MILK-Continued. affect its quality or strength; or that by such substitution of water See Milk, Condensed Skimmed. MILK, CONDENSED SKIMMED: An article labeled "Condensed Skimmed Milk" and containing about Affirmed, Libby, McNeil & Libby v. United States---- MILK CHOCOLATE. See Confectionery. MINERAL SUBSTANCES. See Confectionery; Ejusdem Generis. MINERAL WATER: Mineral water under a label representing that it possessed curative See Bethesda Natural Mineral Spring Water; Buffalo Lithia Water; MISBRANDING: The act not only requires that drugs shipped in interstate commerce The purpose of the act was to protect consumers against impure and The purpose of the act, section 8, providing that an article of food shall be deemed misbranded if labeled or branded so as to deceive or mislead the purchaser, or purport to be a foreign product when not so, is to protect the public from deception, and the intent of one charged with misbranding is immaterial. United States v. 267 Boxes of Macaroni____. It is not necessary, in order to establish a charge that an article of food is misbranded by false or misleading statement on the label, that it be found that any person was actually deceived or misled by the statement on the label; it is sufficient if it be found that the statement was calculated to deceive or mislead in any particular. United States v. 300 Cases of Mapleine---. United States v. J. L. Hopkins & Co---. The act, as against misbranding, was intended to make it possible that United States v. Schider_____ 875 United States v. 95 Barrels, More or Less, Alleged Apple Cider 1118 United States v. Ten Cases, More or Less, Bred Spred, Etc., et al. 1262 It is a misbranding of a food product to put a label upon the package which in any way misleads or will mislead the purchaser. The test is, would the ordinary layman, the purchaser, be misled by the label upon the package from a casual observation of the same; if he would, there is a misbranding; if he would not, there is not a misbranding. The act was passed for the protection of the consumers and purchasers. United States v. Mohn Wine Co-‒‒‒‒‒ 'The act, section 8, specifies and defines at least two kinds of "misbranding"-one where the article bears a false and misleading label, and the other where it is offered for sale under the distinctive name of another article. In either case, it is not the misbranding that is made unlawful, but the shipment or delivery for shipment from one State to another, of the misbranded article. Weeks v. United States- It is not necessary, in order to constitute misbranding of a food product by reason of a misleading label, that the product should be injurious to health in any way; it is sufficient if the label describing the product is misleading as to something contained in the product. United States v. Mohn Wine Co-- It is not necessary that an article of food, in order to be unlawfully misbranded within the act, be dangereous to the health of the public. United States v. Krumm__. Page 316 867 316 993 The prohibition of misbranding in the act is designed to prevent de- If an article of food is the identical thing indicated by the brand, The statute as to misbranding, is plain and direct. Its comprehensive United States v. John J. Fulton Co__ The test of misbranding under the act, section 8, declaring that the term "misbranded" shall apply to all drugs, or articles of food, the package or label of which shall bear any statement, etc., which is false or misleading in any particular, is whether the statement on the package or label tended to deceive or mislead the ordinary person purchasing the article, giving the words used their ordinary and customary meaning as understood by the general public. United States v. Harper-- United States v. 300 Cases of Mapleine_ 1079 1118 1229 Continued. MISBRANDING In determining whether an article of food is misbranded as labeled In a proceeding for the misbranding of food in violation of the act In determining whether a drug product is misbranded within the In a libel proceeding for condemnation of drugs for misbranding In a prosecution charging misbranding of drugs by reason of the Upon a charge of misbranding by offering for sale an article of food Page 340 434 557 1047 978 680 732 828 841 867 MISBRANDING Continued. False representations regarding an article of food, in a circular The act, section 8, declaring that the term "misbranded" shall apply to United States v. Eleven Gross Packages of Dr. Williams' Section 8 of the act as amended by act August 23, 1912, providing Simpson v. United States_ Under the provision of the act that drugs shall be deemed to be misbranded if the package or label bears or contains any false and fraudulent statement regarding its curative or therapeutic effect, a statement as to the curative or therapeutic effect of drug preparations, if false and fraudulent, is misbranding thereof whether it is made on the labels of the bottles, on cartons inclosing the bottles, or in circulars or pamphlets contained in the cartons. United States v. Kellett___ "Misbranding" within the definition of the act, section 8, as including cases where the package or label shall bear any statement regarding the article or the ingredients or substances contained therein which is false or misleading in any particular, is inapplicable to such statements in a booklet inclosed within a carton containing drugs. United States v. 17 Bottles, Etc., of An Article of Drugs Labeled in Part "B. & M." The purpose of the act was to protect the public health against adulterated, poisonous, and deleterious food and drugs, and in view of such purpose, under section 8 which provides that the term "misbranded" shall apply to all drugs, or articles of food, the package or label of which shall bear any statement, etc., regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, a medicinal preparation cannot be said to be misbranded merely because of a representative on the label as to its curative effect. United States v. Johnson_____ Affirmed, United States v. Johnson__ The term "misbranded" and the phrase defining what amounts to misbranding in section 8 of the act are aimed at false statements as to identity of the article, possibly including strength, quality, and purity, dealt with in section 7, and not at statements as to curative effect; and so held that a statement on the labels of MISBRANDING-Continued. bottles of medicine as to the curative effect of the contents, even if misleading, is not covered by the act. United States v. Johnson__ An information charging misbranding of an article of food should specifically charge the manner of misbranding as defined in section 8 of the act. United States v. St. Louis Coffee & Spice Mills---An information charging that defendant shipped in interstate commerce a liquid labeled "Flavor of Vanilla", which did not contain any extract of vanilla, held, did not state a case of misbranding of vanilla extract in violation of the act, section 2, the words "extract" and "flavor" not being synonymous terms. Id. Where a libel to condemn food alleges misbranding under the act, section 8, it is essential that the libel should set forth the branding and facts inconsistent therewith, and, if there is indefiniteness in the statement, it must be removed by proof. United States v. 650 Cases of Tomato Catsup-- Averments that a fluid was labeled "Flavor of Lemon and CitralA Pure Flavor," and that it did not contain an appreciable quantity of lemon oil which was an essential ingredient of pure lemon flavor, do not state facts sufficient to show a misbranding under the act, because they fail to show that the fluid was labeled a pure flavor of lemon, or that lemon oil was an essential element of a pure flavor of lemon and citral. Nave-McCord Mercantile Co. v. United States___. An averment that one who branded an article with a label whose accepted and usual signification correctly describes it intended that the public or purchasers should understand that the label had an opposite and unusual signification fails to disclose any misbranding. An averment that the defendant intended that the label "Flavor of Lemon and Citral-A Pure Flavor" should be understood by the public and purchasers to mean a pure flavor or extract of lemon is futile, because the accepted and usual signification of the label is that the article is not a pure flavor or extract of lemon, but that it is a flavor of lemon and citral. Id. Averments in a libel charging misbranding under the act, section 8, as amended by act August 23, 1912, should receive a sensible construction. They must definitely charge the statutory offense of misbranding, but if there is enough to apprise those interested in the goods that they were charged with misbranding because statements as to curative power accompanying the articles in interstate commerce were false and fraudulent, as stating they would cure diseases which they could not cure, and were made with intent to deceive, they are sufficient to sustain the libel. Seven Cases of Eckman's Alterative v. United States_ An information alleging that statements on the label of an article of food were false and misleading in that they represented to the purchaser that the article was a substitute for eggs and could be used in place of eggs for cooking and baking, whereas, in truth said article was not a substitute for eggs, and could not be used in place of eggs for baking and cooking, held, sufficiently charged facts constituting misbranding, as against an objection that it did not set forth why or in what manner the article could not be used as a substitute for eggs. United States v. Newton Tea & Spice CoNewton Tea & Spice Co. v. United States. A libel for condemnation of certain canned tomatoes, representing that said article of food, labeled "Castle Haven Brand Tomatoes. Our first quality carefully selected," as analyzed by the Department of Agriculture is shown to be misbranded in violation of the Food and Drugs Act in that the labels contain the statement "Tomatoes" and the cut of a ripe tomato, which are false and misleading and deceive and mislead the purchaser, held insufficient, there being no allegation in the libel that the contents of the cans were not derived from tomatoes, whether ripe or unripe, or that they were not of the first quality available to the packer or that they had not been carefully selected; and the representation of Page 267 44 31 166 707 950 1089 |