twenty-six provides that, "When an article is made up of refuse materials, fragments or trimmings, the use of the name of the substance from which they are derived, unless accompanied by a statement to that effect, shall be deemed a misbranding. Packages of such materials may be labeled 'pieces,' 'stems,' 'trimmings,' or with some similar appellation." This does not prevent the sale of skimmed milk if it be sold as skimmed milk and not as whole milk. § 121. Admixture of Inferior Ingredients-Compound-Distinctive Name. Under section seven it is provided that "an article shall be deemed adulterated .. in the case of food, if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength," or "if any substance has been substituted wholly or in part for the article." This is the common form of adulteration. Under the first clause, if the substance "mixed and packed with it does not reduce or lower or injuriously affect its quality or strength," there is no adulteration. Under the second any substitution, "wholly or in part for the article," is an adulteration. The adulteration may be carried so far as to completely substitute one substance for another that is the pure article. This would be covered by the first clause. But if not carried to that extent-to the extent of complete substitution-then both clauses cover it. The second clause covers such substitution whether or not the quality or strength be reduced or lowered or injuriously affected. It matters not that the product resulting from the admixture of another substance is better or more wholesome than the pure article. Such a claim is no defense. The purchaser has a right to the very substance which he calls for when making the purchase, and it does not lie in the vendor's mouth to say that, although one substance had been substituted in whole or part for another, the substituted article is better than the substance it displaces.1 The question of "misbranding" is intimately 1 But suppose the purchaser calls for a certain grade of sugar, and a higher or better grade of sugar has been substituted in part connected with the question involved in this paragraph. If adulterated food is sold unbranded, or without a label showing its adulteration, an offense is committed. If the label truly state the several substances entering into the food, then such food may be sold and no offense committed." It is mixed or blended or compound food. Regulation eleven provides that "No substance may be mixed or packed with a food product which shall reduce or lower its quality or strength. Not excluded under this provision are substances properly used in the preparation of food products for clarification or refining, and eliminated in the process of manufacture." Taking into consideration section eight, on the subject of misbranding, it appears that an admixture with or substitution in an article of food of any mineral substance, or any inert substance, is prohibited. The admixture of any other substance is permitted if the resulting product is plainly stated on the label to be a mixture, compound or blend, and the name of the added substance is also stated. So proprietary foods are exempt from the charge of adulteration if "known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article." Of course, the name of such a food must "be accompanied, on the same label or brand, with a statement of the place where" it had been manufactured or produced. So adulterated imitation food may be sold if it "is plainly stated on the package in which it is offered for sale" that it is an imitation. Under regulation eleven, above quoted, the only food that can be made the basis for proceedings under the Food and Drugs Act because of adulteration is the finished product which contains an adulterant or other prohibited substance. The addition of for that removed. Has an offense been committed? Clearly no; for the purchase was of sugar, and the purchaser received pure sugar. But if a lower grade was substituted for a higher "so as to reduce or lower its quality or strength" then there would be an adultera tion. But a request for "milk" 2 Section 8 of Act of 1906. 4 Section 8 of Act of 1906. water or other proper diluent is not prohibited whenever it is necessary to reduce an article above standard strength to that of standard strength. An instance of this kind would be that of putting water in whisky which is above the standard strength. That is expressly permitted by the Act of March 3, 1897.5 The effect of blending articles of food has been carefully considered by Justice Jones, of the District Court for the Middle District of Alabama, and the Department of Agriculture has accepted his interpretation as correct. "The manufacturer," says he, "without violating any of the provisions of the statute against adulteration, may mix any number of constituents in his compound, so long as these constituents are not poisonous or deleterious to health, and he gives the compound a distinctive name and states where it is manufactured. The matter thus produced is 'the article of food' whose quality and strength the statute seeks to preserve, and the nature of the product in these respects is fixed and determined by the elements which enter into it. How is it possible, chemically, or in the eye of the law, to 'lower or injuriously affect' the quality or strength of the particular 'article of food' whose characteristics are thus produced, and safeguarded by the law as thus produced, under its own distinctive name, by mixing in the compound anything which may be lawfully incorporated therein? Putting in a mixture of things which may be lawfully blended therein can not amount to adulteration of the blend, since, other things aside, the statute declares, the other conditions being complied with, the blend shall not thereby 'be deemed to be adulterated'. is manufactured and it is not an imitation sold under the distinctive name of another article. The manufacturer here would have fully obeyed the statute if he had put nothing on his product but the name 'Corno Horse and Mule Feed,' complying with its requirements in other respects." N. J. 990. § 122. Food Standards. Under the Agricultural Appropriation Act of March 3, 1903,1 provision is made for the investigation of the adulteration of foods, condiments, beverages and drugs, and also "to enable the Secretary of Agriculture in collaboration with the Association of Official Agricultural Chemists, and such other experts as he may deem necessary, to establish standards for food products and to determine what are regarded as adulterations therein." In accordance with the provisions of this Act the Department of Agriculture has published a circular, found in the appendix, of standards of purity for a large number of food products.2 The standard of food thus adopted under the Act of 1903 has become the standard of food under Food and Drugs Act of 1906. In a case it was charged that terpeneless lemon extract was adulterated and was also misbranded, because the substance offered for sale and misbranded as terpeneless lemon extract was not such as complied with the standard established by the Secretary of Agriculture in collaboration with the Association of Official Agricultural Chemists under the Act of 1903; and this was held to be a good charge. After quoting several of the provisions of the Act of 1906 concerning adulteration and misbranding, the court said: "The defendants believing, as admitted in open court, that only a nominal fine would be imposed upon a plea of guilty as for a technical violation of the Pure Food Law, pleaded guilty. "The defendants having, within some six or seven months prior to the filing of this information, pleaded guilty to two so-called technical violations of the Pure Food Law, and being thereupon fined only in nominal amounts, the court on 1 32 U. S. Stat. at Large 1158. 2 This is Circular 19. The courts can not take judicial notice of this circular. N. J. 301. St. Louis v. Kruempeler, (Mo.), 139 S. W. 446. "That the Secretary of Agricul ture had the constitutional power under the Act of 1903 to establish standards for purity of food products is not disputed, nor could it be under the decision of the Supreme Court of the United States." N. J. 823. this plea imposed a fine of $200. Thereupon the defendants, deeming themselves aggrieved, and upon the urgent solicitation of their counsel, the court permitted counsel to file a brief in support of the proposition that no offense in fact had been committed under the laws of the United States. Counsel for the defendants submitted an elaborate brief, to which the district attorney filed a brief in answer. "Upon consideration of these, the court is of opinion that there is an offense against the laws of the United States charged in this information, and sees no reason why, under the circumstances of the case, the fine imposed was too large. "On March 3, 1903, the Congress appropriated a sum of money to the Department of Agriculture for the fiscal year ending June 30, 1904, for the purpose, among others, 'to enable the Secretary of Agriculture, in collaboration with the Association of Official Agricultural Chemists, and such other experts as he may deem necessary, to establish standards of purity for food products and to determine what are regarded as adulterations therein, for the guidance of the officials of the various States and of the courts of justice. "The information alleges that the standard of purity for terpeneless lemon extract was established by the Secretary of Agriculture, and it appears aliunde that in the publication of Department of Agriculture, Circular No. 19, the following: 'Terpeneless extract of lemon is the flavoring extract prepared by shaking the oil of lemon with dilute alcohol, or by dissolving terpeneless oil of lemon in dilute alcohol, and contains not less than two-tenths (0.2) percent by weight of citral derived from oil of lemon.' "That the Secretary of Agriculture had the constitutional power under the Act of 1903 to establish standards for purity of food products is not disputed, nor could it be under the decisions of the Supreme Court of the United States. He adopted the standard for the article of food in question as alleged in the information. The allegation in the information is that the standard so established was existent at the time of the filing of the information. |