Case Information
*1 OFFICE OF THE ATTORNEY CENERAL OF TEXAS AUSTIN
Honorable John Lawson
County Attorney
San Patricia County
Sinton, Texas Opinion No. O-6589 Dear Sir: Re: Under the provisions of Ar- ticle 707,-Penal Code of Texas, is a bottier of soda water committing an offense by adding "saccharin" to his product?
From your letter requesting our opinion, we quote the following:
"A bottler of soda water who vends soda water in'this county has been arrested by an official of the state health department, and charged by com- plaint w$th,the offense of selling snd,offering for saie'soda waster to which has been added lsaccha-, rti,', and alleging that thereby the quality and '~I' " '~ strength had.been lowered and that such saccharin had,been substituted for sugar.
"The writer desires to know whether or not Art. 707 of our Penal Code makes his action anof: ' fense. He does not label his product as containing sugar, ,,nor does he represent that ,the~same .contalns sugar.
By supplemental letter gou state that you areriot '. worried about any mislabeling or misbranding aspect of.the ques- tion, but merely %ritksh to know whether the subst$tution.,bf sac- charin for sugar 'in the soda water in Issue constLtutes 'adul- teration" under the provisions of Article 707, Penal Code. .'You also state that the manufacturer Isnot makw his soda wat~er by a patented formula'which calls for the use ~of sugar as a sweet- I ening agent.
Honorable Tohn Dawson, page 2
The penal laws of this state relating to unwholesome food and medicine are contained in chapter two of Title 12 of the Penal Code: Article 706 defines food as Including "all articles used by man for food,: drink; flavoring, confectionery, or condiment,~whether simple, mixed ore compounded:." The soda water of which you inquire is' therefore classified as food within the meaning of Article 707,. Penal Code, which reads, in part, as follows:
'For the purposes of this chapter an article shall be deemed to be adulterated:~
"(c) In the case of food;
substance has been mixed and packed with ;?:oi%93: reduce'or lower or Injuriously af- feet its quality or strength;'
Y(2) .lf any substance has been substituted wholly or in part ~for .the article;.
"(3)'lf any'valuable constituent of the article has been wholly or in part abstracted, or if the pro- duct be below that standard of quality, quantity, strength or purity represented to the purchaser or consumer.
be mixed; colored.or powdered, coated or st$~d%i'~ manner whereby damage or inferiority Is concealed; .:.
"(5) if It contains any added poisonous or other added deleterious Ingredient which may render such article Injurious to health, provided, that when in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily re- moved mechanically, or by maceration in water or other- wise, and directions for the removal of said preservative *3 Honorable John Dawson, page 3
shall be printed on the covering of the package, the provisions of this Act shall be construed as apply- ing only when said products are ready for consump- tion.
"(6) if it consists in whole or IC part of a filthy, decomposed or putrid an:mal or vegetable sub- stance, or any portion of an anlcz.al or vegetable uzz- fit for food, whether manufactured or not, or If it is the product of a diseased anizal, or one that has died otherwise than by slaughter.
" * * * " Your question to us is whether or not the use of saccharin in soda water constitutes adulteration within the meaning of the above statute.
We fall to find ang,Texas statute prohibiting the use of saccharin in lieu of sugar as a sweeteningagent $n the manu- facture of bottled beverages. The law~fixes'no standard for sweetness of soda water, nor does it ,.otherw$se require.the,use of any special ingredient 5.nits :compos~tiOn. Webster defines "sodawater" to be !kow, Ln common usage, a beverage consisting of water highly charged with carbon .d$o$lde (carbonic acid), to which a flavored slrup Is usually added.",' Webster's New Inter- national Dictionary, 2d Edlt@n,
In the case of F. B, Washburn & Co. v. United States (C. C. A. 1915) 224 F. 395, $t,was held that- In a prosecution for violating the Food and Drygs~Act of.June 30,'19Q6 (21 Ui S. C. A. 8 10) by adulterating macaroons by.the addition of ~glucose, since there was no standard of s.weetness 'for macaroons fixed by lax or otherwi&e, the defendantwas not guilty. .-
We know of no reason yhy'sodawater, not made in accord- ance with a patented formula, aB @AI say is true with respect to the product of which you Lnqulre,~,shculd, in the first Instance, necessarily be made with sugar as the sweetenLng agent.
Honorable John Dawson, page 4
Saccharin is not per se unlawful, nor Is ;tts use condemned by any Texas statute. While we claim no especial learning in the field of science, chemistry, ormedicine; the most that we have found against saccharin through Investigation of available authorities, is that It is non-nutritive and of no food value, and especially when used lnsuch small amounts as to sweeten and thus impart a palatable flavor ,to so&water, Is not.harm- ful. See, e. g., Scientific American, December 1942, p. 269, quoting Journal of American Medical Association.
1.t is our opinion that a prosecution such as you men- tion is not warranted on the grounds of adulteration as same is defined in Article 707, Penal Code, supra, because of the lack of prescribed definite standards fixed for soda water in com- pliance with the general objects, principles and rules of in- terpretation set out in the first title and chapter of the Penal Code. See especially, Articles 1, 6, 9, and 10 of~sald .., code. I ..
Howe.ver,,~.we-feels that we should.dlrect your~attention to the holdina of the Federal.Food and Drug Admlnlstratibn. -In response to &'letter.written upon'recelpi of. youroriginal in- quiry, we have received a communication from that agency reading, Lnpart, as follows: ~,,.,,, ,~ .
"Receipt is acknowle&ed of.your~.letterof July' 5, 1945, requesting information as to regulations of the Federal Government which may restric,t the use of saccharin $n bottled beverages.
'No formal regulation dealing with the use of saccharin in beverages for general consumption has been issued. The Food and Drug AdmInIstration, in connection with the enforcement of the Food, Drugi and Cosmetic Act of 1938, has expressed the opinion that saccharin when used In foods to replace sugar renders the food In which so used adulterated within the meaning of section 402(b) (1) and (2)'of-the Act Ln that a valuable constituent has bean in whole or in part omitted, and that the non-nutritive substance, saccharin, has been added thereto so as to reduce Its *5 Honorable John Lawson, page 5
quality of strength or make it appear better or of greater value than it Is. A number of actions have been taken against foods, including bottled beverages, alleged to be adulterated in this way. In no recent instance have such allegations been contested. A copy of Notice of Judgment 5602 showing termination of an faction against carbonated beverages Is enclosed.
"Certain foods intended for special dietary,use by persons, such as those suffering from diabetes, who may wish to use a food sweetened with saccharin but containing no sugar, are not considered adulterated as outlined above if such special dietary foods are ac- tually what they purport to be and are properly labeled. Special regulations for the labeling of such foods have been promulgated and are contained in the Code of Federal Regulations, Cumulative Supplement, Title 21, page 5286, In the Chapter entitled tPart 125 Label Statements Con- cerning Dietary Properties 'of Fpod Purporting' to be or Represented for Special Dietary~Use.' Section 125.7 deals with label statements relative to nontnutritive ~. constituents. Saccharin and saccharin salts are non- nutritive and are covered by the requirements of this. section."
Trusting that .the above is satisfactory, we.are Yours very truly, ATTOti GENERAL OF TEXAS _ BY Benjamin Woodall Assistant BW:zd/JCP APPROVED: Opinion Committee BY O.W.BtLiman