could not have been within the meaning of Congress when it chose the words "added deleterious ingredient." The question arising under section 8-the misbranding section-is to be determined by the proviso under the fourth clause relating to food. Separate reference to the first clause, which forbids sale "under the distinctive name of another article," is unnecessary, because the same prohibition is repeated in the proviso under clause four. We have reached the conclusion that Coca-Cola does not contain any "added poisonous or deleterious ingredients," and it is undisputed that the labels carry a statement of the place of manufacture. Hence this proviso declares that Coca-Cola shall not be deemed to be adulterated or misbranded if it was or is known as an article of food under its own distinctive name and if it is not in imitation of or offered for sale under the distinctive name of another article. It is an article of food under the definition of the statute. That it was, at the time of the passage of the law and ever since has been, known under its own distinctive name is too clear for question, except as it is said that the adopted name can not be its distinctive name because it is the distinctive name of another article. Neither is it said to be an imitation of another article, except as these words also raise the same question whether it is sold under the distinctive name of another article. Coming to that question, and just as on the subject of adulteration we must first find the standard, we here first meet the inquiry: What is the "distinctive name of another article" under which name Coca-Cola is sold? The record makes it very clear to us that there is no such other article. No article, except plaintiff's compound, is or ever has been sold "under the distinctive name," Coca-Cola. These words constitute and are the distinctive name of plaintiff's product, and they are the distinctive name of nothing else. "Coca" is indicative of one article; "cola" is indicative of another, very distinct; but "Coca-Cola" was not, in 1892, and (save for the general knowledge of plaintiff's article) is not now intelligently descriptive of any combination of the two. It might be medicine, food, or drink; it might be to swallow, smoke, or chew. These associated words as the distinctive name of any substance or combination of substances were unknown until adopted by plaintiff; that "distinctive name" is still unknown as an appellation for any other substance on the market. The burden put upon the Government to show that Coca-Cola is masquerading under the distinctive name of another article is surely more exacting than the burden on one attacking the trade-mark to show that the name is sufficiently misleading as indicating the makeup of the product so that it is an improper trade-mark. We consider the latter question in our opinion, this day filed, in Nashville Syrup Co. v. Coca-Cola Co., and conclude that the name carried no forbidden deception. We need not here repeat that discussion. If that conclusion is correct, it is even more certain that Coca-Cola is not guilty of posing "under the distinctive name of another article." It follows that the judgment below must be affirmed. DIGEST OF COURT DECISIONS. ACETANILID. A poisonous substance. United States v. Harper__ Derivatives of acetanilid contained in a drug product must be declared on the label by their proper names, but it is unnecessary to state on the label that such products are derived from acetanilid. United States v. 100 Packages of Antikamnia Tablets__ Reversed, United States v. Antikamnia Chemical Co.. ACETPHENETIDIN. (A derivative of Acetanilid.) See Acetanilid. ADDED POISONOUS AND ADDED DELETERIOUS INGREDIENTS. It was not intended by Congress that the Government must prove But see United States v. Lexington Mill & Elevator Co- Page. 163 416 684 395 710 213 United 285 In order to show an article to be adulterated within the meaning of paragraph 5, section 7, of the act, in the case of food, it is necessary to prove, not only that the article contains an added poisonous or added deleterious ingredient, but that such ingredient actually renders the article injurious to health. Lexington Mill & Elevator Co. v. United States__ But see United States v. Lexington Mill & Elevator Co-- To constitute adulteration within the meaning of paragraph 5, section 7, in the case of food, it is necessary to prove, not only that the article of food contains an added poisonous or added deleterious ingredient, but also that such ingredient is present in such quantity that it may render the article injurious to the health of the consumer. United States v. Lexington Mill & Elevator Co----- Where it clearly appears that a poisonous substance wholly foreign to the food product has been added to it solely to mislead and deceive, the court is under no duty to endeavor to protect the offender against loss from destruction of the article by indulging in hair-splitting speculation as to whether the amount of poison used may possibly have been so nicely calculated as not to kill or be of immediate serious injury. United States v. 1,950 Boxes of Macaroni__ 701 604 701 701 267 See Boric Acid; Caffeine: Cocaine; Formaldehyde; Martius Yellow; Nitrites and Nitrite Reacting Material; Tin, Salts of. 717 ADMIRALTY PROCEEDINGS. In declaring that the proceedings of such libel cases shall conform, as near as may be, to the proceedings in admiralty," Congress did not confer a new jurisdiction upon the district court. The proceedings after seizure take on the character of a law action and can be reviewed only by writ of error. 443 Cans of Frozen Egg Product v. United States-- Under Rev. St., Sec. 563, Subd. 8 (U. S. Comp. St., 1901, p. 457), giving United States district courts jurisdiction of all civil causes of admiralty and maritime jurisdiction, and of all seizures on land and on water not within the admiralty and maritime jurisdiction, the court in cases of seizures on land proceeds, not as a court of admiralty, but as a court of common law jurisdiction on a trial by jury. United States v. George Spraul & Co--- The Food and Drugs Act (Sec. 10) providing that proceedings in ⚫ seizure cases shall conform as near as may be to proceedings in admiralty, does not render such proceedings within the admiralty or maritime jurisdiction of the federal courts; the jurisdiction in such proceedings being conferred by the act itself. United States r. 2 Barrels of Desiccated Eggs--- See Appeal and error; Admiralty rules. ADMIRALTY RULES. Admiralty rule No. 1 provides that libels shall be verified, except those filed on behalf of the United States. United States v. 2 Barrels of Desiccated Eggs- Section 10 of the act, providing that seizure proceedings shall conform as near as may be to proceedings in admiralty, does not adopt admiralty rule 22, that libels on seizure for breach of the revenue, navigation or other laws of the United States shall state the place of seizure and the district within which the property is brought and where it then is, rather than rule 23, providing that the libel, if in rem, shall state that the property is within the district. United States v. George Spraul & Co---- Admiralty Rule 29 declares that, on the taking of a libel pro confesso, "the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain." Section 10 of the act provides that the proceedings for condemnation shall conform as near as may be to proceedings in admiralty. Held that the libel being confessed the burden was on the Government where misbranding was alleged to prove that the label contained a statement which was substantially false and misleading. United States v. 650 Cases of Tomato Catsup-- See Admiralty Proceedings; Appeal and Error; Seizure. The word "adulterated" imports fraud and deception; it implies The statute provides that any substance packed with an article which reduces, lessens, or weakens the strength of the article of food, that is, renders it less efficient, less capable of performing the purpose for which it is eaten, renders it adulterated. United States v. Potter____ The word "adulteration," as used in the Food and Drugs Act. means to corrupt, debase, or make impure by an admixture of a foreign or a baser substance. United States v. St. Louis Coffee and Spice Mills____ The ordinary use of the word "adulteration" implies an actual addition to the original substance, through human agency. But the word as used in section 7 of the act does not restrict this to addition by the hand of man; and if the adulteration of filthy, decomposed, or putrid substance has been added by nature, and is contained in the article shipped, it is adulterated in the eyes of the law. United States v. Sprague et al... Page. 582 372 372 183 710 576 196 665 ADULTERATION-Continued. In order to render an article liable to condemnation under section 10 of the act, the adulteration complained of must exist at the time of the seizure. If the adulteration has been corrected after the receipt of the article by the consignee it is not subject to seizure and condemnation. United States v. 5 Boxes of Asafoetida___ In a proceeding by way of libel for the condemnation and forfeiture of an adulterated food product, it is no defense that the article was in good condition when packed and shipped. The condition of the article when seized governs in determining whether it is adulterated. United States v. 2,000 Cases of Canned Tomatoes__ AFFIDAVITS. Affidavits used in support of the allegations of an information must contain a venue; and if sworn to before a notary public, must have a certificate attached showing that the person certifying them was at the time a notary public and authorized by the laws of the State or district to take and certify oaths and affirmations, and that the same was taken and subscribed as required by the laws of the State or district. If taken before a State judge or justice of the peace, or commissioner, outside of the district where the affidavit is to be used, there should be a like certificate. United States v. Baumert et al... See Informations. See also United States v. Weeks, p. 836, post. AGENTS. Agents are jointly liable with the principal for acts done on behalf of the principal leading to a violation of the act. United States v. Mayfield. Inducement by an agent of the United States Department of Agriculture of an interstate shipment of a misbranded article is not a defense to a prosecution of the shipper. United States v. Morgan et al. United States v. Schuch_ Page. 318 342 267 244 300 364 ANALYSIS. The Government is not limited to the methods of analysis for vinegar set forth in Bulletin 65, Bureau of Chemistry, United States Department of Agriculture, or any other prescribed form of analysis. United States v. 100 Barrels of Vinegar.. It is not a condition precedent to a libel proceeding for the condemnation of adulterated food under section 10 of the act that the claimant be furnished with a part of the sample taken and a copy of the results of the analysis made by the Government. United States v. 2,000 Cases of Canned Tomatoes.. See Libels; Samples. ANTIKAMNIA. A drug labeled "Antikamnia Tablets" which contained acetphenetidin, held not misbranded because of a statement on the label that it contained no acetanilid and because of the failure to declare on the label that the acetphenetidin contained therein was a derivative of acetanilid. United States v. 100 Packages of Antikamnia Tablets___ Reversed, United States v. Antikamnia Chemical Co-----See Acetanilid. APPEAL AND ERROR. Proceedings undder section 10 of the act by way of libel for condemnation and forfeiture, after the seizure by process in rem, take on the character of common law cases, and it is inappropriate to review such cases on appeal. Such proceedings can only be reexamined according to the rule of common law, which would be by writ of error. United States v. 779 Cases of Molasses__ United States v. 3 Barrels of Vanilla Tonka and Compound---. 448 342 416 684 218 586 APPEAL AND ERROR-Continued. Lexington Mill & Elevator Co. v. United States.. APPLES. So-called "Tepee Apples" held misbranded as to the State where produced. United States v. 100 Cases Tepee Apples et al.. See Blackberries. ASAFŒTIDA. Asafoetida which did not comply with the tests prescribed by the United States Pharmacopoeia when shipped, held not to be adulterated or misbranded where the article was tested by the consignee prior to seizure and correctly labeled by him to show its true standard of strength, quality and purity. United States v. 5 Boxes of Asafoetida See Adulteration; Misbranding; Original Package; Seizure. ATTORNEYS, UNITED STATES. The Food and Drugs Act (section 4) does not repeal Revised Statutes sections 701 or 1022, making it the duty of the district attorneys of the United States to prosecute all offenders against the laws of the United States, nor does said act limit his authority to the prosecution only of those offenders who have been accorded a hearing before the Department of Agriculture. United States v. Morgan et al. BACTERIA. There may be bacteria or bacilli without decomposition; but there can not be decomposition without the presence of bacteria or bacilli. United States v. F. E. Rosebrock & Co_. Various forms of plant life, such as yeast, bacteria, and mold, in tomato catsup, are evidences of decay and decomposition. United States v. 200 Cases of Tomato Catsup.. Though not in themselves filthy, bacteria, including B. coli and streptococci, when present in a food, indicate that such food consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, and are therefore evidence of adulteration. United States v. Dade_. A substance containing bacilli liable to cause disease, to such an extent as to make it dangerous for food purposes is "filthy" under the meaning of that word as generally used; and especially since investigation has shown that filth or dirtiness is dangerous through the germs which it contains, and not solely because of offense to the senses. United States v. Sprague et al. See Filthy, Decomposed, and Putrid. BEEMAN'S PEPSIN CHEWING GUM. Held misbranded because of false and misleading statement on label regarding the quantity of pepsin contained therein. United States v. American Chicle Co---- See Curative Effect of Drugs; Distinctive Name; Election; Trade BI-CARB-SODARINE. Held not misbranded by reason of a statement on the label to the 357 BLACKBERRIES. So-called "Tepee Blackberries" held misbranded as to the State in which produced. United States v. 100 Cases of Tepee Apples et al--See Apples. 172 |