their product was an imitation of the other, and was not a distinctive article, then you may assume the defendant must be held responsible under the Act in question. The Pure Food and Drugs Act does not expressly provide that shippers or dealers must knowingly or wilfully violate its provisions; but if, as it is claimed by the defendants, this label was put on inadvertently, or by mistake by employes whom he had hired, and who had not become sufficiently familiar with their duties, it is my opinion, then, gentlemen, that he ought not to be held guilty of these two counts. On the other hand, if it is your opinion that this claim made at this time is merely a subterfuge, that the article in fact was misbranded, and that it is now claimed to have been a mistake in bad faith, in order to escape liability under the statute, then manifestly you will give little heed to the claim of mistake or inadvertence. Of course, if a dealer in a commodity of this character is to escape punishment, if persons are to be permitted to misbrand their goods and send them into interstate commerce, and then may be heard to say that they did not intend to violate the statute, if they are not to be held liable as a necessary consequence of their act, this statute which is now before us will not remedy the evils that Congress designed it to remedy by its enactment."" § 271. Mixtures or Compounds of Foods. "An article containing more than one food product or active medicinal agent is misbranded if named after a single constituent."'1 The statute provides that "the case of mixtures or compounds which may be now or from time to time hereafter 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," shall not be deemed misbranded "if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced." "In the case of articles labeled, branded, or tagged so as to plainly indi1 Regulation 17. 2 N. J. 806. 112 the word com cate that they are compounds, pound' must be "plainly stated on the package in which it is offered for sale." The words "mixture" and "compound" have practically the same meaning, and are so construed by the Department of Agriculture, and that meaning, in this connection, is the putting together two or more food products. But all the products thus compounded must be food products; a food product can not be compounded with a mineral or non-food product. To mix a mineral or nonfood product with a food product is expressly forbidden by the statute.3 A compound of two or more food products need not be labeled with the names of the ingredients, or even labeled or branded with the word "compound" or "mixture," if such compound or mixture is now or may hereafter be known as an article of food under a "distinctive name,' by which is meant either a trade description usually or commonly employed or the name applied to a proprietary food; but in such an instance there must be placed on the label a statement where the article was manufactured or produced. If a compound or mixture be not known under a "distinctive name," then either the word "mixture" or "compound" must be used on the label, and must stand alone and without qualification. The fact that the mixing of two or more ingredients lowers the grade of one of them is no objection to the product thus compounded. An illustration of this is the addition of flour or meal to pure mustard; but the compound thus made must not be offered as pure mustard, yet it is not treated as adulterated if plainly labeled as a mixture or compound. But a mixture or compound can not be made for the purpose of concealing inferiority or damage; nor can one be made which contains poisonous or deleterious ingredients. If wheat and rye flour be mixed, the product can not be sold either as wheat or rye flour, but the legend on the label must show that it is a mixture of wheat and rye flours. The use of an ingredient in a small quantity for the purpose of nam 2 Section 8. 3 Section 7. 4 Section 8. 5 5 See F. I. D. 42, F. I. D. 47. 6 F. I. D. 42. ing it in the list of ingredients does not authorize so naming it, for the ingredients must be present in substantial quantities. The words "mixture" and "compound" must not be confused with "blend." From the latter they differ, not necessarily being limited to the product resulting from the mingling together of like substances, while the statute expressly limits a blend to a mingling of like substances." § 272. Blends of Foods-Distinctive Name. The statute provides that "the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only."" A blend differs. from a "mixture" or "compound," for they "indicate the results of putting together two or more food products," and may be the "putting together two or more" dissimilar substances, while a blend must be the putting together of "like substances." "Coloring and flavoring can not be used for increasing the weight or bulk of a blend," and "in order that colors or flavors may not increase the volume or weight of a blend they are not to be used in quantities exceeding one pound to eight hundred pounds of the blend." A color or flavor can not be recognized to imitate any natural product or any other product of recognized name and quality. These two last clauses must be read together with the clause in the statute providing that imitations, if properly labeled or tagged, shall not be deemed misbranded. Colors or flavors in the production of foods that are imitations are not prohibited if such foods are offered for sale for what they actually are. In other sections will be found a discussion concerning the blending of whiskies, which it is not necessary here to repeat. "The manufacturer," said Justice Jones of the Middle District of Alabama, "without violating any of the provisions of the statute against adulteration, may mix 7 See F. I. D. 65. 1 Section 8. 2 Regulation 21. 3 Regulation 21. 4 Section 8. 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. 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, its other conditions. being complied with, the blend shall not thereby 'be deemed to be adulterated.' '' § 273. Proprietary Foods-Formula. The statute provides "that nothing in this Act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except insofar as the provisions of this Act may require to secure freedom from adulteration or misbranding."" But notwithstand ing this provision, proprietary foods are subject to the general provisions of the statute both with regard to adulteration and misbranding. If such foods contain substances prohibited by the statute, or if they are materially different in character or quality from what they are represented to be, their manufacturers or proprietors are subject to the penalties provided for in sections four and five of the statute. Proprietors of such foods must, therefore, disclose on the label so much of the formula as is necessary to comply with the general requirements of the Act regarding misbranding. Regulation 8 provides that "manufacturers of proprietary foods are only required to state upon the label the names and percentages of the materials used, insofar as the Secretary of Agriculture may find this to be necessary to secure freedom from adulteration and misbranding," and "the factories in which pro 5 N. J. 990. 1 Section 8. prietary foods are made shall be open at all reasonable times to the inspection provided for in Regulation 16.'' § 274. Fictitious Names. "The following extract from a letter is typical of a question frequently asked: 'In connection with our manufacture of flavoring extracts, we produce an article containing a certain percentage of artificial coumarin and vanillin. This product has been placed on the market under the name of and Company, a fictitious firm, although dealers have always understood that it was our product. Is there any objection to our continuing to brand the product as manufactured by and Company?' "The same question has frequently been asked by importers who state that they desire to assume the responsibility for particular brands. "It has been held by the Attorney-General (F. I. D. 2) that- 'the words " .. Daisy Sugar Corn, Company, Milwaukee, Wis.," clearly imply that the goods referred to are manufactured or prepared by that company in Wisconsin. The general public, unfamiliar with trade practices, would inevitably reach that conclusion.' "Regulation 18 provides that if the name of the manufacturer and the place of manufacture be given, they must be the true name and the true place. It would appear, therefore, that the use of a fictitious name in such a manner that it would be understood to be the name of the manufacturer would be clearly a violation of Regulation 18. It is apparent that the provisions of Regulation 18 will not be fulfilled by the nominal incorporation of a fictitious firm. The regula 2 Regulation 16 is as follows: "The Secretary of Agriculture, when he deems it necessary, shall examine the new materials used in the manufacture of food and drug products, and determine whether any filthy, decomposed or putrid substance is used in their prepara tion," and "The Secretary of Agriculture shall make such inspections as often as he may deem necessary." It has been doubted if the statute affords a basis of that portion of Regulation 8 above quoted. |