 654, 671, 672 737 789 St. Paul V. Peck, 78 Minn. 497', 81 N. W. 389, 76 Star Tea Co. v. Neale, 73 J. P. 511, 8 L. 6. R. 5, 684, 696 State V. Abraham, 78 Vt. 53, 61 Atl. 766, 137, 785 State V. Addington, 77 Mo. 110, affirming 12 Mo. App. 219, 23, 36 State V. Arata, 69 Ohio St. 211, 68 N. E. 1046, 765 State V. Armour Packing Co., 124 Iowa 323, 100 N. W. 59, 20, 33, 48 State V. Aslesen, 50 Minn. 5, 52 N. W. 220, 36 Am. St. 620, 8, 34, 46, 113 State V. Ball, 70 N. H. 40, 46 Atl. 50, 57 L. R. A. 282, 10, 33, 754 State V. Bixman, 162 Mo. 1, 62 S. W. 828, 78, 107 State V. Bockstruck, 136 Mo. 335, 38 S. W. 317, 7, 25, 33, 65, 739, 749, 760 State V. Broadbelt, 89 Md. 565, 43 Atl. 771, 45 L. R. A. 433, 73 Am. St. 201, 6, 79, 83 State V. Bruce, 55 W. Va. 384, 47 S. E. 146, 37 State V. Campbell, 64 N. H. 402, 13 Atl. 585, 8, 34, 50, 51, 56, 665, 708 State V. Capitol City Dairy Co., 62 Ohio St. 350, 57 N. E. 62, 57 L. R. A. 181, affirmed 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171, 7, 24, 30, 34, 35, 72 116, 130, 619 State V. Casey, 38 Ohio St. 555, 638 State V. Chapman, 1 S. D. 414, 47 K W. 411, 10 L. R. A. 432, 154 State V. Collins, 70 N. H. 218, 45 Atl. 1080, 10, 24, 33 State V. Goonan, 82 Iowa 400, 48 N. w. 921, 154 State V. Cornish, 66 N. H. 329, 21 Atl. 180, 11 L. R. A. 191, 708 TABLE OF CASES. 1033 [References are to pages.'\ State V. Crawford, 73 Iowa, 676, 35 N. W. 920, 785 State V. Crescent Creamery Co., 83 Minn. 284, 86 N. W. 107, *54 L. E. 466, 85 Am. St. 464, 6, 7, 52 State V. Davis, 117 Mo. 614, 23 S. W. 759, 73 State V. District Court, 17 N. D. 285, 115 N. W. 675, 127 State V. Donaldson, 41 Minn. 74, 42 N. W. 781, 783, 784, 786 State V. Doyle, 40 Wis. 230, 86 State V. Dreher, 55 Ohio St. 115, 44 N. E. 510, 790 State V. Dupaquier, 46 La. 577, 15 So. 502, 26 L. E. A. 162, 4 Am. St. 334, 49, 51, 71, 72, 74, 131, 723 State V. Earl, 152 Mo. App. 235, 133 S. W. 402, 22, 25, 49, 92, 112 State V. Edwards, 105 La. 371, 29 So. 833, 783 State V. Elofson, 86 Minn. 103, 90 N. W. 309, 76 State V. Emery, 55 Ohio St. 364, 45 N. E. 319, 787 State V. Endorn, 23 La. Ann. 663, 80 State V. Engle, 156 Ind. 339, 58 N. E. 698, 708 Stete V. Enoch, 26 W. Va. 253, 784 State V. Falk, 38 Mo. App. 554, 700, 767 State V. Fayette, 17 Mo. App. 587, 721 State V. Forcier, 65 N. H. 42, 17 Atl. 577, 784 State V. Fourcade, 45 La. 717, 40 Am. St. 249, 13 So. 187, 27, 51 State V. Eraser, 1 N. D. 425, 48 N. W. 343, 99 State V. Fulker, 43 Kan. 237, 22 Pac. 1010, 7 L. E. A. 183, 154 State V. Gooch, 44 Fed. 276, 103 State V. Great Western etc. Co., 171 Mo. 634, 71 S. W. 1011, 94 Am. St. 802, 8, 130 State V. Groves, 15 E. I. 208, 2 Atl. 384, 664 State V. Hall, 109 La. 290, 33 So. 318, 783, 784 State V. Hamlett, 212 Mo. 80, 110 S. W. 1082, 784 State V. Hammond Packing Co., 105 Minn. 359, 117 N. W. 606, 33, 48, 112 State V. Hanson, 84 Minn. 42, 86 N. W. 768, 54 L. E. A. 468, 46, 113, 679, 777 State V. Haynes, 7 Ohio N. P. 624, 8 Ohio S. & C. P. Dec. 678, 789 State V. Henderson, 15 Wash., 598, 47 Pac. 196, Y65 State V. Hilbert, 72 Wis. 184, 39 N. W. 326, 81 State V. Hoboken, 41 N. J. L. 71, 76 State V. Holmes, 28 La. Ann. 765, 26 Am. Eep. 110, 784 State V. Horgan, 55 Minn. 183, 56 N. W. 688, 24, 36 State V. Horner, 52 W. Va. 373, 43 S. E. 89, 783, 785 State V. Hughes, 16 E. I. 403, 16 Atl. 911, 708 State V. Hutchinson, 55 Ohio St. 573, 45 N. E. 1043, 3, 790 State V. Kelly, 53 Ohio St. 667, 43 N. E. 163, reversing 1 Ohio N. P. 238, 2 Ohio Dec. 239, 9, 706, 707, 767 State V. Kimifert, 115 La. 950, 40 So. 365, 9, 137, 784 State V. Layton, 160 Mo. 498, 61 S. W. 171, 83 Am. St. 487, 62 L. E. A. 163, 7, 12, 16, 17, 21, 24, 56, 93, 645 State V. Lee, 137 Mo. 143, 38 S. W. 583, 137 State V. Luther, 20 E. I. 472, 40 Atl. 9, 8, 647, 671, 675, 760 764, 769, 778 State V. McKinney, 29 Mont. 375, 74 Pac. 1095, 78 State V. Main, 69 Conn. 123, 37 Atl. 80, 36 L. E. A. 623, 61 Am. St. 203, 90 State V. Marshall, 64 N. H. 549, 15 Atl. 210, 1 L. E. A. 51, 24, 36, 37 State V. Marvin, 5 Ohio S. & C. P. Dec. 593, 7 Ohio Dec. 204, 5 Ohio N. P. 209, 787 State V. Mathews, 81 S. C. 414, 62 S. E. 695, 128 Am. St. 919, 784 1034 TABLE 01" CASES. [References are to pages.] State V. Meyer, 135 Wis. 86, 114 N". W. 501, 14 L. R. A. (N. S.) 1061, 32, 33, 35 State V. Miller, 86 Iowa 638, 53 N. W. 330, 155 State V. Milwaukee, 140 Wis. 38, 121 N. W. 658, 8, 84, 88, 134 State V. Monroe, 121 N. C. 677, 28 S. E. 547, 61 Am. St. 686, 43 L. E. A. 861, 819 State V. Moore, 121 N. C. 677, 28 S. B,. 547, 43 L. E. A. 861, 61 Am. St. 686, 802 State V. Morse, 80 Atl. 189, 831 State V. Mrozinski, 59 Minn. 465, 61 N. W. 560, 27 L. R. A. 76, 13 State V. Musaenholtz, 76 Conn. 92, 55 Atl. 589, 710 State V. Myers, 42 W. Va. 822, 26 S. E. 539, 35 L. R. A. 844, 57 Am. St. 887, 7, 24, 37 State V. Natal, 41 La. Ann. 887, 6 So. 722, 97 State V. Nelson, 66 Minn. 166, 68 N. W. 1036, 34 L. R. A. 318, 61 Am. St. 399, 6, 67, 79. 83, 132 State V. Neslund, 141 Iowa, 461, 120 N. W. 107, 115, 681, 698 State V. Newell, 140 Mk>. 282, 41 S. W. 751, 703 State V. Newton, 45 N. J. L. 469, 57, 61, 83, 648, 771 State ■ V. Newton, 50 N. J. L. 534, 14 Atl. 634, 2 Inter. Com. Rep. 63, 24, 48, 116 State V. Norton, 2 Ired. L. 40, 4 State V. Parson, 102 Mo. 436, 27 S. W. 1102, 46 Am. St. 457, . 155 State V. Parsons, 124 Mo. 436, 27 S. W. 1162, 42 Am. St. 457, 154 State V. Peet, 80 Vt. 449, 68 Atl. 661, 130 Am. St. 998, 14 L. R. A. (N. S.) 677, 9, 103, 105, 106, 772 State V. Perry, 151 N. C. 661, 65 S. E. 915, 8, 135 State V. Rahway, 58 N. J. L. 578, 34 Atl. 5, 88 State V. Ransick, 62 Ohio St. 283, 56 N. E. 1024, 748 State V. Rippeth, 71 Ohio St. 85, 72 N. E. 298, 708, 721 State V. Robinson, 55 Minn. 169, 56 N. W. 594, 784, 785 State V. Rogers, 95 Me. 94, 49 Atl. 564, 7, 33, 105, 707, 708, 709 State V. Rumberg, 86 Minn. 399, 90 N. W. 1055, 671 State V. Ryan, 70 N. H. 196, 85 Am. St. 629, 46 Atl. 49, 708, 709 State V. Sarradat, 46 La. Ann. 700, 15 So. 87, 24 L. R. A. 584, 97 State V. Sayman, 61 Mo. App. 244, 1 Mo. App. Eepr. 366, 784 State V. Schlenker, 112 la. 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. 360, 6, 12, 17, 18, 26, 42, 51 52; 64, 65, 92, 705, 709 State V. Schmidt, 41 La. Ann. 27, 6 So. 531, 97 State V. Sherod, 80 Minn. 446, 83 N. W. 417, 50 L. E. A. 660, 81 Am. St. 268, 7, 12, 24, 94, 113 State V. Smith, 58 Minn. 35, 59 N. W. 545, 25 L. R. A. 759, 13, 18 State V. Smith, 3 Hawks (N. C.) 378, 14 Am. Dec. 594, 4 State V. Smith, 69 Ohio St. 196, 68 N. E. 1044, 3, 51, 645, 767, 832 State V. Smith, 10 R. I. 258, 705, 708, 724, 738, 739 State V. Smyth, 14 R. I. 700, 51 Am. Rep. 344, 49, 51, 57, 645, 661 State V. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355, 7, 34, 46, 112, 113, 114 119, 130, 760, 767 State V. Snyder, 44 Mo. App. 429, 4, 709 State V. Squibb, 170 Ind. 488, 84 N. E. 969, 672, 744, 769 State V. State Board, 105 La. 535, 29 So. 989, 784 State V. Stone, 46 La. 147, 15 So. 16, 3, 46, 51, 63, 112, 113 114, 119, 130, 137 State V. Swift & Co., 84 Neb. 244, 120 N. W. 1127, 681, 792 TABLE OF CASES. 1035 [References are to pages.] State V. Tetu, 98 Minn. 953, 108 N. W. 470, 9, 26, 52 State V. Tyrrell, 73 Conn. 407, 47 Atl. 686, 75, 135 State V. Weeden, 17 Wyo. 418, 100 Pac. 114, 8, 17, 18, 697 State V. Williams, 93 Minn. 155, 100 N. W. 641, 783, 786 State V. Winters, 44 Kan. 723, 25 Pac. 235, 10 L. R. A. 616, 154 State Board of Pharmacy v. Bronson (N. Y.), 113 N. Y. Supp. 490, 787 State Board of Pharmacy v. Gasau, 122 N. Y. App. Div. 803, 107 N. Y. Supp. 409, re- versed 195 N. Y. 197, 88 N. E. 55, 786, 788 State Board of Pharmacy v. Matthews. 197 N. Y. 353, 90 N. E. 966, affirming 122 N. Y. App. Div. 889, 106 N. Y. Supp. 1146, 784 State Board of Pharmacy v. White, 84 Ky. 626, 2 S. W. 225, 8 Ky. L. Rep. 678, 784 State Center v. Barenstein, 66 Iowa 249, 23 N. W. 652, 131 Steams v. Ingraham, 1 Thomp. & H. 218, 664 Stener v. Ray, 84 Ala. 93, 4 So. 172, 5 Am. St. 332, 112 Stone V. Heath, 179 Mass. 385, 60 N. E. 975, 90 Stolz V. Thompson, 44 Minn. 271, 46 N. W. 410, 7, 12, 24, 94, 114, 129 Strong V. State, 2 Ohio N. P. 93, 3 Ohio Dec. 284, 9, 706, 707 Styles V. F. R. Long Co., 67 isr. J. L. 413, 51 Atl. 710, 70 N. J. L. 301, 57 Atl. 448, 800 Suckling V. Parker [1906], 1 K. B. 527, 70 J. P. 209, 75 L. J. K. B. 302, 94 L. T. 554, 54 W. R. 438, 21 Cox C. C 145, 4 L. G. R. 531, 589, 632, 633 Sue Lung v. State, (Tex. Cr. App.), 117 S. W. 857, 8, 24 SufiFolk County v. Shaw, 21 N. Y. App. Div. 146, 47 N. Y. Supp. 349, 784, 785 Sutton V. Wood (Ky.), 85 S. W. 201, 27 Ky. L. Rep. 412, 795, 812, 817 Taliaferro v. Moffett, 54 Ga. 150, 784 Tanner v. Dyball, 70 J. P. 279, 94 L. T. 539, 21 Cox C. C. 123, 4 L. G. R. 506, 755 Tardos v. Bozant, 1 La. Ann. 199, 640 Taylor, In re, 11 Manitoba L. R. 420, 82 Taylor v. Dairy Supply Co. 72 J. P. 132, 98 L. T. 867, 6 L. G. R. 422, 630 Taylor v. Nixon [1910], 2 Irish Rep. 94, 636, 743 Taylor Company v. Taylor (Ky.), 88 S. W. 1085, 27 Ky. L. Rep. 625, 446 Teague v. State, 25 Tex. App. 577, 8 S. W. 667, 709 Telford v. Fyfe [1907], Sess. Cas. (J.) 83, 590, 633 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, 795, 796, 800, 808, 809 Three Friends, 166 U. S. 1, 41 L. Ed. 897, 17 Sup. Ct. 495, 175 Tinker v. State, 96 Ala., 115, 11 So. 383, 154 Todd V. Cochrane, 3 Adam 357, 38 Sc. L. R. 801, 622, 63« Toler V. Bischop, 60 J. P. 9, 65 L. J. M. C. 4, 75 L. T. 403, 18 Cox C. C. 202, 682 Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923, 800, 827 Treat v. White, 181 U. S. 264, 21 Sup. Ct. 611, 45 L. Ed. 853, 125 Tulloss V. Sedan, 31 Kan. 165, 1 Pac. 285, 784 Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370, affirming 55 Md. 240, 118-120 Tvler V. Dairy, 72 J. P. 132, '98 L. T. 867, 6 L. G. R. 422, 591, 629 1036 TABLE OF CASES. [References are to pages.] Tyler v. Kingham. [1900] 2 Q. B. 413, 64 J. P. 598, 69 L. J. Q. B. 630, 83 L. T. 169, 19 Cox C. C. 547, 623, 636 U Union Passenger K. Co. v. Phil- adelphia, 83 Pa. 429, 81 United States v. American Druggists' Syndicate, 186 Fed. 387, 314, 316, 332, 483, 491, 492 499, 500, 508, 542 United States v. Bockman, 176 Fed. 382, 319, 407, 508 United States v. Bradley, N. J. 326, 524 United States v. Buffalo Cold Storage Co., 179 Fed. 865, N. J. 482, 140, 198, 240, 607 United States v. Charles L. Heine Specialty Co., 175 Fed. 299, 149, 562 United States v. Clark, N. J. 823, 212 United States v. Dougherty, 101 Fed. 439, 43, 125 United States v. Edward West- ern Tea and Spice Co., 597 United States v. Fiftv Barrels of Whisky, 165 Fed" 966, 191, 324, 325, 601, 604, 606 United States v. Five Boxes of Assafoetida, 181 Fed. 561, 142, 144, 155, 161, 597, 613, 614 United States v. Forty-six Packages, 183 Fed. 642, 173 United States v. Four Hundred and Twenty Sacks of Flour, 180 Fed. 518, 149 United States v. Fox, Fed. Cas. No. 15155, 151, 153, 574 United States v. Frank, 189 Fed. 195, 611 United States v. George Sproul, Co., 597, 604, 605, 610, 611, 615 United States v. Harper, N. J. 25, 324 United States v. Hipolite Egg Co., N. J. 508, 161 United States v. Johnson, 221 U. S. 488, 31 Sup. Ct. 627, 55 L. Ed. — , affirming 177 Fed. 313, 314, 325, 360, 498 499, 501 United States v. J. Lindsay Wells Co., 186 Fed. 248, 610, 617 United States v. Knowlton Danderine Co., 170 Fed. 449, affirmed 99 C. C. A., 667 N. J. 284, 161, 166, 173, 191 329, 604, 606 United States v. Mayfield, 177 Fed. 765, 524, 562, 572, 617 United States v. Morgan, 181 Fed. 587, N. J. 822, 429, 606, 781 United States v. Nave-Mc- Cord Mercantile Co., N. J. 895, 609 United States v. P. Pastene &. Co., N. J. 648, 604 United States v. Schurmann, 177 Fed. 581, 610' United States v. Seven Hun- dred and Seventy-nine Cases, 174 Fed. 325, 407, 609, 614 United States v. Seventy-four Cases of Grape Juice, 181 Fed. 629, N. J. 450, 149, 606- United States v. Six Hundred and Fifty Oases, 166 Fed. 773, N. J. 301, 606, 607, 609 United States v. Sixty-eight Cases of Syrup, 172 Fed. 782, 319, 404, 609 United States v. Sixty-five Casks, 170 Fed. 449, 103, 314, 604 United States v. St. Louis Cof- fee and Spice Mills, 189 Fed. 191, 610 United States v. Ten Barrels of Vinegar, 186 Fed. 399, 319, 427 United States v. Three Hun- dred Cases of Frozen Eggs, 189 Fed. 351, 610' United States v. Twenty Boxes of Corn, 133 Fed. 910, 67 C. C. A. 214, 328 United States v. Twenty Cases of Grape Juice, 189 Fed. 331, 604, 605 United States v. Two Barrels of Desiccated Eggs, 185 Fed. 302, 149, 166, 175, 177, 245 597, 604, 610, 615 United States v. Two Boxes Assafoetidia, 611 United States v. Wilson, 603 TABLE OF OASES. 1037 [References are to pages.] V Valentine v. Englewood, 76 N. J. L. 509, 71 Atl. 344, 19 L. R. A. (N. S.) 262, 13 Van Baalen v. Reople, 40 Mich. 258, 76 Van Bracklln v. Fonda, 12 Johns. 467, 7 Am. Dee. 399, 825, 826, 827, 830 Vance v. Vandercook Co., 170 U. S. 238, 18 Sup. Cft. 674, 42 L. Ed. 1111, 167 Vandegrift v. Meihla, 69 N. J. L. 92, 49 Atl. 16, 661, 705, 769 Van Lieu v. Scoville Mfg. Co., 14 Abb. Pr. (N. S.) 74, 818 Van Vliet, In re, 43 Fed. 761, 99 Van Winkle v. American Steam Boiler Co., 52 N. J. L. 240, 19 Atl. 472, 800 Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482, 125 Verona Central Cheese Co. v. Murtaugh, 50 N. W. 314, 707, 709, 738, 742 Vester v. State, 1 Ohio N. P. 240, 2 Ohio Dec. 170, 768 Volght V. Excise Comrs., 59 N. J. L. 358, 36 Atl. 686, 37 L. E. A. 292, 86 Voisht V. Wight, 141 U. S. 62, 11 Sup. Ct. 855, 35 L. Ed. 638, 99 W W. H. Small & Co. v. Com- monwealth, 134 Ky. 272, 120 S. W. 361, 697, 797 Walbee v. Reno, 27 Nev. 1, 73 Pac. 528, 103 Am. St. 747, 63 L. R. A. 337, 86, 88 Walfender v. McCulloch, 92 L. T. 857, 709 Walker v. Commonwealth, 127 U. S. 699, 8 Sup. Ct. 997, 32 L. Ed. 261, 7, 12, 34 Walker v. Commonwealth (Pa.), 11 Atl. 623, 8 Walton V. Booth, 34 I/a. Ann. 913 795, 808, 820 Walton V. Toledo, 23 Ohio Cir Ct Rep. 547, 8, 26, 77, 82 ^ 83, 133, 136 Waring v. Mayor, 8 Wall. 110, 19 L. Ed. 342, affirming 41 Ala. 139, 163 Warnock v. Johnstone, 8 Ret- tie (J. C.) 55, 4 Coup. 509, 660, 791 Warren v. Phillips, 44 J. P. 61, 194 Wartman v. Philadelphia, 33 Pa. 209, 97 Wasserbehr v. Boulder, 84 Me. 165, 24 Atl 808, 30 Am. St. 344, 155 Waterbury v. Newton, 50 N. J. L. 534, 14 Atl. 604, 36, 103, 707, 746 Watson, In re, 17 S. D. 486, 97 N. W. 463, 9, 77 Watson V. State, 45 Tex. Cr. App. 509, 78 S. W. 504, 783 Watts V. Stevens [1906], 2 K. B. 323, 70 J. P. 418, 75 L. J. K. B. 828, 95 L. T. 200, 4 L. G. R. 821, 726, 727, 729, 731, 732, 733 Webb V. Knight, 2 Q. B. Div. 530, 41 J. P. 726, 46 L. J. M. C. 264, 36 L. T. 791, 26 W. R. 14, 716 Wedlock, Ex parte, 20 N. S. W. L. R. 353, 16 W. N. (N. S. W.) 117, 709 Weidman v. State, 55 Minn. 183, 56 N. W. 688, 8, 34 Wieigand v. District of Colum- bia, 22 App. D. C. 559, 51, 132, 619, 647, 779 Welch V. State, 145 Wis. 86, 129 N. W. 656, 752 Weller v. State, 53 Ohio St. 77, 40 N. E. 1001, affirming 8 Ohio Cir. Ct. Rep., 467, 91, 793 West V. Emanuel, 198 Pa. 180, 47 Atl. 965, 804 Westchester County v. Dresser, 23 N. Y. App. Div. 215, 48 N. Y. Supp. 953, 784 Wheat V. Brown [1892], 1 Q. B. 418, 56 J. P. 153, 63 L. J. M. C. 94, 66 L. T. 464, 40 W. R. 462, 8 T. L. R. 294, 116, 681, 719 Wheeler v. Webb, 51 J. P. 661, 593, 631 1038 TABLE OF OASES. [References are to pages.'} White V. Bywater, 19 Q. B. Div. 582, 51 J. P. 821, 36 W. E. 280, 274, 277 Whitwell, Ex parte, 98 Cal. 73, 32 Pac. 870, 19 L. E. A. 727, 35 Am. St. 152, 119 Wiedman v. Keller, 17 111. 93, 49 N. E. 210, reversing 53 111. App. 382, 825 Wilkinson v. Alton, 72 J. P. 252, 99 L. T. 119, 6 L. G. E. 544, 746 Williams v. Garigues, 30 La. 1094, 80 Williams v. McNeal, 7 Ohio Cir. Ct. Rep. 280, 91 Williams v. Eivenburg (N. Y. App. Div.), 129 N. Y. Supp. 473, 83, 96, 643 Williams v. State, 4 Ohio C. C. (N. S.) 13, 25 Ohio Cir. Ct. E«p. 673, affirmed 69 Ohio St. 570, 70 N. E. 1135, 738, 740, 768 Willson V. Faxon, 63 N. Y. App. Div. 561, 117 N. Y. Supp. 361, 802 Wilson, In re, 168 Fed. 566, 319, 407, 608 Wilson, Ex parte, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89, 616 Wilson V. Blackbird Creek Co., 2 Pet. 245, 7 L. Ed. — , 145 Wilson V. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603, affirming 15 Utah 53, 48 Pac. 41, 7 Wilson V. Lexington, 105 Ky. 765, 49 S. W. 806, 50 8. W. 834, 20 Ky. L. Rep. 1593, ]9S0, 80 Wilson V. McCutcheon, 4 Adam 34, 40 Sc. L. E. 31, 716 Wilson V. McPhee, 68 J. P. 175, 6 Eraser (J. C.) 10, 4 Adam 310, 41 So. L. R. 195, 684, 715 Wind V. Her & Co., 93 Iowa 316, 61 N. W. 1001, 27 L. R. A. 219, 155 Winsboro v. Smart, 11 Rich. L. (S. C.) 552, 97 Winsor v. Lombard, 18 Pick. 61, 826, 827, 828 Winter v. Terrill, 42 Tex. Civ. App. 598, 95 S. W. 761, 823 Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. E. A. 548, 4 Chic. L. J. Wkly, 69, 809, 810 Withams v. Eivenberg, 129 N. Y. Supp. 473, 90 Withams v. Slaughter, 3 Wis. 347, 826 Witte V. Weinstein, 115 Iowa 247, 88 N. W. 349, 832 Wohlfahrt v. Beckert, 92 N. Y. 420, 44 Am. Rep. 406, affirm- ing 27 Am. 74, 816 Wolfenden v. McCuUoch, 69 J. P. 228, 92 L. T. 857, 20 Cox C. C. 864, 3 L. G. E. 56, 646, 709 Wolfenden v. McCuUoch, 92 L. T. 857, 709 Wioods v. Armstrong, 54 Ala. 150, 25 Am. Eep. 671, 118 Woodworth v. State, 4 Ohio St. 487, 772 Woolner & Co. v. Rennick, 170 Fed. 662, 435 World's Tea Co. v. Gardner, 59 J. P. 358, 682 Worthen, In re, 58 Fed. 476, 103 Wright V. Hart, 18 Wend. 449, 828 Wright V. State, 88 Md., 705, 41 Atl. 795, 10, 33 Yick Wo V. Hopkins, 118 U. S. 359, 6 Sup. Ct. 1064, 30 L. Ed. 221, 131 Young V. Blaisdell, 138 Mass., 344, 88 Youngblood v. Sexton, 32 Mich. 406, 20 Am., Eep. 654, 86 INDEX [References a/re to Sections unless otherwise noted.'i A Accident — Druggist's liability for, 621. Acetaldehyde — Sulphur dioxid, combining with, 232. Acetanilide — Label must show presence in drug, 244, 256, 257, 399, pp. 840, 854 reg. 28. Misbranding article by not showing presence in article, 409. Actions — Prosecutor of, who may be, 608. Adulteration — Abstraction of valuable part of article, 120, 121, p. 839. of milk, 532, 537. Ale, 127. Almond extract, 128. Annatto made to color product, 129. Apple jelly, 131. Apple phosphate, 191. Apples, evaporated, 130. Article, selling, p. 841. Assafoetida, 215. Banana extract, 132. Belladonna in product, 216. Berry preserve, 133. Biscuits, 135. Blackberry cordial, 133a, 217. Bone grits, 134. Boric acid adulterates article used in, 135. Brandy, 136. Buckwheat flour,\ 137. Butter, 138. Calcium acid phosphate, 139. Camphor, 218. Cane syrup, 140. Canned com, 141. Cereal, 142. Cheese, 143. Cherry syrup, 144. Chocolate cremolin, 145a. Cider, 145. 1039 104^ INDEX. [References are to Sections unless otherwise noted.} -Abultebation — Contimued. Cloves, 146, 219. Coating food to conceal inferiority, p. 839, p. 848, reg. 12. Cocaine, using in drinks, 169, 170, 171. Coffee, 147. Colocynth, 220. Coloring to conceal inferiority, p. 839, p. 848, reg. 12. Common law offense to sell adulterated food, 2. Confectionery, when deemed adulterated, 123, p. 848, reg. 10, p. 839. Copper salts, used in vegetables, 148. Corn cobs used in stock food, 149. Corn flour or meal, 150. Corn starch, 139. Corn syrup, 163. Cotton seed meal, 151. Cream, 177. using formaldehyde is adulteration, 160. Currants, 152. Custard, 153. Definition, 154, 231, 618f, p. 215, p. 837, p. 839. courts can not extend, 7. in Pure Food and Drugs Act of 1906, 114, 154. power to define by statute, 7. Delivery of article under federal statutes, p. 842. Drugs, defined, 212, 215, 216, 227. Eggs, 126, 154. using boric acid in, 135. using formaldehyde in, 154. Evidence to show, 610. Eeed, 203. Eigs, 156. Filthy food, 125, 126, 186. Fish, filthy, 157, 176, 186. Flavoring extracts, 159. Flour, 150, 15S. Food defined, p. 839. Formaldehyde adulterates article used in, 154, 160. Fruits, 161. Gelatin, using in foods, 335. Gentian root, 221. Gin, 162. Glucose as an adulterant, 163. Gum for coating, 202. Gum, tragacanth, 222. Henbane, 223. Hominy, 163a. Honey, 164. Hydrocyanic acid, using in milk, 165. Ice, 166. Ice cream, 167. Ice cream cones, 135. Imports, p. 841. Improving a food is not an adulteration of it, 618f. Indictment must show what was the adulteration, 590. Inferiority of food, concealing by color, p. 848, reg. 12. INDEX. 1041 [References wre to Sections unless otherwise noted.] Adultebation — Continued. Jam, 168. Jamaica ginger, 167a. Jelly, 168. Kamola, 223a. Koca-Nola, using in beverages, 170. Kola-Ade, using in beverages, 169. Kos-Kola, using in beverages, 171. Laudanum in drug product, 224. Lemonade, 618h. Lemon flavoring, 172. oil, 173. Liability for sale of adulterated food, 2, 655. Liquor, p. 841. Macaroni, 174. Maple syrup, 175. Meat, filthy, 176. mince, 179. MUk, 177, 178, 532. evaporated, 178. Mince meat, 179. Mineral oil adulterates, 180. substance, using in candy, 123. water, 181. Misdemeanor as to, 513. Mixture reducing quality of article, p. 839, p. 848, reg. 11. Molasses, 182. using glucose in, 163. Mustard, 182a. Oats, 183. Olive oil, 185. Olives, 184. Orange flavoring, 172. Oysters, 186. Patented food, 51. Peach butter, 187. extracts, 188. filthy and rotten, 186a. Peanuts, 189. Pepper, 190. Peroxide of hydrogen, using in food, 225. Pineapple extract, 193. Pleading to show adulteration, 509. Poison as an adulterant, 194, p. 849, reg. 13. Powdering to conceal inferiority, p. 839, p. 848, reg. 12. Power to define, what constitutes, 7. Preservatives used in food, p. 849, regs. 14 and 15. Prunes, filthy, 195. Purchase price of adulterated food, recovering back, 654. Raisins, filthy, 196. E,ice, coating, 197. Rococola, 198. Saccharin, use in food, 199, 204. Sago, 200. Salts of tin in food, 201. Ptjee Food — 66. 1043 INDEX. IBeferenoes are to Sections unless otherwise noted.] AswiERATio's— Continued. Seizure of adulterated article, 502. Senna, 225a. Shellac for coating, 202. in confectionery, 123, 124. Shell fish, 186. Sodium aluminic sulphate, 226a. Soemnoform, 226. "Stain" defined, 6, p. 848, reg. 12. Staining to conceal inferiority, p. 839. Standard for food or drug, legislature can fix, 4. legislature can not fix, 5. Statute requiring label has no application to adulterated food, 555, Stock food, 203. Substitution of another article, p. 853, reg. 25. Sugar in canned goods, 204. use in food, 199. Syrup, 163. maple, 175. Tapioca, 200. Tea, 206. Tomato catsup, paste and pulp, 206. Tragacanth, 226b. Turmeric, 206a. Turpentine, 226c. Unavoidable mixture of substances, 618g. Vani-Kola, 207a. Vanilla, 165. and caramel, 207. hydrocyanic acid, using in, 165. Vegetables, 161. greening with copper salts, 148. Vinegar, 48, 208. cases on, 618 j. Waffles, 209. What is an adulteration, 618f. When article not deemed adulterated, 244. Whisky, 210. Wines, 211. Wintergreen, 155. Adulteration of Drugs — Adulteration, see. Defined, 212, 227, p. 839. Agent — Corporation bound by his act, p. 842. Falsely stating age of product, 249. Indictment when he sells illegally, 601. Liability for illegal sale, 573. Master liable for his sales, 540, p. 842. Representations made by, use in evidence, 611. Sale by, when necessary to render principal liable, 574. binds principal, 572. milk, selling, 540. INDEX. 1043 [Referemies are to Sections unless otherioise noted.] Agricultural Department- Decisions by, effect, 504. publication, 504, 598, p. 838. Department of Agriculture, see. Secretary of Department of Agriculture, see. Alcohol — Amount in flavoring extract, stating, 330. Confectionery, using in, 123, 124. Defined by statute, 256, 395, p. 854, reg. 28. Derivatives, labeling, 256. Pood, showing amount, 281. Label must show proportion in drug, 256, 257, 399, p. 314, note 1, p. 854, reg. 28. Phosphate, using in, 191. Ale- Adulterating, 127. Misbranding, 285. Alfalfa- Misbranding, 282. Allspice — Defined, p. 998. Spices, see. Almond Extract — Adulterating, 128. Defined, p. 1001. Oil, p. 1001. Alpha and Beta Eucaine — Label must show presence in article, 244, 256, 257, 399, p. 840, p. 854, reg. 28. Alum — Baking powder, using in, may be prohibited, 50. Breads containing, selling an offense, 2. Amaranth — Using for coloring, 230. Ammon Phenyl — Misbranding, 409a. Anadol — Misbranding, 410. Analgine Tablets — Misbranding, 411. Analysis — Bureau of Chemistry makes, 500, 501. 104*4 INDEX. [Beferenees are to Sections tMiless otherwise noted.1 Anaiysis — Continued. Certificate of, under English statutes, 522. as evidence, 521, 618, p. 636. Court proceedings based upon, 508. Entire sample need not be analyzed, p. 620, note 8. Method under Pure Food and Drugs Act, 500, p. 845, reg. 4. Milk, certificate of as evidence, 537. Publication of result, 504. Samples for analysis, 518. Analyst — Court may appoint, 519. English statute regarding, 520. , Testifying as to result of analysis, 537. Animal Meat — Poultry meat is not, 112. Anise — Defined, p. 998. Extract, p. 1002. Oil, p. 1002. Star Anise, s0e. Aniseed Syrup — Misibranding, 412. Annatto — Adulterates article used in, 129. Butter, using in, 582. Milk, adulterates, 540, p. 61, note 1. Origin, p. 61, note 1. Antimalarico — MSsbrauding, 413. Appeal — To Secretary of Agriculture, 505. To Secretary of Agriculture concerning imports, p. 859, reg. 37. Apple Butter — Defined, p. 995. Misbranding, 284. Apple Jelly — Adulterating, 131. Apple Phosphate — Adulterating, 191. Misbranding, 414. Apples — Defined,, p. 994. Evaporated, 130. Misbranding, 283. Origin of, talsely stating, 283. INDEX. 1045 [References are to Sections unless otherwise noted.] Arsenic — Chocolate cremolin, using in, 145a. Article Demanded — Sale of article demanded, 564. Assafoetida — Adulterating, 215. 'Misbranding, 415. Assault and Battery — Purposely selling dangerous drug for trick, p. 802. Association — Agent's act binds, p. 842. Officer's act binds, p. 842. Asthma Cure — Misbranding, 416. Az-Ma-Syde — Misbranding, 417. B Baking Powder — Alum, use of in, prohibited, 50. Food, in, 112. Labeling to show percent of alum, 50, 65. Balsam — Misbranding, 417a. Banana Extract — Adulteration, 132. Misbranding, 317. Barjrtes — Use in confectionery forbidden, 123. Batch- Defined, 237, 239. Bay leaf- Defined, p. 999. Bay Rum — Adulteration, 113. Beaver and Oil Compound — Misbranding, 418. Beer— Misbranding, 278, 285. 1046 INDES. [References are to Sections unless otTierwise noted.} Beeswax — Adulteration, 113. Drug, may be, 618c. Beet- Adulteration, 112. Belladonna — Adulteration, 216. Benzoate of Soda — Effect on food, 242. Jam, using in, 168. Label must show presence, 230, 285a. May be used if named on label, 229. Eeport of Referee Board concerning, 242. Benzoic Acid — Blackberry cordial, using in, 133a. Berry Preserve — Adulterating, 133. Beta Eucaine — Label must show presence in drug, 244, 399. Biscuits — Adulterating with boric acid, 135. Bitters— Misbranding, 419. Blackberries — Loganberries substituted for, 133. Misbranding, 361. Blackberry Cordial — Adulterating, 133a, 217. Misbranding, 420. Blend- Color used to increase weight or bulk, 249. Defined, 244, 249, p. 853, reg. 21, p. 440. Differs from compoimd, 272. Label showing, 244, 245, 272, p. 319, note, p. 841. Misbranding, 383, 384, 385. Whisky blend, how labeled, 383, 384, 385, 386. Board of Health — Empowering board to fix food standards, 13. to adopt regulations, 13. MSlk, sale of, regulating, p. 29, note 4. Boarding House — Keeper's liability for sale of oleomargarine, 583. INDEX. 1047 [References are to Sections unless otherwise noted.] Bond- Butter and cheese makers, requiring to give, 19. Consignee of imports giving to secure release of imported article, p. 859, reg. 35. For release of article seized, 503. Bone Grits — Adulterating, 134. Borax — When not a drug, 618c Boric Acid — Adulterates article in which it is used, 135. Biscuits, using in, 333. Cheese, using in, 143. Cider, using in, 145. Eggs, using in, 154. Ice cream, using in, 167. Milk, using in, 539. Waffles, using in, 209. Bottles — Capacity, marking upon, 71. Milk bottles, prescribing, 541. Possession of undersized bottles, 541. Refilling labeled bottles, 404. Bran — Misbranding, 286, 328. Screenings of wheat, using in, adulterates, 328. Brands — Defined, p. 316, note 1. Label, see. Sufficiency, 557. Brandy — Composition, p. 444. Misbranding, 287. Brant's Soothing Syrup— Misbranding, 421. Bread — Prohibiting use of impure water m makmg, 49. Weight of loaves, prescribing, 70, 81. Bromo Febrin — Misbranding, 422. Brucine — Gin, using in, 162. 1048 INDEX. [References are to Sections unless otherwise noted.} Buchu Gin — MisbrEindmg, 422. Buckwheat Flour — Adulterating, 137. Defined, p. 994. Misbranding, 288. Bureau of Chemistry — Analyzes samples, 500. Burden — Evidence, see. Government has to show violation of statute, p. 609. Butter- Adulterating, 138. Annatto, using in, 582. Coloring no offense, 581, 582. permitted under Federal statute, 241. Deception in, preventing, p. 25, note. Defined by Feideral statute, pp. 880, 888, 992. Discriminating between colored butter and colored oleomargarine; 18. Federal statute concerning, pp. 888 to 897. regulation under, p. 901. Fniit butter defined, p. 995. Imitation, forbidding, 15, 577, 578. caused by combination of natural ingredients, 26. iMIsbrandiiig, 278, 289, 290, 555, 556. Non-imitation, 582. Oleomargarine, see. Pearks', 552, 555. Process, p. 992. Pure butter of low grade, 579. below grade fixed by statute, 580. Renovated, Federal statute upon, pp. 888 to 897. defined, p. 992. regulations concerning, p. 901. Standard fixed, p. 992. Warranty as to, under English statute, 571. Water in, adulterates, 138. Buttermilk — Composition, p. 177, note 6. Defined, p. 992. Cafe-Coca Compound — Misbranding, 424. Caffeine — Roeocola, using in, 198. INDEX. 1049 [References are to Sections unless otherwise noted.] Calcium Acid Phosphat'e — Corn starch, using in, 139, Misbranding, 359, 425. Camphor — Adulterating, 218. Misbranding, 426. Cancer Cure — Misbranding, 427. Candy — Confectionery, see. Defined, 123, p. 998. Cane Syrup — Adulterating, 140. Labeling, 372. Misbranding, 291. Cannabis Indica — Label, statement as to presence, 244, 399, 256, 257, p. 840, reg. 28. Canned Com — Adulterating, 141. Canned Fruits — Sugar, using in, 204. Canned Vegetables — Copper salts, see. Sugar, used in, 204. Vegetables, see. Capers — Defined, p. 999. Capsules — Labeling, 396. Caramels — Misbranding, 292. Caraway — Defined, p. 999. Extract, p. 1002. Oil, p. 1002. Carbohydrates — Composition, 328. Cascara — Misbranding, 428. 1050 INDEX. [References ore to Sections unless othencise noted.'] Cassia — Defined, p. 999. Castor Oil — Food statute, application to, 113. Catarrh and Hay Fever Remedy — Misbranding, 429. Catchup — Standard for, p. 996. ' Cattle Food- Peed, see. Labeling, 328. Stock food, see. Cayenne Pepper — Defined, p. 999. Celery Cola — Misbranding, 430. Celery Seed — Defined, p. 999. Cereal — Adulterating, 142. Misbranding, 293. Cereal Coffee — Misbranding, 306. Cerecut — Misbranding, 294. Certificate — Analysis of, English statute, 520, 521. form, 522. Batch defined, 237, 239. Dyes, concerning, 237. Imported meat, concerning, 100, 102. Number assigned to manufacturer, 237. Official, deposited with Secretary of Agriculture, 237. Secondary, 237. certificate of, under, 238. Ceylon Oil — Defined, p. 1005. Charlock — Use in mustard, 182a. INDEX. 1051 \References are to Sections unless otherwise noted.l Cheese — Adulterating, 143. CJoloring permitted under U. S. laws, 241. Defined, p. 992. Ewe's milk cheese, p. 993. Filled cheese, U. S. statute concerning, pp. 861 to 866. Goat's milk cheese), p. 993. Labeling, 266. Misbranding, 278, 295. Skimmed milk cheese, p. 993. Standard fixed, p. 992. Cheese Factory — Delivery of diluted milk to, preventing, p. 53, note. Chemicals — Imports, pp. 875 to 877. Use determined by U. S. regulations, 230. Cherry Syrup — Adulterating, 144. Misbranding, 296. Chewing Gum — Federal statute, concerning, 123. Is it a, food? 112. Not a drug, 618e. ParaflSne, using in, 123. Chicken Feed — Misbranding, 297. Chicory — Adulterating, 555. Misbranding, 555. Chloral Hydrate — Label must show presence in product, 244, 256, 257, 399. Statement as to, pp. 840, 854, reg. 28. Chloroform — Label must show presence in drug, 244, 257, 399. derivatives, 256. Statement as to, pp. 840, 854, reg. 28. Chocolate — Bitter, p. 1007. Defined, p. 1007. Liquor, p. 1007. Origin, 300. Sweet, p. 1007. Chocolate Cremolin — Adulterating, 145a. Misbranding, 297a. 1052 INDEX. [References are to Sections unless otherwise noted.] Chrome Yellow — Use in confectionery, 123. Churns — Labeling, p. 734. Cider- Adulterating, 145. Misbranding, 298. Cinnamon — Defined, p. 999. Extract, p. 1002. Oil, p. 1002. Circulars — Are not labels, p. 483, note 3. City- Bread, weight of loaves, prescribing, 70, 81. Coloring milk or cream, preventing, 32, p. 52, note 9. Conflict between its milk ordinance and a statute, p. 19, note 5. Destroying impure milk, 44. without notice, 47. General power over food, 81. Ice cream, power to determine adulteration, 7, 8, Inspection of dairies, 81. food, 81. milk, 81. License, power to exact, 80. Milk, adulteration, may forbid, pp. 63, note 1 ; 65, note 3 ; 66, note 4. license to sell, may require, 39, 40, 41, p. 82, note 4. milk, see. preservatives in, preventing, 10. sales, regulating, 81. samples, may take, 37. standard, may fix, 27, p. 57, note 2. differing from sitate's, p. 19, note 5; p. 53, note. Netting over fruit, power to regulate, 52. Unwholesome food, preventing sale, p. 21, note 2. Cloves — Adulterating, 219, 146. Defined, p. 999. Extract, p. 1002. Misbranding, 298a. Oil, p. 1002. Coal Tar- Blackberry cordial, using in, 133a. Colors, 234. What colors of, may be used, 230. Coated — Defined, 119, p. 848, reg. 12. INDEX. 1053 [References are to Sections unless otherwise noted.} Coating — Confectionery, 123. Defined, 227. Food, to conceal inferiority, p. 839. Gums used for, 202. Paraffine used to coat rice, 197. Shellac, using for, 202. Coca — Defined, p. 1007. Sweet, p. 1007. Powdered, p. 1007. Coca Butter Substitutes — Coca butter defined, p. 1006. Labeling, 301. Coca Cream — Misbranding, 299. Coca Leaf Alkaloids — Using in beverages, 169, 202a, 217a. Cocaine — Derivatives, labeling, 256. Koea-Ade, using in, 169. Eola-Nola, using in, 170. Kos-Kola, using in, 171. Label, statement as to, 244, 257, 399, pp. 840, 854, reg. 28. Misliranding, 431. Rococola, using in, 198. Cocaine Hydrochloride — Misbranding, 432. Cochin Oil — Defined, p. 1005. Cocoa — Beans, p. 1C06. Nibs. p. 1006. Origin, 300. Products, p. 1006. Cocoa and Chocolate — Misbranding, 300. Coconut Oil — Defined, p. 1005. Codfish— Misbranding, 303. Cod Liver Oil — Misbranding, 302, 433. 1054 INDEX. [References are to Sections unless otherwise noted.l Coffee- Adulteration, 147. Cereal Coffee, Labeling, 306. Defined, p. 1006. Food, is, 112. Food statute applies to, 112. French coffee, 555. misbranding, 555. Glazed, labeling, 305. Imitation, labeling, 306. Imported, labeling, 307. Misbranding, 304. ' Origin of various kinds, 304. Roasted, p. 1006. Coke Extract— Misbranding, 434. Cola Queen Syrup — Misbranding, 435. Cold Cream — Food statute applies to, 113. Cold and Grippe Tablets — Misbranding, 436, 444. Cold Storage- Chickens, undressed, keeping in, preventing, p. 13, note 1. Colocynth — Adulterating, 220. Misbranding, 437. Coloring — Adulterates food, 129, 227. Amaranth, 230, 234. Annatto, use of, adulterates food, 129. Batch defined, 237, 239. Blackberry cordial, 133a. Butter, permitted, 241. Certification concerning, 238. Cheese permitted, 241. Cloves, 146. Coal tar, 234. Concealing inferiority, 119, 230, 236. Confectionery, 123. Copper salts to green vegetables, 235. Dyes, see. Erythrosin, 230, 234. Experts to examine, 237. Flavoring extracts, 159. Fruits, 235. INDEX. 1055 [References are to Sections unless otherwise notedJ] COLOKINQ — Contimu^d. Harmless only, can be used, 227. Imitation, by use of, forbidden, 249. Indigo disulfoacid, 230, 234. Inferiority of food, concealing by use of, 119, 230, 236. Label must show, 245. Lemon flavoring, 172. List of those permitted, 234. Meat, 118, 243. Naphthol Yellow, 234. Orange I, 230, 234 Pine apple extract, 193. Poisonous, can not be usid, 118. Ponceau, 230, 234. Sale of food does not prevent, 272. Secretary of Agriculture prescribing list, p. 849, reg. 15. Sulphur fumes, 232. Unauthorized, effect of using, p. 284, note 1. Use of certified colors, 240. permitted, when, p. 849, reg. 15. forbidden, when, p. 848, reg. 12. Vegetables colored with copper salts, 235. Weight of product, must not increase, 249, p. 853, reg. 21. What may be used, 230. When may be used, 118. Wholesomeness, 229. Whisky, 210. Wine, 211. Wintergreen, 155. Collectors — Samples, secure, 496, 497. duties as to, 496. Common Lav7 — Sale of adulterated food an offense under, 2. Company — Agent's acts bind, p. 842. OflScer's acts bind, p. 842. Compounds — Adulteration by mixture, 121. Defined, p. 853, reg. 21, p. 440. Distinctive name, using on label, 248. Imitation of article of food, must not be, 255, p. 854, reg. 27. Interchangeable with mixtures, 255, p. 854, reg. 27. Labeling, 244, 245, 271, p. 841, p. 317, note 1. Names of, 252, p. 840. When deemed misbranded, 252, p. 853, reg. 24. Whisky, 388. Compound Words — Use upon label, 403. 1056 INDEX. [References are to Sections unless otherwise noted.] Condiments — Food, is not, 1. May be used in foods, 230. Confectionery — Adulteration, p. 848, reg. 10, p. 839. Alcohol in, using, 123, 124. Articles what may be used on, p. 839. Coating, 123. Coloring, 123. Defined, 123, p. 998. Dipping in alcoholic solutions of gum, 124. Food, is, 112. Gelatine, using in candy, 123. Shellac, using, 123, 124. Vaseline, using in, 123. Congress — Power over food and drugs, 89. when it ceases, 90. Constitutionality of Statutes and Ordinances — Adulteration, power to define, 7. Baking powder, alum, using in, 50. label on, requiring, 50. Basis for food legislation, 3. Bond, requiring of butter and cheese producers, 19. Bottle, capacity requiring to be shown, 71. Bread, weight of loaves, 70. impure water, use in, preventing, 49. Butter, coloring, p. 25, note. imitation of, caused by combination of natural ingredients, 26. renovated, labeling, 22. Butterine, validity of statute concerning, 4, 5. Classification of foods for taxation, 14. Coating foods, preventing, 7. Coloring of foods, preventing 7, 8, 9, 14, 15, 32, 48. Compounding articles of wholesome food, preventing, 21. Congress' power over food and drugs, 89. when ceases, 90. Convict goods, requiring to be labeled, p. 118, note 4. Cottolene statute valid, 25. Cream, coloring, forbidden, 32. removing from milk, preventing, p. 24, note 3. Dairies, inspection, requiring, 43. Destruction of impure milk, 44. without notice, 47. Determination certain food is adulterated, 4, 5. Discrimination between colored butter and colored oleomargarine, 16. Doubt of statute's validitiy, 6. Druggists, regulating, 618a; Drugs, regulating sale, 82. Exporting food, state forbidding, 58, 59, p. 103 note. Fresh meats, sale of in market, requiring, 54. pork, sale of in summer, forbidding, 53. INDEX. 1057 [References are to Sections unless otherwise noted.] CONSTTTUTIONAUTT OP STATUTES AND ORDIKANCES— (7o»tin«ed. Fruit covered with netting, 52. Federal Food and Drugs Act of 1906, 87. Fourteenth Amendment, effect on food legislation, 4, 5, 11, 16. Fruit covering with netting, preventing, 52. Guaranty of purity of food, requiring, 149. How validity of statute determined, 6, p. 9, note. Importation of food, forbidding sale, 56, 57. can not be prohibited, 55. forbidding sale, 56, 57. oleomargarine, deception in preventing, 18. Injoining enforcement of statute, 75, 76. Inspection of dairies, requiring, 43, 81. food, 81. certificate to show, 68. discrimination in statute, 62. Federal statute, 63. fee for, 60. preventing importation, 61. Intent, punishing act where none exists, 12. Interstate commerce, 87. effect on state food legislation, 55. Labeling food, requiring, 21, 22, p. 118, note 4. coloring vinegar, p. 91, note 8. deception, to prevent, 65. locality of origin of food, showing, 67. revocation, 45, 46. small packages taken from original, 66. weight of article labeled, showing, 69, 70. Legislative determination of adulteration, 4, 5, 25, 50, p. 67, note 2. License, fees for, amount, 41, 42. requiring, 39, 40, 43. Measure, showing size of, 71. Milk, coloring, forbidding, 32. designating officers to determine purity, 31. diluted, delivery to cheese factories, preventing, p. 53, note. license to sell, requiring, 39, 40. fees, how determined, 42. preservatives, preventing use in, 34, 35. pure water, forbidding use in, 53, note. registration of dealers, 41. samples for inspection, requiring, 37, 38. skimmed, sale of, preventing, 52, note 9. slops, use for cows, preventing, 33. standard for fixing, 27, 29. tests for determining purity, 30. tuberculin test, 36, p. 6, note 1. unadulterated below standard fixed, forbidding sale, 27. Natural ingredients produeins imitation butter, 26. Netting over vegetables, forbidding, 52. Oleomargarine, coloring, preventing, 9, 14. effect of statute upon product on hand, 72. Federal statute on, valid, 23. does not prevent state legislation, 24. imitation of butter, where made of natural ingredients, 26. PuEE Food — 67. 1058 INDEX. [References are to Sections unless otherwise noted.l CONSTITUTIONATJTY OF STATUTES AND ORDINANCES Continued. prohibiting sale, statute void, p. 49, note 5. unnatural 'color of, requiring, 17. Patented food, adulteration, forbidding sale, 51. P'oison in food, prohibiting sale of food, p. 19, note 6. Police power, exercising, 4, 5. basis of food legislation, 3. Pork, sale of in summer, forbidding, 53. Preventing sale of unwholesome food, 8. Regulations, power of Secretary of Treasury to adopt, 106. adoption by Boards of Health, 13. Slops, feeding to milch cows, forbidding, 33. Standards for foods, power to adopt, 4, 5, 122, p. 206, note 2. Boards of Health adopting, 13. State legislation not prevented by Federal legislation, 24, 60, 61. Taxation, rate, 73, 74. Federal oleomargarine statute, 73, 74. Teas, importing, 106. Title of statute or ordinance, 78. Tuberculin test of milk, requiring, 36, p. 6, note 1. Validity of legislation on food, 4. Veal of young calves, forbidding sale of, p. 96, note 1. Vinegar, adultera.ting and coloring, 48, p. 25, note. forbidding, 48. Weight, showing on package, 69, 70. Who may attack statute, p. 9, note. Wine, preventing sale of adulterated, p. 10, note. Copper Salts — Imported goods, using in, 230. Label must show use of, 308. Vegetables greened with, 148, 235. Copra Oil — Defined, p. 1005. Cordials — Misbranding, 309 Coriander — Defined, p. 999. Corn Cobs — Adulterate stock feed, 149. Corn Cures — Food statute applies to, 113. Corn Meal — Adulteration, 150. Defined, p. 999. Misbranding, 310. Corn Oil- Defined, p.- 1006. INDEX. 1059 [Refereruies are to Sections unless otherwise noted.^ Com Starch — Adulteration, 139. Custard, adulterates, 153. Com Syrup — Glucose, using in, 163. Misbranding, 311. Corporations — Agent's acts bind, p. 842. Officer's acts bind, p. 842. liability to fine, 517. Quo warranto proceedings to dissolve, 79. Costs- Assessing against owner of condemned product, 515. Release of goods on payment, p. 841. Cotton Seed Meal- Adulteration, 151. Labeling, 402. Misbranding, 312. Oil stearin, p. 1006. Cotton Seed Oil- Defined, pp. 1004, 1005. Standard, p. 1004. Cough Cure — Misbranding, 438. Court Proceedings — Admiralty rules govern in libel cases, p. 610. effect upon, admiralty rules, 508. Adulterated article, misdemeanor as to, 513. Burden to show violation of statute, p. 609. Certificate to U. S. District Attorney, 508. condition precedent to prosecution, 508, 509. Corporation ofiicers, liable to prosecution, 517. Correction of misbranding before suit begun, 511. Costs in forfeiture proceedings, 515. Examination by Secretary of Agriculture a condition precedent to proceedings, 508, 509. Fine not necessary to secure a forfeiture, 513. Forfeiture of articles, 509. when takes place, 510. Infamous crime, offense is not, 516. Information by U. S. District Attorney, p. 610. prosecution by, 516. Intent, not necessary to offense committed, 512. Judicial notice of U. S. regulations, p. 610, note 13. Jurisdiction of court, 508. Jury trial, 514. Libel for forfeiture, 509. 1060 INDEX. [References are to Sections unless atlierwise noted.l CotJBT Pboceedings — Continued. Notice by Secretary of Agriculture, condition precedent, S09. Shipment of goods, averring, p. 610, note 13. Strictness required in pleading, 509. Writ of error to review, p. 609. Cramp Drops — Misbranding, 438a. Cream — Adulterating, 177. Defined, p. 992. Evaporated, p. 992. Formaldehyde adulterates, 160. Inferior, sale of, 564. Milk, term includes, 1, p. 645, note 1. statute applies to, 540. Removal from milk, preventing, p. 22, note 3. Standard for fixing, p. 52, notes, p. 992. Cream-X-Cel-O— Misbranding, 313. Crown Glossine — Misbranding, 313a. Cumin — Defined, p. 999. Curacao — Misbranding, 314. Currants — Adulterating, 152. Custard — Adulterating, 153. Misbranding, 315. D Dairies — Inspection, 43. by municipality, 81. Licensing, 41, 42. Damages — Actions to recover, 527. Druggist, see. Illegal seizure of food, 528. Inspectors of food, when held liable, 528. Punitive damages for negligent sale of drug, 644. Sale to prejudice of purchaser, 563, 564. Water unwholesome, liability of water company, 651. INDEX. 1061 [References are to Sections unless otherivise noted.] Damiana — Misbranding, 439. Dandruff Cure— Misbranding, 440. Deception — Label is to prevent, p. 314, note 1. Definitions — Adulteration, 114, 116, 118. Coating, 119. Confectionery, 123. Decomposed food, 126. Drugs defined by Pharmacopoeia, p. 209. Filthy food, 126. Mlineral substances, 123. Mixed, 119. Powdered, 119. Putrid food, 126. Stain, 119. Dentrjiices — Decision concerning, 113. Department of Agriculture — Agricultural Department, see. Opinions of, do not vary regulations, 504. Secretary of Agriculture, see. Derivatives — Label must show what from, 256, p. 840, p. 854, reg. 28. Dill Seed- Defined, 999. Diphtheria Cure — Misbranding, 440a. Disinfectants — Decision concerning, 113. District Attorney — Court proceedings, see. Duties under Act of 1906, p. 838. District of Columbia — Federal Pure Food and Drugs Act covers, 85, 86, 94, p. 837, p. 841. Prescriptions in, labeling, 212. Dog Meat — Federal statute concerning, 112. Importation forbidden, 102. Is not food, 112. 1063 INDEX. [References are to Sections unless otherwise noted.'] Drugg[ist — Accident, liability for, 621. Adulteration of drugs, forbidding, 618b. Assault, croton oil, putting on candy, p. 802. Care required of, 619. Character of druggist can not be proven, p. 795, note 3. Constitutionality of statute concerning, 618a, 618b. Customer helping himself to drug, 639. Damages, when liable to punitive damages, 644. Dangerous compound producing, 634. Drug not producing injury, 620. sold for specific purpose, 632. Implied representation drug delivered is the drug called for, 631. Informing purchaser of deadly character of drug, 637. Knowingly administering poison, 638. Liability, broken pa;ckage8, selling, 627. unbroken packages, selling, 626. License, requiring him to have, 618b. Manufacturer's liability to consumer, 622, 623. Minor, selling to, is violation of statute, 635. Negligent treatment of injured person, 643. Patent medicine, liability for selling, 624, 625. Pleading, to show negligence, 641. Poisons, must label, 628. Prescription, improperly filling, 629, 636. placed on patent medicine by manufacturer, 625. recommending, 633. Prima facie showing of negligence, 640. Qualifications regulating, 618b. Recommending prescription, 633. Regulating, 618b. Representing drug is fit for particular purpose, 630. Servant selling improper drug, 645. Suit, where to be brought, 642. Third person, liability to, if injured by drug, 625, 628, p. 803. Drugs — Adulteration, 212. defined 212, p. 838, p. 839. penalty for, p. 837. Alcohol, amount in drug must be shown by label, 395, 397. Capsules, constituent parts must be shown, 396. Circulars enclosed with drugs, p. 483, note 3. Compound names on labels, 403. Defined, 618c. in Federal Pure Food and Drugs Act, 113. Pharmacopoeia definition, p. 209. Derivative, labeling, 398. False or misleading statements concerning, 245. Importing, pp. 875 to 877. Importing adulterated drug, 103. labeling, 103. Labeling, 393, 394. nomenclature to be used, 245, 393, 394. List that labels upon must be used, 257. INDEX. 1063; [References are to Sectiotis unless otherwise noted.] Dbtjgs — Continued. Misbranding, 393, p. 840. penalty for, p. 827. Names, distributive, using, 121. National Formulary fixing standard for, 618e. Powder, constituent parts to be shown on label, 396. Proportions to be shown on label, 396. Quantities of parts to be shown on label, 396. Regulating sale of, 82. Standard for, 212, 213, 618e, p. 847, reg. 7. Substances required to be named on label, 399. Tablets, constituent parts to be stated on label, 396. Technical use of, labeling, 402. United States Pharmacopoeia fixing standard for, 618e. When misbranded, 266. Dyes — Certificate and control, 237. straight, 238. Coloring, see. Damages or impurity, concealing, 230. List of those whose use is permitted, 234. Purity required, 234. Use of certified colors, 240. determined by regulations, 230. E Egg Noodles — Misbranding, 391. Eggs- Adulterating, 154. Boric acid used in, 135. Decomposed, unfit for sale, 126. Formaldehyde, using, 154. Misbranding, 316. English Language — To be used on label, 245. Erythrosin — Using for coloring, 230. Evidence — Adulteration, 610. Agent's representation, 611. Analyst may testify to result of analysis, 537. Certificate of analysis, 521, 522, 537. of analyst, 618. ■ Good character of defendant can not be shown, 560, 561. Intent to sell, sufficiency, 610. Judicial notice of U. S. pure food regulations, 617. Jury, what a question for, 616. 1064: INDEX. [References are to Bections unless otherwise noted.'] Evidence — Vontimted. Knowledge, excluding evidence of, 616. License, burden to show, 618b. Meat, diseased, selling, 612, Milk, adulteration, 610. exposure for sale, 610. sale, 610. National Formulary, 60, 613. Negligence, proof of in sale of food, 648. Oleomargarine, to prove sale or possession, 609. to prove substance, 609. Preponderance, 614. Prima facie showing of negligence in sale of drugs, 640. Keasonable doubt, 614. Sale, exposure for, 610. how shown, 609, 610. intent to make, 610. Sample obtained illegally, 615. United States PhaTinacopoeia, 60, 613. Violation of Pure Food Law, 1906, obtaining, p. 840, reg. 5. Exports — Adulterated article, p. 837. Labeling, 98. Laws of foreign country, must not violate, 230. Meat, inspection of, pp. 866 to 874. Misbranding, p. 837. Rules under Pure Food Act, 1906, p. 857, reg. 31. State can forbid, of impure food, 58, 59, p. 103, note. Extracts — Flavoring Extracts, se^. Standards for, pp. 1003, 1004. Exposure for Sale — Sale, see. What is, 565. Eyelin — Misbranding, 441. F Face Powder — Federal Act concerning, 113. Factories^ Inspection of materials in, 93, 95, p. 847, reg. 8. Farina — Misbranding, 339. Febrisol — Misbranding, 442. INDEX. 1065 [References are to Sections unless otherwise noted.l Federal Statutes- Pure Food and Drugs Act, 1906, pp. 837 to 842. Feed- Adulteration, 203. Carbohydrates in, p. 389. Chicken feed, misbranding, 297. Como horse and mule feed, 328. Misbranding, 328, 374. Screenings of wheat, 328. Stock food, see. Fennel — Defined, p. 1000. Ferric Oxide — Chocolate cremolin, using in, 145a. Figs- Adulterating, 156. Filled Cheese — United States statute concerning, pp. 861 to 866. Filthy Product- Food Act concerning, 115, 117. Fine — Not necessary to a forfeiture of an article, 513. Pure Food and Drugs Act, 1906, violating, p. 837. Fish- Adulterating, 157. Filthy, 176. Food Act concerning, 112. Kinds, 329. Misbranding, 329. Oysters, 186. Sardines, misbranding, 370. Shell flsh, 186. Flavoring Extracts — Adulterating, 159. Alcohol, amount of, stating, 330. Defined, p. 1001. Food Act concerning, 112. Food, is, 112. Misbranding, 330. Weight of article must not be inciteased by, p. 853, reg. 21. Flour- Adulterating, 158. Alsop process of bleaching, 158. Bleaching, 158, 332. 1066 INDEX. [References a/re to Sections unless otherwise noted.] Flotib — Continued. Buckwheat, p. 994. Defined, p. 993. Gluten, misbranding, 339. defined, p. 993. Gra.ham, p. 993. Maize, p. 994. Misbranding, 278, 331. Rye flour, misbranding, 366. defined, p. 994. Food- Adulteration defined, p. 215. defined by statute, p. 839. penalty for, p. 837. selling a common law offense, 2. liability for, 655 Alcohol in, label showing, 281. Altered in condition, when sold, 553. Baking powder, 112. Basis for legislation concerning, 3. Boric acid, using in adulterations, 135. Chewing gum, 112. Coffee is, 112. Coloring, 118, 119. oleomargarine, 14, 15. preventing, 9. Common law offense to sell adulterated food, 2. Compounding from wholesome articles, 21. Condiment is not a food, 1. Constitutionality of statutes and ordinances, see. Defined, 1. by Federal statute, 112. Dog flesh is not food, 112. Estoppel to show article is not food, 1, 618c. False description, sale of food under, 650. Feed, see. Guest, serving with oleomargarine, p. 9, note. Horse flesh, ia not food, 112. Importation can not be forbidden, 55, 56, 57. Knowledge of unwholesomeness when selling, 649. Labeling, may be required, 21. Manufacturer of, liability to consumer, 623. with intent to sell, liability, 570. Miedicine not classed as food, 1. Milk is food, p. 63, note 1 ; p. 645, note 1. Mineral oil adulterates, 180. Names to be used in labeling, 121. Patented, may be sold, 51. ■ Possession with intent to sell, 570. Preservatives in, forbidding use of, 10, 34, 35. Preventing sale when unwholesome, 8. Purchase price of impure food, recovering back, 654. right to presvime food is- wholesome, 623. Restaurant keeper, liability, 648. INDEX. 1067 [References are to Sections unless otherwise noted.'l Pood — Continued. Sale of Food, see. Slander concerning, 653. Standard fixed by Boards of Health, 13. adoption, 122. Stock feed, unwholesome, 652. Substances used in food, 280. Tea is, 112. Unwholesome, selling, 646, 647, 648. Vendor liable to consumer injured, 623. Warranty, implied as to wholesomeness, 646, 647, 648. Water, unwholesome, company supplying city, 651. Whisky is not, 1. Pood and Drug Act of igo6. Abstraction of valuable constituent, 120. Adulteration defined, 114, p. 839. penalty for, p. 837. Arsenical soap, 113. Baking powder, 112. Bay rum, 113. Beer, 112. Beeswax, 113. Beverages, 112. Border importations, 104. Boric acid, using in food, 135. Castor oil, 113. Chewing gum, 112, 123. "Coated" defined, 119. Cofifee, 112. Cold cream, 113. Coloring, 118, 119. defined, 119. inferiority, to conceal, 119, p. 839. Colors and preservatives, 118. Commerce within a state, legislation as to, 86. Condemnation proceedings after package broken, 92. Condiment, 112. Confectionery, 112. adulteration, 123. silver dragee, using in, 123. Constitutionality of statute, 87, pp. 215, 216, 219. Com plasters, 113. Corno horse and mule food, p. 205; note 6. Decision of inspectors final, 106. Decomposed, 126, p. 839. Defined in Federal statutes, 112. Demand for statute, 84. Dentrifices, 113. Disinfectants, 113. District of Columbia, statute applies to, 85, 86, 94. Dog flesh is not food, 112. Drugs defined, 113. Exports, labeling, 98. Face powder, 113. 1068 INDEX, [References are to Sections unless otherwise noted.^ Food and Deugs Act of 1906 — Gontiiwed. Factories, inspection of their raw materials, 93, 95. Filthy defined, 126. forbidden, 115, 117, 125, 126, p. 839. Fish, 112. Flavoring extracts, 112. Food defined, 112. Hair tonics, 113. Horse flesh is not food, 112. Imported food, 110. Inspection of materials in factories, 93, 95. Inspection, review of decisions by courts, 106. Insular possessions, 85, 86. Invoice naming as food, p. 859, reg. 34. Labels on hand January 1, 1907, 97. Liniments, 113. Liquors, 112. Massage cream, 113. Meats, certificate concerning imported product, 100, 102. Meat and meat products, 99. when exempt from statute, 109, 112. Medical soaps, 113. Mineral waters, 112. Misbranding defined, p. 840. penalty for, p. 837. Mixtures, 119. reducing quality of food, p. 839. Names, distinctive name for, using, 121. Ointments, 113. Original packages defined, 88. Paraffine, using in candy, 123. Patent and proprietary m.edicines, 113. Perfumes, 113. Plasters, 113. Poison, adding to food adulterates, p. 839. Poultry, 112. Powder defined, 119. Power of Congress over food and drugs, 89. when ceases, 90, 91. Preservatives may be used, 118. removal by maceration, 118. Proceedings in rem, when too late, 92. Products not specifically named in Act, 116. Purpose of statute, 84, p. 142, note 4. Putrid and decomposed substances, 115, 117, p. 839. defined, 126. Eaw materials, 117. inspection, 93, 95. Regulations for under, pp. 843 to 860. valid, 106. Salt, 112. Salves, 113. Samples, delivered by Secretary of Treasury, 100. Samples, see. Scope of statute, 83, 85. INDEX. 1069 \References are to Sections unless otherwise noted.'\ Food and Drugs Act of 1906 — Continued. Sea-food, 112. Secretary of Treasury delivers to Secretary of Agriculture, 100. Seizure of food and drugs in transit, 108. Silver dragee in candy, 123. Smelling salts, 113. Spices, 112. Stain defined, 119. Standard for foods, adoption, 122, pp. 988 to 1010. State legislation necessary, 111. Stock foods, 113. Stock on hand January 1, 1907, 96. labeling, 97. Sugar, 112. Talc powder, 113. Tea is a food, 112. importing, subject to statute, 106. Technical use of, labeling, p. 859, reg. 34. Territories, covers, 94. defined, 85. Toilet preparations, 113. Transportation for purposes of manufacture, 91. Turpentine, 113. Violations of statute, prosecutions, p. 838. Wines, 112. Foreign Countries — Exported foods to must not violate their laws, 231. Forfeiture — When takes place, 510. Formaldehyde — Cream, using in, 160, 194. Eggs, using in, 154. Milk, using in, 34, 35, 539. Forms — Consular certificate concerning imported meats, 102. Guaranty, 483, 484, 485, p. 847, reg. 9. Formula — May be insufBcient for statement on label, 403. Need not be put on label, p. 847, reg. 6. Stating on label, 400. Fourteenth Amendment — Effect on food legislation, 4, 5. Oleomargarine, legislation does not prevent, 16. Pure Food and Drugs legislation does not prevent, 11. Fraud — Adulterated food, selling, 2. Frou Frou Biscuits — Misbranding, 333. 1070 INDEX. [Referenees are to Sections unless otherwise noted.l Fruit- Butter, p. 995. Canned, p. 994. Defined, p. 994. Dried, p. 994. Evaporated, p. 994. Greening with copper salts, 235. Juices defined, p. 1007. Labeling to show place of growth, 67. Net over basket of, forbidding, 52. Preserves, p. 995. Rotten, 161. Standard, p. 994. Fruit Butter- Defined, p. 995. Glucose, p. 995. Fruit Syrup — Misbranding, 334. G Gelatin— Misbranding, 335. Use of in candy, 123. in foods, 335. Gentian Root — Adulterating, 221. Germicide — Misbranding, 471. Gin- Adulterating, 162. • Inferior, sale of, 564. Misbranding, 278, 336. Ginger — Bleached, p. 1000. Defined, p. 1000. Extract, p. 1002. Limed, p. 1000. Oil, p. 1002. Warranty under English statute, 571. Ginger Ale — Misbranding, 337. Gin-Seng-Gin — iMSsbranding, 443. INDEX. 1071 [References are to Sections unless otherwise noted.] Glucose — Adulterating with, 163. Apple jelly, using in, 131. Blackberry cordial, using in, 133a. Cane syrup, using in, 140. Confectioner's, p. 998. Defined, p. 998. Glucose jam, p. 995. Glucose fruit butter, p. 995. Glucose jelly, p. 995. Honey, using in, 164. Jam, using in, 168. Jelly, using in, 168. Maple syrup, using in, 175. Mince meat, using in, 338. Marmalade, using in, 212. Peach butter, using in, 187. Products, p. 997. Preserve, p. 995. Standard, p. 998. Gluten Farina — Misbranding, 339. Grains — Defined, p. 993. Grapes — Concord, labeling, 278. Delaware, labeling, 278. Grippe Cure — Mislabeling, 436, 444. Guaranty — Abuse of official guaranty for advertizing purposes, 49. Butter, sale under English statute, 571. Certificate deposited with Secretary of Agriculture, 237. Change of identity of article, 489. Constitutionality of statute concerning, 489, p. 149. Dealer, as used in statute, defined, 494. District of Columbia, shipments to, 494. Effect, 488, 494. English statutes and decisions, 571. Execution of general guaranty, 486. x- Filing, 484, 485. Form, 483, 484, 485, p. 847, reg. 9. General, 485. execution, 486. Ginger ale under English statute, 571. How attached to article, 485. Imported goods, 495. Intrastate article, 490. sales, 490. 1073 INDEX. IReferences are to Sections unless otherwise noted.'i Guaranty — Continued. Knowledge of falsity of guaranty, retailer's liability, 493. Lard, sale under English statute, 571. Liability of dealer transferred to guarantor, 488, 489, 494. Missouri statute, p. 737. Misuse of official number, 491. Number assigned, 237, 486, 487. Object of statute, pp. 580, 581. Products, dealer in, 483, 485, 487, 488. Proper branding not a complete guaranty, p. 853, reg. 23. Purpose of statute, 489. Eesale under English statute, 571. Reseller under, not liable, 489. Serial number, 237, 486, 487. limited in application, 486. Shipments out. of state, liability, 490. Statute as to, 483. Statement on labels not necessary, p. 841. Unbroken packages, applies only to, 492. Under Food and Drugs Act, 1906, p. 841. Use of guaranties, 487. Vinegar, sale under English statute, 571. Who may give, 483, 486. Gum — Use of for coating, 202. Gum Tragacanth — Adulterating, 222. Haarlem Oil Capsules — Misbranding, 446a. Hair Coloring — Misbranding, 445. Hair Tonic — Food and Drugs Act applies to, 113. Misbranding, 446. Headache Cure — Misbranding, 447. Health- Eight of state to preserve, 3, 4, 5. • Hearings — Under Pure Food and Drugs Act, 1906, p. 846, reg. 5i Henbane — Adulterating, 223. INDEX. 1073 [References are to Sections unless otherwise noted.'] Heroin — Label must show presence in drug, 244, 256, 339, p. 840, p. 854, reg. 28. derivatives of, must Be labeled, 256. quantity in drug, must show on label, 257. Hominy — Adulterating, 163a. Hon-E-Ta Bone Grits — Misbranding, 340. Honey — Adulterating, 164. Camb, p. 998. Defined, p. 998. Misbranding, 341, 555. Preserve, p. 995. Strained, p. 998. Horse Flesh — Is not a food, 112. Horse Raddish — Defined, p. 1000. Hotel Keeper — Liability to guest for impure food, 648. Oleomargarine, furnishing guest, 583. Hydrocyanic Acid — Almond extract, using in, 128. Vanilla, using in, 165. Hydrogen Peroxide — Misbranding, 448. Ice- Filthy, 166. Ice Cream — Adulterating, 167. Boric acid, using in, 167. CSty determining when adulterated, 7, 8. Defined, p. 993. Fruit ic3 cream, p. 993. Misbranding, 342. Nut ice cream, p. 993. Skimmed milk, using in, 167. Standard for, fixed, p. 993. Ice Cream Cones — Adulterating, 135. PuEE Food — 68. 1074 INDEX. [References are to Sections unless qthervnse noted.l Ignorance — In selling food or drug, 559, 560, 561. Penalty, lessens, 563. Imitation — Compound or mixture, 255, p. 854, reg. 27. Defined, 249, p. 853, reg. 21. Forbidden, 249. Labeling, 244, 270, p. 841. must be labeled, 244, p. 853, reg. 22. Sale of unlabeled product forbidden, 250. When may be sold, 272. Whisky, 384. Imports — Advilterated, p. 841. Analysis, 100. Appeal to Secretary of Agriculture, p. 859, reg. 37. Bond on delivery to consignee, p. 859, reg. 35. Border importations, 104. Certificate concerning imported meat, 100, 102. Chemicals, pp. 875 to 877. Declaration of shipper, 107. Denatured articles, p. 859, reg. 34. Drugs and medicines, 103, pp. 875 to 877. Guaranty, application of statute to, 495. Inspection, 879. Meat exports, pp. 866 to 874. Medicines, pp. 875 to 877. Notification to importer of violation of Statute, p. 859, reg. 36. Opium, pp. 877, 878. Eegulations concerning, 100, 101, 102. Eeshipments out of United States, 105, p. 860, reg. 38. Rules under Pure Food and Drugs Act, 1906, p. 857, reg. 31; p. 858, regs. 32 and 33. Samples, p. 842. Stearin, 100. Teas, 106, pp. 870 to 876. coloring, 106. Impure Food — Labeling as such, 64, 65. Indictment — Adulteration, must show what was, 590. Agent's sale, 601. Description of defendant, 596. Description of article sold illegally, 589. Duplicity, 593. Information, see. Knowledge of adulteration, alleging, 594. Label, failure to aifix on package, 591, 607. Libel, see. Meat, intending to sell unfit, 604. INDEX. 1075 [Referen/ies cure to Sections unless otherwise noted.] Indictment — Continued. Milk, selling adulterated milk to cheese factory, 603. impure, selling, 602. Misbranding, 598. Name of purchaser alleging, 595. Oleomargarine, selling, 597. Prosecutor, who is, 608. Proviso, negativing, not necessary, 592. Sale of food, 600. without notice, 599. Samples, refusing to furnish, 606. Unlabeled package, 591, 607. Uninspected liquors, 605. Indigo Disulfoacid — Using for coloring purposes, 230. Infamous Crime — Offense under Pure Food and Drugs Act, 1906, 516. Information — Indictment, see. Proceedings instituted by, may be, 516. Injunction — Injoining food officers, 75, 76, 507. Mandatory, to secure samples, 518. To prevent violations of statute, 77. Insecticides — Federal Statute of 1901, p. 970. Regulations under, pp. 971 to 987. Inspection — Certificate that article has been inspected, 68. Dairies, 81. Factory, under Pure Food Act, 1906, 93, 95. Imports, p. 879. Original package, breaking, p. 879. Federal statute concerning, pp. 915 to 921. regulations under, pp. 922 to 970. Fees for, 60. Miunicipalities, power to inspect dairies, 81. impure food, 81. milk, 81. Product in transit, 526. Eeinspeetion, 525. State may enact laws for, 60, 61. discriminating ir, can not, 62. Federal statute contravening, 63. fees for, 60. prior to importation, 61. Teas, by Secretary of Treasury, 106. 1076 INDEX. [References are to Sections unless othervHse noted.l Inspectors — Appointment, 524. Civil liability of, 528. Decisions of, reviewing, 106. Powers, 524. Insular Possessions — Federal Act of 1906 covers, 85, 86, 94, p. 841. Interstate Commerce — Adulterated food, p. 841. Broken packages, 88. Commerce within the state, 86. Constitutionality of Food Act, 1906, 87. Control of interstate food shipments, 84. Goods passed out of before proceedings in rem commenced, 92. Imported drugs, 103. meat, 101, 102. certificate as to, 102. Original package, 88. Pure Pood and Drugs Act, 1906, p. 837. Sale of adulterated food, 57. State can not control, p. 164. regulating food sales, 55. Transportation for manufacturing purposes, 91. Intent to Violate Law — Absence no defence, 559, 560, 561. penalty, to lessen, 563. Constitutionality of statute dispensing with, 12. Evidence of good character is admissible, 560, 561. sufiBcient to show intent, 610. Good faith of seller no defense, 560, 561. penalty, lessened, 562, 563. Ignorance of adulteration of article sold, 559, 560, 561. penalty, lessens, 563. Immaterial, 119. Knowledge of adulteration, sale without, 559, 560, 561. penalty, lessening, 562. Measure too small, 575. Misbranding, unintentional, 258, 270, p. 324, note 1. Not necessary to commission of offense, 270, 512. Unavoidable, 618g. Weight short, 618i. Invert Sugar — Honey, using in, 164. Invoice — Designating product as a food, p. 859, reg 34. Iodine — Drug, when it is such, 618o. INDEX. 1077 [References are to Sections unless otherwise noted.^ Jam — Adulteration, 168. Misbranding, 343. Jamaica Ginger — Adulterating, 167a. Misbranding, 449a. Jelly- Adulterating, 168. Defined, p. 995. Glucose used in, adulterates, 344. Glucose jelly, p. 995. Misbranding, 344. Judgment — Notice of taking, given by Department of Agriculture, 504, p. 838. Judicial Notice — Color of oleomargarine, 609. Customs of trade, 546. Pharmacopoeia's requirements for drugs, 214. Regulations under Pure Food and Drugs Act, 1906, p. 610, note 13. United States Pure Food Regulations, 617. What may be noticed by court, pp. 403, 407. Jury- Trial by, under Pure Food and Drugs Act, 1906, 514. What is a question for, 616. Kamola — Adulterating, 223a. Misbranding, 449b. Ketchup — Standard for, p. 996. Knowledge — Evidence, see. Indictment alleging knowledge of adulteration, 594. Koca-Nola — Cocaine, using in, 170. Misbranding, 450. Kola-Ade— Cocaine, using in, 169. Kola Syrup — Misbranding, 345. 1078 INDEX. ■[Referencea are to Sections unless otherwise noted."] Kos-Kola — Cocaine, using in, 171. Kumiss — Defined, p. 993. Kurakoff — Misbranding, 451. Label- Abstraction of valuable material, 120. Acetanilide, amount shown on label, 399. derivatives, 256. must show, 244. quantity, 257. Adulterated article not salable, 251. Adulterated, when article not deemed such, 244, Age of product, falsely stating, 249. Alcohol derivatives, 256. in food, 281. ..; label must show amount, 395, 397, 399. must be noted on label, 256. quantity, 257. showing, p. 314, note 1. Alpha or Beta Eucaine, amount shown on label, 399. derivatives, 256. label must show, 244. quantity, 257. Approved by Agricultural Department, 264. Baking powder, 65. Beta Eucaine must show, 244. Blends, 272. how labeled, p. 841, p. 853. reg. 21. must show, 244. requisites of label, p. 319, note. showing, 245. Brands, sufficiency, 557. Cannabis indioa, amount shown on label, 399. derivative, 256. must show, 244. quantity, 257. Champagne wine, 'false, 278. Cheese, 266. Chloral hydrate derivative, 256. amount, must show, 244. quantity, 257. Chloroform derivatives, 256. amount, must show, 244. quantity, 257, 399. Churn, 734. on oleomargarine, 278. •INDEX. 1079 '[References are to Sections unless otherwise noted.] liABEL — Continued. Circulars not part of label, p. 483, note 3. Cocaine, amount shown on label, 399. derivatives, 256. must show, 244. quantity, 257. Coffee, labeling, 266. Collective marks, 278. Coloring, must show, 245. Compounds, 244. how labeled, 271, p. 841. name, 252. distinctive, having, p. 854, reg. 27. showing, 245. when deemed misbranded, p. 853, reg. 24. Compound words, using upon, 403. Condensed milk, 551. Constituents, all must be named, 245. Contents, 245. Copper salts, must show use of, 235. Cottolene, statute as to, valid, 25. Cotton seed oil, 402. Counterfeiting food, 555. Curative qualities, false statement as to, 405, 406, 407. Deception forbidden, 65, 276. to prevent, p. 314, note 1. Deficient labels, instances of,_ 556. Defined, p. 316, note 1. contents, 245. Derivatives, in drugs, 398. must show, 244. • " ' ' what must be stated on label, 256, p. 855, reg. 28. Descriptive matter, 245. Design, misleading, 277. Device, misleading, 277. "Distributed by," 269. Druggists' liability for mislabeling poisons, 628. ■ for failure to label, 629. Drugs, nomenclature to be used, 245, 393, 394. false statement concerning, 245. names for, 394, used for technical purposes, 402. what must be noted on label, 399. when misbranded, 256. Dyes used, must show, 237. English language must be used, 245. Exports, 98, p. 857, i-eg. 31. Failure to label is to misbrand, 261. , False oral statements made at variance with labelto induce skle, 554. False statement on, -245, p. 879. as to place of origin, p. 875. using, 550, 551. False, to induce sale, 555. False, using, 276, 277. Foreign labels, 276. 1080 INDEX. [References are to Sections unless otherwise noted.l Label — Continued. language, using on label, 245. name, 247. Form, 245, 262. Formula may be insufficient for label, 403. placing on label, 400, p. 841. Geographical name, 247. Grapes, Concord, 278. Delaware, 278. Guaranty, label is not of adulterated product, 251. Heroin, amount shown on label, 399. derivatives, 256. must show, 244. quantity, 257. Imitations must be shown, 244, p. 853, reg. 22. of foods, 270. sale of, when unlabeled, forbidden, 250. showing, 244. Imports, rules as to, p. 906, p. 858, regs. 32 and 33. Impure food, 64. Indictment for failure to affix to package, 607. sale of unlabeled package, 591. Lard substitute, labeling, 25. Legend on, form, 237. Legislation may require on food, 21, 22. "Manufactured for," 269. Maple syrup, 278. Marking, how may be done, 401. Mieasure, snowing, 244, 245, p. 840, p. 856, reg. 29. Misbranding, see. Misleading statements thereon, 245, 276. Mixtures, 244, 245, 271, p. 352, note 1; p. 841, p. 854, reg. 27. condensed milk, 551. Mbrphine, amount shown on label, 244, 399. derivatives, 256. quantity in article, 257. Name and address of manufacturer, 246. distinctive, of food, 248, 266, 272, p. 852, reg. 20. fictitious, can not use, 274, 275. foreign, using, 247. geographical, 247, 278. manufacturer's, using, 275, p. 851, reg. 18. ordinary, may be used, 402. popular ones to be used, 545, 546. possessive, when must be used, 274. simple or unmixed- food, , 247. Notice on, must be clear and truthful, 550. otherwise given, 552. Object of, p. 317, note 1. Obscure place, putting on label in, 555. Old, on hand January 1, 1907, 97. Olive oil, 266. Opium, amount shown on label, 244, 257, 399. derivatives, 256. Oral notice insufficient, 547, 552. INDEX. 1081 [References are to Sections unless otherwise noted.'\ IiABTir, — Continued. Origin of place of food, indicating, 67, 247, 256, 278. must be truthfully stated, 262, p. 875. Package, to be labeled, 244, 263, 548. small package, 66. when need not be labeled, 260. Peroxide, need not be stated on label, p. 492, note 7. Petroleum oils, 402. Pictorial descriptions thereon, 245. Poisons used must be shown, 244. Preparations, 399. "Prepared for," 269. Prescriptions, 399, 401. Preservatives, must show use of, 233. Proportions in drug product, 396. Proprietary medicines, false statements as to curative qualities, 405, 406, 407. foods, 273. formulas, 273. how labeled, p. 841. Puffing remedies, 405, 406, 407. Purpose, p. 314, note 1. Quantity of product, 256, p. 855, reg. 28; p. 857, reg. 30. average, 256. how stated, 256. in drugs, 396. Refilling labeled bottles, 404. Regional marks, 278. Rice, 278. Sale of adulterated food when labeled as such, 120. Salt, 278. Sausage, when meal mixed with it, 546. Seller calling attention to notice on label, 552. Single product, p. 853, reg. 24. Small proportion of article, naming on label, 408. "Sold by," 269. Statements upon, 245. Statute requiring label does not apply to sale of adulterated food, 555. Substance in drug, article to be stated thereon, 399. the one to be named, 265. must be named, 253. Technical terms can not be used, 260. Trade names, using, 266. Turpentine, 402. Two or more constituents, one only named, 245. Type to be used, 267. misleading by use of, 267. size, 245, 269. Under Pure Food and Drugs Act, 1906, p. 840, p. 850, reg. 17. Waste, 254, 268, p. 854, reg. 26. Weight, showing, 244, 245, p. 840, p. 855, regs. 28 and 29. validity of statute as to, 69, 70. What must show, 244. Wrapper, marking in place of label, 549. 1082 INDEX. [Referetices are to Sections unless otherwise noted.] Lard — Imitation, labeling, statute valid, 25. Standard, p. 991. Warranty under English statute, 571. Laudanum — Adulterated, 224. Misbranding, 452. Lead Chromate — Coating coffee with, 147. Legislature — Constitutionality of statutes and ordinances, aee. Lemonade — Inferior article sold for, 618h. Lemon Extract — Misbranding, 318. Standard, p. 1002. Terpeneless, p. 1002. Lemon Flavoring — Adulteration, 172. Lemon Oil — Adulteration, 173. Misbranding, 346. Oil, p. 1002! Standard, p. 1002. License — Druggist's, 618b. Fees for, amount, 4l, 42. Milk, city may require for sale of, 39, 40, 80. . . Revocation^ 45. notice concerning, 45. Lime Juice — Misbranding, 556. Liniments — Pure Food and Drugs Act applies to, 113. Linseed Meal — Misbranding, 347. Liquor — Food Act applies to, 112. May be used in foods, 230. Logan Berries — Misbranding, 361. Substituting for blackberries, 133. INDEX. 1083 [References are to Sections unless otherwise noted.] Lopez Specific Special Compound — Misbranding, 453. M Macaroni — Adulteration, 174. Misbranding, 278, 348. Mace — Deaned, p. 1000. Maize Oil — Defined, p. 1006. Make-Man Tablets — Misbranding, 454. Manufacturer — Certificate concerning dyes, must give, 237. Defined in U. S. statute, 237. Guaranty, see. Liability to consumers, 622, 623. prescription on medicine, 625. Name, using, 269, 275. on label, 246. Number of certificate assigned to, 237. Secondary certificate, must give, 238. Maple Syrup — Adulterating, 175. Labeling, 278, 372. Misbranding, 349. Standard, p. 996. Margarin English name for oleomargarine, 576. Marjoram — Oil of, defined, pp. 1000, 1004. Marmalade — Defined, p. 995. Glucose, using in, 212. Martin's Yellow — Macaroni, using in, 174. Massage Cream — Food Act of 1906 applies to, 113. Meal- Buckwheat flour, p; 994. Corn meal, misbranding, 310. defined, p. 993. 1084 INDEX. [References are to Sections unless otherwise noted.'] Meal — Contimied. CJotton seed meal, misbranding, 312. Defined, p- 993. Flour, p. 993. Grahiam, p. 993. Linseed meal, misbranding, 347. Maize, p. 994. Misbranding, 350. Oatmeal, p. 994. Eye flour, p. 994. Measure — Label showing capacity, 244, 245, p. 856, reg. 29. Marking size of, 71, p. 840. Meat- Certificate concerning imported meat, 100, 102. Cold storage, p. 990. Colors, using in, 118, 243. Defined, p. 990. Dog flesh, 102, 112. Evidence of sale of diseased meat, 612. Exempt from Federal statute, when, 109, 243. Federal statute concerning its inspection, pp. 915 to 922. regulations under, pp. 922 to 970. Filthy, 176. Food is, under Federal statute, 112. Horse flesh, 102, 112. Indictment for intention to sell when unfit, 604. Inspection of exports, pp. 866 to 874. Federal statutes as to, pp. 915 to 922. regulations for, pp. 922 to 970. Interstate transportation, 101. Manufactured meats, p. 990. Mince, adulterated, 179. Preservatives, 243. Restrictions on importing, p. 183. Sale of in markets, requiring, when fresh, 54. fresh meat in summer, forbidding, 53. young calves meat, forbidding sale of, p. 96, note 1. Smoked, p. 990. Salted, p. 990. When Federal statute does not apply to, 99, p. 860, reg; 39. Medicine — Food, medicine is not, 1. Imports, 103. Federal statute concerning, pp. 875 to 877. Misbranding, 455. Milk- Abstraction of fat is adulteration, 532, 537. Adams paper coil test, 30. Adulteration, 177. 532, 537. INDEX. 1085 [References are to Sections unless otherwise noted.] Melk — Continued. Agent selling adulterated milk, 572. liable for his act, 540. master liable, 540. Altered in condition when sold, 553. Annatto used in, adulterates article, 540, p. 61 note; p. 654, note. Blended, p. 991. Board of Health regulating sale, p. 29, note 4. Boric acid, using in, 539. Bottles, capacity of, marking on, 539. Buttermilk, 536, p. 992. Certificate of analysis as evidence, 537. sufficiency, p. 620, note 8. Charge of violating ordinance by sale, p. 673, note 13. Cheese factories, delivering deficient milk to, forbidding, p. 53, note. Churn, labeling, p. 734. City regulating sale, 83. Coloring, 236. may be forbidden, 32, p. 24, note 3. Composition, 538. Condensed, p. 991. Condemned, 177, 531, 535. sale of, 553. Conflict between milk ordinances and statutes, 544. Contract for adulterated milk, 543. Cream, milk statute covers, 1, 540, p. 645, note 1. defined, pp. 991, 992. evaporated, 178, p. 992. removing from milk, 533, p. 22, note 3. Dealer in, who is, 542. Decomposition of samples, 538. Defined, x>. 645, note 1. Destruction when impure, 44. without notice, 47. Evaporated, 178, p. 991. Evidence of adulteration, 537, 610. exposure for sale, 610. intent to sell, 610. sale, 610. Exposure for sale, 558, 610. False representations at variance with label, 554. Fat, p. 992. Fluctuating in richness, 530. Pood, milk is, 1, p. 645, note 1. Formaldehyde, using in, 34, 35, 539. adulterates, 539. Frequent source of litigation, 529. Goat's, p. 992. Guarantee of, under English statute, 571. Ignorance of adulteration, 540, 559, 560, 561. penalty, lessens, 562. Indictment for selling adulterated milk, 602. to cheese factory, 603. Inferior, sale of, 563, 564. Inspection by city, 81. 1086 INDEX. [References are to Sections unless otherwise noted.'\ Milk — Continued. Instances of violations of milk statutes, 540. Knowledge of adulteration, sale without, 540, 559, 560, 561. penalty, lessens, 562. Kumiss, p. 993. Labeling condemned milk, 551. License to sell, requiring, 39, 40. fee for, based on nimiber of wagons used, 42. Misbranding, 351, 553, 554. Ordinance and statute in conflict, p. 53, note. Pasteurized, p. 991. Possession of adulterated milk no oflFense, 540. with intent to sell, 570. Preservatives, use of in, forbidding, 34, 539. ordinance may prevent, 1. Preventing sale when adulterated, p. 20, note 9. Pure milk must be given person buying, p. 204, note. Pure water adulterates, p. 654, note. Registration of dealers in, 41. Sale of, what is, 558. Sample for analysis, requiring, 27, 38, 518. sealing up, 518. taking, 534. Sizes of bottles, prescribing, 541. Skimmed, 534, p. 992. condensed, 531. preventing sale of, p. 52, note 9. sale of, 553. Slops, feeding to milch cows, preventing, 33. Standard for, establishing, 27, 530, p. 991. conflict between ordinance and statute, p. 19, note 5; p. 53, note. unadulterated, below standard, 27, 29. Test for purity, prescribing, 30, 36. designating oflScers to make, 31. Tuberculin test, requiring, 36. statute valid, 36, p. 16, note 1. Unadulterated, 530. below standard, 27, 29. Variations in unadulterated milk, p. 645, note 1 ; p. 653, note 4. Waiter in restaurant selling to patron, p. 741. Warranty of purity under English statute, 571. Water, preventing use of in, p. 53, note, p. 4, note 1. Whey, p. 993. Milk Dealer- License, requiring of, 39, 40. Regulations concerning, 41. Mince Meat — Adulteration, 179. Misbranding, 338, 352. Mineral Oil — Using in product adulterates it, 180. INDEX. 1087 [References are to Sections unless otherwise noted.] Mineral Substetnce — Use of in confectionery forbidden, 123. Mineral Water — Adulterating, 112, 181. Misbranding, 112, 380, 381. Misbranding — Acetanilide, 409. Alcohol, amount must be shown in drug, 395, 397. in food, 281. Ale, 285. Alfalfa meal, 282. Altered food, sale of, 553. notice of alteration, 553. Ammon phenyl, 409a. Anadol, 410. Analgine tablets, 441. Aniseed syrup, 412. Anti-malarico, 413. Apple butter, 284. Apple phosphate, 414. Apples, 283. Assafoetida, 415. Asthma cure, 416. As-Ma-Syde, 417. Balsam, 417a. Banana extract, 317. Beaver and oil compound, 418. Beer, 285. Benzoate of soda, label must show, 285a. Bitters, 419. Blackberries, 361. Blackberry cordial, 420. Blends, 383, 384, 385. Bran, 286, 328. Brandy, 287. Brant's Soothing Balm, 421. Bromo Febrin, 422. Buchu gin, 423. Buckwheat, 288. Butter, 278, 289. Butterol, concreta, 290. Cafe-Coca compound, 424. Calcium acid phosphate, 359, 425. Camphor, 426. Cancer Cure, 427. Cane syrup, 291. Caramels, 292. Cascara, 428. Catarrh and hay fever remedy, 429. Cattle food, 328. Celery cola, 430. Cereal, 293. Cereal coflfee, 306. 1088 INDEX. [References are to Sections unless otherwise noted.] MiSBBANDiNG — Contirmsd. Cerecut, 394. Cheese, 278, 295. Cherry syrup, 296. Chicken feed, 297. Ohoeolate cremolin, 297a. Cider, 298. Circulars accompanying article, p. 483, note 3. Cloves, 298. Coca butter substitutes, 301. Cocaine, 431. Cocaine hydrochloride, 432. Cocoa and chocolate, 300. Cocoa cream, 299. Codfish, 303. Codliver oil, 302, 433. Coffee, 304. Coffee, cereal, 306. Coffee, glazed, 305. imported, 307. screenings, 307. Coke extract, 434. Cola Queen syrup, 435. Cold and grippe tablets, 436, 444. Colocynth, 437. Compounds, when deemed misbranded, p. 853, reg. 24. Contents of package, failure to state, 326. Copper salts, label must show, 235, 308. Cordials, 309. Corn meal, 310. Corno, horse and mule feed, 328. Corn syrup, 311, 555. Correction before court proceedings begun, 511. Cotton seed meal, 312. Cough cure, 438. Cramp drops, 438a. Cream-X-Cel-0, 313. Crown glossine, 313a. Curative qualities, falsely stating, 405, 406, 407. Custard, 315. Damiana, 439. Dandruff cure, 440 Defined, 244, 257, pp. 837, 840; p. 850, reg. 17. Delivery of misbranded article, p. 842. Derivative, p. 855, reg. 28. Diphtheria cure, 440a. Domestic article, labeled with foreign name, 336, 348, 381. Drugs, p. 854, reg. 28. names to be used, 393, 394. Egg noodles, 391. Eggs, 316. Eyelin, 441. False label use