211 F. 360 | D. Mass. | 1914
This is a proceeding, under the Food and Drugs Act, by information (or libel) against 150 cases of a food product called “Puddine” or “Fruit Puddine.” A jury having been waived by both parties, the case was tried before me upon fact and law. I find the material facts, in addition to those alleged in the information and admitte.d in the answer, to be as follows:
“Puddine” or “Fruit Puddine” is the distinctive name, adopted and used as early as 1889, of a proprietary food product consisting largely of cornstarch. It is manufactured by the claimant and is put up in packages or cartons of different flavors, adapted to the retail trade. It does not contain any deleterious or poisonous ingredient. It is not an imitation of, or offered for sale under the distinctive name of, any other article; and the name “Puddine”, or “Fruit Puddine” is accompanied, on the same label or carton, with a true statement of the place where it has been manufactured.
The alleged misbrandings lie in the words “Cream Vanilla,” “Rose Vanilla,” and “Fruit Flavored,” which appear 'upon the cartons. “Cream Vanilla” and “Rose Vanilla” are two of the many flavors in which Puddine is manufactured. All the cartons in question appear to have been marked “Fruit Flavored Puddine,” to which is added on some cartons “Cream Vanilla,” and on others “Rose Vanilla,” according to the flavor of the Puddine therein.
The contention of the claimants, who are the manufacturers of the product, is that “Puddine” and “Fruit Puddine” are artificial words, adopted as the name of their product, and constitute a distinctive name for the article within section 8, subsec. 4 (1), of the act in question; that “Cream Vanilla” and “Rose Vanilla” are also artificial words, adopted by them to indicate the taste and appearance of their product, and import nothing as to the origin of the taste; that they are not false or misleading; and that the term “Fruit” or “Fruit Flavored,” while adopted as an arbitrary or artificial part of the name, is in fact true, because the grain out of which the product is manufactured is, botanically speaking, a fruit.
The claimant contends, however, that articles of food which come within the terms of the proviso to the fourth subsection of section 8 are exempt from the operation of the Food and Drugs Act, and are not to be deemed misbranded, no matter what misstatements are made upon the cartons. The plaintiff contends: (1) That the first paragraph of section 8 prohibits all misbranding as therein defined, and is not limited by the proviso in question; and (2) that, even if the proviso does apply, it is not the intent of it to except from the operation of the act anything except the distinctive name itself; that even if, as to articles
It has been said that the sole purpose of this statute “was: (1) To protect purchasers from injurious deceits by the sale of inferior for superior articles; and (2) to protect the health of the people by preventing the sale of normally wholesome articles to which have been added substances poisonous or detrimental, to health.” Sanborn, J., Hall-Baker Co. v. U. S., 198 Fed. 614, 616, 117 C. C. A. 318 (C. C. A. 8th Circuit). In other words, deception and unwholesomeness are the evils which the act is designed to prevent. The last part of section 8, providing that “manufacturers of proprietary foods which contain no unwholesome added ingredients” shall not be required “to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding,” plainly implies that a proprietary product may be misbranded. The report of the Committee (House of Representatives, 59th Congress, First Session, Report No. 2118, March 7, 1906), and the debates, so far as they refer to the proviso in question, indicate that the attention of Congress was directed to protecting thereby established distinctive or trade names from being outlawed by the act.
In U. S. v. Forty Barrels of Coca Cola (D. C.) 191 Fed. 431, 440, it was held that the proviso in question “was only intended to protect an article sold under its distinctive name from the charge of misbranding in so far as any statement or suggestion contained in the name it
It is undoubtedly true that persons purchasing a proprietary article of food, like Puddine, get what they go for, whether all the statements on the carton are correct or hot. But it is also true that the purchase of a proprietary article may well be induced by false statements concerning it upon the cartons; and it is not difficult to imagine cases in which reliance on such misstatements would work real injury to the purchaser. For example,.if such an article were branded, “Contains no sugar,” when in fact it did, the misbranding might induce the purchase by persons whose diet demanded absence of sugar. Such articles are within the purview of the statute. It does not seem to me that the proviso in question was intended to except them absolutely from the provisions of the act, and to leave the manufacturers free to make misrepresentations concerning them. Such a construction is out of harmony with all the rest of the statute, and disregards one of the principal purposes of it. It seems to me that the protection afforded by the proviso is limited to the distinctive name; and, as so limited, I have no doubt that the proviso applies to the first paragraph of section 8, and fully protects distinctive names from being misbranding.
I therefore find and rule that the words “Fruit Flavored” upon the cartons containing Puddine were a statement regarding such article, or the ingredients or substances contained therein, which was false or misleading and constituted misbranding within the statute.
The conclusion above reached makes it unnecessary to consider whether the use of the words “Cream Vanilla” and “Rose Vanilla” constitutes misbranding; but I infer from what was said at the argument that this is a point upon which a decision is particularly desired by the parties. I therefore proceed to find the facts and state my conclusions in reference thereto.
, Puddine is not flavored with the vegetable extract of Vanilla, but with vanillin, or synthetic vanilla, which is obtained from oil of cloves. Natural vanillin is found in the vanilla bean and forms the characteristic and most important element in the vegetable extract of vanilla. It is what gives to vanilla extract its characteristic taste. Synthetic vanillin is one of the comparatively recent discoveries^ in organic chem
When a proprietary product- is sold in different flavors, I see no reason why there may not be a distinctive name of a particular flavor, nor any reason for denying to such a name the protection of the proviso. The very purpose of the proviso, as I construe it, was to- save distinctive names, which might be of great value, and the use of which might otherwise have been forbidden. “The purpose of the law is the ever insistent consideration in its .interpretation.” McKenna, J., U. S. v. Antikamnia Chem. Co-. (January 5, 1914) 231 U. S. 654, 34 Sup. Ct. 222, 58 L. Ed.-. I find and rule that “Cream Vanilla” and Rose Vanilla,” as used with “Puddine,” are artificial and distinctive names adopted by the claimant, the use of which is not misbranding, it is unnecessary to decide whether the word “Vanilla” applied to food amounts, as the plaintiff contends, to a representation that the taste thereof has been produced by the vegetable extract, and not by the synthetic product.
Decree for plaintiff.
Tlie legislative history of this act is as follows: The bill which, after amendment, became the Food and Drugs Act of June 30, 1906, was Senate Bill No. 88, 59th Congress, First Session. It is printed in full in the Congressional Record for that session at page 897. It was reported favorably to the Senate December 14, 1905 (Senate Reports, vol. 1, No. 8, 59th Congress, First Session), passed by the Senate February 21, 1906 (Cong. Rec., 59th Congress, First Session, p. 2773), and was introduced in the House of Representatives the next day (page 2853), and there referred to the Committee on Interstate and Foreign Commerce. The Committee’s report is found in House Reports, 59th Congress, First Session, vol. 1, Report No. 2118. The Committee of the House recommended amendment to the Senate bill by substituting for it the Hepburn Bure Food Bill (H. R. 4527, reported to the House January 18, 1904, and passed by the House) as amended by the Committee. The bill was passed by the House with amendments June 23, 1906 (Rec. pp. 9076, 9353), and sent back to the Senate, which refused to concur. Conference Committees filed identical reports June 27, 1906, setting out in full the bill as agreed upon and recommending that it pass (House Reports, vol. 3, No. 5056; Senate Docs. vol. 8, Doe. 521; Cong. Rec. pp. 9353, 9379, 9381). The second conference report making certain minor improvements in sections 1 and 2 of the bill, was filed June 29, 1906, giving the bill as finally enacted (House Reports, vol. 3, No. 5096). ' The bill was then passed and signed June 30, 1906.
As to the distinctive name proviso:
The subject-matter of this proviso appeared in the original Senate bill; and the proviso as finally passed first appears in substance in the biU as amended by the House Committee, where it is numbered paragraph 4 of section 7. There appears to have been no discussion at all of the “Distinctive Name” proviso in the debates in the Senate; and the only allusion to it in the debates in the House is found under date of June 23, 1906 (Cong. Rec., 59th Congress, First Session, p. 9068).