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to be placed upon packages of goods wherein is specified in detail the ingredients of which it is composed; and if preservatives have been used in it, though they be perfectly harmless. to require that fact and the name of the preservatives to be given. "Doubtless the Legislature could provide that the packages [of butter] should be clearly marked with a label stating such fact [that a particular preservative had been used], and it might require any notice adopted to inform the public of the nature and treatment of the article offered for sale."'1 And it may be remarked that the Federal Pure Food Act requires a label whereon is stated the ingredients of the package; and no one seriously doubts its validity. A State statute requiring a label to be placed on all compounds intended to be used as a baking powder containing the legend: "This baking powder is composed of the following ingredients, and none other," and then the ingredients set out, with the manufacturer's name, is valid. It is no argument that the public will not be benefited by such a requirement; that the purchasers do not know the meaning of the term used on the labels; that it is unjust to cause a manufacturer or dealer in pure powders to submit to such a law, for the purpose of exposing those who make or deal in a harmful article; that if such a law can be imposed against baking powders, without reference to their purity, then pure sugar, pure flour, and other pure staple articles of food may be likewise brought under similar restrictions, and to single out baking powder in such manner is class legislation. "There is nothing in all these objecThe use of baking powder in compounds has become common; being a compound, the people should know the contents that they may judge of the quality before purchasing, and the people are less easily imposed upon

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1 People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534; State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355; State v. Hanson, 84 Minn. 42, 86 N. W. 768, 54 L. R. A. 468; Haines v. People, 7 Colo. App. 467, PURE FOOD-8.

43 Pac. 1047; State v. Aslesen, 50 Minn. 5, 52 N. W. 220; Commonwealth v. Seiler, 20 Pa. Super. Ct. 260.

2 State v. Sherod, 80 Minn. 446, 83 N. W. 417, 50 L. R. A. 661, 81 Am. St. 268.

when the contents are made known by a label on the powder offered than by the vendor. "The owner of such property may be legally required, as a matter of proper police regulation for the benefit of the people in general, to sell for what it actually is, from its own merits, and is not entitled, as a matter of constitutional right, to the benefit of any additional market value which he may secure by concealing its character. '' A statute which only requires baking powder containing alum to be labeled, and does not require a label for powder containing no alum is valid, and is not prohibited by class legislation. So where a statute required any package of lard containing any ingredient except pure fat of healthy swine to be labeled "Compound Lard" in letters onehalf inch in length, and plainly exposed to view, and the name and proportion, in pounds and fractions thereof, of each ingredient contained in the compound, it was upheld. "The Act is, it was said, "a mere regulation by which the public may know by inspection of the package the ingredients used in its preparation. If it resemble lard, it is surely no infringement of any right of the grocery-man or dealer to require him to make known to the public, in a proper manner, the constituent parts of the article which he offers for sale."5

In an instance of a sale of the meat of a calf under four weeks old when killed, a statute requiring such meat when shipped to be tagged, whereon is stated the name of the person

3 Stolz v. Thompson, 44 Minn. 271, 46 N. W. 410.

4 Stolz v. Thompson, supra. 5 State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355.

Speaking of this statute the court said: "If a dealer offers for sale an article intended to be used for lard, he must label it so that the public may not be deceived and defrauded by paying the value of pure lard for a cheaper article. If the dealer will label the article so that the people may know what they

purchase he may deal in it with impunity. This much the lawmaking power may demand of him without impairing any right of property, or the exercise of any lawful business."

The fact that the legitimate as well as the illegitimate article is required to be tagged does not affect the necessity of reasonableness. People v. Bishopp, 106 N. Y. App. Div. 266, 94 N. Y. Supp. 773, affirming 44 N. Y. Misc. Rep. 12, 89 N. Y. Supp. 709.

who raised the calf, the name of the shipper, the points of shipping, and the destination and age of the calf, has been held valid.

§ 66. Labeling Small Packages Taken from Original

Packages.

As the object of the statute requiring labels to contain a statement of the ingredients composing the contents of the packages is to protect the consumer rather than the dealer, it is necessary that the package the consumer receives when he makes a purchase shall be labeled so as to show the several parts of its contents in order to protect him rather than it should be placed merely upon a large package composed of such small packages. The consumer does not see the original large package, and although told that the small package he is purchasing comes from it, yet he may not know that such is the fact, or he may be deceived by an untruthful statement. It is, therefore, the better construction of those statutes requiring labels that the package the consumer purchases must be labeled rather than the original package from which it is taken. "If the domestic dealer were to sell an original package labeled as above to the consumer, such sale would be valid, because the label complies with the law, and notifies the purchaser that the article is not a sausage of meat alone, but a sausage composed of meat and meal.” But the court considered that if the original package was composed of many small packages, it being the intention to retail such small packages to would-be consumers, then each small package should be so labeled as to show the ingredients composing it.1

6 People v. Bishopp, 106 N. Y. App. Div. 266, 94 N. Y. Supp. 773, affirming 44 N. Y. Misc. 12, 89 N. Y. Supp. 709.

1 Armour & Co. v. State Dairy, etc. Co., 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616. The court refused to follow State v. Neslund, 141 Iowa 461, 120 N. W.

107, which held to the contrary, saying that that decision was based on a penal statute which must be strictly construed.

In some states the statute expressly requires small packages taken from the original large packages to be labeled. People v. Mack, 97 N. Y. App. Div. 474, 89 N. Y.

In the Iowa case just cited a pound of lard was sold from a fifty-pound package properly labeled with its constitutent parts, and it was held that the dealer was not required to label the small packages sold. This Iowa case is somewhat in harmony with several English cases. A statute of that country requires that "every package, whether open or closed, and containing margarine, shall be branded or durably marked 'Margarine' on the top, bottom and sides, in printed capital letters, not less than three-quarters of an inch square; and if such margarine be exposed for sale, by retail, there shall be attached to each parcel thereof so exposed, and in such manner as to be clearly visible to the purchaser, a label marked in printed capital letters not less than one and a half inches square 'Margarine;' and every person selling margarine by retail, save in a package duly branded or durably marked as aforesaid, shall in every case deliver the same to the purchaser [or with] a paper wrapper, on which shall be printed in capital letters [not less than a quarter of an inch square] Margarine'." Under the statute it was held that a tub of margarine standing at the back of a counter, from which margarine was scooped and supplied to a customer was a package and must be labeled.3 In another case six pieces of margarine of one pound each, and each partly wrapped in paper, were piled up on each other in a pyramid in a shop window. One margarine label was put upon the whole heap (on the bottom pieces). An inspector bought the top piece. It was held that the six pieces formed one "parcel," and that the parcel was properly labeled.1

Supp. 1004; People v. Walters, 114 N. Y. App. Div. 669, 100 N. Y. Supp. 177; affirmed, 188 N. Y. 632, 81 N. E. 1171 (renovated butter); Commonwealth v. Bean, 148 Mass. 172, 19 N. E. 163; State v. Newton, 50 N. J. L. 549, 18 Atl. 77; State v. Capitol City Dairy Co., 62 Ohio St. 350, 57 L. R. A. 62, 57 L. R. A. 181 (oleomargarine).

2 50 and 51 Vict., c. 29, § 6. 3 McNair v. Horan, 68 J. P. 518, 91 L. T. 555, 20 Cox C. C. 729, 2 L. G. R. 1239. A like decision was made in an Irish case. Maguire v. Porter [1905], 2 I. R. 147.

4 Parkinson v. McNair, 69 J. P. 399, 93 L. T. 553, 21 Cox C. C. 42, 3 L. G. R. 982. See also Wheat v. Brown [1892], 1 Q. R. 418, 56

§ 67. Branding Fruit for Shipment to Show Locality Where Grown.

A statute which requires fruit packed for shipment to be branded so as to show the locality where it is grown is unconstitutional. Such an act is not designed to prevent either false labeling or the shipping of diseased fruit. It is calculated to secure to fruit growers of some well advertised and favored localities an advantage in the disposition of their fruit. It is an improper use of the police power, or, rather, the police power does not authorize its enactment.1

In the California case the court said: "It [the statute] requires merely that every shipment of every package of fruit, whether it be from the small farmers with a few trees or vines, or whether it be from the large producer, must in every instance bear a label naming the county and immediate locality in which the fruit was grown. It is a matter of common knowledge that this requirement would work the absolute destruction of certain important branches of industry. Dried fruit, such as prunes, peaches, apricots, are gathered in establishments, in enormous quantities, from the State over. These fruits, when dried, are assorted by grade and quality, and, thus assorted and packed, are shipped to the uttermost parts of the earth. It would absolutely prohibit this industry, if these fruit driers were compelled to label each package with the names of the localities from which the fruit came, and, if it did not absolutely prohibit it. it would render their business so onerous, complicated, and expensive, as seriously to imperil its existence. It is plain, therefore, that the Act was not designed to prevent either false labeling or the shipping of diseased fruit, and, if so designed, it is both meaningless for this purpose and burdensome for all others. It seems apparent that the true purpose of the act was to obtain for the fruit raisers of some well advertised and favored localities an advantage in the disposition of their own fruit. But this, for the reasons well

J. P. 153, 61 L. J. M. C. 94, 66 L. T. 464, 40 W. R. 462, and Collett v. Walker, 59 J. P. 600.

1 Ex parte Hayden, 147 Cal. 649, 82 Pac. 315, 1 L. R. A. (N. S.) 184, 109 Am. St. 183.

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