265 F. 406 | D. Mont. | 1920
This is a suit to restrain officers of this state from enforcement of the food and drug laws o f the state (Laws 1911, c. 130); the allegations, virtually admitted, being that said officers intend to prevent sale of complainant’s “Dr. Price’s Cream Baking Powder,” so- labeled, upon the ground that the said label is misbranding within said laws. From the evidence it appears that for nearly 60 years Dr. Price and various successors, including complainant, the present one, had manufactured and sold a baking powder in which the acid ingredient was cream of tartar, and also in later years in part tartaric acid. Upon the cans was a label, “Dr. Price’s Cream Baking Powder, Perfectly Made;” below the word “Cream” appearing a cornucopia of grapes, and the back of the label bearing recipes and a statement of ingredients.
In advertising and otherwise the superiority of baking powder containing tartars from grapes as the acid ingredient over those, containing phosphate or alum as the acid ingredient was diligently impressed upon the public. In 1919 complainant abandoned the use of tartars in this brand, but not in others it owns, substituting phosphate. Thereupon it reduced the price nearly 50 per cent., and also advertised the fact of price reduction, relying therein on the repute of name and years insuring quality and dependability, but saying nothing in reference to the aforesaid substitution, save in letters and advertising addressed to the trade, until about two weeks before the bill herein was filed, and subsequent to the beginning of the acts of defendants herein complained of.
Complainant made changes in its label as follows: The word “Cream” is now inclosed in quotation marks; directly beneath it is
In view thereof, defendants, the state board of health and director created by the state law aforesaid to administer the law, determined the lahel as changed constituted misbranding within said law, and accordingly propose to act thereon, to prevent and punish its use, as the law provides.
'Decree for defendants.