§ 618c. What is a Drug.

It is often difficult to determine what is a "drug," and to differentiate it from food. An English statute declares that "the term 'drug' shall include medicine for internal or external use."'1 Under this statute it has been held that beeswax, although used in the preparation of medicine, is not a drug. And a like holding was made with reference to a sale of arsenical soap containing no arsenic. But chewing gum is neither a drug nor an article of food. Cream of tartar is a drug within the meaning of the New York Statute.5 A sale of borax for other than medicinal purposes is not within the provisions of a statute regulating the sale of articles commonly used as "medicines or poisons." Where a statute permits a sale of "domestic remedies" without being a registered pharmacist, the question whether iodine and quinine are such remedies is one for the jury. A drug, though prepared by skilled chemists and scientific apparatus, may come into such common use, and be so well understood by the people without medical knowledge, as to make it a domestic remedy. Under an Illinois statute providing that it shall not interfere with "the sale of the usual domestic remedies by retail dealers," quinine is not a "domestic remedy."'s A "condiment" is a food and not a medicine. A manufacturer who designates an article made by him as a food is estopped

neces

When a prescription is sary. Fowler v. Randall, 99 Mo. App. 407, 73 S. W. 931.

A drug store is not a place of "accommodation or announcement." Cecil v. Green, 161 Ill. 265, 43 N. E. 1105, 32 L. R. A. 566, affirming 60 Ill. App. 61.

138 and 39 Vict., ch. 63, § 2.

2 Fowle v. Fowle, 60 J. P. 758,

75 L. T. 514, 18 Cox 462.

8 Houghton v. Toplin, 13 T. L. R. 386.

4 Bennett v. Tyler, 64 J. P. 119; Shortt v. Smith, 59 J. P. 213.

5 State Board of Pharmacy v. Gasau, 122 N. Y. App. Div. 803, 107 N. Y. Supp. 409.

6 State v. Donaldson, 41 Minn. 74, 42 N. W. 781.

7 People v. Fisher, 83 Ill. App. 114.

8 Cook v. People, 125 Ill. 278, 17 N. E. 845.

Whether a statute included "boiled linseed oil" or not, after its amendment, see State v. Williams, 93 Minn. 155, 100 N. W. 641.

9 Savage v. Scovell, 171 Fed. 566.

to deny that it is such within the meaning of a statute regulating the sale of food.10

§ 618d.

Proprietary Medicine-Original Packages.

Statutes regulating the sale of drugs not infrequently permit the sale of proprietary medicines in the original packages. The words "original packages" in such instances apply to medicines in the original packages of the manufacturer.1 It will not be presumed that the Legislature, in enactments relative to the sale of poisons, intended to include well-known proprietary medicines containing so little poison that the effects are beneficial rather than injurious.2

§ 618e. United States Pharmacopoeia.

Where a statute requires a drug to be of the standard of the United States Pharmacopoeia, the reference is to the edition of the Pharmacopoeia in use at the time the statute was enacted, and not to one when the sale alleged to be illegal was made.1 A statute provided that all pharmaceutical preparations sold in a pharmacy should be of a standard quality established by the United States Pharmacopoeia, and that every proprietor of a drugstore or other place where "drugs, medicines or chemicals" were sold should be responsible for the quality of such "drugs, chemicals or medicines." Another section provided that these provisions should not apply to the sale by merchants of cream of tartar and other enumerated articles, except as therein provided. It was held that the enumerated articles not sold as drugs or medicines need not conform to the standard prescribed by the Pharmacopoeia for medicinal preparations, though the seller of such articles, if adulterated, might be subject to other statutory

10 Savage v. Scovell, 171 Fed. 566, "International Stock Food."

1 People v. Abraham, 16 N. Y. App. Div. 58, 44 N. Y. Supp. 1077.

2 State v. Marvin, 5 Ohio S. & C. P. Dec. 593, 7 Ohio Dec. 204, 5 Ohio N. P. 209.

Evidence to that effect was held admissible.

1 State v. Emery, 55 Ohio St. 364, 45 N. E. 319. See State Board of Pharmacy v. Bronson (N. Y. App.), 113 N. Y. Supp. 490.

penalties, the word "chemicals" in the statute being limited to chemicals used as medicines or drugs.2 An affidavit charging a defendant with having for sale a drug which "differed from the standard of strength laid down in the United States Pharmacopoeia," without stating whether such drug was below or above the strength, and which of the constituent elements of such drug so differed, is insufficient because of its indefiniteness.3

2 State Board of Pharmacy v. Gasau, 195 N. Y. 197, 88 N. E. 55, reversing 122 N. Y. App. Div. 803, 107 N. Y. Supp. 409, which

affirmed 52 N. Y. Misc. Rep. 490, 102 N. Y. Supp. 539.

3 Groenland v. State, 6 Ohio Dec. 313, 4 Ohio N. P. 122.

The word "adulteration" in the Michigan statute1 declaring it unlawful to manufacture and sell maple syrup that is in anywise adulterated with common sugar or any other foreign substance, means the mixture of any foreign substance, wholesome or unwholesome, mixed with maple syrup. If a statute defines adulteration as the putting in food a foreign substance, it is no defense that the substance put in it was harmless. Thus, though coal-tar dye is harmless, its use in vanilla extract, making it appear stronger than it really is, is a violation of a statute prohibiting the adulteration of food by coloring, whereby inferiority is concealed and it is made to appear better than it is. As a rule the pure food laws are not intended to prevent manufacturers of articles of food 1 Comp. Laws, § 5007.

2 Pierce Viaus Maple Co. V. Bird, 154 Mich. 73, 117 N. W. 553. 3 Commonwealth v. Schaffner, 145 Mass. 512, 16 N. E. 280; St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520; Commonwealth v. Dougherty, 39 Pa. Super. Ct. Rep. 338; Commonwealth v. Kevin, 18 Pa. Super. Ct. Rep. 414; People v. Hinshaw, 135 Mich. 378, 97 N. W. 758, 10 Detroit Leg. N. 794; State v. Haynes, 7 Ohio N. P. 624, 8 Ohio S. & C. P. Dec. 678.

4 People v. Hinshaw, 135 Mich. 378, 97 N. W. 758, 10 Detroit Leg. N. 794.

A statute may be so framed as to require the substance added to be poisonous to constitute the act of adding it to food an adulteration. People v. Bischoff, 14 N. Y. St. Rep. 581.

So a statute may be so limited as to apply only to an adulteration of food and not to drinks. Commonwealth v. Kebort, 212 Pa. 289, 61 Atl. 895.

from improving it, so long as no infringement of the law or spirit of the Act defining adulteration takes place. Where a statute provided that "an article of food shall be deemed to be adulterated if any valuable or necessary constituent or ingredient has wholly or in part been abstracted from it," it was held that the product left after the oil had been extracted from the cocoa bean was not an adulterated article within the meaning of the statute, where it was shown that the abstraction of the oil was necessary to render the article marketable." To put salicylic acid in any quantity in beer is an adulteration of the beer, if it be shown to be poisonous or deleterious to health."

§ 618g. Unavoidably Mixed.

A statute made it an offense for any person to "sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser," but made an exception "where the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation.” Under this statute, to prevent unavoidable mixture, reasonable care must be used. When the foreign ingredient is present in larger proportion than is ordinarily found in a commercial article, the practice is to regard the excessive quantity present as an adulteration; for instance, in the case of pepper, where sand is in excess. In an instance of caper tea, it was held that owing to the method in which caper tea is produced, the presence of 3.5 percent of mineral matter in the tea did not constitute an adulteration, and that the seller

5 People v. Jennings, 132 Mich. 662, 94 N. W. 216, 10 Detroit Leg. N. 39. See also Commonwealth v. Dougherty, 39 Pa. Super. Ct. Rep. 338.

6 Rose v. State, 11 Ohio Cir. Ct. Rep. 87, 1 Ohio C. D. 72, reversing 2 Ohio N. P. 270, 1 Ohio C. D. 44. Such a product is not a compound or mixture.

To offer for sale, as an article of food, liquid chicory and coffee as "liquid coffee," is an offense under this same statute. State v. Dreher, 55 Ohio St. 115, 44 N. E. 510.

7 State v. Hutchinson, 55 Ohio St. 573, 45 N. E. 1043.

138 and 39 Vict., eh. 63, § 6.