STANDARDS-Continued.

The fact that a formula has been made up and followed and a dis-
tinctive name therefor adopted does not suffice to take an article
from section 7, subdivision 5, of the act. In such a case the
standard by which the combination is to be judged is not neces-
sarily the combination itself. A poisonous or deleterious ingre-
dient with the injurious effect stated by the statute may be
an added ingredient in the statutory sense although it is covered
by the formula and made a constituent of the article sold.
United States v. Coca Cola Co----

A statement describing a drug as "antiseptic" is not a profession
of standard of strength for the article, within the definition of
adulteration in the act, section 7. United States v. 17 Bottles, Etc.,
of An Article of Drugs Labeled in Part “B. & M.”-
See Added Poisonous and Added Deleterious Ingredients; Adultera-
tion; Constitutionality of the Food and Drugs Act; Executive
Officers; Filthy, Decomposed, and Putrid; Misbranding; Phar-
macopoeia, United States; Regulations; Samples; Tests.

STARCH.

See Confectionery.

STATE HEALTH OR FOOD OFFICERS:

Section 5 of the act authorizes prosecutions upon the complaint of any State health officer, and the district attorney can institute such a prosecution, upon any adequate proof, without action of agents of the Department of Agriculture. United States v. 74 Cases of Grape Juice_.

Section 5 of the act makes it the duty of the district attorney upon the presentation of "satisfactory evidence" of a violation of the act, by any State health or food officer, to cause appropriate proceedings to be instituted and prosecuted. A preliminary investigation including notice and hearing, provided for in section 4, applies only when the district attorney acts upon report of the Secretary of Agriculture; it is not required when he acts upon evidence furnished by any State health or food officer, or upon his own initiative. United States v. 74 (or 20) Cases of Grape Juice

United States v. Morgan et al.

See Examination; Investigation; Notice and Opportunity to be
Heard.

STRENGTH.

See Standards.

SUBSEQUENT OFFENSE.

See Indictment; Information; Offenses; Penalties; Prior Conviction;
Res Judicata.

SUBSTITUTION:

In a prosecution for adulteration of an article of food by sub-
stitution it is unnecessary for the Government to prove that the
substituted substance is poisonous or deleterious or injurious to
health. It is sufficient within the meaning of the act if any sub-
stance not a component part of the original substance has been sub-
stituted. United States v. Libby, McNeill & Libby--.
On a charge of adulteration of an article of food by substitution
of another substance, the question whether the substitution of the
substance injuriously affects, or makes any difference in, the
article of food is immaterial; it is sufficient to constitute adultera-
tion of the article if the substance was substituted in whole or
in part therefor. United States v. Bowers---.
See Adulteration; Injurious to Health.

SUGAR:

United

All sugars are "like substances" and a mixture of two or more of
them produce a "blend" within the meaning of the act.
States v. 68 Cases of Syrup-----

SUGAR-Continued.

The introduction of sugar into a frozen egg product did not con-
stitute adulteration thereof within the meaning of the act, where
the frozen egg product was prepared according to the directions
of the purchaser, and it or a similar article was made under a
patent. United States v. 443 Cans of Frozen Egg Product__--
Condensed skimmed milk, containing 42 percent of cane sugar, the
presence of which was not declared on the label, held adulterated
and misbranded. United States v. Libby, McNeill & Libby‒‒‒‒
Affirmed, Libby, McNeill & Libby v. United States----
See Sirup.

SULPHURRO:

A drug product labeled "Sulphurro" held misbranded in that the label and a circular or pamphlet inclosed in the package as it was transported in interstate commerce contained false and fraudulent statements regarding the curative or therapeutic effect with respect to certain diseases. United States v. C. M. C. Stewart Sulphur Co_ SWEET SPIRITS OF EDEN:

An article labeled "Sweet Spirits of Eden", held misbranded because the packages and label bore and contained statements regarding its curative or therapeutic effect which were false and fraudulent, and because the quality of alcohol contained in the article was misstated on the packages or label. United States v. Kellett‒‒‒‒‒‒

TALC:

Talc is a mineral compound, not an article of food, and is known as hydrated silicate of magnesia. United States v. R. C. Boeckel & Co. et al____.

See Confectionery.

TANKAGE.

See Digester Tankage.

TESTIMONIALS.

See Evidence.

TESTS:

The Government is not limited to the tests and standards for vinegar mentioned in Bulletin No. 65, Bureau of Chemistry, United States Department of Agriculture, and Circular 19, United States Department of Agriculture, nor to any other prescribed method of analysis, but may make use of any accurate test. United States v. 100 Barrels of Vinegar__.

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540

669

711

637

287

Evidence held to establish the accuracy of the gylcerin test for the determination of pure cider vinegar. Id. The use by the Government of the lypolytic decomposition or fatty acid test instead of the organoleptic tests to determine whether dried egg yolk is adulterated, that is, whether it consisted in whole or in part of a filthy, decomposed, or putrid animal substance, held not arbitrary or capricious. Knapp et al. v. Callaway, et al‒‒‒‒‒‒ 1276 See Examination; Notice and Opportunity to be Heard; Investigation; Samples; Standards.

TEXAS WONDER:

An article labeled "A Texas Wonder" held misbranded in that the
label and package contained statements regarding the curative or
therapeutic effect of the article with respect to certain diseases and
ailments, which were false and fraudulent. United States v. 60
Dozen Bottles of "A Texas Wonder".

United States v. One Gross Packages of "A Texas Wonder".
United States v. 141 Bottles of Drug Products..
Judgment in case last cited affirmed, Hall v. United States---.

THERAPEUTIC.

See Curative and Therapeutic Effects of Drugs.

888

910

931

978

TOMATO CATSUP:

A libel alleging that tomato catsup labeled "Made from choice ripe
tomatoes, granulated sugar, selected high-grade spices, grain vine-
gar was misbranded, because it was made in part from "tomato
pulp screened from peelings and cores as the offal of tomato can-
ning factories and not from choice ripe tomatoes", held not to set
forth a prima facie case of misbranding, as it would not be assumed
that, because the peelings and cores were not used in a tomato
canning factory, they were not suitable for making tomato catsup.
United States v. 650 Cases of Tomato Catsup----
Tomato catsup, containing bacteria, yeasts, and molds in very large
and unusual quantities, and shown to have been manufactured by
insanitary methods, held adulterated in that it consisted in whole
or in part of a filthy, decomposed, or putrid vegetable substance.
United States v. 200 Cases of Adulterated Tomato Catsup__-
In a libel proceeding against certain cases of tomato catsup, of which
claimant was the manufacturer, for alleged adulteration in that it
consisted in whole or in part of a filthy and decomposed vegetable
substance, where the Government adduced evidence tending to show
that the tomatoes used in the manufacture of the catsup were
partly or wholly decomposed or rotton, held, on the theory that in
the manufacture of tomato catsup the exclusion of all decomposed
tomato matter was impossible, that the burden was on the Govern-
ment to show that in the selection of the tomatoes from which the
catsup was manufactured such reasonable care and caution as a
person of ordinary care and prudence would use were not exercised
to exclude decomposed tomatoes, and that the catsup was decom-
posed and filthy to an unreasonable extent, or to an extent that a
reasonably prudent, cautious, and diligent person engaged in the
business of manufacturing such a product would not permit it to
be consumed by his own family. United States v. 1,038 Cases of
Tabasco Flavor Catsup_ _ _ _.

In a proceeding against a shipment of tomato catsup alleged to be
adulterated in that it consisted in whole or in part of a filthy,
decomposed, or putrid vegetable substance, held, on evidence of
the presence of molds, yeasts and spores, and bacteria in the
catsup, that the jury, in order to return a verdict in favor of the
Government, must find that there was such a substantial presence
of mold, yeasts or spores, or bacteria as to render the product
filthy, decomposed, or putrid, in the common, ordinary, and practical
sense of the words. United States v. 720 Cases of Tomato Catsup_
Tomato catsup held adulterated in that it consisted in whole or in
part of a filthy, decomposed, or putrid vegetable substance. United
States v. 275 Cases Tomato Catsup__.

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871

877

141

Tomato catsup held adulterated in that it consisted in whole or in part of a decomposed vegetable substance. United States v. 1,246 Cases of Tomato Catsup-

943

Where pumpkin was added to tomato catsup, the fact that it was merely labeled "Compound" was not sufficient to constitute compliance with the act, which requires that such article be labeled, branded, or tagged so as to plainly indicate the substances composing the compound. William Henning & Co. v. United States____ TOMATOES, CANNED:

A libel in a proceeding instituted for seizure and condemnation of canned tomatoes as adulterated and misbranded in violation of the act, representing that the article as analyzed in the Department of Agriculture was shown to be adulterated in that tomato pulp had been mixed and packed with, and substituted wholly or in part for, the article, and representing that the article as so analyzed was shown to be misbranded in that the labels contained the statement "Tomatoes" and a cut of a ripe tomato, which were false and misleading and deceived and misled the purchaser, held insufficient in that it did not contain allegations of substantive facts which clearly showed the right of the Government to seize and condemn the goods. United States v. 154 Cases of Tomatoes.

344

967

TOMATOES, CANNED-Continued.

Canned tomatoes held not adulterated or misbranded by reason of
alleged addition of water thereto.
of Canned Tomatoes---

United States v. 3,998 Cases

Page

1213

TOMATO PASTE:

Tomato paste held adulterated in that it consisted in whole or in part of a filthy, decomposed, or putrid vegetable substance. United States v. Gidden__.

360

TOMATO PULP:

Tomato pulp held adulterated because it consisted in whole or in part of filthy or decomposed vegetable substance. United States v. 5,060 Cans of Tomato Pulp--Tomato pulp held adulterated in that it was filthy or decomposed, on evidence that it contained mold indicating that decomposed tomatoes had entered into the manufacture of the product. United States v. 1,500 Cases of Tomato Pulp---TOMATO PUREE:

In an action to condemn "tomato puree" as adulterated in that it consisted in whole or in part of a filthy or decomposed vegetable substance, held, on evidence of the presence of molds in the product, that the jury, in order to return a verdict for the Government, must find that there was such a substantial presence of molds as to render the product filthy or decomposed in the common and practical sense of the words. United States v. 1,000 Cases of Tomato Puree___

TRADE MARK :

The filing of a trade mark for an article of food or drug does not give the manufacturer the right to put a false statement upon the label of the manufactured article. The fact that the name of an article is a registered trade mark is no defense to a prosecution for misbranding by false or misleading statements on the label of the article. United States v. American Chicle Co----While it is true that the mere fact of trade mark does not take the product out of the operation of the act, nevertheless, where it appears that the product does not in any way violate any of the provisions of the statute, the rights of the owners of the trade. mark must have consideration and they may not be deprived of their property rights in order to meet some untenable position taken by someone in authority to whom is delegated the power to invoke the aid of the statute. United States v. 23 7/12 Dozen Bottles, Etc., of An Article of Drugs Labeled "Lee's Save The Baby"

See Distinctive Name.

TRANSPORTATION.

See Interstate Commerce; Shipment. TRATAMIENTO ZENDEJAS:

An article labeled "Tratamiento Zendejas" held misbranded in that the package and label contained statements regarding the curative or therapeutic effect of the article which were false and fraudulent. United States v. 186 Bottles of Tratamiento Zendejas‒‒‒‒‒ TUBERCLECIDE:

In a prosecution for alleged misbranding of a medicine labeled "Tuberclecide" in that the labels falsely and fraudulently represented it as a remedy for tuberculosis, evidence held insufficient to show that statements appearing on the labels were false. United States v. Tuberclecide Co---

TUNA FISH, CANNED:

Not intended for human concondemnation and forfeiture,

Canned tuna, labeled "Tuna for pets.
sumption", held to be subject to
where it appeared that the contents of practically one-third of the
cans were decomposed or tainted. United States v. 620 Cases of
Canned Tuna Fish--

780

892

704

362

1240

998

729

1281

TURPENTINE, SPIRITS OF:

An article sold as spirits of turpentine held adulterated because it contained mineral oil. United States v. Lorick & Lowrance______ UNFIT FOR FOOD:

"Unfit for food", as used in the act, section 7, paragraph 6, means what is ordinarily understood by the expression. United States v. 1,974 Cases of Canned Salmon---

The expression "unfit for food", as used in the act, section 7, paragraph 6, means reasonably unfit for human food. United States v. 2,995 Cases of Canned Salmon___-.

It is a matter of common knowledge, in determining whether an article is fit or appropriate for human food, that it be taken into account whether the article is harmful; whether it has food value; whether it satisfies hunger; whether it builds up wasted tissues exhausted because of lack of food; and, to a certain extent, whether it pleases the taste. Id.

In a prosecution charging shipping eggs adulterated in that they coonsisted in whole or in part of a filthy, decomposed, and filthy animal substance, held, that the jury in order to convict, must find that the eggs were decomposed to such an extent that they were unfit for food at the time they were shipped. United States v. Blazek___

In a libel proceeding to condemn a shipment of canned salmon as adulterated in that it consisted in whole or in part of a filthy, decomposed, or putrid animal substances, held that the jury, in order to find for the Government, must find that the salmon was so filthy, decomposed, or putrid as to make it "unfit for food" as that expression is ordinarily understood, and that such adulteration extended to the whole shipment. United States v. 1,974 Cases of Canned Salmon___.

The expression "unfit for food", in the provision of the act, section 7, that an article of food shall be deemed to be adulterated "if it consists in whole or in part of a filthy, decomposed, or putrid animal substance, or any portion of an animal unfit for food, etc.", construed to qualify the first clause of the provision, that is, "if it consists in whole or in part of a filthy, decomposed, or putrid animal substance." Id.

United States v. 2,995 Cases of Canned Salmon__. In a proceeding for condemnation of canned salmon as adulterated within the provision of the act that an article of food shall be deemed adulterated if it consists in whole or in part of a filthy, decomposed, or putrid animal substance, held that in order to warrant condemnation the jury must find that the salmon was filthy or decomposed or putrid to an extent that rendered it reasonably unfit for human food. United States v. 1,974 Cases of Canned Salmon-

United States v. 2,995 Cases of Canned Salmon__. The act does not use the words "unfit for food", but when it describes an adulterated article of food as one which is "decomposed and filthy" it means undoubtedly unfit for food to the extent that it would be improper and unfit food for a person to indulge in. United States v. 3,000 Pounds of Frozen Eggs--Where it appears that an article of food is so far decomposed as to render it unfit for food, it comes within the letter and spirit of the law which condemns as adulterated foods which consist in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance. United States v. 200 Cases of Adulterated Tomato Catsup____.

A. O. Andersen & Co. v. United States___.

A libel charging that an article of food is adulterated in that it consists in whole or in part of a filthy, decomposed, or putrid vegetable substance states completely and distinctly an offense under the act, section 7, and therefore an added allegation in the libel that the article "is unfit for food" may he rejected as surplusage; and, on a trial of the libel, it was unnecessary for the

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