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are well-known adulterants-using that term in its ordinary sense. They increase bulk and weight at the expense of quality. Confectionery containing them is really sold under false pretenses. Chrome yellow is a cheap coloring matter, and is poisonous. Silver, as used in these dragees and as considered in connection with this statute, is not the same kind of mineral substance as terra alba, barytes or tale. It is used to attract attention, not to deceive. Of course, like those minerals, it may be insoluble and inert, but the comparisons to be made must have in view the objects of the statute. Thus similarity within the rule would not be established by showing that the substances were all of the same color. So the silver upon these dragees has no similarity to chrome yellow. Unlike that mineral substance, it is not poisonous.

"In our opinion the clauses 'or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health,' following the enumerated substances, should be taken and interpreted together, and mean:

"(1) That the use in confectionery of terra alba, barytes, talc, or any other mineral substance, whether injurious to health or not, for purposes of deception, makes it unlawfully adulterated;

"(2) That the use in confectionery of chrome yellow or other poisonous mineral substance or poisonous color or flavor, makes it unlawfully adulterated;

"It is true that under this construction the third class of cases would include the second. 'Any ingredient detrimental to health' undoubtedly includes all poisonous substances. But the clauses do not conflict, and redundancy is not unusual in statutory provisions.

"Stated in another way, we think that the history of the Act, the objects to be accomplished by it and the language of all its provisions, require that it should be so interpreted that in the case of confectionery, as in the cases of food and drugs, the government should establish, with respect to products not specifically named, that they either deceive the public or are detrimental to health. And as no proof was offered in this case tending to show that the confectionery in question

was either deceptive or injurious, the defendant was improperly convicted.""

7 French Silver Dragee Co. v. United States, 179 Fed. 824, F. I. D. 543.

"Confectionery is therefore by statute adulterated 'if it contains terra alba, barytes, talc (or) chrome yellow.' This much is not open to doubt.

"Next it seems to me the Court may take judicial notice of the nature of the substances declared adulterants by statute. They are all undoubtedly mineral substances; they are not all poisonous, though all possess color. Nor can it be said that they all possess flavor in the sense of that word as applied by most people to confectionery.

"There being no punctuation between the phrase 'or other mineral substances' and the phrase 'or poisonous color or flavor,' the word 'other' must be held to apply to 'mineral substance' and 'poisonous color or flavor.' But the enumeration of terra alba et al. gives an illustration (so to speak) of 'mineral substances' and of 'poisonous color (i. e., chrome yellow), but so far as I understand the nature of the articles enumerated it does not give an instance of a poisonous flavor as distinguished from poisonous color.

"Let therefore the rule so insisted upon by the defendant be applied and the Act be limited to mineral substances, poisonous colors and poisonous flavors ejusdem generis with the articles enumerated; and it must then follow

that while the proscribed poisonous color or flavor must be a mineral substance, it does not follow that every mineral substance to be proscribed must possess either poisonous color or poisonous flavor.

"The Act is undoubtedly obscure in connecting color and flavor with substance, for strictly speaking neither color nor flavor can have substance, nor be mineral.

"I am therefore inclined to think that this statute must be construed as prohibiting the use in confectionery of all mineral substances of the same nature as those enumerated, and of those enumerated some are well known to be merely inert, possessing no poisonous qualities whatever (e. g. terra alba and talc).

"The best that can be said of silver is that it is inert, and it is just as much a mineral substance as is terra alba.

"With some doubt I overrule the demurrer." N. J. 249 (silver dragee). French Silver Dragee Co. v. United States, 179 Fed. 543.

"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 contains 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 spirituous liq

§ 124. Confectionery, Use of Shellac and Other Gums.

"The Board of Food and Drug Inspection has carefully considered the evidence which has been presented at various

uor or compound or narcotic drug.' The defendant has demurred to the information, claiming, among other things, that silver, with which the confectionery in this case is alleged to have been adulterated, is not a mineral substance of like character, with those specifically mentioned in the Act; that the information does not allege that the adulterant, to wit, silver, is an ingredient deleterious or detrimental to health, or that the strength or purity of the confectionery falls below the professed quality or standard under which it is sold. As I construe the section in question so far as it relates to the confectionery, it contains five classes of prohibited articles; the introduction of any designated ingredient of either of which violates the act; that is to say, the Act would be violated if the confectionery contained terra alba, barytes, talc, chrome yellow or other mineral substance, if it contained any poisonous color or flavor, or if it contained any other ingredient deleterious or detrimental to health; or if it contained any vinous, malt or spirituous liquor or compound thereof, or lastly, if it contained any narcotic drug. If the construction suggested is correct, then it was unnecessary that the pleader should aver that silver, the mineral substance alleged to have been introduced in this case, was 'deleterious or detrimental to health.' Those words are limited

to the term 'ingredient,' they qualify that word only, and not any preceding word or words. If a comma had been interposed after the word 'ingredient,' the construction would perhaps have been different. The introduction into confectionery of mineral substances, is, in my judg ment, therefore prohibited irrespective of the presence of the absence of any poisonous, deleterious or detrimental quality; they are prohibited because they are adulterants, and for that reason only. Coloring or flavoring matter however, may be introduced, provided it is not poisonous, but any other ingredient, although not theretofore specified or classified, which is deleterious or detrimental to health, is prohibited. Certain specified articles are, by the first clause quoted, inferentially denominated minerals, and their use is thus prohibited, is added or any other mineral substance.' The information in brief, alleges that confectionery was shipped to the defendant and delivered in interstate commerce; that such confectionery was adulterated by having in it as one of its constituent parts silver, which is alleged to be a mineral substance. Assuming, because it is admitted by the demurrer, that silver is a mineral substance, its introduction into confectionery as an ingredient, which is also admitted, brought the confectionery within the prohibition of the stat

times respecting the practice of coating chocolates and other confections with shellac and other gums.

"The Board is of the opinion that it is not a proper proceeding under the provisions of the Food and Drugs Act. It is evident that such coating will not only conceal inferiority, but it appears further that as a rule the gums are dissolved in alcohol. One man, in giving evidence before the Board, stated that in his opinion there was no objection to wood alcohol as a solvent. In dipping confections into an alcoholic solution of a gum a certain quantity of the alcohol must necessarily permeate the product. Evidence is adduced

ute, once it was shipped in interstate commerce. It is urged, however, that silver is not of the class of the specified mineral substance, whose use is prohibited. It must be borne in mind, nevertheless, that we are considering an Act which relates to the adulteration of food products of which confectionery is one. Silver is a mineral incapable of assimilation through the stomach. It will not yield to the processes of digestion. One of the main purposes of the Act is to prevent the introduction of such substances into food products. The title of the Act embraces adulterated foods as completely as it embraces misbranded foods, or poisonous foods, or deleterious foods. It refers to each class separately and in the alternative, and the Act deals with each class. Technical rules of construction must give way to the avowed purpose and intention of an Act. If it be that an Act admits of more than one con struction, then that one will be adopted which best serves to carry out the purpose of the Act. Hence I do not feel warranted in permit

ting the doctrine of ejusdem generis or other technical rule of construction to limit the scope of the Act. If silver may be used, as claimed, to beautify the confectionery, why not lead to give it weight? The language under consideration is clear and does not require for its construction, the application of technical rules. To yield to the construction of defendant's counsel would open the door for the emasculation of the Act. As to the contention that it is necessary to allege that by the use of the silver the strength and purity of the confectionery fell below the professed quality or strength under which it was sold, it is only necessary to say that that clause of the Act applies to drugs and to drugs only. It is found in the paragraph dealing with drugs and precedes that which relates to confectionery, which in turn precedes the clause relating to food. Each paragraph

is dealt with separately. The

clause referred to can not be read into that part of the Act which relates to confectionery. It is no part of it." N. J. 176.

showing that the product is not submitted to any subsequent process of heating whereby the traces of alcohol could be removed. Although only mere traces of alcohol may remain, the addition of these substances, and especially of wood alcohol, to a confection is specifically prohibited by the Act. Evidence is also in the possession of the Board to show that a large number of the manufacturers either never have employed this method or have discontinued it, and that goods can be, and are, made and sold in all quantities with no difficulty without the use of shellac or other gums. Evidence further shows that one of the reasons for adding the coating is that the goods may be held for a longer time. The exposure of confections for a long while before use is not advisable nor desirable.""

§ 125. Food Containing Filthy, Decomposed or Putrid Matter-Animal Unfit for Food-Statute.

The sixth clause of section seven of the Pure Food and Drugs Act provides that a food shall be deemed adulterated "if it consists in whole or in part of filthy, decomposed or putrid animal or vegetable substances, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died. otherwise than by slaughter."

§ 126. "Filthy," "Decomposed" and "Putrid" Defined

Eggs.

In a charge to the jury Judge McPherson defined these words in this language:

"One section of this statute provides that articles intended for food may be condemned and forfeited 'if, either in whole or in part, they shall be filthy, decomposed or putrid,' and the government claims that, in this particular case, the articles in question were both filthy and decomposed. We will leave the word 'putrid' out of the case. There is no aver

1 F. I. D. 117.

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