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MILK-Continued.

affect its quality or strength; or that by such substitution of water
for milk they intended to deceive the purchaser of the product into
buying an inferior for a superior product. United States v. Tetz
et al---

See Milk, Condensed Skimmed.

MILK, CONDENSED SKIMMED:

An article labeled "Condensed Skimmed Milk" and containing about
42 per cent of cane sugar, the presence of which was not disclosed
on the label, held adulterated and misbranded. United States v.
Libby, McNeill & Libby_----

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
or alleviative properties, held to be a drug within the meaning of
the act, and such representations being false and fraudulent, it
therefore falls within the condemnation of section 8, subdivision 3,
as to misbranding of drugs. Bradley v. United States____
Mineral water, not being in its original state, and processes of separa-
tion of constituent drug elements being carried to the extent that
the water can no longer be used as a beverage, but only in small
quantities as a drug, is to be classified as a "drug", and not a
"food", within the meaning of the act as amended. Goodwin
et al. v. United States___.

See Bethesda Natural Mineral Spring Water; Buffalo Lithia Water;
Capon Springs Water; Crab Orchard Concentrated Mineral Water;
Crab Orchard Mineral Water; Imperial Spring Water; Robinson
Spring Water.

MISBRANDING:

The act not only requires that drugs shipped in interstate commerce
and labeled shall not be misbranded, but also requires that they
shall be labeled with labels conforming to its requirements. United
States v. 65 Casks of Liquid Extracts--

The purpose of the act was to protect consumers against impure and
adulterated foods and drugs, and also against the use of food and
drugs which do not show what they contain by the brands on the
package. United States v. Mayfield et al‒‒‒‒‒

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
the consumer should know that an article purchased was what it
purported to be; that it might be bought for what it really was and
not upon misrepresentations as to character and quality. United
States v. Lexington Mill & Elevator Co_.
United States v. Coca Cola Co-‒‒‒‒‒‒‒

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United States v. Schider_____

875

United States v. 95 Barrels, More or Less, Alleged Apple Cider
Vinegar----

1118

United States v. Ten Cases, More or Less, Bred Spred, Etc., et al. 1262

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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__.

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The prohibition of misbranding in the act is designed to prevent de-
ceiving or misleading the purchasing public, even though the article
sold is in itself equally good or not injurious to health. United
States v. 95 Barrels, More or Less, Alleged Apple Cider Vinegar. 1047
The primary purpose of the act is to prevent injury to the public
health, and while the test of misbranding of a food product, under
the act, section 8, is whether it is true to name, there should not be
over-strictness in applying this test in a case where the public
health cannot possibly be jeopardized. Ninety-five Barrels, More
or Less, Apple Cider Vinegar v. United States_-
In a proceeding under the act, section 10, for forfeiture of a food
product for misbranding, the burden is on the Government to estab-
lish by the evidence not merely a technical, but a substantial viola-
tion of the act, which may render the article injurious to health, or
mislead the public to its prejudice or harm, or induce the purchase
of an article different from the article desired. Id

If an article of food is the identical thing indicated by the brand,
it is not "misbranded", within the meaning of the act, section 8,
and the method of manufacture is immaterial. Id.
The purpose of the act in forbidding misbranding is to prevent the
use of misleading statements as well as those which are false.
United States v. 95 Barrels, More or Less, Alleged Apple Cider
Vinegar

The statute as to misbranding, is plain and direct. Its comprehensive
terms condemn every statement, design, and device which may
mislead or deceive. Deception may result from the use of state-
ments not technically false or which may be literally true. The
aim of the statute is to prevent that resulting from indirection and
ambiguity as well as from statements which are false. It is not
difficult to choose statements, designs, and devices which will not
deceive. Those which are ambiguous and liable to mislead should
be read favorably to the accomplishment of the purpose of the
act. Id.

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_

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1118

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Continued.

MISBRANDING
Whether an article labeled "Pure Pepper" was misbranded under
the act depended on the ordinary and customary meaning given to
such words, and not on the technical meaning thereof. United
States v. 75 Boxes of Alleged Pepper ---

In determining whether an article of food is misbranded as labeled
or branded so as to deceive or mislead the purchaser, the terms
used on the label must be given the meaning which is commonly
accepted and understood by the general public. United States v.
F. B. Washburn & Co___.

In a proceeding for the misbranding of food in violation of the act
the words of the offending label are to be construed in their ordi.
nary or customary meaning so far as they have one. United States
v. 150 Cases of Fruit Puddine__
The act as to misbranding was designed to prevent the ordinary pur-
chaser from being deceived and misled as to what he is buying, and
therefore the test of misbranding is the effect of the label or state-
ment upon the ordinary purchaser. United States v. 95 Barrels,
More or Less, Alleged Apple Cider Vinegar__--

In determining whether a drug product is misbranded within the
act, section 8, as amended by act August 23, 1912, the language used
on the label or package is to be given the meaning ordinarily con-
veyed by it to those to whom it is addressed. Hall v. United
States

In a libel proceeding for condemnation of drugs for misbranding
under the act, section 8, as amended by act August 23, 1912,
held that the jury should give to the language of the statements
in the labels, etc., and set forth in the libel, its ordinary and
common meaning and consider what the statements would mean to
an ordinarily intelligent person purchasing the drugs. United
States v. Eleven Gross Packages of Dr. Williams' Pink Pills----
The test of misbranding under the act, section 8, as amended by act
August 23, 1912, declaring drugs misbranded if the package or
label bears or contains any statement regarding the curative or
therapeutic effect of the drug which is false and fraudulent, is what
the statements appearing on the label or in a circular or pamphlet
inclosed in the package, mean to the ordinary person, that is, what
the ordinary person reading the statements would understand as
to the curative or therapeutic effect of the article. United States v.
Athlophoros Co‒‒‒‒

In a prosecution charging misbranding of drugs by reason of the
label, etc., containing allegedly false and fraudulent statements
regarding the curative or therapeutic effect of the article, held
that the jury, in determining whether the challenged statements
were false and fraudulent, had the right to consider the ideas con-
veyed by the words in their common usage to the average person
as distinguished from the ideas conveyed to the average physician
or scientist. United States v. Bell & Co---
In a prosecution charging misbranding of bottled water in that the
label falsely and fraudulently stated its curative or therapeutic ef-
fect, held that the jury, in determining whether the label consti-
tuted misbranding, should determine what the label meant, and,
in doing so, should give to the words and language thereof the
meaning they would convey to ordinary men, and not to men who
are skilled in medical, chemical, or pharmaceutical science capable
of making nice distinctions and discriminations. United States v.
Bethesda Mineral Spring Co_----

Upon a charge of misbranding by offering for sale an article of food
under the distinctive name of another article, held that the trial
court properly received evidence that the shipment was made to
fill an order obtained by the defendant's agent by so misrepresent-
ing the article, and properly declined to confine the jury's atten-
tion to the label borne by the article when it was shipped. Weeks
v. United States

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MISBRANDING Continued.

False representations regarding an article of food, in a circular
enclosed within the package, cannot be considered as violations of
the act as to misbranding. United States v. Newton Tea &
Spice Co-----

The act, section 8, declaring that the term "misbranded" shall apply to
drugs, the package or label of which shall bear any statement, design,
or device regarding the article which shall be false or misleading
in any particular, merely embraces any statement, etc., which ap-
pears on the outside of the package in which the article is offered
for sale, whether such statement is printed on or otherwise affixed
to the package, and does not include an advertising circular in-
closed with an article inside the carton in which it is offered for
sale. United States v. American Druggists' Syndicate‒‒‒‒‒
The provision of the act that drugs are misbranded if the package
or label bears or contains any false and fraudulent statement re-
garding the curative or therapeutic effect of the article, embraces
statements which are contained in the packages as well as those
appearing on the label. United States v. Abbott Bros. Co------
Statements regarding the curative or therapeutic effect of a drug
preparation, if false and fraudulent, constitute misbranding under
the act, whether such statements appear on the labels of the pack-
ages or are contained in a pamphlet or circular contained in the
package. United States v. Matusow_.

United States v. Eleven Gross Packages of Dr. Williams'
Pink Pills‒‒‒‒

Section 8 of the act as amended by act August 23, 1912, providing
that drugs shall be deemed to be misbranded if the package or
label shall bear or contain any statement regarding the curative
or therapeutic effect of the article which is false and fraudulent,
not only applies to statements which appear on the package or label
but embraces as well statements in circulars or printed matter
contained inside the package. Seven Cases of Eckman's Altera-
tive v. United States___

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

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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

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