the charge is of two parts. The first is that these eggs which are the subject of investigation contained formaldehyde, and it is said that formaldehyde is a deleterious ingredient which may render an article injurious to health; and it is also charged, irrespective of the formaldehyde, that the eggs. themselves were filthy, decomposed or putrid. Now, probably there is nothing so difficult in the world as a definition; sometime when you have an opportunity, try to make an accurate, full, complete definition of anything-say a coat-and you will find it very hard; but from dictionaries, and from the questions put to witnesses, and the study I have given the matter, I charge you that the meaning of the word 'putrid' is, that a putrid substance is in such a state of decay as to be fetid or stinking from rottenness; an article which is decomposed is an organic body (as are eggs), reduced or being reduced to a state of dissolution by the processes of a natural decay, and an article which is filthy or dirty, noisome or nasty. Take up the last word first; after some consideration I have concluded, and so instruct you, that inasmuch as it is a matter of common knowledge that an egg is not of itself dirty, such an article, namely, an egg, may become putrid or decomposed by the simple process of decay and the resultant or natural causes, but it will not become filthy, unless something be added thereto which renders it dirty, noisome or nasty.""

§ 116. Products not Specifically Named in Act.

In an instance of a product not specifically named in the Pure Food and Drugs Act, they must be such as to either deceive the public or be detrimental to health; and the government must show that the product in question was either deceptive or injurious before it can insist upon a conviction. In an instance, of course, where the product is specifically denounced by the statute, it is not necessary to show either that it is deceptive or injurious to health.1

1 N. J. 825. See Section 126. 1 French Silver Dragee Co. v. United States, 179 Fed. 824; Unit

ed States v. Buffalo Cold Storage Co., 179 Fed. 865.

§ 117. Character of Raw Materials.

If food "consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, 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," then it is deemed to be adulterated.1 The regulations provide that "The Secretary of Agriculture, when he deems it necessary, shall examine the raw materials used in the manufacture of food and drug products, and determine whether any filthy, decomposed or putrid substance is used in their preparation," and that he "shall make such inspections as often as he may deem necessary."2 Of course, this section of the statute and this regulation cover milk which is unfit for use as food because of filth, or which is the product of diseased cows. If mineral or other drinking water is unfit for use because of the presence of filth or decomposed animal or vegetable substance, it is denounced by this statute. So it covers any filthy, decomposed or putrid vegetable substance intended or prepared as food which is unfit for use as food because of such condition.

§ 118. Colors and Preservatives.

Under section seven of the Act an article of food is deemed to be adulterated "if it contains any added poisonous or other added deleterious ingredient which may render" it "injurious to health." An exception is made in the statute "that when, in the preparation of food products for shipment, they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically or by maceration in water, or otherwise, and directions for the removal of said preservative shall be printed on the package," the provisions of the Act "shall be construed as applying only when said products are ready for

1 Section 7 of Food and Drugs Act of 1906.

2 Regulation 16. Courts cannot take judicial notice of the pro

visions of these regulations-at least state courts can not. St. Louis v. Kruempeler (Mo.), 139 S. W. 446.

consumption.''1 It will be observed that this clause applies only to poisonous or other added deleterious ingredients which may render the article of food injurious to health. If the material, though poisonous, is naturally present in the food, it does not render it adulterated. This distinction must be borne carefully in mind, for otherwise many fruits, such as peaches or cranberries, would be excluded from the markets by reason of the acids they contain, which would be poisonous or deleterious if used in concentrated form, though not poisonous if consumed merely on eating the fruit in its normal condition. But colors or preservatives that are harmless may be used if they do not conceal the damage to or inferiority of the food. If the coloring or preservative is poisonous, then it does not matter how small is the amount used, even though its poisonous effect upon the person consuming it may not be noticeable or, in fact, not produce any result. The Act does not undertake to prescribe what colors and preservatives are and what are not poisonous. Under section three, giving the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor power to make rules and regulations for carrying the Act into force, such secretaries have delegated to the Secretary of Agriculture the power and duty to "determine from chemical or other examinations the names of those substances which are permitted or inhibited in food products." He is also empowered to determine "the principles which shall guide the use of colors, preservatives, and other substances added to foods. ''3 When these findings are approved by the other two Secretaries they become a part of the regulations. But these findings, though duly approved, are not binding upon the courts, although they carry great weight. It should also be observed that no manufacturer will be prosecuted if he uses only those colors and preservatives the findings concerning which have been approved by the two Secretaries, for the Secretary of Agriculture in no instance would certify 1 Section 7. 3 Regulation 15. 2 Regulation 15.

to a district attorney that there had been a violation of the Act when only one of such colors or preservatives had been used, and without such certification there would be no prosecution, unless it be to libel and destroy the food colored or in which the preservative has been used. The regulations adopted under this Act of 1906 do "not apply to domestic meat and meat-food products which are prepared, transported or sold in interstate or foreign commerce under the meatinspection law and regulations of the Secretary of Agriculture made thereunder," but under Regulation 39 of the Regulations Governing the Meat Inspection of the United States Department of Agriculture certain preservatives can be used in meat or meat products. They are "common salt, sugar, wood smoke, vinegar, pure spices and saltpeter. No colors may be used in meats or meat products except such as may be approved by the Secretary of Agriculture.'

§ 119. Coloring, Powdering, Coating and Staining.

Clause four of section seven provides that food shall be deemed adulterated "If it be mixed, colored, powdered, coated or stained in a manner whereby damage or inferiority is concealed." The regulations provide that:

(a) "Only harmless colors may be used in food products. (b) "The reduction of a substance to a powder to conceal inferiority of character is prohibited.

(e) "The term 'powder' means the application of any powdered substance to the exterior portion of articles of food or the reduction of a substance to a powder.

(d) "The term 'coated' means the application of any substance to the exterior portion of a food product.

(e) "The term 'stain' includes any change produced by the addition of any substance to the exterior portion of foods which in any way alters their natural tint.'

The word "mixed" refers to the mixing of different substances to form the mixtures, blends and compounds referred to in section eight. It is very clear that the mixture of a

4 Regulation 39.

1 Regulation 12.

substance which has been damaged or is inferior in such proportions, and in such manner with other substances so as to conceal its damaged condition or inferiority, is forbidden by the statute. Even harmless coloring matter is forbidden if its effect is to conceal a damaged condition or inferiority. If the coloring matter is harmless, and it does not conceal a damaged condition or inferiority, then its use is not forbidden. But this statute does not prohibit the coloring of butter, which is permitted by the Act of August 2, 1886,2 nor the coloring of cheese, which is also permitted by the Act of June 6, 1896.3 The reduction of a substance to a powder in order to conceal its inferiority in character is forbidden. So an article of food to the exterior of which any powdered substance is applied with the effect of concealing damage or its inferiority in character or quality, is deemed an adulteration. To apply a coating of any substance to the exterior portion of any food product is an adulteration, and, according to the terms of the statute, it is not necessary that the coating conceal its damaged character or inferiority, though probably the courts will be inclined to hold that it must have that effect. To stain the exterior portion of food in any way which alters its natural tint is also an adulteration under this Act. The intent with which these several violations of the statute is done is immaterial. There may be no intention to violate the statute, yet if the act produces the result forbidden by the statute an offense has been committed.

§ 120. Abstraction of Vaulable Constituent.

The statute provides that an article of food shall be deemed adulterated "if any valuable constituent of the article has been wholly or in part abstracted" from it. But an article from which a valuable part of it has been abstracted may be sold if the package is so labeled or accompanied by a statement to show that fact, if it be wholesome. Thus regulation

224 U. S. Stat. at Large 209, § 1. See Appendix.

3 29 U. S. Stat. at Large 253, § 1. See Appendix.

1 Section 7.