"(j) Full information relative to the signing of the guaranty instrument appears at the bottom of the blank form of guaranty. "(k) The signature should be acknowledged before a notary public or other official authorized to administer an oath. The seal of such official should always be affixed to the document.'" § 487. Use of Guaranties and Serial Numbers. "A misapprehension exists as to the requirements of the regulations for the enforcement of the Food and Drugs Act, June 30, 1906, in regard to placing the serial number on articles manufactured by persons who have filed a guaranty with the department and to whom a serial number has been issued identifying the said guaranty. Many have the impression that if a guaranty be filed the serial number which is assigned thereto must be used on all foods or drugs manufactured by them. "Regulation 9 provides two general methods of guaranty. The first is described in subdivision (b) of Regulation 9, as follows: (b) A general guaranty may be filed with the Secretary 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 under the Food and Drugs Act, June 30, 1906." "The second is described in subdivision (d) of Regulation 9, as follows: (d) If the guaranty be not filed with the Secretary of Agriculture as above, it should 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.' "The statement in subdivision (b), that when a guarantor is assigned a serial number the said number shall appear, should not be construed as mandatory. The meaning is that if a manufacturer wishes to make effective the guaranty 1 F. I. D. 72. filed with the department, he must place the legend and serial number on his goods, otherwise no protection is afforded to his customers in the absence of a special agreement or the alternative as provided in subdivision (d) of Regulation 9. "Regulation 9, in its entirety, is intended to provide for the enforcement and administration of section 9 of the Food and Drugs Act, which reads as follows: 'SEC. 9. That 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.' "A study of the law in connection with the regulations makes it apparent that the intention is to provide a means whereby the manufacturer can assume responsibility under the law for the character of the goods manufactured by him, after they have passed out of his possession into the hands of the person who purchased them from him. In no case is a guaranty a good defense, unless it be from the person who sold the goods to the person offering the guaranty as a defense. In order to simplify the procedure, the department volunteers to act as custodian of the guaranty, which is an offer on the part of the manufacturer to free dealers, reselling his goods, from responsibility, under the law, for possible misbranding or adulteration. In order that the guarantor may convey this intention on his part to purchasers of his goods, a serial number is assigned to such guarantor, and by placing this number on his goods he fixes his responsibility. Whether he desires to enter into an agreement of this kind with the purchaser of his goods is a matter wholly within his discretion, and he can use the serial number or not for this purpose, as he may please. The use of the number will save the trouble of individual guaranties with each individual transaction or each individual customer. In other words, the label itself will carry notice that the manufacturer holds himself responsible, under the law, to the persons who purchase goods directly from him, for any misbranding or adulteration."" § 488. Effect of the Guaranty. If food or drugs be sold under a sufficient guaranty, and it or they be adulterated or misbranded, the effect is to transfer the liability incurred because of a resale by the purchaser to the person giving the false guaranty,-the guarantor. If the guaranty be not sufficient, then the person reselling them will be liable the same as if he never had had a guaranty, and it makes no difference if he was not aware of their adulteration or misbranding. "In no case is a guaranty a good defense, unless it be from the person who sold the goods to the person giving the guaranty as a defense. The guaranty must be signed by the wholesaler, jobber, manufacturer or other party residing in the United States, from whom the purchaser purchased the articles. It therefore follows that the purchaser from the person purchasing them under a guaranty can not invoke the guaranty as his protection if they be adulterated or misbranded. In case a serial number has been assigned the manufacturer he may use that upon the package in this form: "Serial No. Guaranteed under the Food and Drugs Act, June 30, 1906." This number is allotted by the Secretary of Agriculture to the manufacturer, upon the latter filing with him a general guaranty; and to place the legend above quoted on a package when no such guaranty has been so filed is to misbrand it. The following plea in defense has been held sufficient: "The plea of John W. James, defendant, to the information of the United States filed May 24, 1909. "This defendant by protestation, not confessing or acknowledging all or any of the matters or things in the information mentioned to be true 1 F. I. D. 72. 1 F. I. D. 72. in the manner and form as the same are thereby set forth and alleged, doth plead thereto and for plea by leave of the court first had and obtained says, that the said United States ought not to further prosecute the information against him, the said John W. James, because the said information is fatally defective in having failed to set forth the exception of the statute as set forth in Section 9 of the Food and Drugs Act of June 30, 1906. "Section 9 states as follows: 'That no dealer shall be prosecuted under the provisions of this Act when he can establish a guarantee signed by the wholesaler, jobber, manufacturer or other party residing in the United States, from whom he purchased such article to the effect that the same is not adulterated or misbranded within the meaning of this Act.' "That the defendant, John W. James, has such a guarantee, as appears by the guarantees hereto annexed. "Your letter of the 3rd to hand and contents noted, and in reply, I am unable to supply you the hydrogen dioxide at a lower price than you are now paying. If you will figure that I am selling you the gallons at 60c, the five pounds at 50c inclusive, and the one pounds at $20.00 per gross inclusive, you will readily see that it is avery low price for a strictly U. S. P. hydrogen diaxide, guaranteed under the Food and Drugs Act. "Regarding the serial number I made application to Washington a few months ago, but my papers were returned as I had not properly filled out the form. The new form was sent a few days ago and I am expecting a serial number every day, and as soon as it arrives will let you know, so that you can use same on the hydrogen dioxide if you so desire. "Hoping this satisfactory, I remain, Dic. Yours respectfully, (Sgd.) John Bene." and on April 12, 1907, the further authorization to use such gauarantee of serial number if he so desired: "JOHN BENE MANUFACTURING CHEMIST Office & Laboratory 641-645 Dean St., nr. Vanderbilt Ave. "We received our serial number which is 8890, and will use it on all your orders for hydrogen dioxide in future which I trust will be satisfactory. "Yours respectfully, (Sgd.) John Bene." "Dic." "Further than that from December 7, 1906, to January 27, 1909, the defendant, John W. James, received a larger number of invoices for the peroxide of hydrogen used by them and shipped in a manner as set forth in the information, of which the following are samples: 105 lbs. hydrogen dioxide, U. S. P. 3 percent, .05..... 5.25 1.50 12 gals. hydrogen dioxide, U. S. P. 3 percent .60..... 7.20 $7.20 |