The statute provides as follows on the subject of guaranty: "No dealer shall be prosecuted under the provisions of this Act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this Act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines, and other penalties which would attach, in due course, to the dealer under the provisions of this Act.""

1 Section 9.

This section is not unconstitutional as applied to a wholesaler who sells adulterated or misbranded goods within the state to dealer under a guaranty of conPURE FOOD-36.

a

formity to the pure food law, with knowledge that such guaranty was exacted to further the sale of the goods in interstate commerce; they having been actually shipped out of the state by the dealers relying on

§ 484. Filing Guaranty-Form.

"In order that both the department and the manufacturer may be protected against fraud it is requested that all guaranties of a general character be filed with the Secretary of Agriculture in harmony with Regulation 9, Rules and Regulations for the Enforcement of the Food and Drugs Act, June 30, 1906, be acknowledged before a notary or other official authorized to affix a seal. Attention is called to the fact that when a general guaranty has been thus filed every package of articles of food and drugs put up under the guaranty should bear the legend, 'Guaranteed under the Food and Drugs Act, June 30, 1906,' and also the serial number assigned thereto, if the dealer is to receive the protection contemplated by the guaranty. No other word should go upon. this legend or accompany it in any way. Particular attention is called to the fact that nothing should be placed upon the label, or in any printed matter accompanying it, indicating that the guaranty is made by the Department of Agriculture. The appearance of the serial number with the phrase above mentioned upon a label does not exempt it from inspection nor its guarantor from prosecution in case the article in question be found in any way to violate the Food and Drugs Act of June 30, 1906.""

§ 485. Form of Guaranty-Regulation.

"(a) No dealer in food or drug products will be liable to prosecution if he can establish that the goods were sold under a guaranty by the wholesaler, manufacturer, jobber, dealer, or other party residing in the United States from whom purchased.

"(b) A general guaranty may be filed with the Secretary

the guaranty. United States V. Charles L. Heinle Specialty Co., 175 Fed. 299. See also United States v. Mayfield, 177 Fed. 765.

Officers of a corporation are liable for the acts of the manager if they employ him to operate their

plant and to sell its product without restriction, when they intend or know he intends to aid in violating the statute. United States v. Mayfield, 177 Fed. 765.

1 F. I. D. 40.

of Agriculture by the manufacturer or dealer and be given a serial number, which number shall appear on each and every package of goods sold under such guaranty with the words 'Guaranteed by [insert name of guarantor] under the Food and Drugs Act, June 30, 1906.'

"(e) The following form of guaranty is sugested:

I (we) the undersigned do hereby guarantee that the articles of foods or drugs manufactured, packed, distributed, or sold by me (us) [specifying the same as fully as possible] are not adulterated or misbranded within the meaning of the Food and Drugs Act, June 30, 1906.

(Signed in ink.)

[Name and place of business of wholesaler, dealer, manufacturer, jobber or other party.]

"(d) If the guaranty be not filed with the Secretary of Agriculture as above, it should identify and be atached to the bill of sale, invoice, bill of lading, or other schedule giving the names and quantities of the articles sold." It will thus be seen that there are two forms of guaranty: 1. A general guaranty filed with the Secretary of Agriculture by the manufacturer or dealer, covering all products manufactured or sold by him (the guarantor), or all goods bearing certain specified names or trademarks made or sold by him. 2. A particular guaranty covering only a particular sale or shipment of products. In the latter case it must identify and be attached to the bill of sale, invoice, bill of lading, or other schedule giving the names and quantities of the articles sold or shipped. When the guaranty is filed with the Secretary of Agriculture it must be signed by the guarantor and its execution acknowledged before a notary public. If it be executed by a corporation or a partnership it must be made clear that the person executing it had authority to do so. When it is assigned the Secretary of Agriculture allots to the guarantor a serial number which he is to use on the products he manufactures or sells. No fees are charged for filing the guaranty and assigning a number. The guaranty should be drawn to cover precisely what it is intended

1 Regulation 9. As amended Dec. 12, 1908. F. I. D. 99.

to cover and no more. The regulations do not require any particular form to be used. Where there is a dealing in a great variety of products, coming in original unbroken packages from many sources, care should be exercised to avoid so drawing a guaranty as to assume responsibility for the quality and character of goods of which the guarantor can not be absolutely sure; and this is especially true of imported products. Any jobber or wholesaler purchasing products under a proper guaranty may safely guaranty them to his own vendee. Care should be taken by him to see that the guaranty under which he purchased sufficiently identifies the products purchased, so that they may be readily traced. But if a guaranty be accepted in good faith by a dealer it will be sufficient to bind the guarantors, technical defects in the guaranty not relieving the guarantor. A manufacturer, wholesaler or jobber is not liable for statements placed upon labels attached by other persons to products he manufactures or sells; and if he has given a guaranty with such products when he sold them, his guaranty can not be varied by the vendee attaching to them labels containing statements not covered by the guaranty and thereby bind him, the guarantor. It would be otherwise if the producer attached labels supplied by the vendee and then issued his guaranty.

§ 486. Serial Number Guaranty.

"As a result of the numerous requests for specific information on various points connected with the filing of general guaranties with the department, as well as on the use of serial numbers after they have been assigned, the following general instructions bearing on these questions are issued for the guidance of those interested:

"(a) For information regarding the serial number guaranty, see Rules and Regulations for the Enforcement of the Food and Drugs Act (Circular 21), Regulation 9, and Food Inspection Decisions 40, 70, 72, and 83.

"(b) Articles to be guaranteed may be referred to in the guaranty in the following ways:

(1) By name.

(2) By use of general terms. For example, proprietary medicines, extracts, carbonated waters, etc., using the proper terms to cover the line or lines sold.

(3) By stating in the space reserved for listing articles "all articles which are now or which may hereafter be manufactured, packed, distributed or sold by.... in which case the serial number

can be used on all foods or drugs, subject to the Act, manufactured or owned and sold by the guarantor.

"(c) The formulae of preparations are not required to be given.

"(d) The serial number guaranty should not be used on articles not entitled to bear such a guaranty. For example:

(1) Those of a character which are not included in the definition of articles within the purview of the Act as given in Section 6 found on page 17 of Circular 21.

(2) Those subject to the meat inspection law, i. e., meat and meat food products of domestic orgin or manufacture derived from cattle, swine, sheep and goats. (Imported meat and meat food products are subject to the food and drugs Act and may be guaranteed by means of a serial number or guaranty.)

(3) Those used in the arts and for technical purposes.

"(e) A serial number assigned to a guaranty can be used on any article covered therein to which the Act applies. (See b.)

"(f) Products not covered by the guaranty on file at the department can be added thereto by executing another guaranty covering them to be filed as a supplement to the original instrument. (See b.)

(g) The serial number guaranty can be printed either directly on the principal label or appear on a supplemental label or poster attached to the goods.

"(h) Only a resident of the United States can make a valid guaranty. (See Food Inspection Decision 62.)

“(i) The general guaranty filed with the department must be executed by the person, company, association or corporation who assumes responsibility for the goods, or by his or its agent thereunto lawfully authorized, and the authority of such agent must plainly be made to appear when the guaranty is offered to be filed.