188 F. 453 | M.D. Ala. | 1911
(after stating the facts as above).
An article of food is “misbranded,” within the meaning of the statute, if it be “an imitation of, or offered for sale under the distinctive name of another article,” or, “if it be labeled or branded so as to deceive or mislead the purchaser,” or “if in package form and the contents are stated in terms of weight and measure they are not plainly and correctly stated on the outside of the package,” or “if the pack
Section 8 contains a proviso:
“That an article of food which does not contain any added poisonous or deleterious ingredient, shall not be deemed to he adulterated or mis-branded in the following cases: First. In the case of mixtures or compounds which may be now-or from time to time hereafter known as articles of food under their own distinctive name, and not an imitation of or offered 'for sale under the distinctive name of another article, if the name be accompanied on the same label or .brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded or tagged so as to plainly indicate that they are compounds, imitations or blends, and the words ‘compound,’ 'imitation’ or ‘blend,’ as the case may be, is plainly stated on the package and the package in which it is offered for sale.”
The manufacturer, without violating any of the provisions of the statute against adulteration,, may mix any number of constituents in his compound, so long as these constituents are not poisonous or deleterious to health and he gives the compound a distinctive name and states where it is manufactured. The matter thus produced is “the article of food” whose quality and strength the statute seeks to preserve, and the nature of the product in these respects is fixed and determined by the elements which enter into it. How is it possible chemically, or in the eye of the law, to “lower or injuriously affect” the quality or strength of -the particular “article of food,” whose characteristics are thus produced, and safeguarded by the law as thus produced, under its own distinctive name, by mixing in the compound anything which may be lawfully incorporated therein? Putting in a mixture things which may be lawfully blended therein cannot amount to adulteration of the blend, since, other, things aside, the statute declares, its other conditions being complied with, the blend shall not thereby “be deemed to be adulterated.”
Corno horse and mule feed is a compound, sold under its own distinctive name. One of the constituent elements which fix and determine the quality and strength of that blend is “oat feed.” The incorporation of “oat feed” in the blend, unless it be noxious or deleterious to health, cannot adulterate the blend which has its own standard, quality, and strength, made up in part of “oat feed.” To make a case of adulteration it must be shown that “oat feed” contains noxious qualities, as described in the statute. Otherwise, it is manifest that the incorporation of “oat feed” in the blend has not mixed or packed any substance with the blend — “Corno horse and mule feed”— so as .to reduce or lower or injuriously affect its quality or strength,” or that “any valuable constituent of the article of food has, wholly or in part, been substracted from the blend, or that any substance has been substituted, wholly or in part,” for the “article of food.” Corno horse and mule feed is not an imitation of, or offered for sale under the distinctive name of, another article, but is sold under its own distinctive name, and the label or brand contains a statement which shows that it is a mixture, and truthfully states its constituents and the place where the article was manufactured or produced. There
The label here does not contain any design or device of any kind, and whether there has been a misbranding within the meaning of the statute must depend on the words employed in the label to describe the Corno horse and mule feed. Save by the declaration in the statute as to what a label shall not contain, no standards are prescribed for brands or labels, or the minuteness or particularity in which they must indulge in describing an article of food. The statute should be liberally construed to effect its beneficent purposes; but no rule of construction permits us to so construe its language that the statute shall operate as a snare or trap to the honest manufacturer or producer, who brands or labels his products in descriptive words or devices, which fairly inform the purchaser of the nature and ingredients of the product offered for sale, and are not so framed as to deceive or mislead the ordinary purchaser.
The parties have deemed it important to introduce a vast mass of testimony as to the meaning of the term “oat feed.” As the court is sitting both as trier of the law and the facts, it is deemed unnecessary to determine whether the meaning of the term “oat feed,” as here used, is a matter of pure law, or whether it is a question of fact, to be ascertained as by a jury from the whole evidence.
The whole trend of the evidence is that in nearly all by-products the word “feed,” when connected with a grain, is used to denote the by-product from that grain, meaning the residue of the grain after it is manufactured into food for human consumption, and that, when it is intended to designate the whole grain or the crushed grain entering into articles of food for man, the thing is spoken of as “food” and not “feed.”
Among other evidence introduced by the defense was a letter of January 27, 1910, from the board of food and drug inspection, concurred in by all its members, ■ and addressed to counsel in this case. It is given in full because it shows the government was by no means certain as to the correctness of its contention as to the meaning of “oat feed.” It indicates that its inquiries tended to show that “oat feed” in fact means the by-product of the oat mill, but that its opinion was that it should not be known as “oat feed,” which the board thought should include ground oats only. In this particular, it is aside the issue, for the question is what “oat feed” describes in our language, and not what it ought to describe. Neither the Secretary of Agriculture nor any official intrusted with the administration of the food and drugs act has any authority to change the meaning of words. The letter, omitting address and signature, is as follows:
“Your letter of January 15, 1910, in reference to tlie cases-reported to the Department of Justice against the Corno Mills Company of East St. Louis, Ill., for prosecution under the food and drugs act, has received careful consideration. Your statement is noted that, you are of the opinion .that unless the Department of Agriculture has changed its view as to the meaning of the term ‘oat feed’ the proceedings against the shipment of Corno horse and mule- feed seized at Valdosta, Georgia, should not be dismissed, in view of the promise of this department of an early judicial construction of the meaning of the term and the completion of your arrangements for the taking of all necessary evidence.
*459 “Yon are advised in reply that the records of the board do not show that a promise has been made by the board that the meaning of the term ‘oat feed shall be construed by the courts at an early date. As you are aware, such promise, even if made by the board, would be ineffective. The duties of the board of food and drug inspection end with the collection of evidence and the preparation of reports of violations of the food and drugs act. When the .evidence is complete and the circumstances of the violations appear to the Secretary of Agriculture to warrant such action, the cases are reported to the Department of Justice for prosecution, and the time when a particular case may come on for trial rests with the Department of Justice. After cases are so reported, whenever additional evidence bearing on the questions involved comes to the knowledge of the board, such evidence is also brought to the attention of the Secretary 'of Agriculture for consideration whether the same should be transmitted to the Department of Justice.
“When the question was presented to the board whether proceedings should be instituted against the shipment seized at Valdosta, Georgia, such action was recommended on the statement of the Bureau of Chemistry that the term ‘oat feed’ properly includes only ground whole oats, and the amount of oat hulls found on examination of samples to1 be present in the product was considerably in excess of the amount which normally would be present in a product containing ground whole oats. Analysts of the Bureau of Chemistry were of the opinion that the term ‘oat feed’ as applied to oat-offal or by-products of the oatmeal, is misleading, and the Bureau of Chemistry has in its possession affidavits of dealers in cattle feed and grain who express the opinion that the product sold in the trade as ‘oat feed,’ which consists largely of oat hulls, should not be known as ‘oat feed,’ and that the term ‘oat feed’ should include ground oats only.
‘‘Inasmuch as the foregoing views of the Bureau of Chemistry were earnestly controverted by the Como Mills Company and other manufacturers of cattle feeds and many dealers in cereal products, letters of inquiry were addressed by the solicitor of this department to representative manufacturers and dealers, and replies were received indicating that ‘oat feed’ is generally understood among the trade to be the by-product of the oatmeal mill and consisting of oat hulls, oat nubbins, oat dust and middlings. It further appears from these replies that screenings from oat elevators are also known and sold as ‘oat feed’ and that ground whole oats are never sold as ‘oat feed’ but as ground oats.
“In view of the difference of opinion as to the significance of the term ‘oat feed,’ as set forth above, the crop technologist in charge of grain standardization in the Bureau of Plant Industry in this Department, who has a thorough knowledge of the grain industry in this country, was consulted. The crop technologist stated, so far as he is informed, the term ‘oat feed’ in the grain trade means the by-products of the oat mill, including oat hulls, oat nubbins, oat dust, middlings, and screenings from oat elevators; he further stated that ground whole oats are not designated as ‘oat feed’ because ground whole oats are a superior product and command a higher price in the market than oat feed.
“When, therefore, the United States attorney in charge of the proceedings against the seizure at Valdosta requested the opinion of the Department of Agriculture concerning the disposal of the case, in view of the stipulation which had been entered into with the defendants for the taking of testimony, he was informed by the solicitor of all the facts hereinbefore related in reference to the meaning of the term ‘oat feed’ and was advised that the Department of Agriculture was satisfied to leave to his discretion the question whether the case should be prosecuted or dismissed. Afier consideration of the matter, the United States attorney decided to dismiss the case.
“When the department was advised of this action of the United States attorney, it was deemed advisable to inform the United States attorneys at Montgomery, Alabama, and Danville, Illinois, to whom cases involving the same question had been referred for prosecution, of all the facts within the knowledge of the Department of Agriculture concerning the*460 meaning of the term ‘oat feed.’ They have been informed accordingly, and have been requested to advise the solicitor of this department whether, after consideration thereof, they are of the opinion that the cases pending in their respective districts based on shipments of Corno horse and mule feed, should be prosecuted or dismissed. The department is .not yet in receipt ■ of the opinions of the United States attorneys. Pending the decision of the United States attorney at Montgomery, Alabama, and the United States attorney at Danville, Iillinois, whether cases can be maintained under the food and drugs act which are based on the significance applied to the term ‘oat feed’ by the Bureau of Chemistry, the board of food and drug inspection has not determined whether cases shall be. reported for prosecution in the future in which the same issue is presented. When the replies of the United States attorneys, are received, however, the board will consider and determine what attitude shall be taken in this particular, and when a decision has been reached you will be informed accordingly.”
The testimony introduced on behalf of the defense was from manufacturers, middlemen, wholesalers, retailers, and consumers, and covered not only the United States, but two foreign countries as well, and showed that in them for a great many years the term “oat feed" has been used and understood not only by the manufacturer and all classes of middlemen, but also by the ultimate consumer, to mean the by-product of the rolled oat or oatmeal mills, in the same way that other by-products have been known by similar names. No witnesses, except Mr. Brown, testified that he ever heard the term “oat feed” applied to whole, ground, or crushed oats. Dr. Vorhees, of the New Jersey Experiment Station, and Mr. Fuller, of the Indiana Experiment Station, showed very clearly from their examinations and experience the term “oat feed” in commercial usage and wherever used in trade and commerce is known and understood to be the by-product of the oat mill.
The defense also introduced Bulletin No. 108, issued by the Department of Agriculture, April 2, 1908, regarding the “Commercial Feeding Stuffs of the United States.” This is a very valuable paper prepared by Dr. J. K. Haywood, Chief of the Miscellaneous Laboratory, and one of the principal witnesses for the government in this case, Mr. Warner, the Chief Chemist, and Mr. Howard, Chief of the Microchemical Laboratory'. The paper is the result of chemical examinations of the various stock foods, their methods of manufacture and analyses of commercial feeding stuffs conducted at a number of the state experiment stations. Table 17 of “Oat Feed” deals with the contents of seven different samples of “oat feed.” The bulletin says, on page 12:
“The main source of oat feed is the breakfast food factories. In many cases they are composed almost entirely of the oat hulls and light oats left as waste from oat meal manufacture.”
It distinguishes between oatmeal and ground whole oats. In Farmers’ Bulletin No. 170, issued by the Department of Agriculture, it is shown that “oat feed” is recognized by the department as a by-product of oats.
The government offered testimony of a considerable number of witnesses, consumers and dealers in feeding stuffs, near Washington, St. Louis, Knoxville, Kansas City, and Montgomery. Almost with
Mr. Brown, the Chief of the New York State Department of Agriculture, testified that the meaning of the term “oat feed” with the New York State Department of Agriculture was ground oats, either crushed, whole, or ground oats, from which nothing had been taken away or added, and that the term was so understood throughout the state. His practical experience, however, was limited to Coble-skill, a town of about 2,500 inhabitants, some 15 years ago. His testimony on this point is directly opposite to that of the numerous witnesses called by the defense as to the understanding of the term “oat feed” in New York state, and its weight is destroyed by the fact that the laws of the state of New York, relative to feed stuffs, recognize the distinction between oats and oat feed, classing the latter among the by-products. It is not unlikely that Mr. Brown’s experience at Cohleskill was a confusion of the expression “feed of oats” with the commodity term “oat feed.”
Mr. Lynch, the inspector, conducted his investigations along the same lines as Dr. Haywood. He would show the person of whom he inquired a copy of the label and ask what meaning it conveyed; and, if the answer should be ground oats, crushed oats, or whole oats, lie would ask the person if he found out, in purchasing feed thus labeled, that he had gotten the oat refuse or by-product of an oatmeal mill, would he consider that he had been deceived? That he did not first
The issue, however, is not what such persons with such lack of familiarity with the product would understand “oat feed” meant, but what idea the term ought to convey to persons of ordinary intelligence, who are conversant with our language. The power of Congress to pass the statute is derived solely from its authority to regulate commerce, and it must have uniform operation throughout the United States. It deals with articles of food which enter into interstate commerce. It would be unthinkable that Congress intended that a product could be seized in one district and not in another for a misleading bi'and, according or not as the generality of persons in those districts understood or were deceived by the brand on the particular product.
All words in the beginning were arbitrary signs. They became part of the language only by common usage among the people after they had generally been accepted or taken to express or stand for a particular thought or idea. When a word obtains such currency or general acceptation, the people use it to convey that particular idea to the persons to whom it is addressed, and the word continues to have that meaning and function in the language until common usage among the people accords another and different meaning to it. Language grows and changes with the growth and changes in social and economic conditions, and expressions creep into the language by a gradual process of evolution wrought by the necessity for more precise expressions and greater convenience in depicting old ideas or new conditions and things. Words are thus being constantly coined and put in circulation, and, their meaning being generally understood among the people, they become accepted parts of our speech, sometimes for years, before they are formally acknowledged and incorporated in standard dictionaries. A century ago no one would have understood what idea was meant to be conveyed by the words “chloroform,” “telephone,” “tele
The evidence satisfies the court, if that be the only means by which it can ascertain the fact, that when our people speak of the products of a particular grain or vegetable, and use the word by which that grain or vegetable is commonly called, and add the suffix “feed,” they mean to convey the idea that the substance described is the by-product of that gTain or vegetable — the residue after subtracting from the grain or vegetable those parts which are useful for human food. The evidence shows that this meaning has so long been understood in the dealings between persons who buy and sell feed stuffs, and from the designation given the product, in laws, trade journals, market reports, in the newspapers, and in official publications in reference to food for man or other animals, that the term “oat feed,” and other like terms, have become common nouns in our vernacular, and describe by-products, and therefore ought not to lead any one, who understands English and reads the label, to reach the conclusion that the term “oat feed” means the whole, ground, or crushed grain; especially when the term “oat feed” is used in juxtaposition with the word “oats” on the label, and inevitably implies that the “oat feed” contained in the mixture is something different from the “oats” therein.
The term “oat feed” on the label is not false, but truthfully designates that portion of the constituents of the blend which consists of the “oat feed” and is correctly described by those words. The purchaser buys the product for cattle food and knows it is put upon the market for that purpose. On the label here, after giving all the elements which enter into the blend, follows a plain statement of the qualities and nutritive values of the combined product for cattle food. After naming the elements put in the blend, the purchaser is told of the proportions of protein, sugar, starch, fat, and fiber, thus giving him additional means of ascertaining and judging of the nutritive properties and values of the product for cattle food. All who interest themselves in food supplies know, for instance, that protein serves to build up new tissues, replace broken down cells, and may also serve as a source of heat and energy, and so of the properties of sugar and starch, fat, and fiber, and their relative nutritive values. It might as well be said that the.stated analysis of the product in these respects was misleading, because the manufacturer did not particularly define, in the statement in reference thereto, the offices which the different elements performed in lowering or increasing the nutritive properties of a particular product — as to the charge that the use of the word “oat feed” was misleading, because it did not go further and descend to minuteness of particulars and description of the thing of which "oat feed” consists and state on this label, descriptive of stock food, that it consisted of the residue of the grain after the most valuable parts of the oat had been subtracted by the manufacturer for human food.
The great object of the statute is to prevent injury to health and deception by putting words or devices on the label which may natu
Of course, if “oat feed” meant the whole grain of the oat, either crushed, ground, or rolled, and oat hulls were packed in the blend “in excess of the amount normally present” in whole, ground or crushed oats, the label would be misleading; but there is no ground for such charge when it is ascertained that “oat feed” does not mean the whole grain of the oat in some form, but only the by-product of the oat — -“oat feed.” The admission as to the quantity of oat hulls “naturally and normally present” in “oat feed” relates only to the whole grain of.the oats, and not to the “oat feed,” which is a mere by-product, which the term on the label correctly described. If there were a greater quantity of oat hulls in the by-product, sold under this label as “oat feed,” than in such feed as generally sold,- the brand “oat feed” might be misleading in that respect; but no such contention was made, and, if it had been, ,the proof would not. sustain it. The admission of the parties as to the quantity of “oat hulls” “naturally 'and normally present” in “oat feed” is an admission to that extent, only in case the whole ground oats had been used in lieu of the same amount of “oat feed.”
Let the libel be dismissed.
