UNITED STATES v. 650 CASES OF TOMATO CATSUP

(District Court, D. Rhode Island, Jan. 21, 1909)

166 Fed. 773

Libel under section 10 of the Food and Drugs Act. No answer filed by claimant. Decree in favor of the United States.

BROWN, District Judge. This libel prays condemnation of 650 cases of tomato catsup, under act Cong. June 30, 1906, ch. 3915, 34 Stat. 768, known as the "pure food law." The charge is of misbranding.

The only material part of the label is the following:

Made from choice ripe tomatoes, granulated sugar, selected high grade spices. grain vinegar.

The libel alleges that the articles are misbranded

For the reason that said catsup is made in part from tomato pulp screened from peelings and cores, as the offal of tomato canning factories, and not from choice ripe tomatoes, granulated sugar, and selected high grade spices, grain vinegar, as stated in said labels.

It is not charged that there is a violation of section 7, paragraph 6, which relates to preparations "consisting in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance ", etc. The sole allegation is that the label is in the above particulars misleading and false.

The words "as the offal of tomato canning factories" are not of exact signification. They do not charge a violation of section 7, paragraph 6. The indefinite suggestion of the word "offal" cannot be considered as the equivalent of a charge that the tomato pulp was a filthy, decomposed, or putrid vegetable substance. The inconsistency, if there be any, must be between the statement that the catsup is made from choice ripe tomatoes" and the fact that it is "made in part from tomato pulp, screened from peelings and cores."

The act in question imposes criminal penalties and the forfeiture of the offending article. Where the charge is of misbranding, it is essential that the libel should set forth the branding and facts inconsistent therewith. If there is indefiniteness in the statement, this indefiniteness must be removed by proof.

The mere fact that certain portions of the tomato are not used in a tomato canning factory does not establish the fact that they are not suitable for the making of tomato catsup. In order to decide that the libel states on its face a case of misbranding, the court would be required to rule that tomato pulp, screened from peelings and cores, is not made from choice ripe tomatoes.

Among the processes of catsup making which may be considered to be within judicial notice is the process of screening or sifting. The tomato is usually reduced to pulp, and that pulp made from peelings and cores is substantially different from the pulp of choice ripe tomatoes, in catsup making, cannot be inferred from a mere interpretation of the language of the libel. It is especially necessary,

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in administering an act like the pure food law (however beneficial it may be), that there should be reasonable definiteness and accuracy, not only in the statement of offenses against the act, but in conceptions of what is within the intent of Congress and what is not within. that intent. In the administration of such an act it is particularly essential that it should not be given forced or strained constructions. Though the claimant has not answered or contested the allegations of the libel, so that it may be taken pro confesso, yet it is the duty of the court, before entering a decree of condemnation in spite of such confession by default, to see that a case is made out.

The pure food act provides that proceedings for condemnation shall conform as near as may be to the proceedings in admiralty. By the twenty-ninth admiralty rule, upon the taking of a libel pro confesso, "the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain." The rule stated in Thompson v. Wooster, 114 U.S. 104-111, 5 Sup. Ct. 788, 792, 29 L.Ed. 105, seems applicable to this proceeding:

The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant.

Ohio Central Railroad Co. v. Central Trust Co., 133 U.S. 83-90, 10 Sup. Ct. 235, 237, 33 L.Ed. 561, also contains language appropriate to proceedings upon default in condemnation proceedings:

A decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but it is made (or should be made) by the court according to what is proper to be decreed upon the statements of the bill assumed to be true. If the allegations are distinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of the complainant is in its nature uncertain, the requisite certainty must be afforded by proof.

The counsel for the claimant protests that nothing putrid or unwholesome is contained in the catsup. He states that defendant's position is substantially that of one pleading nolo contendere, and that it prefers to throw up all claim to the goods rather than to contest the matter further. This, however, amounts to nothing more than a concession that what is alleged in the libel is true, with a protest against any objectionable significance in the word "offal."

I consider it to be the duty of the court, before condemning property, to see that there is a proper basis for such condemnation; and this duty is not changed by the concession of the defendant that it would rather its property should be condemned than that it should be put to the expense of contesting the matter with the Government.

I am of the opinion that it is incumbent upon the United States to produce evidence to support the allegation that these goods are misbranded, in that the label contains a substantially false and misleading statement.

Where, upon the facts alleged, there can be no doubt of the substantial and necessary inconsistency between the statements of the label and the actual facts, the court may proceed at once to enter a decree of condemnation upon defendant's concession by default of the facts alleged, without requiring of the Government further proof. The present case, however, is not of that class, but requires further

examination of details to determine whether the charge of misbranding is true.

The case may stand for ex parte hearing of proof in support of the libel.

IN RE WILSON

(Circuit Court, D. Rhode Island, Mar. 8, 1909)

168 Fed. 566

Motion for leave to file an information alleging violation of section. 2 of the Food and Drugs Act. Motion denied.

BROWN, District Judge. The attorney for the United States moves for leave to file an information alleging violation of the Food and Drugs Act, June 30, 1906, in accordance with the practice followed in United States v. Smith (C.C.), 40 Fed. 755.

It is conceded that it is proper for the court to examine the information and the affidavits in support thereof, and if the same shall be found insufficient to deny the motion.

The information charges that a certain company shipped, by a carrier, from the state of Rhode Island to the District of Columbia, a certain article of food in bottles, to wit, syrup, bearing a certain label upon which was printed the following words: "Gold Leaf Syrup, composed of Maple and White Sugar; Huntington Maple Syrup and Sugar Company, Providence, R.I."; and that the label bore also, in the center thereof, the design and representation of the leaf of the maple tree, as the trade-mark of said company. It is alleged that the syrup was misbranded, and that—

the design and device and said printed matter were false and misleading and calculated to deceive and mislead the purchaser thereof, in that said article of food was in fact composed principally of white sugar, and contained no substantial quantity, but, on the contrary, a very small quantity, of maple sugar, to wit, not more than 10 per centum by weight of maple sugar; whereas, said design and device, and said printed matter upon said label as aforesaid, represent, and are calculated to lead the purchaser thereof to believe, that said article of food is composed principally or in substantial part of maple sugar.

Appended to the motion is an affidavit in support of the information by an analyst of the Bureau of Chemistry to the effect that as a result of an analysis of the syrup it was found to contain approximately 90 percent of white sugar and not more than 10 percent of maple sugar.

A sample of the bottle is also presented, with a label printed in gold, blue, and red, which at the top has in plain large letters the words "Gold Leaf" in gold, "Syrup " in red, with a blue circular underscoring, a trade-mark consisting of a gold leaf, said to be a maple leaf, with stalks projecting on each side, apparently representing sugar cane, with the name of the company in smaller letters in the middle; the words "composed of" in white on a blue field, being very distinct, and the words "maple and white sugar" in blue on a white field at the bottom, being also very distinct. The very conspicuous features are the words "Gold Leaf Syrup ", "Composed of ", and "Maple and White Sugar."

It is impossible, upon the most partial interpretation of these statements, and having in mind the decisions of the courts concerning what amounts to fraudulent misrepresentation upon labels, to find any intimation as to the proportions of maple and white sugar contained in this preparation, which is given the general title of "Gold Leaf Syrup."The purchaser is informed in the most distinct and unequivocal manner that he is buying a compound of maple and white sugar, and from the report of the analyst it appears that this is the fact. There is no statement contained on the label which is in the slightest degree calculated to convey the impression that there is more maple than white sugar, and, if a purchaser should suppose that there was, such an idea would come entirely from his own imagination, and not from any suggestion fairly implied by the label. The label affords not the slightest evidence of an intention to convey such an idea to the purchaser.

Such remote possibilities of the imagination cannot be a basis for a proper interpretation by the courts of terms of clear and unambiguous meaning. The label says nothing of proportions, either directly or by any reasonable implication.

As to the maple sugar, it appears as a fact that 10 per centum is contained in the avowed compound. The article is designed for table use. The addition of so substantial an amount of maple sugar as 10 percent, if sufficient to give to this compound syrup a maple flavor, serves to make the article more palatable and to satisfy the purpose of the buyer. A person who should buy this syrup would expect that he was getting a considerable portion of white sugar, with the addition of a sufficient amount of maple sugar to please his palate. Unless his palate is disappointed by the absence of the flavor which he expects, I am unable to imagine how there can be any variance between the contents of this bottle and the statements on the label. Even if we search this label with a most prejudiced eye, and endeavor to discover upon it some innuendo or insinuation, we are at great difficulty in finding even the most remote suggestion. Is there an innuendo that there is more maple than white sugar in the composition? Clearly not. Is there an innuendo that there is more than 10 percent of maple sugar? Viewing this in the light of the subject matter, to wit, the purpose of the purchaser and the expectations aroused in him as a consequence of statements on the label, I am unable to perceive any more definite suggestion than that there is imparted to the Gold Leaf Syrup a desirable quality due to the presence of maple sugar.

In order to convict a person of misbranding upon such a showing of fact, the court would be obliged to go entirely beyond all the established legal principles upon the question of deceit and misrepresentation, and beyond any of the decisions of the equity courts as to what is abhorrent to the conscience of a chancellor. In fact, I think that we should be obliged to go not only outside the boundaries of legal and equitable rules but also outside the boundaries of rational

common sense.

From examination of former cases dealing with the subject of misleading representations on labels, I am impressed with the great value of the legislation known as the " Pure Food Act" (act June 30, 1906, ch. 3915, 34 Stat. 768); but I am further impressed with the

fact that an attempt to apply that act to cases of this character cannot but serve to bring that act into such disfavor as to impair its usefulness. The distinction between the enforcement of law and the abuse of law is lost sight of in the attempt to make this obviously innocent act a criminal misdemeanor.

The motion for leave to file the information is denied.

UNITED STATES v. ORIENTAL DRAGÉE COMPANY

(District Court, D. New Jersey, Apr. 10, 1909)

N.J. No. 176

Information charging violation of section 2 of the Food and Drugs Act. Demurrer to the information overruled. Jury trial. Verdict of guilty.

CROSS, District Judge (overruling demurrer to information). Omitting the formal parts, the information alleges that the defendant, a corporation of New Jersey, and carrying on business at Jersey City, within said State, on July 31, 1907, at Jersey City, aforesaid, and within the jurisdiction of this court, did wilfully and unlawfully deliver for shipment, and ship and caused to be transported in interstate commerce from the State of New Jersey to the State of New York, an article of food which was adulterated within the meaning of the act of Congress, entitled, "An act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, or liquors, and for regulating the traffic therein, and for other purposes ", approved June 30, 1906, in that the said defendant on the day and year aforesaid, and within the jurisdiction of this court, did ship from Jersey City in the State of New Jersey, and did cause to be delivered to E. W. Dunstan Company, in the City of New York, in the State of New York, a large quantity, to wit, 25 boxes of Argente Moyens Assortis or Silver Dragees, which said Argente Moyens Assortis or Silver Dragees was an article of food, that is to say, was confectionery and was adulterated within the meaning of the act aforesaid, in that being confectionery as aforesaid, the same contained a mineral substance, to wit, 48 [hundredths] per centum of metallic silver, and in that the said confectionery known as "Silver Dragees" was coated with silver, being a mineral substance and which formed a constituent part of the said confectionery; the said defendant then and there well knowing that the said confectionery was an article of food and was so adulterated. Then follow the usual formal statements. As will have been observed, the information is founded upon what is popularly known as the "Pure Food Act" (34 Stat. 768). The material parts of the act pertinent to the present controversy, 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 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 spiritous liquor or compound or narcotic drug." The defendant