20. HEARING BEFORE THE SECRETARY OF AGRICULTURE.

It is clearly the intent of the Act that the fullest possible opportunity should be given any party alleged to have violated the provisions of the Act, to present in the preliminary proceedings before the Secretary of Agriculture any and all matter of defense which he may have.

Under the provisions of Section 4,20 the Secretary of Agriculture is required, if it appears that any of the provisions of the Act have been violated, to at once certify the facts to the proper district attorney. At the same time it is probable that the Secretary of Agriculture will be warranted in considering any matter which may be presented in excuse for an unintentional violation of provisions of the Act, and will undoubtedly be warranted in considering arguments as to meaning and intent of provisions of the Act alleged to have been violated, particularly if such provisions of the Act are not entirely clear.

The hearing before the Secretary of Agriculture provided for by this Section is of the utmost importance, as, if at such hearing matters of defense can be so presented as to warrant him in deciding that the examination or analysis of the sample is not correct or that there has been no violation of any provisions of the Act, or that the facts are not such as to require him to certify them to a district attorney, any notice to the public of the fact that the sample appears to show adulteration or misbranding, which in itself may be seriously detrimental, may be avoided.

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If the Secretary of Agriculture finds that the facts are such that under the provisions of the Act he must certify them to the proper district attorney and such district attorney institutes proceedings as provided for in Section 5,8 it will be impossible to avoid some information reaching the public of at least the fact that such proceedings have been instituted.

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Publication.

21. PROCEEDINGS IN THE COURTS.

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The precise nature of the proceedings to be brought by the district attorney to whom the Secretary of Agriculture may report any violation of the Act is not clearly set forth in the Act. Presumably it is intended that such district attorney should present the matter to the grand jury for their action.

It should be noted that there is no authority under the Act for instituting any proceedings for violations of the provisions of the Act by any district attorney upon his own initiative, or upon complaint of any purchaser. Proceedings can be instituted only upon the report of the Secretary of Agriculture, and, as provided in Section 4 the Secretary of Agriculture can make such report only after an analysis or examination by Government chemists of samples collected by authorized agents of the Government, and only after notice to the party accused and an opportunity given for hearing. The Act does not permit hasty or ill considered prosecution, or prosecution arising from malice of rivals, and there is nothing in the Act to encourage or reward informers.

22. PUBLICATION.

Official publication of the fact that a manufacturer or dealer appears to be or has been adjudged to be responsible for adulterated or misbranded foods or drugs can only be made after judgment rendered upon proceedings brought by a district attorney, the Act in this respect differing from some of the State laws which seem to permit the official publication of the findings of the State chemist without any opportunity being given for a hearing. As above pointed out, however, the fact that proceedings have been brought by the district attorney can hardly be kept from public notice. The publication of the judgment of the court holding the food or drug brought before it to be adulterated or misbranded will be as provided in

paragraph (b) of Regulation 6,31 by circulars, notices, or bulletins as the Secretary of Agriculture may direct, and will no doubt be so made as to give the fullest possible notice to the public that the food or drug in question is adulterated or misbranded. The effect of such publication will be to practically prevent further sales of such food. or drug. Any further sale will be likely to be followed by prosecution for a second offense.

Paragraph (c) of Regulation 632 clearly indicates that the publication of the judgment will not be withheld on account of appeal taken.

CHAPTER III.

ARTICLES TO WHICH THE ACT APPLIES.

23. ARTICLES TO WHICH THE ACT APPLIES-DRUGS.

The term "drug" is used in the Act in the broadest possible meaning. It includes not only all drugs or medicines, either simple or compounded, which are recognized by any branch of the medical profession as remedies for internal or external use, but all substances or mixtures of substances which are offered to the public as remedies for internal or external use for the treatment or prevention of any disease whatever of man, other animals, poultry, and in general for any living creature, and includes physicians' prescriptions.

The term includes not only what would be generally understood as pharmaceutical preparations, plasters, and proprietary and veterinary medicines, including corn cures, liniments, salves, ointments, and stock foods so-called, but also hair tonics, medicinal soap, cold cream or massage cream, talc powder, perfumes, toilet preparations generally tooth powders and liquid dentrifices. It does not include disinfectants and probably does not include bay rum, face powder, or smelling salts.

The line between foods and drugs is not always clear, particularly as regards substances which, while sometimes used as drugs, are also used as foods or in connection with foods for technical purposes. Such substances when sold or offered for sale for use as medicine will undoubtedly be subject to the requirements of the Act as drugs, but if sold or offered for sale for use as food or for technical purposes, will not be subject to the requirements of the Act. For instance, turpentine or castor oil, if used as a medicine, will be subject to the requirements of the Act; while tur

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Articles to Which the Act Applies.

pentine if used for paint or varnish or other industrial purpose, or castor oil used for a leather dressing will not be subject to any requirements of the Act.

24. ARTICLES TO WHICH THE ACT APPLIES-FOODS.

The term "food" as used in the Act expressly includes all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed or compound. Hay, grain or other food for animals or poultry is undoubtedly included.

The term "food" includes meats and meat products, but the provisions of the Act will not be construed to apply to domestic meats and meat products prepared, transported or sold in interstate or foreign commerce under the Meat Inspection Law, that is meat of cattle, sheep, swine, and goats. Poultry and fish and other sea food of domestic or foreign production is subject to the provisions of this Act. Imported meats and meat products are subject to the provisions of this Act.

Sugar, salt and spices will be subject to the requirement of the Act as foods generally, though if used as medicines or in connection with medicines, they will no doubt be subject to the requirements for drugs if necessary.

Flavoring extracts will be considered foods, but extracts used as medicines will be considered drugs, not foods. Chewing gum will no doubt be considered as broadly a food and specifically as confectionery.

Coffee and tea are considered foods.

Liquors, wines and beverages of all kinds are considered foods.

Mineral waters and drinking waters generally are inIcluded under the term food.

Milk is, of course, included.