Section 3. Prohibition of the mixing of injurious ingredients, and of selling the same. Prohibition of the mixing of drugs with injurious ingredients, and of selling the same. Exemption in case of proof of absence of knowledge. Prohibition of the sale of articles of food and of drugs not of the proper nature, substance, and quality. Description of Offences. 3. No person shall mix, colour, stain, or powder, or order or permit any other person to mix, colour, stain, or powder, any article of food (a) with any ingredient or material so as to render the article injurious to health (b), with intent that the same may be sold in that state, and no person shall sell any such article so mixed, coloured, stained, or powdered, under a penalty in each case not exceeding fifty pounds for the first offence; every offence, after a conviction for a first offence, shall be a misdemeanor, for which the person, on conviction, shall be imprisoned for a period not exceeding six months with hard labour. 4. No person shall, except for the purpose of compounding as hereinafter described, (c) mix, colour, stain, or powder, or order or permit any other person to mix, colour, stain, or powder, any drug with any ingredient or material so as to affect injuriously the quality or potency of such drug, with intent that the same may be sold in that state, and no person shall sell any such drug so mixed, coloured, stained, or powdered, under the same penalty in each case respectively as in the preceding section for a first and subsequent offence. 5. Provided that no person shall be liable to be convicted under either of the two last foregoing sections of this Act in respect of the sale of any article of food, or of any drug, if he shows to the satisfaction of the justice or court before whom he is charged that he did not know (d) of the article of food or drug sold by him being so mixed, coloured, stained, or powdered as in either of those sections mentioned, and that he could not with reasonable diligence have obtained that knowledge. 6. No person shall sell to the prejudice of the purchaser (e) any article of food or any drug which is not of the nature, substance, and (a) Including "every article used for food or drink by man other than drugs or water," section 2, ante. (b) It is a common law misdemeanor to sell unwholesome victuals; R. v. Haynes, 4 M. & S. 220, and R. v. Southerton, 6 East. 133; Lord Ellenborough referred to R. v. M'Carty, 2 L. Raymond, 1179; and see R. v. Foster, 46 L. J. M. C. 128. (c) This seems to refer to section 6, sub-section (3), and section 7, but these contain no directions as to compounding drugs or other articles. (d) The necessity of showing that the act was done knowingly is confined to the prohibitions in the 3rd and 4th sections, and does not apply to that in the 6th. (e) The vexed question whether a sale to a public officer for the purpose of analysis was a sale to the prejudice of the purchaser within this enactment, has been set at rest by the Sale of Food and Drugs Amendment Act, 1879 (post). But before that Act it had already been decided that such a sale was a contravention of the Act; and where an inspector, appointed under section 13, purchased for analysis an article of food, and took the proceedings prescribed by this Act, and it was proved that the article was not of the nature, substance, and quality of the article demanded, but an inferior article, though not known by him to be so at the time of the purchase; held, that this was a "sale to the prejudice of the purchaser " quality (f) of the article demanded by such purchaser (g), under a penalty not exceeding twenty pounds provided that an offence shall Section 6. within this section. The case of Davidson v. McLeod, referred to in note (f) By the Sale of Food and Drugs Act Amendment Act, 1879, post, section 2, it is enacted that "it shall not be a good defence to prove that the article of food or drug in question, though defective in nature, or in substance, or in quality, was not defective in all three respects." (g) It was not necessary under the repealed Act 35 & 36 Vict. c. 74, that any proof should be given of the knowledge of the adulteration, and where the defendant sold as unadulterated an article which was in fact adulterated, without having declared the admixture to the purchaser in conformity with section 3, he was held liable to conviction; Fitzpatrick v. Kelly, 37 J. P. 373. See Mullins v. Collins, 22 W. R. 297, and Roberts v. Egerton, 43 L. J. M. C. 135. In a case in which gin was diluted with water, and the magistrate found that the quantity of water was in excess of what could properly be added, the conviction was affirmed; Webb v. Knight, 41 J. P. 388; L. R. 2 Q. B. D. 530. Where the appellant sold gin adulterated with 44 per cent. of water, and the justices found as a fact that the dilution was excessive, a conviction was sustained for selling an article not of the nature, substance, and quality demanded; Pashler v. Stevenill, 41 J. P. (C. A.) 136. By the Sale of Food and Drugs Act Amendment Act, 1879, post, section 6, it is enacted that "In determining whether an offence has been committed under section 6 of the principal Act, by selling to the prejudice of the purchaser, spirits not adulterated otherwise than by the admixture of water, it shall be a good defence to prove that such admixture has not reduced the spirit more than twenty-five degrees under proof for brandy, whisky, or rum, or thirty-five degrees under proof for gin." In the case of Davidson v. McLeod, before the high court of justiciary at Edinburgh, referred to in the J. P., January, 1878, on appeal against a conviction by the sheriff in Glasgow for selling, to a city inspector of health, cream in which the per centage of fatty matter was greatly below the standard of cream as sold in that city, it was held that to sustain the conviction, the article must be different in all three respects, viz., nature, substance, and quality, that these words could not be disjoined, and that the very nature of the substance must be altered; and secondly, that it was not and could not be alleged that the purchase was to the prejudice of the purchaser, as the power of compulsory purchase given to a public officer was given with a view to prosecutions under sections 3 and 5 only, and the conviction was quashed; dissentientibus Lords Craighill and Adam. This decision was dissented from in Hoyle v. Hitchman, cited in note (e) to section 6, ante; and see now Sale of Food and Drugs Act Amendment Act, 1879, section 2, post. Where the seller brings to the purchaser's knowledge the fact that the article sold is not of the nature, &c., of the article he demands, the sale is not to his predudice within section 6, though the seller puts no label on the bottle containing the article as directed by the 8th section of the Act, as it is not intended that the mode pointed out by that section should be the only method of bringing home knowledge to the purchaser; Sandys v. Small, L. R. 3 Q. B. D. 449. See article on this Act in the Justice of the Peace, vol. 42, July 6, 1878. Section 6. Provision for the sale of com not be deemed to be committed under this section in the following cases; that is to say, (a) (1.) Where any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or preparation thereof as an article of commerce, in a state fit for carriage or consumption, and not fraudulently to increase the bulk, weight, or measure of the food or drug, or conceal the inferior quality thereof. (2.) Where the drug or food is a proprietary medicine, or is the subject of a patent in force, and is supplied in the state required by the specification of the patent; (3.) Where the food or drug is compounded as in this Act mentioned ; (b) (4.) Where the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation. 7. No person shall sell any compound article of food or compounded articles pounded drug which is not composed of ingredients in accordance with the demand of the purchaser, under a penalty not exceeding twenty pounds. of food and compounded drugs. Protection from offences by giving of label. Prohibition of the abstraction of any part of an article 8. Provided that no person shall be guilty of any such offence as aforesaid in respect of the sale of an article 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 to the person receiving the same a notice, by a label (c) distinctly and legibly written or printed on or with the article or drug, to the effect that the same is mixed. 9. 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 dis Under the Adulteration of Seeds Act, 32 & 33 Vict. c. 112, s. 3, subjecting to a penalty any person who adulterates seed, it was held to be no offence to use sulphur to make old sound seed appear new seed, so long as the seed was not made to appear of a different species; Francis v. Maas, L. R. 3 Q. B. D. 341. See now the Act to amend the Adultera. tion of Seeds Act, 1878, enacting that under section 2 of Adulteration of Seeds Act, 1869, the term "to dye seeds" shall mean "to apply to seeds any process of colouring, dyeing, or sulphur smoking." Under the 6 & 7 Will. 4, c. 37, s. 8, prohibiting the use of any other than certain specified ingredients in making bread for sale, there must have been guilty knowledge; Core v. James, L. R. 7 Q. B. 135. (a) See Roberts v. Egerton, 43 L. J. M. C. 135. (b) See note (c) to section 4, ante. (c) It is not intended that the mode pointed out by this section should be the only mode of bringing home knowledge to the purchaser. See Sandys v. Small, L. R. 3 Q. B. D. 449, cited in note (g), supra. Under the repealed statute 35 & 36 Vict. c. 74, the seller was not required to disclose the substance, &c., of the materials contained in the admixture, and where a grocer sold a packet of mustard and told the purchaser he did not sell it as pure mustard, and pointed to a label containing a notification to that effect, he was held not liable to be convicted; Pope v. Searle, 43 L., J. M. C. 129. closure of the alteration, under a penalty in each case not exceeding Section 9. twenty pounds. Appointment and Duties of Analysts, and Proceedings to obtain Analysis. of food before sale, and selling without notice. 10. In the city of London and the liberties thereof the commis- Appointment sioners of sewers of the city of London and the liberties thereof, and of analysts. in all other parts of the metropolis the vestries and district boards acting in execution of the Act for the better local management of the metropolis, the court of quarter sessions of every county, and the town council of every borough having a separate court of quarter sessions, or having under any general or local Act of parliament or otherwise a separate police establishment, may, as soon as convenient after the passing of this Act, where no appointment has been hitherto made, and in all cases as and when vacancies in the office occur, or when required so to do by the local government board, shall, for their respective city, districts, counties, or boroughs, appoint one or more persons possessing competent knowledge, skill, and experience, as analysts of all articles of food and drugs sold within the said city, metropolitan districts, counties, or boroughs, and shall pay to such analysts such remuneration as shall be mutually agreed upon, and may remove him or them as they shall deem proper; but such appointments and removals shall at all times be subject to the approval of the local government board, who may require satisfactory proof of competency to be supplied to them, and may give their approval absolutely or with modifications as to the period of the appointment and removal, or otherwise: Provided, that no person shall hereafter be appointed an analyst for any place under this section who shall be engaged directly or indirectly in any trade or business connected with the sale of food or drugs in such place. In Scotland the like powers shall be conferred and the like duties shall be imposed upon the commissioners of supply at their ordinary meetings for counties, and the commissioners or boards of police, or where there are no such commissioners or boards, upon the town councils for boroughs within their several jurisdictions; provided that one of Her Majesty's principal secretaries of state in Scotland shall be substituted for the focal government board of England. In Ireland the like powers and duties shall be conferred and imposed respectively upon the grand jury of every county and town council of every borough; provided that the local government board of Ireland shall be substituted for the local government board of England. 11. The town council of any borough may agree that the analyst Town appointed by any neighbouring borough or for the county in which the borough is situated, shall act for their borough during such time as the said council shall think proper, and shall make due provision for the payment of his remuneration, and if such analyst shall consent, he shall during such time be the analyst for such borough for the purposes of this Act. council of a borough may engage the analyst of another borough or of the county. 12. Any purchaser of an article of food or of a drug in any place Power to being a district, county, city, or borough where there is any analyst purchaser appointed under this or any Act hereby repealed shall be entitled, of an on payment to such analyst of a sum not exceeding ten shillings and article of sixpence, or if there be no such analyst then acting for such place, to Section 12. the analyst of another place, of such sum as may be agreed upon between such person and the analyst, to have such article analysed by such analyst, and to receive from him a certificate of the result of his analysis. food to have it analysed. Officer named to obtain a sample of food or drug to submit to analyst. Provision Provision when sample is not divided. Provision for sending article to the analyst through the post-office. Person refusing to sell 13. Any medical officer of health, inspector of nuisances, or inspector of weights and measures, or any inspector of a market, or any police constable under the direction and at the cost of the local authority appointing such officer, inspector, or constable, or charged with the execution of this Act, may procure any sample of food or drugs, and if he suspect the same to have been sold to him contrary to any provision of this Act, shall submit the same to be analysed by the analyst of the district or place for which he acts, or if there be no such analyst then acting for such place to the analyst of another place, and such analyst shall, upon receiving payment as is provided in the last section, with all convenient speed analyse the same and give a certificate to such officer, wherein he shall specify the result of the analysis. 14. The person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify (a) to the seller or his agent selling the article his intention to have the same analysed by the public analyst, and shall offer to divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit, and shall, if required to do so, proceed accordingly, and shall deliver one of the parts to the seller or his agent. He shall afterwards retain one of the said parts for future comparison and submit the third part, if he deems it right to have the article analysed, to the analyst. 15. If the seller or his agent do not accept the offer of the purchaser to divide the article purchased in his presence, the analyst receiving the article for analysis shall divide the same into two parts, and shall seal or fasten up one of those parts and shall cause it to be delivered, either upon receipt of the sample or when he supplies his certificate to the purchaser, who shall retain the same for production in case proceedings shall afterwards be taken in the matter. 16. If the analyst do not reside within two miles of the residence of the person requiring the article to be analysed, such article may be forwarded to the analyst through the post office as a registered letter, subject to any regulations (b) which the postmaster-general may make in reference to the carrying and delivery of such article, and the charge for the postage of such article shall be deemed one of the charges of this Act or of the prosecution, as the case may be. 17. If any such officer, inspector, or constable, as above described, shall apply to purchase any article of food or any drug exposed to (a) The notification required by this section is a condition precedent to a prosecution, and in a case in which it was omitted, the conviction was quashed; Barnes v. Chipp, L. R. 3 Ex. D. 176. (b) See Local Government Board's Circular, dated 20th September, 1875, respecting the transmission and analysis in disputed cases under this Act, with regulations issued by the postmaster-general, 6th September, 1875, for the transmission by post, of samples for analysis. |