27777. Misbranding of olive oil. U. S. v. 14 Cases and 56 Cases of Olive Oil. Consent decree of condemnation. Product released under bond to be relabeled. (F. & D. Nos. 39966, 39967. Sample Nos. 49017-C, 49018-C.) This product was misbranded because it was short in volume; and its label conveyed the impression that it was Italian olive oil, whereas it was a domestic product. On July 20, 1937, the United States attorney for the Northern District of Illinois, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 70 cases of olive oil at Chicago, Ill., alleging that the article had been shipped in interstate commerce on or about April 26, 1937, by the Dyson Shipping Co. from San Francisco, Calif., and charging misbranding in violation of the Food and Drugs Act as amended. It was labeled in part: (Cans) "Gold Deer Brand Pure Olive Oil Manufactured and Packed by Lucca Olive Oil Co. Lucca, Cal. Contents 2 Gallon [or "1 Gallon”]." The article was alleged to be misbranded in that the statements "Contents 1⁄2 Gallon" and "1 gallon," borne on the labels, were false and misleading and tended to deceive and mislead the purchaser when applied to an article that was short in volume; and in that the prominent statements "From Lucca" and "Lucca Olive Oil Co." were false and misleading and tended to deceive and mislead the purchaser, since they implied that the article came from Lucca, Italy, the wellknown olive-oil-producing area, and these prominent statements were not corrected by the less conspicuous reference to Lucca, Calif. It was alleged to be misbranded further in that it was food in package form and the quantity of the contents was not plainly and conspicuously marked on the outside of the package, since the statement made was incorrect. On September 3, 1937, Frank Bennati, Chicago, Ill., claimant, having admitted the allegations of the libel and having consented to the entry of a decree, judgment of condemnation was entered providing for release of the product under bond conditioned that it be relabeled. HARRY L. BROWN, Acting Secretary of Agriculture. 27778. Misbranding of canned sardines. U. S. v. 998 Cases of Sardines. Consent decree of condemnation. Product released under bond for relabeling. (F. & D. No. 39972. Sample No. 39332-C.) This product was short of the declared weight. * On July 24, 1937, the United States attorney for the District of Oregon, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 998 cases of sardines at Portland, Oreg., alleging that the article had been shipped in interstate commerce on or about June 29, 1937, by the Sea Pride Packing Co. from San Francisco, Calif., and charging misbranding in violation of the Food and Drugs Act as amended. The article was labeled in part: "North Star Filets of Sardines Net Contents 9 Ounces or 255 Grams Distributed by North Star Company Seattle." It was alleged to be misbranded in that the statement, "Net Contents 9 Ounces or 255 Grams," was false and misleading and tended to deceive and mislead the purchaser since the article was short weight; and in that it was food in package form and the quantity of the contents was not plainly and conspicuously marked on the outside of the package since the quantity stated was not correct. On August 4, 1937, the North Star Co., Seattle, Wash., claimant, having consented to the entry of a decree, judgment of condemnation was entered and the product was ordered released under bond conditioned that it be relabeled to comply with the law. HARRY L. BROWN, Acting Secretary of Agriculture. 27779. Misbranding of canned tomatoes. U. S. v. 916 Cases of Tomatoes. Consent decree of condemnation. Product released under bond for relabeling. (F. & D. Nos. 39973 to 39975, incl. Sample Nos. 50644-C, 50645-C, 50701-C.) This product fell below the standard for canned tomatoes established by this Department because it did not consist of whole or large pieces, was not normally colored, and it was not labeled to indicate that it was substandard. On July 16, 1937, the United States attorney for the Eastern District of Louisiana, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 916 cases of tomatoes at New Orleans, La., alleging that the article had been shipped in interstate commerce on or about June 28, 1937, by the Craddock Canning Co. from Raymondville, Tex., and charging misbranding in violation of the Food and Drugs Act. The article was labeled in part: (Cans) "Lee's Own Brand Tomatoes Packed By Riona Products Company McAllen, Texas"; "Palm Valley Tomatoes * Packed by Palm Valley Canning Co. Combes, Tex." The article was alleged to be misbranded in that it was canned food and fell below the standard of quality and condition promulgated by the Secretary of Agriculture since it did not consist of whole or large pieces, was not normally colored, and its package or label did not bear a plain and conspicuous statement prescribed by the Secretary indicating that it fell below such standard. On August 6, 1937, Edgar A. Craddock, Newbern, Tenn., claimant, having admitted the allegations of the libel, judgment of condemnation was entered and the product was ordered released to claimant under bond, conditioned that it be relabeled to comply with all the requirements of the Food and Drugs Act. HARRY L. BROWN, Acting Secretary of Agriculture. 27780. Alleged misbranding of butter. U. S. v. Great Atlantic & Pacific Tea Co. Tried to the court and a jury. Verdict of guilty on counts 2 and 3. Appealed to Circuit Court of Appeals. Judgment reversed. (F. & D. Nos. 39726, 39727, 39728. Sample No. 22-C.) On March 12, 1935, the United States attorney for the District of Vermont, filed in the district court three informations against the Great Atlantic & Pacific Tea Co., a New Jersey corporation having places of business at St. Albans, Bristol, and Fair Haven, Vt. The informations alleged that on or about May 4 and May 23, 1934, the defendant received at Fair Haven and Bristol, Vt., certain shipments of print butter from the State of Massachusetts; that on or about January 24, 1935, the defendant received at St. Albans, Vt., certain shipments of print butter from the State of Maine; that having so received said butter, the defendant delivered it in the original unbroken packages for pay and offered to deliver it to any person willing to pay; and that it was misbranded in violation of the Food and Drugs Act. The informations alleged that the article was misbranded in that it was labeled, "Silverbrook Pasteurized Creamery Butter Net Wgt. 1 Lb."; whereas of the 246 prints covered by the five shipments all but 22 prints contained less than 1 pound. On October 22, 1935, the defendant having entered a plea of not guilty, the case came on for trial before a jury and, after some evidence had been introduced, was continued. On November 8, 1935, an information incorporating all charges in the three informations was filed. The informations filed October 22, 1935, were later dismissed. On July 23, 1936, the defendant having entered a plea of not guilty to the new information, the case came on for trial and on July 24, 1936, the jury returned a verdict of guilty on counts 2 and 3, covering 66 prints received from Maine on January 24, 1935, and 30 prints received from Massachusetts on May 23, 1934. Nolle prosequi was entered as to counts 1, 4, and 5. On February 13, 1937, the defendant was sentenced to pay a fine of $200. On November 13, 1937, on appeal to the Circuit Court of Appeals for the Second Circuit, the judgment of the district court was reversed with the following opinion: SWAN, Circuit Judge: This is an appeal from a conviction upon two counts of an information, each of which charged that the defendant received an interstate shipment of "prints" of butter, misbranded in respect to their weight, and offered them for sale at one of its stores in Vermont in violation of section 2 of the Food and Drugs Act (21 USCA sec. 2). The butter was shipped from the defendant's warehouses outside the state of Vermont in cardboard shipping boxes, each containing 50 blocks, or "prints," of butter. Each print was wrapped in a paper covering which bore a printed statement that it contained creamery butter of the net weight of one pound. The shipping boxes had no marks indicating their weight or contents. After receipt at the defendant's store the prints were removed from their shipping box and placed in a show case for sale to prospective customers. When tested by a state food inspector, fifty-nine out of sixty-six prints in the show case at the St. Albans store were found to be underweight. At the Bristol store twenty-six out of thirty prints in the show case were found short weight. There was testimony that the butter had been in the respective stores about one week at the time the inspector weighed it. Section 2 of the Food and Drugs Act prohibits the introduction into any state from any other state of any article of food which is adulterated or misbranded as defined in other sections of the Act, and declares guilty of a misdemeanor. any person who shall ship or deliver for shipment from any State to any other State or who shall receive in any State from any other State and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any person, any such article so adulterated or misbranded Section 8 (21 USCA 9, 10) defines what is meant by "misbranded," and there can be no dispute that the underweight prints of butter were misbranded packages. McDermott v. Wisconsin, 228 U. S. 115, 130. The dispute arises over the phrase "original unbroken packages" in section 2. Throughout the trial the defendant contended that since it neither delivered nor offered to deliver to any person the prints of butter until they had been removed from their shipping box and mingled with the mass of property within the state, the act of offering them for sale neither had been nor could be, made a federal crime. The district judge, however, ruled to the contrary and charged that "original unbroken packages" meant the individual prints of butter. The correctness of this ruling presents the decisive question on appeal. Had the information charged the defendant with shipping in interstate commerce misbranded prints of butter, the conviction would have presented little difficulty. The restriction of the applicability of the Act to original unbroken packages does not apply to the shipper. Dr. J. L. Stephens Co. v. United States, 203 F. 817 (C. C. A. 6); United States v. Krumm, 269 F. 848 (E. D. Pa.). But the defendant was charged only as the receiver of an interstate shipment, and section 2 declares guilty a receiver only when "having so received," he "shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any person" the misbranded article. There is surprisingly little authority construing this portion of section 2. In McDermott v. Wisconsin, 228 U. S. 115, at 130, Mr. Justice Day said: That the word "package" or its equivalent expression, as used by Congress in sections 7 and 8 in defining what shall constitute adulteration and what shall constitute misbranding within the meaning of the act, clearly refers to the immediate container of the article which is intended for consumption by the public, there can be no question. And it is sufficient, for the decision of these cases, that we consider the extent of the word package as thus used only, and we therefore have no occasion, and do not attempt, to decide what Congress included in the terms "original unbroken package" as used in the second and tenth sections and "unbroken package" in the third section. In United States v. Five Boxes of Asafoetida, 181 F. 561, 564 (E. D. Pa.), there is a dictum by Judge Holland that claimants who had received adulterated or misbranded drugs from another state could not be convicted under section 2 if "they neither delivered nor offered to deliver it, for pay or otherwise, in the unbroken packages." The case of Dr. J. L. Stephens Co. v. United States, 203 F. 817 (C. C. A. 6) incorporates the charge of Judge Sater, who said (p. 820): The words, "package" and "original unbroken package," are both used in the act. The word "package" is not used in the same sense as "original unbroken package." The framers of the act manifestly had in mind the definition heretofore given by the courts to the term "original package," and in the second, third, and tenth sections have used that expression, or its equivalent. It is used in those sections with reference to the situations which arise where the article transmitted has reached the vendee or consignee, but has not yet become a part of the general property of the state in which the vendee or consignee lives. The package, still being unbroken, and not having become a part of the property of the state, remains subject to federal control. We think Judge Sater's view is correct. When the statute was passed in 1906 the phrase "original unbroken package" had long been used judicially to refer to the shipping box and to mark the boundaries between federal and state control of articles transported in interstate commerce. While the goods remained in the original unbroken package they were subject to the commerce power of Congress; after they were removed and mingled with the mass of local property they were, in general, subject to the power of the state. Brown v. Maryland, 12 Wheat, 419; May v. New Orleans, 178 U. S. 496; Austin v. Tennessee, 179 U. S. 343; Weigle v. Curtice Brothers Co., 248 U. S. 285; Hebe Co. v. Shaw, 248 U. S. 297. We think it was with this distinction in mind and to avoid possible questions as to the power of Congress to make it a federal offense to offer the goods for sale after interstate transportation had ceased, that applicability of the section was limited in respect to receivers to the delivery or offering of the goods in original unbroken packages. In the light of subsequent cases it may be that congressional power would extend even after the original package was broken. See Baldwin v. G. A. Seelig, 294 U. S. 511. Even so, we are not at liberty to eliminate the phrase from the statute. No meaning whatever is given to it if it be construed to refer to the immediate container of the food-the "package" referred to in other sections of the act. Accordingly, we conclude that the conviction cannot be sustained. Judgment reversed. HARRY L. BROWN, Acting Secretary of Agriculture. 27781. Misbranding of Kold-Ade and Kool-Ade. U. S. v. 34 Dozen Bottles of Kold-Ade. Default decree of condemnation and destruction. No. 39981. Sample No. 27347-C.) (F. & D. These products were labeled to convey the impression that they were fruitade bases; whereas the orange, lemon, and lime and lemon varieties were artificially colored fruit bases flavored with essential oils, and the remaining products were artificially flavored and artificially colored and contained little or no fruit juices. On July 16, 1937, the United States attorney for the District of New Jersey, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 34 dozen bottles of the products hereinafter described at Freehold, N. J., alleging that they had been shipped in interstate commerce on or about June 3, 1937, by the Drew Corporation from Brooklyn, N. Y., and charging misbranding in violation of the Food and Drugs Act. The articles were labeled: "Kold-Ade [or "Kool-Ade"] with Selected Citrus Fruit Oils, Certified Color, Citric Acid [or "Lemon & Lime" or "Lemon]." The remaining products were labeled: "Kold-Ade * Prepared with Concentrated Fruit Juice, Fruit Esters & Essential Oils Citric Acid, Certified Color * * * Raspberry [or "Pineapple," "Cherry," or "Grape"]." All were labeled further: "Drew Corporation, Brooklyn, N. Y." Prepared The articles were alleged to be misbranded in that the following statements were false and misleading and tended to deceive and mislead the purchaser when applied to products that were imitation fruitade bases, of which all were artificially colored, a part were flavored with essential oils, and the remainder were artificially flavored and contained little or no fruit juice: "Kool-Ade * Orange [or "Lemon & Lime]"; "Kool-Ade Lemon"; "Kold-Ade * Prepared With Concentrated Fruit Juice, Raspberry [or "Pineapple," "Cherry," or "Grape"]" were alleged to be misbranded further in that they were offered for sale under the distinctive names of other articles. On September 27, 1937, no claimant having appeared, judgment of condemnation was entered and the products were ordered destroyed. HARRY L. BROWN, Acting Secretary of Agriculture. 27782. Misbranding of canned peaches. U. S. v. 99 Cases of Yellow Cling Peaches. Decree of condemnation. Product released under bond for relabeling. (F. & D. No. 39992. Sample No. 10790-C.) This product fell below the standard for canned peaches established by this Department because it was water-packed, and it was not labeled to indicate that it was substandard. On July 21, 1937, the United States attorney for the Eastern District of Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 99 cases of canned peaches at Philadelphia, Pa, alleging that the article had been shipped in interstate commerce on or about June 24, 1937, by the Calbear Canneries Co. from San Francisco, Calif., and charging misbranding in violation of the Food and Drugs Act. The article was labeled in part: (Cans) "Milton Brand * Yellow Cling Peaches Packed for M. I. Kimball & Co. Lawrence, Mass." It was alleged to be misbranded in that it was canned food and fell below the standard of quality and condition promulgated by the Secretary of Agriculture since the peaches were packed in water, and its package or label did not bear a plain and conspicuous statement prescribed by the Secretary indicating that it fell below such standard. On August 9, 1937, the Calbear Canneries Co., San Francisco, Calif., having appeared as claimant, judgment of condemnation was entered and the product was released under bond conditioned that it be relabeled. HARRY L. BROWN, Acting Secretary of Agriculture. 27783. Misbranding of butter. U. S. v. 16 Cases of Print Butter. Consent decree of condemnation. Product released under bond to be relabeled. (F. & D. No. 40003. Sample No. 49412-C.) This product was short weight. On July 1, 1937, the United States attorney for the Northern District of Illinois, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 16 cases of print butter at Elgin, Ill., alleging that the article had been shipped in interstate commerce on or about June 24, 1937, by the Burlington Sanitary Milk Co. from Burlington, Iowa, and charging misbranding in violation of the Food and Drugs Act as amended. The article was labeled in part: (Carton) "Todson's Jersey Brand Butter * * One Pound Net Weight * Packed for Todson's Creamery Elgin Illinois." It was alleged to be misbranded in that the statement "One Pound Net Weight" was false and misleading and tended to deceive and mislead the purchaser, and in that it was food in package form and the quantity of contents was not plainly and conspicuously marked on the outside of the package since the quantity stated was not correct. On August 24, 1937, the Burlington Sanitary Milk Co., claimant, having consented to the entry of a decree, judgment of condemnation was entered and it was ordered that the product be released under bond conditioned that it be relabeled under the supervision of this Department. HARRY L. BROWN, Acting Secretary of Agriculture. 27784. Adulteration and misbranding of Maple Maid. U. S. v. 48 Boxes of Instant Maple Maid. Default decree of condemnation and destruction. (F. & D. No. 40005. Sample No. 33730-C.) This product was labeled to convey the impression that it was a maple concentrate; whereas it consisted of artificial flavor, corn sugar, and caramel, and It contained little or no maple product. On July 23, 1937, the United States attorney for the Eastern District of Michigan, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 48 boxes of Instant Maple Maid at Adrian, Mich., alleging that the article had been shipped in interstate commerce on or about October 19, 1936, by the Curtiss Candy Co. from Chicago, Ill., and charging adulteration and misbranding in violation of the Food and Drugs Act. The article was labeled in part: (Package) "Instant Maple Maid For Syrup-Topping Fudge Frosting * Made by Miracle Jel, Incorporated, Chicago, Illinois." It was alleged to be adulterated in that an imitation maple concentrate consisting of artificial flavor (fenugreek), corn sugar, and caramel, containing little or no maple product, had been substituted wholly or in part for maple concentrate, which it purported to be; and in that it had been mixed and colored in a manner whereby inferiority was concealed. * * It was alleged to be misbranded in that the following statements and designs, borne on the label, were false and misleading and tended to deceive and mislead the purchaser when applied to an article that consisted of artificial flavor, corn sugar, and caramel and contained little or no maple product: "[Design of a maple grove, sled, and sap tank] Maple Maid Flavor of Maple Maid Syrup Maple Syrup * Maple Topping Maple Maid Fudge Carameled Maple Sugar." It was alleged to be misbranded further in that it was offered for sale under the distinctive name of another article, namely, maple concentrate. Maple Maid Syrup * True Maple Flavor On September 13, 1937, no claimant having appeared, judgment of condemnation was entered and the product was ordered destroyed. HARRY L. BROWN, Acting Secretary of Agriculture. 27785. Misbranding of Kold-Ade (assorted flavors). U. S. v. 22 Boxes of KoldAde. Default decree of condemnation and destruction. (F. & D. No. 40017. Sample Nos. 42953-C to 42960-C, incl.) These products, with the exception of the root beer, were labeled to convey the impression that they were fruitade bases, whereas they were artificially colored and contained little or no fruit juice; some were flavored with citrus-oil flavors and the others with artificial flavors. The root beer was a nonsweetened rootbeer concentrate and was represented to contain fruit juice and fruit esters. On July 28, 1937, the United States attorney for the Western District of Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 22 boxes, each containing 24 bottles of Kold-Ade, at Pittsburgh, Pa., alleging that they had been shipped in interstate commerce on or about May 28, 1937, by the Drew Corporation from Brooklyn, N. Y., and charging misbranding in violation of the Food and Drugs Act. The orange, lemon, and lemon and lime were labeled: "Kold-Ade Prepared With Selected Citrus Fruit Oils, Certified Color, Citric Acid Orange [or "Lemon & Lime" or "Lemon"]." The remaining products were |