§ 477. Wine of Coca. A product was labeled as follows: "LAMBERT'S WINE OF COCA WITH PEPTONATE IRON AND EXTRACT OF COD LIVER OIL. "Contains twenty-two percent Alcohol. A refined preparation, acting as a pronounced tonic and general Nerve builder. The Cod Liver Oil in this preparation is represented by the extractive principles, containing as it does the Morrhuine, Butylamine, Iodine, Bromine and Phosphorus. "We fully warrant this product to be free from any opiate such as Morphine, Codeine or Opium. "Guaranteed under the Pure Food and Drugs Act of June 30, 1906. Serial Number 1998." It contained cocaine, but no iodine nor bromine. held mislabeled.1 § 477a. Wintergreen Extract. A product was labeled "Winter Extract." It was It contained a dilute solution containing no oil of wintergreen. It was held to be misbranded.1 § 478. Wiseola. A soft drink called "Wiseola" containing cocaine. be labeled so as to show it contained cocaine.1 § 479. Witch Hazel. A liquid was labeled "Distilled Extract of Witch Hazel (Hamamelis)." "For bleeding piles, blind piles, toothache, earache, sore throat, sore eyes, sore navels, bleeding lungs, insect stings, neuralgia, rheumatism, burns, scalds, bruises, kidney disease, sprains, wounds, ulcers, lame back, frozen limbs, sore feet and corns. It contained 14.15 percent alcohol by volume. It was not valuable in the treatment of piles, rheumatism, quinsy, internal bleeding or hemorrhage, as claimed by the labels. It was held misbranded.1 1 N. J. 204. 1 N. J. 936. 1 N. J. 594. These decisions can not stand under a recent decision of the Supreme Court. See § 406. 1 N. J. 609; N. J. 357. § 480. Misstatement Concerning. The statute provides that if food or a drug is "in package form, and the contents are stated in terms of weight or measure, they are not plainly and correctly stated on the outside of the package," they shall be deemed misbranded.1 This does not require the weight or measure to be stated on the package, but if stated it must be stated correctly, and Regulation 29 so states; but "if any such statement is printed, it shall be a plain and correct statement of the average net weight or volume, either on or immediately above or below the principal label, and of the size of letters specified in Regulation 17. A reasonable variation from the stated weight for individual packages is permissible, provided the variation is as often above as below the weight or volume stated. This variation shall be determined by the inspector from the changes in the humidity of the atmosphere, from the exposure of the package to evaporation or to absorption of water, and the reasonable variations which attend the filling and weighing or measuring of a package.” It will thus be seen that if a crate or box contains a number of cans of food, and the average weight of the cans is equal to that stated on the label on each can, there is a compliance with this regulation; but if the average is below, there is not, although some of them may be above the weight stated on the label. The method of stating quantity or propor 1 Section 8. 2 "A statement of the weight or measure of the food contained in a package is not required." 3 "The size of the type used to declare the information required by the Act shall not be smaller than eight-point (brevier) capitals; provided, that in case the size of the package will not permit the use of eight-point type, the size of the type may be reduced proportionately." Regulation 17. 4 Regulation 29. tion is thus described: "In the case of alcohol the expression 'quantity' or 'proportion' shall mean the average percentage by volume in the finished product. In the case of the other ingredients required to be named upon the label, the expression 'quantity' or 'proportion' shall mean grains or minims per ounce or fluid ounce, and also, if desired, the metric equivalents therefor, or milligrams per gram or per cubic centimeter, or grams or cubic centimeters per kilogram or per liter; provided that these articles shall not be deemed misbranded if the maximum quantity or proportion be stated as required in Regulation 28."5 Cheese short one-quarter of a pound in 23 pounds are subject to condemnation. Such cheese when thus branded are misbranded. So where one pound less. Cans of apples labeled as "3 lb." cans when they weigh only two pounds are mislabeled. Cans of apricots marked 211⁄2 pounds are misbranded when they each weigh 2% pounds; so if they fall 2 ounces short out of 40 ounces;10 or 2 ounces out of 16;11 or 10 ounces out of 2 pounds;12 or 3 ounces out of a pound;18 or 1.1 ounces out of a pound;14 or 7 ounces out of 2 pounds;15 or 2 ounces out of one pound;16 or 8 ounces out of 3 pounds." If a crate of canned corn is labeled "2 doz. 2 lbs.," and the average of the cans is less than 2 pounds, then the entire crate of cans is subject to confiscation.18 In a case of 200 5 Regulation 30. The clause referred to in Regulation 28 is as follows: "A statement of the maximum quantity or proportion of any such substances present will meet the requirements, provided the maximum stated does not vary materially from the average quantity or proportion. In case the actual quantity or proportion is stated it shall be the average quantity or proportion with the variations noted in Regulation 29." 6 N. J. 705; N. J. 704. 7 N. J. 651. 8 N. J. 64. 9 N. J. 186; N. J. 92. 11 N. J. 589. 12 N. J. 93. 18 N. J. 364; N. J. 363. 18 N. J. 52; N. J. 53; N. J. 26; N. J. 27; N. J. 442; N. J. 488; N. J. 137; N. J. 138; N. J. 178; N. J. 39; N. J. 564; N. J. 511; N. J. 440; N. J. 422; N. J. 410; N. J. 342; N. J. 126; N. J. 63; N. J. 39; N. J. 356; N. J. 393; N. J. 416; cheese the boxes containing the same were labeled as to the respective weights of the cheeses therein by pencil figures indicating the weights at which each cheese, respectively, was sold, which pencil figures incorrectly stated the weight and measure of the contents of said boxes, the weights stated on 18 of said boxes being as follows: 22, 22, 20, 20, 15, 21, 30, 31, 31, 23, 23, 19, 24, 22, 21, 29, 32, 29, which figures were so placed on the said boxes for the purpose of indicating the number of pounds contained in said boxes, respectively, the actual weight of the cheese contained in each of the said 18 boxes being, respectively, as follows: 21, 20.5, 18.75, 19, 14.25, 20.5, 30, 29.5, 21.5, 21, 17.75, 22.5, 20.75, 29.5, 27.5, 30.5, and 27.75; that the remaining 182 boxes bore like pencil figures indicating the weights of the contents of said boxes, respectively, which weights as to each of said boxes were incorrectely and falsely stated, the average weight of the cheeses being indicated by such marks as being 1.25 pounds greater than it actually was. It was held that these boxes were misbranded or mislabeled.19 Where a car load was made up of 700 sacks of meal, and the sacks did not contain the amount in weight indicated on them, the car load was condemned.20 A 2 ounce phial 3.1 grains short is mislabeled.21 Flour sacks averaging 24 pounds each can not be labeled " barrel. ''22 A statement on a cheese box that it contains 45 pounds of cheese when it contains only 43 pounds is misbranding;23 so marking 50 boxes of cheese so as to indicate their aggregate weight as 1,153 pounds, when the total was actually 1,113 pounds 11 ounces, and no single box of the weight marked thereon, is a misbranding.24 A bottle N. J. 500; N. J. 352; N. J. 196; N. J. 223; N. J. 234; N. J. 541; N. J. 43; N. J. 165; N. J. 70; N. J. 542; N. J. 321; N. J. 516; N. J. 436; N. J. 456; N. J. 212; N. J. 222; N. J. 553; N. J. 302; N. J. 518; N. J. 455; N. J. 311. 19 N. J. 556; N. J. 546. 20 N. J. 358. 21 N. J. 14. 22 N. J. 113. To be eight and labeled one pint which falls short 25.6 percent, and another 28.1, is misbranded.25 § 481. Statement of Weight or Measure. "(a) A statement of the weight or measure of the food contained in a package is not required. If such statement is printed, it shall be a plain and correct statement of the average net weight or volume, either on or immediately above or below the principal label, and of the size of letters specified in Regulation 17. "(b) A reasonable variation from the stated weight for individual packages is permissible, provided this variation is as often above as below the weight or volume stated. This variation shall be determined by the inspector from the changes in the humidity of the atmosphere, from the exposure of the package to evaporation or to absorption of water, and the reasonable variations which attend the filling and weighing or measuring of a package." § 482. Method of Stating Quantity or Proportion. "In the case of alcohol the expression 'quantity' or 'proportion' shall mean the average percentage by volume in the finished product. In the case of the other ingredients required to be named upon the label, the expression 'quantity' or 'proportion' shall mean grains or minims per ounce or fluid ounce, and also, if desired, the metric equivalents therefor, or milligrams per gram or per cubic centimeter, or grams or cubic centimeters per kilogram or per liter; provided that these articles shall not be deemed misbranded if the maximum of quantity or proportion be stated, as required in Regulation 28 (d)."" 25 N. J. 1026. 1 Regulation 29. The labels on forty-seven cans of condensed milk stated that the milk in each can contained sixteen ounces, net weight. The net weight of the cans ranged from fourteen and eighty-seven ounces to fifteen and eighty-one ounces. The average shortage being two and ninety-five percent. To the charge of misbranding the defendant pleaded guilty. N. J. 1028. Manufacturers of condensed milk often label a can "Net weight ap proximately sixteen ounces." 1 Regulation 30. |