Brief for the United States — United States v. 95 Barrels of Vinegar

CSR TS a tN ERLE SAT RRR CAME YAIR D OES

Statement of the Case

The Facts_ ae

(1) Material from w hic hs vinegar r made. st

(2) Process of manufacturing the vinegar in question

(3) Resultant product-

(4) Commerce in the artic ie.

(5) Attitude of the Dep: artment of Agric ulture.

Findings of Fact and Conclusions of Law of the District Court

Opinion of the Circuit Court of Appeals-

Assignment of Errors- . : <n

The Definition of Cider Adopted by the District Court is Un-

doubtedly the Correct One; and the Court Properly Took

Judicial Notice Thereof in Determining the Meaning Natu-

rally Conveyed by the Brand Used by the Claimant_

Vinegar Had Been Authoritatively Defined When the Food and

Drugs Act Was Passed; and Thereefter the Department of

Agriculture Decided How the Product Here in Question

Should be Branded

Definition of Cider Vinegar in State Statutes

Ohio Statutes - - :

Pennsylvania Stat utes s, 1920

Revised Statutes, Missouri, 1909_

General Statutes of Minnesota 1913

Revised Statutes of Nebraska 1913__ bees

Massachusetts, General Laws, C hapter 94, Sec. 171.

The Primary Object of the Provisions of the Statute Which

Relate to Misbranding Was to Prevent Deception, and Enable

the Purchaser to Know the Precise Article He Is Buying_-

The Ruling of President, Now Mr. Chief Justice, Taft With

Reference to the Branding of Whisky Is Directly in Point.

The Statute Was Designed to Put into Effect in the Sale and

Purchase of Foods and Drugs the General Principles of Law

Relating to Trade in General- hg ota nd Mapes aS

In Determining Whether a Label « or a Brand Is Deceptive, the

Court Will Give to Its Words, or the Phrase, the Meaning

xenerally Given by the Public—- .

When the Brand Is Deceptive, Its legality ‘te Not Cc ured by

ELE SS EPs pe eee eens ae En ge reel ae :

The Branding of Vinegar Made From Evaporated Apples as

“ Apple Cider Vinegar”’ Is Grossly Deceptive_--_-__- <

Reasoning and Illustrations of the Circuit Court of Appeals. _-

There Is in Fact a Very Material Difference Between Genuine

Apple Cider Vinegar and the Product Seized in This Case_-

No Valid Objection to the Label Showing the Facts

85945—24——1 (1

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SA AMMA COREL LILI EY SI Mt, AE IL

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CASES CITED.

American Concrete Steel Co. v. Hart, 285 Fed. 322__._._____-- 9

Commonwealth v. Burtnett, 58 Penn. Supr. R. 604__----------- 27

Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570_--- - - * 16

Federal Trade Commission v. Winsted Company, 258 U. 8. 483- - 46

Libby, McNeill & Libby v. United States, 210 Fed. 148__------ 34, 43

ames V. MGGNE, T80 U te. BGs « oan deve cee daceet ins... 43

Monroe Cider Vinegar & Fruit Co. v. Riordan, 280 Fed. 624- -_- 17

Old Colony Ins. Co. v. Kolmer, 136 N. E. (Ind.) 51__--------- 9

Pneumatic Scale Corp., Ltd., v. Mainwaring, 286 Fed. 378__--- 9

Royal Baking Powder Co. v. Emerson, 270 Fed. 429_____------ 44

Saltonstall v. Wiebusth, 156 U: 8. G01 ...............--....-- 42

eden oi arom, G6 Pek. BOt. cnn eee ces nce 19

Sterling Cider Co. v. Casey, 285 Fed. 885_.-.........-...--.- 18

ne hE Ae Os I I oa nr en Sao on dwn ant oko 42

The Prince Manufacturing Company v. Prince's Metallic Paint

oi MN re ia eae. gre ear eee meat ee BY Re het Sere

United States v. Antikamnia Co., 231 U.S. 654____.___-_-----

United States v. Coca-Cola Company, 241 U.S. 265. -------

United States v. Frank, 189 Fed. 195__..........-...--.--- ba

United Slates ¥: Téham, 17 Wall. 406...............4.--....-

United States v. Lexingi.n Mill & Elevator Company, 232 U. 8.

Marah st Stats cent ee han ea se eh ich sche E aot keeceae 9, 12, 32

United States vy. One Hundred and Fifty Cases of Fruit Puddine,

PES Es Os cut dwcdkead ane cao Daun dass whence aaa =

United States v. Schider, 246 U. 8. 519_...-.-........--.--.--

United States v. St. Louis Coffee & Spice Mills, 189 Fed. 191_-

United States v. Ten Barrels of Vinegar, 186 Fed. 399_-------_-

United States v. Two Cases of Chloro-Naptholeum Disinfectant,

Wat I Pi ons axe Sb Bei oo Sten es oe Pse ul tsced

Weeks v. United States, 245 U. 8S. 618_._....-.-...-.-------.

Wood Mfg. Co. v. United States, 286 Fed. 84__.-....--.------

Worden v. California Fig Syrup Company, 187 U.S. 516__-.__-

Inthe Supreme Court of the United States.

OcroBER TERM, 1923.

Unirep Srates or AMERICA, PLAINTIFF IN )

Error,

v.

NINETY-FIVE BARRELS, More or _ Lgss,

Alleged Apple Cider Vinegar, Douglas

Packing Company, Claimant, Defendant. d

>No.559.

BRIEF AND ARGUMENT ON BEHALF OF THE UNITED

STATES.

{All Italics are ours unless otherwise stated.]

STATEMENT OF THE CASE.

The information as amended (R. pp. 1-3) alleges

that every barrel of vinegar seized was labeled as

follows:

“Douglas Packing Company

Excelsior Brand Apple Cider Vinegar made

from Selected Apples

Reduced to 4 Percentum

Rochester, N. Y.

Guaranteed to comply with all Pure Food Laws

Douglas Packing Company

Rochester, N. Y.”’;

but that its contents “consist wholly or in part of

vinegar made from evaporated or dried apples.”

And it was therefore alleged that the vinegar was

adulterated, because it had been mixed and packed

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with, and substituted wholly or in part for another

articie, wand Vardi ft hed been miciiended, heeause

(1) the statements on the label “are false and mis-

leading and deceive and mislead the purchaser, and

(2) because “it is an imitation of and offered for

sale under the distinctive name of another article.’’

The Douglas Company, as claimant, had _ itself

made a party defendant (R. p. 4), and filed an answer

in which it denied both the adulteration and mis-

branding (R. pp. 5, 6). Subsequently, by leave of

the court, the company withdrew its answer and filed

a demurrer to the information (R. p. 7). This de-

murrer was overruled (2. p. 10); and the cause was

then heard by the court (Judge Westenhaver), with-

out a jury, upon a stipulation of facts (R. pp. 10-13).

The court in a well considered opinion (R. pp. 14-20)

held that the vinegar was misbranded; but held that

the charge of adulteration on the ground that it had

been mixed and packed with another substance was

not sustained, and did not pass on the question of

adulteration on the ground that it had been substi-

tuted wholly or in part for another article; and judg-

ment was entered in accordance with the opinion (R.

pp. 20-22). On appeal the judgment of the lower

court was reversed by the majority of the court of

appeals, the opinion being prepared by Judge Dona-

hue, and it not appearing which of the other judges

concurred (R. pp. 29-36). After a petition for a

rehearing was dismissed an application was made to

this court for a writ of certiorari, which was granted

(R. p. 40).

TEE FACTS.

The finding of the District Court was based upon

the stipulated acts suppiemertuet ‘vy, w wunatred

in the light of, facts of which the court took judicial

knowledge. A condensed statement of the material

stipulated facts is as follows:

(1) Material from which vinegar made.

The claimant has been ever since 1906 manu-

facturing from fresh, sound and mature apples

Apple Cider and Apple Cider Vinegar, and from

evaporated apples of the same character products

which it designates “Apple Cider’? and “ Apple

Cider Vinegar.”’ Fresh apples are used during the

apple season, between about September 25 and

December 15, and evaporated apples during the

remainder of the year. (R. p. 11.)

(2) Process of manufacturing the vinegar in question.

The evaporated apples are dehydrated by the

most approved process, a small amount of sulphur

being used to prevent rot, fermentation and dis-

coloration, and about 80 per cent of the water being

removed. Whether and to what extent other

constituents are removed is not wholly beyond

controversy.

A quantity of evaporated apples are placed in a

receptacle and there is introduced an amount of pure

water substantially equivalent to that removed in

the evaporating process. A weight of more than a

ton (to what quantity of apples is not stated) “is

GRENSON ERIN IN BOTTA RA Lr OSI AION REARS RUTE RRA NCA TRE GRENIER RONEN A De a

5

then placed on top of the apples and a stream of

water, under a sufficient head, introduced through a

pipe at the top of the receptacle, is applied until the

liquid, released through a vent at the bottom of the

receptacle, which vent opens as the stream of water

is applied and closes as it ceases, has carried off in

solution such of the constituents of the evaporated

apples as are soluble in cold water and useful in the

manufacture of vinegar.”’ The quantity of liquid is

about the same as would have been obtained from

fresh apples, and it carries a small but harmless

quantity of sulphur dioxide, which is later removed

during the process of manufacture by barium car-

bonate, or some other chemical agent. The liquid is

then converted into vinegar by passing through the

two stages of alcoholic and acetic fermentation in

the same way as vinegar is made from the juice of

fresh apples (R. 11, 12).

4

(3) Resultant Product.

“After fining and filtration, the resultant liquid

obtained by claimant upon chemical analysis will

give results similar to those obtained by chemical

analysis of apple cider made from unevaporated

apples,” except it contains a harmless trace of barium;

and the vinegar thus obtained “is similar in taste and

in composition to the vinegar made from unevaporated

apples,” except it contains a harmless trace of barium.

It is not claimed that the vinegar thus made from

evaporated apples is inferior to that made from

fresh apples (R. p. 12).

0 ——— a

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(4) Commerce in the article.

Since January 1, 1906, claimant has sold its prod-

ucts manufactured from both fresh and evaporated

apples as Apple Cider and Apple Cider Vinegar, its

vinegar being branded “ Excelsior Brand Apple Cider

Vinegar made from Selected Apples,” or “Sun

Bright Brand Apple Cider Vinegar made from Se-

lected Apples.’ And “for several years prior to the

enactment of the Federal Food and Drugs Act and

subsequent thereto, vinegar in large quantities, and

to a certain extent a beverage, made from evapor-

ated apples was sold in various parts of the United

States as ‘Apple Cider Vinegar’ and ‘ Apple Cider,’

respectively, by many manufacturers, including the

American Fruit Products Company, of which com-

pany Robert Douglas, president of the claimant com-

pany, had been production manager. The American

Fruit Company operated eleven plants, located in

New England, New York and Michigan.” (However

it is not stipulated what these products were under-

stood to be by the trade or the consumer).

In selling such products as “ Apple Cider’ and

“ Apple Cider Vinegar” claimant acted in good faith.

The report of the Census Bureau shows that in

1910 there were in the United States 430 manufac-

turers of cider and vinegar, and the total value of

the product was $2,254,000, and in 1920 there were

720 manufacturers, and the value of the product was

$24,671,000 (R. pp. 12, 18).

6

(5) Attitude of the Department of Agriculture.

The Department of Agriculture has never sanc-

tioned such labeling, and its attitude with reference

to the definition of apple cider vinegar is shown in

Circulars Nos. 13, 17, 19, and 136 and Food Inspec-

tion Decision No. 140, to which reference will here-

after be made (R. p. 13). And it is not questioned

“that the juice of unevaporated apples, when sub-

jected to alcoholic and subsequent acetous fermenta-

tion, is entitled to the name ‘apple cider vinegar’

(R. p. 12).

Certain inferences which may be drawn from the

stipulated facts will be considered hereafter.

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE

DISTRICT COURT.

As agreed in the stipulation, samples of cider and

vinegar made from both fresh and evaporated apples

were submitted to the district judge; and he found

that, “ There are slight differences in appearance and

taste, but all have the appearance and taste of cider

and vinegar” (R. p. 15). He also took Judicial

notice that

Cider is defined by Webster as “the ex-

pressed juice of apples.” By the word “ex-

pressed’’ is meant expelled or forced out.

From time immemorial apple cider has been

understood to mean the expressed juice of

fresh apples and not of dried apples. Apple

vinegar or apple cider vinegar likewise in the

popular mind has from time immemorial been

understood as meaning vinegar produced from

PRION TN TOY 7 ny as : . — a ine =

apple cider thus defined. Claimant’s label

conveys the impression that this vinegar is

made from that kind of apple cider and that

this apple cider is made in the common and

familiar way from fresh or undried apples.

The mere fact that the words “apple cider”

and “selected apples’’ are brought together in

the same label, conveys unmistakably this im-

pression and repels any other or different im-

pression. Apple cider is a well known prod-

uct. Apples are a wel! known fruit. Cider

means nothing else to the ordinary mind than

the expressed juice of fresh and undried ap-

ples. Apples mean nothing else to the ordi-

nary mind than fresh and unevaporated ap-

ples. (R. pp. 17 and 18.)

And after stating that the claimant’s argument over-

looked certain material and controlling considera-

tions, he said:

One is that apple cider as defined in the

dictionaries and as commonly and popularly

understood, is the expressed juice of fresh

apples, and that apple vinegar is commonly

and popularly understood to be produced by

the alcoholic and acetic fermentation of that

kind of cider. (R. p. 18.)

The conclusion of the court is thus expressed:

A merchant who advertises and offers

_ apples for sale could not compel a purchaser to

accept dried or evaporated apples. ‘The latter

are not apples as that word is understood in the

trade or by a person of ordinary intelligence,

but are a manufactured product, an entirely

different article. Nor, in my opinion, could a

S315 —.4-——-2

a

8

merchant who offers apple cider for sale, com-

pel a purchaser to accept a liquid made from

evaporated apples in the manner above de-

scribed, even though it does possess substan-

tially the same chemical constituents and has

substantially the same taste as the expressed

juice of fresh apples. Claimant’s label con-

sequently misleads and deceives. It makes a

statement with respect to an article of food

which conveys the false notion that this article

is vinegar made from the expressed juice of

fresh apples. (R. p. 18.)

And further:

The law was designed to prevent the

ordinary purchaser from being deceived and

misted as to what he is buying, and that there-

fore the test of misbranding is the effect of the

label or statement upon the ordinary pur-

chaser. A statement that an article is apple

cider vinegar made from selected apples, can

convey no other idea to such a person in the

present state of common knowledge than that

the vinegar is made from the expressed juice of

fresh apples and not by the manipulation of

dried or evaporated apples. If it does, and the

ordinary purchaser is or may be thereby

misled or deceived, it is no answer to say that

he gets a vinegar which is equally good. The

object of the law is to let the purchaser know

just what he is buying and to let him decide

whether he wants it or not. One may not

take advantage of his prejudices or want of

information to sell him something different

from what he thinks he is buying. (R. pp.

18 and 19.)

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9

The facts found by the trial court are conclusive

if they can be reasonably inferred from the evi-—

dence introduced by stipulation or otherwise. In Old

Colony Ins. Co. v. Kolmer 136 N.E.(Ind.) 51, it was held

that “where only evidence submitted on trial was

an agreed statement of facts, the appellate court

must sustain the conviction on which the judgment

is based, if such facts or any inference reasonably

deducible therefrom tend fairly to support it.” See

also Pneumatic Scale Corp., Ltd., v. Mainwaring, 286

Fed. 378, 379 (C. C. A. 2d Cir.); and American Con-

crete Steel Co. v. Hart, 285 Fed. 322 (C. C. A. 2d Cir.).

OPINION OF THE CIRCUIT COURT OF APPEALS.

The views of the Circuit Court of Appeals are

indicated from the following quotations from its

opinion:

The important question in each case is

whether the product is the identical thing that

its brand indicates. If it is the identical thing

indicated by the brand, the method of its

manufacture, regardless of the information of

the general public upon that subject, is

wholly unimportant. (R. p. 31.)

It must also be assumed that legislation

upon any subject has some definite and sub-

stantial object in view, and is not in further-

ance of technical purposes or barren idealities.

(R. p. 32.)

The court after referring to United States v. Lex-

ington Mill & Elevator Company, 232 U. 8S. 399

(which involved adulteration alone), where it was

10

said that the primary purpose of Congress in enacting

the Food and Drugs Act of 1906 was to prevent

injury to the public health by the sale and trans-

portation in interstate commerce of misbranded and

adulterated food, said:

This conclusion was reached evidently

upon the theory that the legislative intent

was to accomplish a substantial and beneficial

result to the public and not merely for the

purpose of exercising an arbitrary control

over private business. (R. p. 33.)

It is undoubtedly true that vinegar not

made from apple cider, even though chemically

equal to cider vinegar, may not be branded

as such. On the other hand, vinegar made

from apple cider is not misbranded by reason

of its failure to meet the chemical test. Mis-

branding is included in the statutory prohibi-

tion, because it bears some relation to the con-

servation of the public health, and not pri-

marily because a purchaser's whims were to

be protected, and, though doubtless the test

of misbranding a product is whether it is

true to name, there is no occasion for over-

strictness in applying this test in a case where

the public health cannot possibly be jeopard-

ized. In the Standard Encyclopedia, under

the caption “Cider,” it is said:

“Apples commonly used tor making cider

are by no means tempting to the palate and

are, in fact, unfit for eating raw or ordinary

cooking. * * * In the United States it is

considered that a certain proportion of decay

im fruit improves the flavor.”’

PORN S BrenGes, TEL A aT I SRY Pry oY eng ree

11

Keeping in mind the underlying purpose

to protect the public health and the admis-

Sions in this case that the present alticle is

made wholly from “sound arid mature apples,

free from rot and ferment,” it is clear that

condemnation should not be made unless the

statute imperdtively requires it. Definitions

of cider, which include the method or process

of its manufacture, written long before public

need required the conservation of our food

products, are not helpful to the determination

of the question presented in the instant case.

Even these definitions call only for the juice

of apples, and do not literally exclitde the

pressing of apples dehydrated and later hy-

drated in equivalent proportions.

The missing and essential element for the

government’s case is found only in the supposed

judicial knowledge that the popular definitions

have reference only to fresh apples. Such

knowledge was declared in the court below, and

the judgment based thereon. (R. p. 33.)

It is not seriously contended on the part of

the government that the fluid obtained from press-

ing the evaporated apples, after the water taken

therefrom has been restored, is not apple cider.

It is suggested that possibly there is some

coustituent element of the apple removed by

the dehydrating process that is never restored

thereto. There is no proof of that fact, but

there is an admission that, even if such con-

stituent element is removed, it is so imma-

terial and inconsequential in quantity that

the science of chemistry cannot disclose it.

This brings this case clearly within the doc-

12

trine announced in U. S. v. Lexington Mill

& Elevator Co., swpra, to the effect that the

burden is upon the government to establish

by the evidence, not merely a technical, but

a substantial, violation of the federal Food

and Drug Act, which may render the article

injurious to health, or mislead the public

to its prejudice or harm, or induce the pur-

chase of a different article than the article

desired. (R. p. 34.)

It may be true that a large part of the pur-

chasing public has no knowledge whatever in refer-

ence to the manufacture of cider from evaporated

apples, and for that reason might have a distinct

prejudice against such a method of manufacture.

Undoubtedly the Pure Food and Drug Act

contemplates the protection of the public in this

regard, but only to the extent that the public

shall not be deceived or misled by the brand into

buying an imitation of the article or a substi-

tute for the article indicated by the brand. If,

however, it is in truth and in fact buying the

identical article indicated by the brand, manu-

factured from the same basic elements, and

none other, the purpose of the statute is ac-

complished, and the process of manufacture is

of no importance. (R. p. 34.)

The statement in the opinion that “It is-not seri-

ously contended on the part of the government that

the fluid obtained from pressing the evaporated

apples, after the water taken therefrom has been

restored is not apple cider” is entirely erroneous.

The government does seriously and earnestly insist

13

that such fluid is not cider, and has never been known

as cider; and, as will be hereafter shown has never been

so defined by any authority. Furthermore the stipu-

lation shows that such fluid is not obtained by

pressing.

The difference in the views of the district judge,

with whom one of the circuit judges apparently con-

curred, and the views of the other two circuit judges,

is well defined. The view of the District Court was

that under the paragraphs of the statute relating to

misbranding an article is misbranded if the pur-

chaser is led to believe by the brand that he is pur-

chasing an article made or derived entirely from a cer-

tain substance, when in fact he is purchasing an article

made wholly or in part from another substance,

though the article bought may be about as good as,

and but little different in characteristics from the

other. On the other hand, the Court of Appeals

minimizes the element of deception, and substantially

holds that the object of the statute in prohibiting

misbranding as well as adulteration is attained if in-

jury to the public health is prevented.

ASSIGNMENT OF ERRORS.

In the petition for writ of certiorari it was insisted

that the Circuit Court of Appeals had erred in the

following particulars:

1. In failing to hold and decide that misbranding

under the Federal Food and Drugs Act must be

determined by construing descriptive words upon

food and drug labels according to their ordinary and

14

popular signification to the purchasing public, rather

than according to their technical or trade meaning.

29. In holding in substance and effect that the

ordinary and popular signification of the terms

“Apple Cider” and “Apple Cider Vinegar” were not

properly the subjects of judicial notice.

3. In holding that the District Court had erred in

taking judicial notice that ‘Apple Cider” in its

ordinary and popular signification meant the native

juice of unevaporated apples, and that ‘Apple

Cider Vinegar’? meant the vinegar derived by the

alcoholic and subsequent acetous fermentations of

such juice.

4. In holding in substance and effect that the trade

practice or usage prevalent among certain manufac-

turers and vendors of vinegar, of labeling vinegar de-

rived from evaporated apples as “Apple Cider Vine-

gar’? without disclosure to the purchasing public

that such vinegar was so derived, altered the pri-

mary signification of these words for the purposes of

the Federal Food and Drugs Act.

5. In holding in substance and effect that in order

to constitute a misbranding under the Federal Food

and Drugs Act, the label must be such as to deceive

the purchasers of an article of food or drugs to their

substantial injury.

6. In holding that the misbranding provisions of

the Federal Food and Drugs Act should be con-

strued as having a relation to the conservation of

public health and not as designed to protect pur-

chasers’ whims.

Se ee oe eh eg ee ee

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15

7. In holding that the District Court’s judgment

of misbranding was not sustained by the stipulated

facts and the reasonable inferences deducible there-

from. (Pet. pp. 3 and 4.)

BRIEF AND ARGUMENT.

THE DEFINITION OF CIDER ADOPTED BY THE DISTRICT

COURT IS UNDOUBTEDLY THE CORRECT ONE; AND

THE COURT PROPERLY TOOK JUDICIAL NOTICE

THEREOF IN DETERMINING THE MEANING NATUR-

ALLY CONVEYED BY THE BRAND USED 38Y THE CLAIM-

ANT.

By Webster “cider” is defined as “The expressed

juice of apples. It is used as a beverage, for making

vinegar, and for other purposes,” and by way of

comment he says “Cider was formerly used to signify

the juice of other fruits, and other kinds of strong

liquor, but was not applied to wine.” In the Stand-

ard Dictionary, “cider” is defined as “The expressed

juice of apples, used as a beverage, either before or

after fermentation; also, sometimes, the juice of

other fruits; as, pear cider.’

In an article in The Encyclopaedia Britannica

relating to cider, it is said:

Cider and perry (the corresponding bever-

age made from pears) are liquors containing

from as little as 2% of alcohol to 7 or 8%,

seldom more, and rarely as much, produced

by the vinous fermentation of the expressed

juice of apples and pears.

In Nelson’s Encyclopaedia it is said:

Cider is the fermented juice of the apple.

The manufacture consists in crushing the

apples and squeezing out the juice. The

3

85945—24

ae

16

juice is poured into casks, where it ferments

and clears itself of impurities * * *. As

the freshly expressed juice comes from the

press, it is placed in covered vats and barrels

where it undergoes a rapid fermentation,

throwing up a white foaming head of lees.

In Farmers’ Bulletin No. 1264, entitled “Farm

Manufacture of Unfermented Apple Juice,” it is

said (p. 4),

There is some confusion in the use of the

terms applied to unfermented apple juice.

The term “cider” has been in the past applied

to the juice both before and after fermenta-

tion, usually with “sweet” or “hard”’ prefixed

to indicate whether fermentation has not or

has occurred, but the single word “cider” is

also widely used for the unfermented juice.

The courts have frequently recognized the fore-

going as the true definition of cider.

Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed.

570, 571 was an action brought against the Printing

Company for publishing an article wherein it was

declared that the cider manufactured by the plaintiff

was subject to the liquor laws of the State of Arkansas;

and the material question was whether or not the

publication was justified by the facts. In defining

“eider,” the court (District Judge Caldwell) said:

The meaning of the word ‘‘cider,’’ its

method of production, and its general con-

stituents, are matters of common knowledge,

and upon which all books of accepted authority

agree. No court would be justified in affecting

17

ignorance of these facts, or in closing its eyes

to them, in a case requiring their application,

In a popular sense, the term “cider” includes

the expressed juice of apples, either Sermented

or unfermented, and hence the terms “sweet

cider” and “hard cider” are in popular use

to distinguish between the juice of the apple

before and after fermentation. In strictness,

the juice of the apple before fermentation is

simply apple juice, and it is only by fermenta-

tion that it becomes cider; and, when the

word “cider” alone is used in law or com-

merce, it is commonly understood to mean the

fermented juice of apples.

In Wonroe Cider Vinegar & Fruit Co. v. Riordan,

280 Fed. 624, 626, 627, the question was whether

sweet cider was a soft drink within the meaning of

the revenue act of 1918, section 628. In defining

“cider” the court (C. C. A., Second Circuit) said:

“Cider,” according to the dictionaries, was

‘formerly any liquor made of the juice of

fruits; now the expressed juice of apples,

either before or after fermentation.” ‘Hard

cider” is “fermented cider.” “Sweet cider”’

is “cider before fermentation or cider in

which fermentation has been prevented.”

* * * * *

Sweet and hard cider have been desig-

nations of the fermented and unfermented

expressed juice of apples in common use in

the English language long before any man

now living was born.

—a

18

Sterling Cider Co. v. Casey, 285 Fed. 885, 886 in-

volved the same question, and in defining ‘‘cider”’

Judge Morton said:

Cider has been known for centuries. It

means, when used without qualification, the

pressed-out juice of apples. It was a common

beverage long before anybody ever heard of

“soft drinks’’.

The judgment in this case was affirmed by the

Court of Appeals on Dec. 21 last; and in its opinion

the Court speaks of sweet cider as ‘“‘a natural fruit

juice”’.

In fact, in no authority is cider defined otherwise

than as “the expressed juice of apples”. But it

appears, especially from some of the encyclopaedias,

that the word ‘‘cider”’, when not modified, refers to

the juice after alcoholic fermentation.

“Juice” is defined by Webster as “The charac-

teristic fluid of any vegetable or animal substance;

the sap or part that can be expressed from fruit, etc.”

And: by the Standard Dictionary “juice” is defined

as, ‘The fluid part of vegetable or animal matter;

especially, the expressible watery matter in. fruits,

containing usually the characteristic flavor, and

(chiefly in the plural) the fluids of the body”.

The evaporated apples used by claimant retains

20% of the natural quantity of water. By subject-

ing them. to high pressure, a viscid exudation can be

squeezed out of them. Can such exudation be

properly called the ‘“‘juice” of the apples? There is

19

no difference between such a product and that pro-

cured by expressing thé juice and reducing it 80%

by boiling. In @ath instatice, 80% ‘of the water con-

tent has been removed.

In Smith vs. Rheinstrom, 65 Wed. 984, 985, the

Cireuit Court of Appeals for the Sixth Cireuit, speak-

ing through Circuit Judge, (now Mr. Chief Justice)

Taft held that cherry juice, from Which 80% of the

water had been removed by being subjected to heat

in a vacuum, was not “cherry juice” within the

meaning of the tariff act of 1890, which imposed a tak

of 60 cents per gallon upon “Cherry juice and prune

juice, or prune wine, and other fruit juices Hot

specially provided for’. The court said:

The juice of vegetables or fruit is nothing

but the sap obtained by expression. If the

sap is subjected to heat and evaporation, the

article thus produced is generally understood

to be a different thing from the sap. Thus,

the sap of the sugar maple is different from the

molasses which is obtained from the sap by

boiling, and no one would think of including

under the term ‘‘sap,” if used in the tariff act,

the molasses made therefrom. It is true that,

for want of a better name, this is called “con-

centrated cherry juice.” It has not been intro-

duced generally enough into commerce to lead

to a designation of it by a name which differ-

entiates it from cherry juice other than by

adding an adjective descriptive of the change.

But concentrated cherry juice is different from

cherry juice as molasses is different from sap,

20

and the difference ia the latter case would be

quite as great even if molasses were called con-

centrated sap instead of molasses.

No substance can be genuine apple juice other

than that actually expressed from the apple. Such

juice is composed of water and solids, one of which

is sugar. If after the removal of the water squeezed

from the apple and the substitution of other water,

it remains apple juice, then the sugar might be re-

moved and other sugar substituted, and it would

still be apple juice. And thus, one by one, every

ingredient might be removed and an equivalent sub-

stituted, and it would still remain apple juice, though

not a drop or a particle of it had ever been inside an

apple. If this is true, nomenclature means nothing.

That which is a chemical equivalent is the thing it-

self. Oleomargarine is butter, and cotton seed oil is

lard.

If, therefore, nothing is apple juice other than that

which has been actually expressed from the apple,

nothing is apple cider except the apple juice actually

expressed from the apple before fermentation and

the resultant product of such juice after alcoholic

fermentation. Not only is this technically true, but,

as above shown, such has been the universal under-

standing ever since man’s knowledge about such mat-

ters has been recorded.

OO e——

a

VINEGAR HAD BEEN AUTHORITATIVELY DEFINED WHEN

THE FOOD AND DRUGS ACT WAS PASSED; AND THERE-

AFTER THE DEPARTMENT OF AGRICULTURE DECIDED

HOW THE PRODUCT HERE IN QUESTION SHOULD BE

BRANDED.

By the act of March 3. 1903, making appropria-

tions for the Department of Agriculture for the fiscal

year 1904 (32 Stat., Chap. 1008, p. 1158) an appro-

priation was made for certain purposes among which

was “to enable the Secretary of Agriculture, in

collaboration with the Association of Official Agri-

cultural Chemists, and such other experts as he may

deem necessary, to establish standards of purity for

food products and to determine what are regarded

as adulterations therein, for the guidance of the

officials of the various States and of the courts of

justice.”’

On December 19, 1904, a report was made to the

Secretary of Agriculture by a board representing the

Association of Official Agricultural Chemists of the

United States and commissioned by the Secretary of

Agriculture pursuant to the aforesaid provision sub-

mitting for his consideration standards for certain

articles, among which was vinegar. This board had

defined six classes of vinegar, to wit:

. Vinegar, cider vinegar, or apple vinegar.

. Wine vinegar or grape vinegar.

Malt vinegar.

. Sugar vinegar.

. Glucose vinegar.

Spirit vinegar, distilled vinegar, or grain

vinegar.

24

quent acetous fermentations of the expressed juice of

apples.” And for the branding of vinegar made from

dried-apple products, it was prescribed that:

The product made from dried-apple skins,

cores and chops, by the process of soaking, with

subsequent alcoholic and acetous fermentations

of the solution thus obtained, is not entitled to

be called vinegar without further designation, but

must be plainly marked to show the material

from which it is produced. (See Food Inspec-

tion Decision 140, Department of Agricul-

ture.)

Directions were also given as to the labeling of vine-

gars containing (1) an addition of water, (2) mixturesof

vinegars, (3) containing an addition of boiled cider

and coloring matter, (4) mixtures of distilled and

sugar vinegars, (5) acetic acid diluted, and (6) a

product obtained by distilling wood. In other words,

provisions were made for the branding of all kinds

of vinegars.

It is true that this decision was not formally

adopted as a rule and regulation by the three secre-

taries; but by section 4 of the Food and Drugs Act

the duty of examining specimens of foods and drugs

to determine whether or not they are adulterated or

misbranded is imposed upon the Bureau of Chemis-

try of the Department of Agriculture; and that De-

partment is onerated with the duty of initiating pro-

ceedings for the enforcement of the law. And as it

was established as a rule of action by the Depart-

ment after such careful investigation when it is pri-

a ae =

25

marily the duty of that Department to determine

what constitutes adulteration or misbranding, it is

entitled to great weight in determining whether or

not a brand properly describes the article to which

it is attached. In fact if the definition of vinegar by

the Board was authoritative as held by J udge Holis-

ter, then the branding of claimant’s product as

“ Apple Cider Vinegar” is necessarily a misbranding.

The Department of Agriculture has enforced these

regulations by having seized from time to time

vinegaxg misbranded under their terms. As appears

from notices of judgments, published as directed by

Sec. 4 of the Food and Drugs Act, the following

seizures were made and sustained where the mis-

branding was the same as that alleged in the in-

formation filed in this case: No. 5413 filed January

8, 1917, in the District of Rhode Island; No. 5422,

filed January 15, 1917, in the District of Massachu-

setts; No. 8761 filed April 13, 1920, in the Southern

District of Ohio; No. 11038 filed July 10, 1922, in

the Northern District of Ohio; No. 11326 filed March

10, 1920, in the Eastern District of Wisconsin; No.

1137 filed October 18, 1922, in the Western District

of Pennsylvania, and No. 11525, filed January 22,

1923, in the Western District of Pennsylvania. A

number of seizures of vinegar have also been made

and sustained where the brand violated the Depart-

ment’s regulation, but the misbranding was different

from that here charged.

gE

26

DEFINITION OF CIDER VINEGAR IN STATE STATUTES.

Many State statutes define cider and cider vinegar

in terms substantially equivalent to those used in

Food Inspection Decision No. 140 of the Department

of Agriculture. In some instances, notably Ohio,

Pennsylvania, Missouri, Minnesota, Nebraska, and

Massachusetts the definitions of these terms are so

worded as to unequivocally exclude any product not

derived exclusively from pure apple juice. The

statutes in those States are as follows:

Ohio Statutes.

The Ohio General Code, Throckmorton, in Section

5786, provides:

Vinegar shall be made wholly from the fruit

or grain from which it purports, or is repre-

sented, to be made, and shall not contain a

Joreign substance or less than four per cent, by

weight, of absolute acetic acid. (99 v. 28, 29,

p- 1, 2.)

And Section 5787 provides:

Vinegar manufactured, offered or exposed

for sale, sold or delivered, or in the possession

of a person with intent to sell or deliver,

under the name of cider vinegar, apple vinegar,

or any compounding of the word “cider” or

“apple”’ as the name or part of the name of

vinegar, shall be the product made by the

alcoholic and subsequent acetous fermenta-

tions of the juice of apples, and shall not con-

tain any foreign substance, drugs or acids, and

is laevo-rotatory.

27

Fully 70 per cent of the vinegar here in question

is a foreign substance; that is, was never a part of an

apple or apple juice. But the Court of Appeals

rightfully regarded the question under this statute

the same as that arising under the Federal Food

and Drugs Act (R. p. 31).

Pennsylvania Statutes, 1920.

§ 21458. Cider vinegar to be pure apple

juice—No person shall manufacture for sale,

or offer or expose for sale, as cider, apple or

orchard vinegar, any vinegar not the legitimate

product of pure apple juice known as apple

cider, or vinegar not made exclusively of said

apple cider, or vinegar into which foreign

substances, drugs or acids have (been) intro-

duced as may appear by proper test. (1891,

June 11; P. L. 297 § 1.)

In Commonwealth v. Burtnett, 58 Penn. Supr. R.

604, the Superior Court held that the Act of May

21, 1901, which was in substance identical with the

above, prohibited the sale of apple or cider vinegar,

where it appears that the product contains approx-

imately eighty per cent of water not derived from

the apple but added to the vinegar by the manufac-

turer in the process of manufacturing. The Court

said “we are not concerned with the healthfulness

or dangerous qualities of the vinegar sold by this

defendant. Our only concern is whether its sale was

inhibited by our laws.” A writ of certiorari was

denied by the Supreme Court.

28

Revised Statutes, Missouri, 1909.

Sec. 4841. Adulterating vinegar.—Any per-

son who manufactures for sale or offers or

exposes for sale as cider vinegar, any vinegar

not the legitimate product of pure juice known

as apple cider, or vinegar not made exclusively of

said apple cider, or vinegar into which foreign

substances, drugs or acids have been intro-

duced, as may appear on proper tests, shall

be deemed guilty of a misdemeanor and, upon

conviction thereof, be punished for every of-

fense by fine of not less than fifty dollars nor

more than one hundred dollars, and the costs

of prosecution, or by imprisonment in the

county jail not to exceed ninety days. (R.5.

1899, § 2282.)

General Statutes of Minnesota, 1913.

3691. Vinegar.—The term “vinegar” as

used herein, shall be deemed to include any

article or preparation desiened or offered for

sale or used as vinegar, or as a substitute

therefor, or imitation thereof. No person shall

sell as cider vinegar any article or preparation

not wholly from pure apple juice.

Revised Statutes of Nebraska, 1913.

2575 “Cider” defined.—For the purposes

of this article, ‘‘cider’’ shall be construed to

mean pure apple juice, absolutely free from

any foreign substance. (1897 p. 42; Ann.

9854; Comp. 501.)

2579 Vinegar.—No person, firm or com-

pany shall manufacture for sale, offer or ex-

pose for sale, sell or deliver, or have in his

possession with intent to sell or deliver, any

vinegar, not in compliance with the provi-

sions of this article. No vinegar shall be sold

as apple, orchard, or cider vinegar, which is

not the legitimate product of pure apple jutce,

known as appie cider, or vinegar not made ex-

clusively of said apple cider, or vinegar into

which foreign substance, drugs, or acids have

been introduced, or which upon proper test

shall contain less than one and six-tenths per

cent by weight of cider-vinegar solids, upon

full evaporation at the temperature of boil-

ing water. (1897 p. 43; 1909 p. 53; Ann.

9859; Comp. 506.)

Massachusetts, General Laws, Chapter 94, Sec. 171.

* * * whoever labels, brands or sells as cider

vinegar or as apple vinegar, any vinegar not the

ex-clusive product of the alcoholic and subsequent

acetous fermentation of the pure juice of fresh

apples, shall be punished by a fine of not more than

one hundred dollars.”’

The recital in claimant’s label ‘‘Guaranteed to

comply with all pure food laws” can only mean that

if there be a statute, Federal or State, requiring

apple cider vinegar to be made exclusively from the

pure natural juice of apples, this vinegar meets that

requirement. Therefore as to a number of States

this statement is absolutely false, and is neces-

sarily a misbranding. In Wood Mfg. Co. v. United

States, 286 Fed. 84, 88 (C. C. A. 7th Cir.) it was held

that a coloring material used for coloring cakes, etc.,

the label on which contained the statement, ‘‘ War-

30

ranted. Complies with all requirements,’’ but which

contained a salt content of more than 5 per cent,

when the Department of Agriculture had a require-

ment that such a product should contain a salt

content of less than 5 per cent, was misbranded be-

cause of the false impression thus made. And in

United States v. Ten Barrels of Vinegar, 186 Fed.

400, 401, in which the vinegar was condemned be-

cause improperly labeled,” a blend of pure boiled apple

cider and distilled vinegar,” the label also containing a

guarantee similar to the one in the label here in

question, the court (Judge Quarles) said:

In other words the ordinary purchaser

reading this label would not be led to suppose

he was buying distilled vinegar compounded

with a foreign element. He is comforted

with the assurance: “ We guarantee the vine-

gar sold under our brand to comply with the

requirements of the National and State pure

food laws.”

THE PRIMARY OBJECT OF THE PROVISIONS OF THE

STATUTE WHICH RELATE TO MISBRANDING WAS TO

PREVENT DECEPTION, AND ENABLE THE PURCHASER

TO KNOW THE PRECISE ARTICLE HE IS BUYING.

The act is divided into two parts, one of which

prohibits adulteration and the other misbranding.

The primary object of the prohibition of adulteration

was to protect the public against unwholesome foods,

and to prevent an inferior food from being sold as

one having a superior quality. On the other hand,

the primary object of the provisions against mis-

branding was to prevent the purchaser from being

31

deceived in the quality or character of the food pur-

chased. In other words, it was to enable him to

know exactly what he is purchasing, regardless of

the relative merits of the article which he actually

purchases and the one he intends to purchase.

There may be no difference in the food value of a

lamb chop and a veal chop, but the purchaser has

his preference, and should receive the one ue calls for.

Nothing can more clearly show this purpose than

the language of the act itself. Section 8 of the act

(34 Stat. 770) declares:

That the term “misbranding,” as used

herein, shall apply to all drugs or articles of

food, or articles which enter into the compo-

sition of food, the package or label of which

shall bear any statement, design, or device

regarding such article, or the ingredients or

substances contained therein which shall be false

or misleading in any particular;

and with reference to foods, it is declared that an

article shall be deemed to be misbranded:

First. If it be an imitation of or offered for

sale under the distinctive name of another

article.

Second. if it be labeled or branded so as to

deceive or mislead the purchaser.

* * 2 ** *

Fourth. If the package containing it or its

label shall bear any statement, design, or device

regarding the ingredients or the substances con-

tained therein, which statement, design or device

shall be false or misleading in any particular.

99)

That these provisions were intended to prevent de-

ceptions of all kinds has been repeatedly recognized,

and in fact emphasized, by this court.

In United States vs. Antikamnia Co., 231 U. 8.

654, 665, the court said:

The purpose of the act is to secure the purity

of food and drugs and to inform purchasers of

what they are buying. Its provisions are di-

rected to that purpose and must be construed

to effect it.

In United States vs. Lexington Mill Company, 232

U.S. 399, 409, the court said:

The legislation, as against misbranding, in-

tended to make possible that the consumer should

know that an article purchased was what it pur-

ported to be; that it might be bought for what it

really was and not upon misrepresentations as

to character and quality.

In United States vs. Coca-Cola Company, 241 U.S.

265, 287, it was said:

The aim of the statute is to prevent deception,

and that which appropriately describes a dif-

ferent compound can not secure protection as

a ‘distinctive name.”

The language of the court in the foregoing cases

was quoted with approval in the case of United

States vs. Schider, 246 U. S. 519, 522, in which it

was held that a bottled article labeled “Compound

Ess Grape,” which contained nothing from grapes,

was adulterated, as some other substance had been

substituted for that obviously indicated on the label,

— artis

33

and also misbranded, as the label carried a false and

misleading name. In condemning the label, the court

said :

The stuff put into commerce by defendant

was an “imitation”? and if so labeled pur-

chasers would have had some notice. ‘To call

it “compound essence of grape’’ certainly did

not suggest a mere imitation but on the con-

trary falsely indicated that it contained some-

thing derived from grapes. See Frank v.

United States, 192 Fed. Rep. 864. The statute

enjoins truth; this label exhales deceit.

In Weeks vs. United States, 245 U.S. 618, 621, it

was held that an article branded “Special Lemon.

Lemon Terpene and Citral’’, which contained alcohol

and citral made from lemon grass, was misbranded

because it was offered for sale as lemon oil when in

truth it was an imitation thereof. The court said:

It is apparent that the statute specifies and

defines at least two kinds of misbranding—one

where the article bears a false or misleading

label, and the other where it is offered for sale

under the distinctive name of another article.

The two are quite distinct, a deceptive label

being an essential element of one, but not of

the other. No doubt both involve a measure

of deception, but they differ in respect of the

mode in which it is practiced.

The following cases decided by lower courts in-

volved facts which presented the same question as

that here presented.

In United States vs. Ten Barrels of Vinegar, 186

Fed. 399, 401, 402, the question was whether vinegar

34

branded “Saratoga Brand vinegar, a blend of pure

boiled apple cider and distilled vinegar’’, which did

not in fact contain apple cider vinegar, was mis-

branded. Judge Quarles, who heard the case, said:

It is matter of common knowledge that cider

vinegar is far superior to distilled vinegar.

The popularity of cider vinegar is so general

that this brand, not subjected to critical

examination, would naturally arouse the ex-

pectation that cider vinegar has been blended

with distilled vinegar.

Again:

We have seen how naturally the buyer might

be misled by a casual examination of the label.

The use of the term “blend” coupled with a

specific reference to the pure food act, is well

calculated to confirm such mistake, in view of

the guaranty that the vinegar sold under this

brand meets all the requirements of the national

pure food law. Special significance is thus

given to the statutory definition of the term

“blend”. It is true that boiled apple cider

might be used as a harmless agent to give

color or flavor to the distilled vinegar; but in

such a case the boiled cider would be an

infusion as distinguished from a “blend’’, and

the public would be entitled to notice of its

use for that qualified purpose. Here it is

presented to the public as a blend, which is

falsely misleading, because it is conceded that

no cider vinegar whatever is contained in these

packages.

In Libby, McNeill & Libby vs. United States

(C. C. A. 4th Cir.), 210 Fed. 148, 150, the question

—

35

was whether a product labeled ‘Target Brand of

Condensed Skimmed Milk,” which contained more

than two parts of cane sugar to something less than

three parts of the more nearly solid constituents of

skimmed milk, was misbranded. The court said:

The words on the label were all in ordinary

use. Each and every one of them could and

would be understood by the general public to

have been intended to convey their accustomed

meaning; that is to say, the average man

who read the label would suppose that the

can contained skimmed milk which had been

reduced in bulk by evaporating or otherwise

driving off a part of its fluids.

In United States vs. One Hundred and Fifty Cases

of Fruit Puddine, 211 Ved. 360, Judge Morton held

that a product known as ‘‘ Fruit Puddine”’ and labeled

“Fruit Flavored Puddine,’’ when in fact no fruit

was used in the product, was misbranded because

the expression led the purchaser to believe that it

was flavored with actual fruit.

In_ United States vs. Two Cases of Chloro-Nap-

tholeum Disinfectant, 217 Fed. 477, Judge Rose held

that a disinfectant which was labeled ‘“Chloro-

Naptholeum,” but which did not contain as an es-

sential ingredient either chlorine or chior-napthol

was misbranded. The claimant also contended that

the general public was not familiar with chemical

terms, and that the article had been long sold under

that designation, and in fact it had become a distine-

tive name. But in passing upon the motion for a

i

= a

36

new trial, the court said the jury was instructed that

a word does not become purely arbitrary until it

has lost the descriptive significance both to specialists

in the subject and to the general public. It was held

therefore that the jury was warranted in finding that

the label contained a false suggestion.

THE RULING OF PRESIDENT, NOW MR. CHIEF JUSTICE,

TAFT WITH REFERENCE TO THE BRANDING OF WHISKY

IS DIRECTLY IN POINT.

The proper label for branding whiskys to comply

with both the Internal Revenue Laws and the Food

and Drug Acts was given special attention during

the latter part of the administration of President

Roosevelt and the first part of President Taft's

administration. The matter was referred to Solicitor

General Bowers; and after extended hearings a ruling

was made by him from which an appeal was taken to

the President. The question determined was the

kinds of liquors that could legally be branded as

“whisky.”” The record was carefully reviewed by

the President; and in his opinion he defined the

objects of the Pure Food Act to be:

One to preserve the health of the people,

and the other to prevent their being deceived by

label or brand as to the real character of drugs or

articles of food offered for sale (Op. p. 1).

After reviewing the facts he stated that:

The question, therefore, is not here one of

health. It is only one of correct branding t«

prevent deceit of the public as to what it ws

buying (Op. p. 5).

PT Ree re A Tt yee © Ler ye oe a —

37

With reference to the understanding of the public

as to what articles were whisky, the President said:

All these products—straight whisky, rec-

tified spirits whisky, redistilled spirits whisky,

and neutral spirits whisky—when reduced by

water to a hundred proof or less and sold upon

the market as beverages were known to the

trade and to the customers as whiskies; (Op. p.

5).

and again:

After an examination of all the evidence

it seems to me overwhelmingly established that

for a hundred vears the term “whisky” in

the trade and among the customers has

included all potable liquor distilled from

grain; that the straight whisky is, as com-

pared with the whisky made by rectification

or redistillaiion and flavoring and coloring

matter, a subsequent improvement, and that

therefore it is a perversion of the Pure Foud

Aet to atterapt now to limit the meaning of

the term “whisky” to that which modern

manufacture and taste have made the most

desirable variety (Op. p. 6).

But with reference to spirits made from molasses

he said :

Neutral sperits made from molasses and

reduced to polable strength has sometimes been

called whisky, but not for a sufficient length of

frome or vender coreumstances justifying the con-

clusion thet «t is @ proper trade name. The

distillate yrom molasses uscd for drinking has

commonly been known as rum. The use of

whisky for it is a mishranding (Op. p. 8).

sone Ts

38

It was held, therefore, that all of the different

kinds of whiskies first mentioned could be legally

labeled “ whisky” because each of the liquors mentioned

was and had been for a great many years known by

the public as “ whisky,” but spirits made from molasses,

although containing chemically precisely the same ele-

ments, could not be legally branded “ whisky; because

the public had never known it by that name.

THE STATUTE WAS DESIGNED TO PUT INTO EFFECT IN

THE SALE AND PURCHASE OF FOODS AND DRUGS THE

GENERAL PRINCIPLES OF LAW RELATING TO TRADE IN

GENERAL.

It is a principle of universal application that the

courts will regard with the utmost disfavor any

representation by brand, trade-mark, or otherwise,

which deceives or tends to deceive purchasers, or

any material part of them.

The Prince Manufacturing-Company vs. Prince’s

Metallic Paint Company, 185 N. Y. 24, 87, 39, was

an action to enjoin the use of a trade-mark. The

facts were that the trade-mark “Prince’s Metallic

Paint” at first was applied exclusively to a paint

manufactured from an ore which was mined from a

small tract of land belonging to Prince, containing

about forty acres. The paint had been widely ad-

vertised as possessing peculiarly good qualities be-

cause of the character of ore contained in this small

tract. Some time before this action was brought,

the complainant had been manufacturing paint from

ore, about one-fourth of which was taken from that

particular tract and three-fourths from other lands,

OR EARNS Mae CRP e gre LER SR ONT Ag

39

some Of the paint containing no ore mined from the

small tract. The court dismissed the suit saying:

The label was an assurance to purchasers

that the paint to which it was attached was

made from the ore of the Prince mine, and

was a guarantee that they were receiving paint

so manufactured. By affixing the label to

paint manufactured from other ores the plain-

tiff availed itself of the credit which pertained

to paint manufactured from the Prince ore

bed, to put upon the market paints manufac-

tured from other ores, without so far as

appears, disclosing the difference of origin.

Purchasers were deceived and the plaintiff

reaped the advantage of the deception.

And with reference to the contention that the paint

made from ores mined elsewhere than from the

Prince tract was just as good, the court said:

Nor is it any answer to this point that the

article sold under the name of “ Prince’s Metallic

Paint” was as good as that made from the ore

of the original mine. A party can not secure

the confidence of the public in an article on

the ground that it is made from one material,

of which the trade-mark is a guaranty, and

then without advising the public, substitute

another material and sell that upon the eredit

of the true article, and justify the false use

of the trade-mark or label on the ground of

similar quality. If this was permitted, it

would offer a temptation to fraud, and an

inferior article might be palmed off on unsus-

pecting purchasers. And although the false

—_ oie 5 ny an

40

article is as good as the true one, “the privilege

of deceiving the public even for their own benefit

is not a legitimate subject of commerce.”’

This case was cited with approval by this court in

Worden vs. California Fig Syrup Company, 187 U.S.

516, 529. That action was brought to restrain the

defendant from using a label “Fig Syrup” or “Syrup

of Figs” upon a bottle containing a liquid laxative

medical compound. The complainant contended

that it had an exclusive right to use such description.

It appeared, however, that there was practically no

syrup or extract of figs in the compound, but that its

medicinal quality was due to the senna which it

contained. The court held that the brand “Syrup

of Figs’ upon such a compound was false and mis-

leading, and dismissed the action. The court quoted

from an opinion of Circuit Judge Colt (66 Fed. 750)

in a case brought by the same company and for the

same purpose, in which it was said:

The popularity of this medicine arises from

the belief in the mind of the ordinary pur-

chaser that he is buying a laxative compound,

the essential ingredient of which is_ the

California fig, whereas, in fact, he is buying a

medicine the active property of which is

senna. The ethical principle on which the

law of trade-marks is based will not permit

of any such deception. Jt may be true, as a

scientific fact known to physicians and _phar-

macists, that the syrup of figs has little or no

larative property; but this is not the belief of

the general public. They purchase this prepa-

DE DOO a ORE EI ALLS MI SSE —

41

ration on the faith that it is a laxative compound

made from the fruit of the fig, which is false.

This is not an immaterial representation the

effect of which is harmless, but it is a represen-

tation which goes to the very essence of the plain-

tiff’s right to a trade-mark in these words. The

cases are numerous where the courts have

refused to grant relief under these circum-

stances. (p. 534).

The court also quoted from an opinion of the Cir-

cuit Court of Appeals (6th Circuit, 73 Fed. 812,817)

delivered by Circuit Judge (now Mr. Chief Justice)

Taft, as follows:

The argument for complainant is that,

because fig juice or syrup has no laxative

property, everybody ought to understand

that when the term is used to designate a

laxative medicine it must have only a fanciful

meaning. But the fact is admitted that the

public believe that fig juice or syrup has laxative

medicinal properties. It is to them that the

complainant seeks to sell its preparation, and

uw is with respect to their knowledge and im-

pressions that the character, whether descriptive

or fanciful, of the term used, is to be determined.

(p. 536).

IN DETERMINING WHETHER A LABEL OR A BRAND IS

DECEPTIVE, THE COURT WILL GIVE TO ITS WORDS, OR

THE PHRASE, THE MEANING GENERALLY GIVEN BY

THE PUBLIC.

The important question is whether a material

number of those who purchase the article are de-

ceived by the language of the label. If so, though

it be technically correct, the article is misbranded.

a

42

The language of a statute will be so construed as to

effect the object for which the statute was enacted.

Therefore different rules of construction apply to

different statutes. But, even in tariff acts, the

usual meaning will be given to words unless it

clearly appears that the meaning has been modified

by commercial use, and that such commercial mean-

ing was well known when the statute was enacted.

Thus in United States vs. Isham, 17 Wall. 496, 504,

the court said:

The words of the statute ave to be taken in

the sense in which they will be understood

by that public in which they are to take effect.

Science and skill are not required in their in-

terpretation, except where scientific or tech-

nical terms are used.

In Saltonstall vs. Wiebusch, 156 U. 8. 601, 602, the

court said:

There was no evidence in this case that the

word “forgings”? was used in any commercial

or technical sense among manufacturers, and,

in the absence of such evidence, we are bound

to presume that it was used in its ordinary

and commercially accepted sense of metal

shaped by heating and hammering.

In Swan vs. Arthur, 103 U.S. 597, 598, it was said:

While tariff acts are generally to be con-

strued according to the commercial under-

standing of the terms employed, language

will be presumed to have the same meaning

in commerce that it has in ordinary use, un-

less the contrary is shown.

PKR cuit AYO AIOE ORG sae v> ? em ; a —

a

43

In Maddock v. Magone, 152 U. S. 368, 371, the

court said:

Necessarily the commercial designation is

the result of established usage in commerce

and trade, and such usage, to affect a general

enactment, must be definite, uniform, and

general, and not partial, local, or personal.

In Libby, McNeill & Libby vs. United States, 210

Fed. 148, 150 (C. C. A., 4th Circuit), after recog-

nizing that under the tariff laws the commercial

meaning will be given to a word where such meaning

is well understood, with reference to the meaning

of words in determining whether a brand upon an

article of food is violative of the Food and Drugs

Act, the court said :_

Pure food laws are intended to protect the

public, whose members may be, and in the

more numerous part usually are, ignorant of

the technical significance which ordinary words

may have acquired in particular trades or

industries. The Supreme Court of Michigan has

said that decisions construing revenue acts—

“do not apply to cases arising under the

pure food laws of state governments. Courts

will take cognizance of the well-known fact

that farmers, laboring men, and consumers

are not generally familiar with the customs of

trade and commerce in importing goods, or

of the understandings of the trade between

manufacturers and merchants who buy these

products for retail trade. Such construction

would emasculate the pure food laws, and

deprive the people of the protection which the

,

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44

Legislature wisely intended to give them.’

Armour & Co. v. Dairy and Food Commis-

sioner, 159 Mich. 10, 123 N. W. 580, 25 L. R. A.

(N.8.) 616.

Royal Baking Powder Co. vs. Emerson, 270 Fed. 429,

435, 487, 440 (C.C. A. Eighth Cir.), was an action

brought to enjoin prosecutions against the plaintiff

under the Food and Drugs Act of the State of Arkansas.

The Royal Baking Powder Company had for many

years used a certain brand upon its cans. Thereafter

it changed the leavening agent of the baking powder,

and made certain changes in its brand; and the ques-

tion was whether or not the label thus changed was a

misbranding. The court held that the article was

misbranded; and in the course of its opinion said:

The broad purpose of the Arkansas statute

is to prevent deception through a label or

brand. The deception must be of the average

buyer of the product. Ansehl v. Williams,

267 Fed. 9, this court, filed July 15, 1920.

To ascertain whether a given label would act

deceptively, the attitude of the average buyer

toward that product at the period the label is put

out may be examined. In no other way can

there be proper determination of the probable

effect upon him of the label. In most in-

stances there is no definite nor particular

information as to this attitude, and therefore

the average buyer, in such instances, is treated

as a person of average intelligence, exercising

ordinary care in ascertaining what he is pur-

chasing. In such cases he is charged with

knowledge of what the label fairly tells him.

45

The question there gets down to the state-

ments upon the label itself. If they are,

in words, form, and arrangement, such as to

fairly apprise the average buyer of the truth

as to the product, they are sufficient.

Again:

Misbranding, however, does not rest upon

unwholesomeness nor adulteration. Jt rests

upon deception of the buyer. That deception

consists in inducing him to purchase, under

a given mark, brand, or label, an article which

is different from that which he intends to

buy, and which he has a right reasonably to

suppose he is getting under that mark, brand,

or label.

And again:

If the manufacturer makes a change in the

article and that change be of a character which

would, considering all of the attendant cireum-

stances, naturally affect the attitude of the

purchasers of that article, fair dealing and the

law require that such purchasers be effectively

informed of that change.

WHEN THE BRAND IS DECEPTIVE, ITS ILLEGALITY IS

NOT CURED BY LONG USAGE.

In United States v. Coca Cola Co., 241 U.S. 265,

279, the court said with reference to adulteration:

Again, articles of food including “ propri-

etary foods’? which fall within this con-

demnation are not saved because they were

already on the market when the statute was

passed. The act makes no such distinction;

and it is to be observed that the proviso of

a

46

section 8 explicitly refers to “mixtures or

compounds which may be now or from time

to time hereafter known as articles of food.”

Nor does the length of the period covered by

the traffic, or its extent, affect the question

if the article is in fact adulterated within the

meaning of the Act.

And in Federal Trade Commission against Winsted

Company, 258 U. 5. 483, which was a case arising

under the unfair practice provision of the Clayton

Act, the court said:

The fact that misrepresentation and mis-

description have become so common in the

knit underwear trade that most dealers no

longer accept labels at their face value, does

not prevent their use being an uniair method

of competition. A method inherently unfair

does not cease to be so because those competed

against have become aware of the wrongful

practice. Nor does it cease to be unfair

because the falsity of the manufacturer’s rep-

resentation has become so well known to the

trade that dealers, as distinguished from con-

sumers, are no longer deceived.

But it is not necessary to invoke this principle of

law in view of the facts of this case.

While in the stipulation, it is agreed that the

claimant has been branding its product in the manner

specified ever since January 1, 1906, and, further,

that for several years prior to the enactment of the

Food and Drugs Act and subsequent thereto, vinegar

in large quantities, and to a certain extent a beverage

made from evaporated apples, were sold in various

RRMA heen

47

parts of the United States as “apple cider vinegar”

and “apple cider” by many manufacturers, yet

there is nothing in the stipulation from which it

ean be inferred that the meaning of those terms have

become altered even in commerce: or that the

product has been accepted as such by either the trade

or consumer; but on the contrary the stipulatioti

shows a constant challenge of this label by the pure

food officials of the Federal Government. Nor is it

stipulated that a large per cent of the total quantity

of vinegar made from apples and shipped in com-

merce is manufactured from evaporated apples. The

stipulation says that a large quantity has been manu-

factured; but it is further agreed that in 1920 there

were seven hundred and twenty manufacturers of

cider and vinegar, and the value of the product

manufactured was $24,671,000.

THE BRANDING OF VINEGAR MADE FROM EVAPORATED

APPLES AS “APPLE CIDER VINEGAR” IS GROSSLY DE-

CEPTIVE.

The facts set forth in the stipulation, though mani-

festly worded most favorably to claimant, together

with such knowledge as every one having the least

experience possesses, show beyond question that the

brand “apple cider vinegar’ upon vinegar made

from evaporated apples “éxhales deceit.”

The stipulation recites that:

It is not disputed or questioned in this case

that the juice of unevaporated apples, when

subject to aleoholie and susbequent acetous

fermentation, is entitled to the name “apple

cider vinegar” (Par. 8, p. 12.)

48

This stipulation is equivalent to saying that vinegar

produced by fermentation of the expressed juice of

fresh apples has generally been known as, and in fact

is, “apple cider vinegar.” But such a stipulation

was wholly unnecessary, because as above shown the

knowledge of such facet is universal, and the courts

must take cognizance of it. On the other hand, no

facts are stipulated from which it can reasonably be

inferred that the consumers of vinegar or any sub-

stantial part of them have ever understood that the term

“apple cider vinegar” applies to vinegar fermented

from a fluid containing SO per cent of water subsii-

tuted for the water expressed from apples; or have any

knowledge that there is upon the market a_ vinegar

branded and sold as “apple cider vinegar,” which in

fact is manufactured from evaporated apples.

“Cider” is the expressed juice of apples, the juice

with all of its constituents, and without any substi-

tution, as it comes from the apple. No one ever

heard of any substance, about 75 per cent of which is a

substitute, being called cider until some manutac-

turers of pectin desired to realize additional profits

by selling this by-product as genuine cider. Neces-

sarily, apple cider vinegar must from its very terms

be taken to mean vinegar resulting from the fermen-

tation of apple cider; and, if apple cider is nothing

but the actual fluid expressed from apples, apple

cider vinegar is nothing but vinegar made by the

fermentation of such fluid. And the public univer-

sally so understand.

—

49

In fact claimant’s opposition to being required to

show in its label that the product is made from

evaporated apples is a concession that it is deceiving

the public. In its brief filed in the Circuit Court of

Appeals (p. 3), it said:

“These labels, or brands, through their use

for the last sixteen years, have acquired an

immense value and claimant will suffer an

irreparable loss, and no benefit will accrue to

consumers or purchasers, if the Government

succeeds in arbitrarily forcing claimant to dis-

tinguish that part of its product made from

apples which have been evaporated from that

made from apples which have not been evapo-

rated, when the product in each instance is in

fact identical, differing only in the process of

manufacture.”

And in its motion to advance the cause in the Court

of Appeals it said:

Plaintiff in error is one of the largest manu-

factures of vinegar in the United States, and

until the present controversy in regard to the

labeling of vinegar is settled it is very seriously

handicapped in the manufacture and distribu-

tion of its product. (R. p. 27.)

If claimant will suffer an irreparable loss if required

to tell the truth in its label, it is now making an

enormous profit because the truth does not appear

in the label. Its loss will result from the unwilling-

ness of the public to buy for “Apple Cider Vinegar”

a vinegar made from evaporated apples; which means

that the public is now buying its product labelled

by

z.

50

“Apple Cider Vinegar” because it does not know that

it is made from evaporated apples. The difference

between the quantity of sales now made and the price

now received for the product, aid the sales it would

make and the price it would receive if required to show in

tts brand that this vinegar is made from evaporated

apples is the measure of the deception that claimant is

now practicing upon the public.

REASONING AND ILLUSTRATIONS OF THE CIRCUIT COURT

OF APPEALS.

The Court of Appeals’ reasoning and illustrations

are wholly beside the mark. It concedes that the

public may have a prejudice against vinegar made

from evaporated apples, but supposes it is the result

of ignorance. But one has a right to his choice

regardless of how that choice atises. Suppose a

customer should go into a store where there was kept

unlabelled vinegar made from fresh ‘apples and also

vinegar made from evaporated apples, and should

specifically request and pay for vinegar of the former

kind, would it be honest to give him vinegar of the

latter kind? If a merchant should give to a customer

vinegar made from evaporated apples stating falsely

that it was made from fresh apples, and charge the

price at which fresh apple vinegar is sold, would it

not be such a flagrant deception that the customer

could recover the difference in the prices of the two

kinds of vinegar? Yet that is precisely what claim-

ant is doing, except instead of making the false

statement by word of mouth it is boldly and promi-

nently inserted in the label which the Statute requires

—_

51

to state the truth; and thus under the decision of the

Court of Appeals the Statute itself is made to assist

in imposing the deception upon the public.

Congress recognized that the public has its prej-

ydices with reference to articles of food, some of

which are probably unreasonable and not well

founded; and it therefore declared it a misbranding

if the “label shall hear any statement regarding the

ingredients, which statement shall be false or mis-

leading in any particular.’ Congress therefore pro-

hibited the Courts from hunting around in each

particular case to ascertain whether the public’s

prejudice was reasonable or unreasonable. The pub-

lic is entitled to its prejudices; and it is not for the

Courts to say whether they are well or ill founded.

In fact the prejudices and inclinations of the public

control in a very large measure the prices of articles

moving in commerce.

One illustration used by the Court of Appeals is

maple sirup. It says that it is the same sirup whether

made by reducing the sap of the maple by boiling to

the proper consistency, or by reducing it to sugar

and then adding enough water at the proper tempera-

ture to reconvert it into sirup. But without consid-

ering the difference between the words “Juice” and

“Sirup,” or whether the illustration is precisely

parallel, a complete answer is, that, if the public

knows that genuine maple sirup is made both ways,

and recognizes that one is as good as the other, either

can be branded “maple sirup.’ In faet, the board

FS le

established under the Act of March 3, 1903, so found,

and defined maple sirup as, ‘‘Sirup made by the

evaporation of maple sap or by the solution of maple

concrete.’ (See circular No. 13). The Court also

illustrates with cream separated from the remainder

of the milk by the natural process of rising to the

top and cream separated by the operation of a sepa-

rator. But that illustration does not present a con-

dition at all parallel. In each instance it is the very

cream that came from the cow without any substi-

tution whatever. And what the public wants is

cream.

A more apt illustration is condensed or evaporated

milk. Suppose sufficient water be added to restore

such an article to its fluid condition, could it legiti-

mately be sold as fresh milk?

THERE IS IN FACT A VERY MATERIAL DIFFERENCE BE-

TWEEN GENUINE APPLE CIDER VINEGAR AND THE

PRODUCT SEIZED IN THIS CASE.

But the so called prejudice of the public against

vinegar made from evaporated apples is not un-

founded and unreasonable, because the facts clearly

show that there is a material difference between the

two kinds of vinegars.

It is stipulated that:

There is no elaim by libellant that the

vinegar manufactured by claimant, and seized

in the respective actions in this jurisdiction,

is inferior to that made fromӎvaporated ap-

ples (Par. 5, p. 12). ;

The wording of this paragraph is very peculiar.

It is not said that the product seized is in fact not in-

€ |

ga

n/

ferior to that made from, evaporated apples, but that

ys)

such inferiority is not claimed. In other words, it

is not relied on by the Government. This attitude

was taken because the question of the relative merits

as a food between the two products was not, so far

as misbranding is concerned, regarded as a matter

of any importance. In fact, the stipulation means

practically nothing, beeause it does not define the

meaning of the word “inferior” as there used. Pre-

sumably, it means that the product seized is not less

wholesome than genuine apple cider vinegar, or prob-

ably that it contains as much acetic acid. But those

are not the only tests of merit. It is also stipulated

that this product is similar in taste and in composition

to the vinegar made from unevaporated apples (Par.

4, p. 12). But as provided in paragraph 7, samples

of both kinds of cider were submitted to the trial

court, and he found that ‘‘There are slight differences

in appearance and taste, but all have the appearance

and taste of cider and vinegar.” (R., p. 15.)

It is further stipulated in paragraph 3 (p. 11):

Whether and to what extent any other

constituents of the apple are removed by the

process of dehydration is not wholly beyond

controversy; in the present state of chemical

science no acceptable test or method. of

analysis is provided so far as parties to this

controversy are advised, for determining to

What extent any constituents of the apple

other than water are removed by the process

of dehydration.

: 4

Manifestly the difference in appearance and taste

observed by the court is due to the escape of con-

generic substances in dehydration. Anyway, the

difference exists; and the popularity of many an

article has been established on differences no more

substantial. Many brands of liquors became popu-

lar because of but very slight differences in odor and

taste, and the same is true with reference to tobacco

and cigarettes. And who can describe the shades of

differences in odors of delicate perfumes, and yet

their popularity depends upon these shades. So with

vinegar which is used in salad dressings and upon

4 different articles of food consumed without further

4 preparation, their odor and taste materially depend

fF upon the kind of vinegar used, and slight differences

2 may mean much in determining the desirability of

4 the food.

The differences noticed by the Court are what have

made genuine cider vinegar so popular. Dilute

alcohol is the base of all vinegar, and whether pro-

duced from grain, molasses, or glucose has the requi-

site acidity and the color, flavor, and aroma peculiar

3 to the substance from which the alcohol was derived.

The popularity of genuine cider vinegar is not because

of its acidity, but because of its characteristic and

pleasing color, flavor, and odor, and it is really this

flavor and boquet which the consumer expects and

is paying for when he buys genuine cider vinegar.

The consumer is being deceived, therefore, when he

has sold him as genuine cider vinegar a vinegar which

*

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simulates it in color and analytical composition, but

having been made from dried apples is necessarily

deficient in certain irreplaceable flavors and boquet

which have been dissipated in the process of evapo-

ration and sulphuring of the raw material. It is

hardly accurate to say that genuine cider vinegar is

a manufactured product. It is a natural product

which nature produces without the aid of man. That

is to say, alcohol develops in the native juice of a

mature apple, and the alcohol acetifies into acetic

acid through nature’s operations without artificial

aid.

Another fact appears in paragraph 4, (p. 11) which

is suggestive. It is there said that, as a result of the

process first described, the liquid obtained “is sub-

stantially equivalent in quantity to that which

would have been obtained had unevaporated apples

been used.”’ and “ carries a small and entirely harmless

quantity of sulphur dioxide, which is removed during

the process of fining and filtration, by the addition of

barium carbonate, or some other proper chemical

agent, which by precipitation eliminates such sulphur

compounds.”

If the quantity of sulphur dioxide is entirely harm-

less, why remove it? In the United States Dis-

pensatory in describing the properties of barium

carbonate it is said: “Barium carbonate acts as a

poison on the animal economy. Its only pharma-

ceutical use is to prepare barium chloride.’”’ Why

treat this fluid which is to be converted into vinegar

cae

ene As

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Pid! E01, ole

Se aie Pat le, ae he

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Pevoet cn andeiw nario. BERS itis

56

with this poisonous substance to eliminate a harm-

less trace of sulphur dioxide? Manifestly, it is done

for no other purpose than to destroy positive and

certain evidence of the character of the product; and

while it may be, as further stipulated, that the

trace of barium which is left after the chemical

process by which the sulphur dioxide is removed is

harmless, yet suppose that inadvertently or by mis-

take an excessive quantity of this poisonous sub-

stance were introduced, more than would — be

neutralized by the sulphur dioxide, the serious effects

of such a mistake are apparent.

NO VALID OBJECTION TO THE LABEL SHOWING THE

FACTS.

What valid objection can claimant have to brand-

ing its product so as to show the exact facts? It

claims that vinegar made from evaporated apples

is just as good as vinegar made from the juice of

fresh apples. If this is true, the public has no way

of learning that fact except by using the two products

knowingly; and in time claimant’s product can be

sold at the same price without the use of the decep-

tive brand. Under the directions for labeling adopted

by the Department of Agriculture, this product

should be labeled “ Vinegar produced from evaporated

apples.” If sold under such label, the purchaser

would know exactly what he is buying. As it is,

the purchaser believes he is buying vinegar manu-

factured from the juice of fresh apples, and certainly

has no knowledge that it is made from evaporated

57

apples; and if he is satisfied with its quality vinegar

made from evaporated apples receives no credit from

such satisfaction.

As said by Judge Rose in United States v. Two

Cases of Chloro-Naptholeum Disinfectant, 217 Fed.

477, 484: “Claimant points out that for many years it

has sold large quantities of its products under this

particular name. It has done no harm to anybody.

It asks why it should be compelled to incur all the

trouble and expense of familiarizing the purchasing

public with a new name for the old thing. There is

no doubt that to do so will be both costly and incon-

venient. Nevertheless, it must be borne in mind

that in the long run the honest manufacturer, as

claimant doubtless is, is the one principally interested

in the strict, and in even the rigid, enforcement of

laws of this character. The more candid all his com-

petitors are required to be, the better for him. Siand-

ards impossible of unvarying application will work

to his injury. He can not afford to say anything

about his goods which is not in every reasonable sense,

and from the standpoint of every well-informed person,

true.”

For the foregoing reasons the judgment of the

Court of Appeals should be reversed.

James M. Beck,

Solicitor General.

J. A, Fow.er,

Special Assistant to the Attorney General.

O

In the Supreme Court of the United States

OcroBErR TERM, 1923.

UnitTep States or AMERICA,

Petitioner,

Vs.

NINeETY-FIVE Barrets, Morr or Less, ALLEGED APPLE

Ciper Vinecar, DouGLas Packinc Company,

Claimant.

On Writ or CreRTIORARI TO THE UNITED Srates Crrcvuir

Court oF APPEALS, For THE SIxtTH Crrcvuir,

BRIEF OF DOUGLAS PACKING COMPANY,

CLAIMANT.

Joun G. Wuirte,

A. V. Cannon,

L. C. Spreru,

Wuirer, Cannon & SPIETH,

Union Trust Bldg., Cleveland, O.,

Attorneys for Claimant.

INDEX

Rtatement of the Case........00000.% Sed ai ahd bia8 1

I ore oki an 5 sag sd dndasdnsnasuan 7

EM GUNG ras as dedeecasaanneda 12

Se Oe NR ac yeas bee. tadasaal en's 15

a NES Ne MES EP a 23

Cases and Texts Cited.

Commonwealth vs. Burtnett, 58 P. Sup’r Crt. 604.. 50

Dougherty vs. Doyle, 63 Fed. 475 ...........0..... 37

MCPOROMOMEE BVUGMMICE ooo cc cece ce cccscscrene 24

Eureka Vinegar Company vs. Gazette Printing

Comme, BS Ped. SIO occ ccc cc caccasvccss 24

Food Inspection Decision No. 140................ OA

In re Wilson, 168 Fed. 566, 568 .................52,53

Libbey, McNeil & Libbey vs. United States, 210 Fed.

DE Sha cdaae csheenes wan. ap dinner aecanc 56

Monroe Cider Vinegar & Fruit Co. vs. Riordan, 280

EE aS its ciuncbesceucces 24

en ee 24

People vs. Braested, 30 A. D. 401................ 42

Peegle wa. Briggs, 13 MN. Y. 400. . on. ccc ccc cccccs 42

People vs. Douglas Packing Co., 236 N. Y. 1 (Ad-

vance Sheets June 16, 1923) 139 N. BE. 759.... 49

People vs. Heins Co., 90 A. D. 408................ 42

People vs. Niagara Fruit Company, 75 App. Div.

JR Fo yg & Oa ee ere 41,49

Prince Mfq. Co. vs. Princess Metallic Paint Co., 135

aE WAGs Rhee auawiNe us eeealascsésauadso's YI

toyal Baking Powder Co. vs. Emerson, 270 Fed.

MU dae: AthOR AONE R GRAS dG AD Silks es oo sce. 57

Smith vs. Rheinstrom, 65 Fed. 984 .............. 24, 25

Sterling Cider Co. vs. ¢ jasey, 285 Fed. 885........ 24

The Farmers’ Bulletin .......................... 24

Tower & Sous vs. United Siates, Vol. 40, Treasury

Decisions, T. D. No. 38,948 ................. 25, 26

Uuited States of America vs. A utikamnia Chemical

Co,, 231 U. B. G54 2.0.0... eee 51

lunited States of America rs. Lexington Mill & Ele-

vator Co., 232 U. 8. 399 ..................... a1

United States vs. Coca Cola Co., 241 U. S. 965...... 31

United States vs. One Carload of Corno Horse &

Mule Feed, 188 Fed. 453, 457

United States vs. Schider, 246 U. S. oie, Seen.

United States rs. Schider, 246 U. a oe 06 ¥

United States vs. 10 Barrels of Vinegar, 186 Fed.

«le SEE Py er Oe Ieee eas 56

United States vs. 2 Cases of Chloro-Naptholeum

Disinfectant, 217 Fed. 477................... a7

U.S. vs. 30 Cases Grenadine Strup, 199 Fed. 932.. 52

U.S. vs. 75 Boxes of Alleged Pepper, 198 Fed. 934 52

U.S. vs. 150 Cases of Fruit Puddine, 211 Fed. 360

SAPRORGEPER ACE OEEED Oke Soe Aes x Jou a soos cc, 92, 57

U.S. rs. 650 Cases of Tomato Catsup, 166 Fed. 173, ;

cath OE ey en an 52 Ef

Von Bremen vs. U. 8.. 192 Fed. 904............... 32

Warden vs. California Fig Syrup Co., 187 U.S. 516 57 :

Weeks vs. U. 8. 245 U.S. eae ee cs oa, D6

REVERE PTE OS

RE EEE

No. 559.

In the Supreme Court of the United States

)

OcroBer TERM, 1923.

Unitrep Srates or AMERICA,

Petitioner,

'

VS.

NINETY-FIVE BarreLs, More or Less, ALLEGED APPLE

Sis

Civer VINEGAR, DouGuas Packinc Company,

Claimant.

BRIEF OF DOUGLAS PACKING COMPANY,

) CLAIMANT.

STATEMENT OF THE CASE.

This case originated in the United States District

Court for the Northern District of Ohio, Eastern Divi-

sion, and involves the libeling of ninety-five barrels,

more or less, apple cider vinegar, manufactured by

claimant, Douglas Packing Company. The barrels were

marked on one end—

‘*Douglas Packing Company

Excelsior Brand apple cider vinegar

made from selected apples

Reduced to + per centum

Rochester, New York.”’

NES Se ODES RIE WORE NN. Biase,

oem ETT ANE NL RS IRIS BRIE FEAR TAT ah, joearema

. TPS

and on the other—

**Guaranteed to comply with all

Pure food laws.

Douglas Packing Company,

Rochester, New York.”

(Ree. P. 5), and had been shipped by claimant from

its plant at Fairport, New York, to Fisher Brothers at

Cleveland, Ohio. The libel charges that the vinegar was

adulterated * under Paragraphs First and Second of

Section 7 of the Pure Food & Drugs Act, in that vinegar

made from apples or apple products that had been evap-

orated or dried, had been mixed, packed with and substi-

tuted wholly or in part for the article.

It also charges that the vinegar, being made from

apples that had been evaporated, was misbranded under

general paragraph, Section 8, and Paragraphs First,

Second and Fourth of Seetion 8 of said Act, in that

(a) the statement on the label ‘‘Vinegar made from se-

lected apples and manufactured to comply with all pure

food laws’? was false and misleading, and deceived and

misled the purchaser, and, (b) the vinegar in question

Was an imitation of and offered for sale under the dis-

tinctive name of another article, to-wit, ‘‘Apple Cider

Vinegar.”’ (Ree. pp. 1-2.)

Douglas Packing Company, claimant and defendant

in error herein, intervened, claimed the vinegar, and,

answering the libel (Ree. pp. 5-6), admitted the ship-

ment, and that in the manufacture thereof, apples that

had been first evaporated had been used, but denied

that the vinegar was either adulterated or misbranded

by reason of being thus manufactured.

* Nore: Italics throughout the brief are ours unless

otherwise stated.

$ BASES ee...

3

A jury trial was waived, in writing (Ree. p. 13), and

the case tried to the Court on an agreed statement of

| facts (Ree. pp. 10-13), in connection with which state-

; ment, claimant submitted the following exhibits:

(1) Sample of unfermented liquid from apples

which had not been evaporated.

(la) Sample of unfermented liquid from apples

which had been evaporated.

(2) Sample of fermented liquid from apples

which had not been evaporated.

' (2a) Sample of fermented liquid from apples

which had been evaporated.

(8) Sample of vinegar seized in the within

action.

(3a) Sample of vinegar made from apples

which had not been evaporated. (Ree. p. 14.)

> There is no claim or charge by the Government that

the vinegar libeled is below the prescribed standard,

impure, unwholesome, or inferior to that made from

} apples which have not been evaporated. The sole ob-

jection is to the use of apples which, for economy, have

been evaporated.

The District Court held that there was no adultera-

tion within the meaning of Paragraph First, Section 7

of the Act, made no ruling as to Paragraph Second,

Section 7, but sustained the charge as to misbranding

for the reason that the vinegar was not made from the

juice of **fresh apples,’’ on the theory that the manu-

facture of vinegar from apples that had been preserved

’ through being subjected to e ‘aporation was contrary to

the various definitions of apple cider vinegar of which

the Court took judicial notice, and to the popular notion

of the method of the manufacture of that kind of vine-

gar. A judgment of forfeiture and condemnation was

entered. (Ree. pp. 20-22)

are

te REV ARMAS IEP Rd — SENSIS ARO PR Hae TENA Ni ” ee — . ; . . .

+

There was no evidence to support such a theory,

nor does it follow from the agreed statement of facts,

inasmuch as it there affirmatively appears, that since

prior to the enactment of the Food and Drugs Act, and

subsequent thereto, claimant, and other manufacturers,

have produced and sold, in various parts of the United

States, vinegar in large quantities, and to a certain ex-

tent a beverage made from evaporated apples as ‘appli

cider vinegar” and ** apple cider,’” respectively (Agreed

Statement of Facts, Paragraphs 9-10), (Ree. pp. 12-13).

Furthermore, the general definitions, the standards,

and the circulars issued by the Department of Agricul.

ture, each defining ‘‘Vinegar’’ as the product realized

from the alcoholic and subsequent acetous fermentation

of the expressed juice of apples, do not support such a

is limited and quali-

b

theory unless the word ‘‘apples’

fied by interpolating the words ‘‘fresh’’ or ‘unevapo-

rated.”’

On proceedings in error, instituted by the claimant.

Douglas Packing Company, the Cireuit Court of Ap-

peals for the Sixth Cireuit, reversed the District Court,

holding, in effect, that apples, and the juice thereof,

being the exclusive product from which claimant’s vine- 5

gar was manufactured, there being no substitution, the

vinegar was apple cider vinegar, and therefore not mis-

branded, saying— b

‘** Definitions of cider, which include the method

or process of its manufacture, written long before

public needs required the conservation of our food L

products, are not helpful to the determination of the

question presented in the instant case. Even these

definitions call only for the juice of apples, and do

not literally exelude the pressing of apples dehy- \

drated and later hydrated in equivalent propor-

tions. The missing and essential element for the

A)

Government’s case is found only in the supposed

judicial knowledge that the popular definitions have

reference only to fresh apples. Such knowledge was

declared in the court below, and the judgment based

thereon.* * * In the present ease it is conceded

that this identical product has been sold and ac-

cepted by the trade under this name in great quan-

tities for many years and without challenge until

now. While there is nothing in the agreed state-

ment of facts to show how far this acceptance has

been with knowledge, yet the court cannot judicially

know that this acceptance was so wholly without

knowledge of the facts as to be unimportant.’’

(Ree. p. 33.)

The important question in each case is wheth-

er the product is the identical thing that its brand

indicates. If it is the identical thing indicated by

the brand, the method of its manufacture, regard-

less of the information of the general public upon

that subject, is wholly unimportant.

It appears from the agreed statement of facts

that the cider from which this vinegar was made,

was manufactured from apples and from nothing

else. The process of its manufacture differed from

the usual method only in so far as necessary to pre-

serve the fruit. This was accomplished by the

evaporation process above described. When a quan-

tity of water equal to the amount evaporated is

added to the evaporated apples and pressed there-

from it combines with and carries the solvent prop-

erties of the apples just the same as in the original

state, or if not exactly and identically the same, so

near as to defy the science of chemistry to discover

the difference. This is the full scope and effect of

the dehydrating process as appears by the agreed

statement of fact.

The conservation of our food products is of

some concern to the public and, perhaps, second in

importance only to the demand for pure and unadul-

a

ee

6

terated food. It is perfectly apparent that the ap-

ple season is altogether too short for the economi-

eal manufacturing of the erop, during the season,

into cider vinegar in sufficient quantities for public

consumption. Therefore an efficient and harmless

method of preserving the fruit until it ean be used

for this purpose is in the direct interest of the pub-

lic, and if this method has accomplished that object

without change in the product, it should be encour-

aged rather than condemned.’’ (Ree. pp. 31-32).

A petition for re-hearing was filed by the Govern-

ment and refused, and the application was then made to

this Court for a writ of certiorari, which was granted.

The Government is contending, as one of its assign-

ments of error, that the Cireuit Court of Appeals erred

in holding that the District Court’s judgment of mis-

branding was not sustained by the stipulated facts and

the reasonable inferences deducible therefrom.

The District Court found that the samples submit-

ted showed some slight differences in taste and color,

but that all, whether made from apples that had been

evaporated or apples that had not, tasted like cider and

vinegar. No preference was indicated. The trial Court

was reversed, as we before stated, for the reason that

to find that nothing is apple cider unless expressed from

fresh apples is wholly inconsistent and contrary to the

facts in the case.

It is true that the case being tried upon an agreed

statement of facts, the parties made the District Court

the arbiter of those facts. This does not mean, however,

that if the trial Court’s decision is against the weight

of the evidence, based on inferences contrary to and

unsupported by the facts, that the appellate court may

not reverse the decision.

'

| Fe LEIA ROTA é tier ye Z STEGER ee, |

s

7

STATEMENT OF FACTS.

The Government and claimant collaborated in pre-

paring a statement of facts which eliminated all unim-

portant and irrelevant matters, and the case was tried

to the Court on that agreed statement of facts.

In its brief the Government submits a digest of

that statement, omitting therefrom certain facts which

it may now consider unimportant, but which we regard

as necessary and essential to a complete consideration

of the case. The agreed statement is short, and for

accuracy and convenience, we ask the Court’s indulgence

if we reproduce it in full and refer to it hereafter in our

brief by paragraph number rather than by page of the

record.

‘*STATEMENT OF Facts.

(1) Claimant, the Douglas Packing Company,

is a New York corporation, with its principal office

in the City of Rochester, New York, and with fac-

tories at Fairport and Canastota, New York. It is

now and has been since January first, 1906, engaged

in manufacturing food products from evaporated

and unevaporated apples. From fresh apples it

manufactures Apple Cider and Apple Cider Vine-

gar, and from the evaporated apples it manufac-

tures, by a process which is fully described in the

section numbered (4) hereof products which it des-

ignates as ‘Apple Cider’ and ‘Apple Cider Vine-

gar.’ From the pulp of unevaporated apples and

the pulp of the evaporated material it manufactures

a product which it calls ‘Pectin.’

(2) During the apple season, between about

September 25th and December 15th, sound, mature,

unevaporated. apples are used by claimant, and for

the balance of the year evaporated apples of like

quality, including as large a portion thereof as

claimant can manufacture in its own evaporating

| emcee IDLE I TIAL ID PEI CDS EES TREATIES ah as Se te UNS ter BY at

a,

8

plants, located, one in Vermont, one in Massachu-

setts and one at Canastota, New York.

(5) With such apples as are evaporated by

claimant the most approved process for dehydrat-

ing fruits is used. In dehydrating, small quantities

of sulphur fumes are used to prevent rot, fermenta-

tion, and the consequent discoloration. The princi-

pal result of the dehydration process is the removal

of about eighty per cent. (80) of the water. Wheth-

er and to what extent any other constituents of the

apple are removed by the process of dehydration

is not wholly beyond controversy; in the present

state of chemical science no accepted test or method

of analysis is provided, so far as the parties to this

controversy are advised, for determining to what

extent any constituents of the apple other than

water are removed by the process of dehydration.

Onlu mature, sound fruit, free from rot and fer-

ment, can be economically and advantageously used.

(4) In manufacturing from evaporated ap-

ples, claimant places in a receptacle a quantity of

such evaporated apples to which an amount of pure

water substantially equivalent to that removed in

the evaporating process has been added. A weight

of more than one (1) ton is then placed on top of

the apples and a stream of water. under a sufficient

head, introduced through a pipe at the top of the

receptacle, is applied until the liquid, released

through a vent at the bottom of the receptacle,

which vent opens as the stream of water is applied

and closes as it ceases, has carried off in solution

such of the constituents of the evaporated apples

as are soluble in cold water and useful in the man-

ufacture of vinegar.

Such liquid, which is substantially equivalent in

quantity to that which would have been obtained

had unevaporated apples been used, earries a small

and entirely harmless quantity of sulphur dioxide,

which is removed during the process of fining and

y

filtration, by the addition of barium carbonate, or

some other proper chemical agent, which by precipi-

tation eliminates such sulphur compounds,

The liquid is then subjected to alcoholic and

subsequent acetic fermentation in the same manner

followed by the manutiacturer of apple cider vinegar

made from the liquid content of unevaporated

apples.

Claimant employs the same receptacles, equip-

ment and process of manufacturing for evaporated

as for unevaporated apples, except that in the case

of evaporated apples, pure water is added as atore-

said, and in the process of fining and filtration an

additional chemical agent is used to precipitate any

sulphur compounds present and resulting from de-

hydration.

After fining and filtration, the resultant liquid

obtained by claimant upon chemical analysis will

give results similar to those obtained by chemical

analysis of apple cider made from unevaporated

apples, except that the liquid made from evapo-

rated apples contains a trace of barium incident to

the process of manufacture. There is no claim by

the libellant that this trace of barium renders the

product deleterious or injurious to health,

The vinegar made from the resultant liquid is

similar in taste and in composition to the vinegar

made from unevaporated apples, except that the

vinegar made from evaporated apples contains a

trace of barium incident to the process of manu-

facture. There is no claim by the libellant that this

trace of barium renders the product deleterious or

injurious to health.

It is coneeded that the vinegar involved in this

proceeding is vinegar made from dried or evapo-

‘ated apples by substantially the foregoing process.

(9) There is no claim by libellant that the

vinegar manufactured by claimant, and seized in the

respective actions in this jurisdiction, is inferior to

that made from unevaporated apples.

Pe I i RE REA INR ETL ARTE RAINS RU eat sf te eee tee

10

(6) Since January 1, 1906, until the com-

mencement of this action, claimant has sold,

throughout the United States, its product, manufac-

tured from unevaporated as well as evaporated ap-

ples, as ‘Apple Cider’ and ‘Apple Cider Vinegar,’

selling its vinegar under the brand ‘Excelsior

Brand Apple Cider Vinegar Made from Selected

Apples,’ or ‘Sun Bright Brand Apple Cider Vine-

gar Made From Selected Apples.’ At the time of

the commencement of this action, claimant was so

manufacturing and selling about 100,000 barrels of

vinegar a year.

(7) Each of the parties hereto may submit

such exhibits, properly labeled and identified, as

they desire of the liquids from unevaporated apples

and evaporated apples, including samples of the

vinegar seized in this jurisdiction.

(8) It is not disputed or questioned in this

case that the juice of unevaporated apples, when

subjected to aleoholie and subsequent acetous fer-

mentation, is entitled to the name ‘apple cider vine-

gar.’

(9) For several years prior to the enactnient

of the Federal Food and Drugs Act and subsequent

thereto, vinegar in large quantities and to a certain

extent a beverage, made from evaporated apples.

were sold in various parts of the United States as

‘Apple cider vinegar’ and ‘ Apple cider,’ respective-

ly, by many manufacturers, including the Ameri-

ean Fruit Products Company, of which Company

Robert Douglas, President of claimant company,

had been Production Manager. The American Fruit

Products Company operated eleven plants located

in New England, New York and Michigan.

(10) Since January 1, 1906, the claimant has

manufactured such products and sold them labeled

‘Apple Cider Vinegar’ and ‘Apple cider,’ respec

tively, and in doing so acted in good faith.

Coll:

11

The United States Department of Agriculture

has never sanctioned such labeling and its attitude

with reference thereto is evidenced by the definition

of ‘apple cider vinegar’ set forth in circulars 13, 17,

19 and 136 of the Office of the Secretary of the

United States Department of Agriculture and Food

Inspection Decision 140,

(11) From the report of the United States

Census Bureau it appears that in 1910 there were

430 manufacturers of cider and Vinegar, and the

value of the product manufactured was $2,254,000.-

00 and from the report of the Census Bureau of

1920, there were 720 engaged in the manufacture of

cider and vinegar, and the value of the product

manutactured was $24,671 5000.00. °?

Claimant is one of the largest manufacturers of

apple cider vinegar in the United States, and since prior

to 1906, in common with many other vinegar manufac-

turers, has been making vinegar from apples which have

been preserved through evaporation as well as from

unevaporated apples. The vinegars of claimant in each

instance are manutactured by the same process, in the

same receptacles, and except for the harmless trace of

barium present in that made from apples which have

been evaporated (the Government making no charge by

reason of this barium), are alike in taste, composition,

color and analysis. The vinegars are uniform products

manufactured during the apple season, from apples

which have not been evaporated and during the balance

of the year, from apples which have been evaporated,

the process of manufacturing, and not the finished prod-

uct, varying according to the season, and are, therefore,

all labeled ‘Exeelsior Brand Apple Cider Vinegar,

made from Selected Apples,’ or “Sun Bright Brand

Apple Cider Vinegar made from Selected Apples.”’

(Statement of Facts, Paragraphs 1 and 4).

NE IONE, 5 LOE 5 SSM IR A TO Stas ane

12

These labels and brands, through use for the past

eighteen years, or more, on this uniform vinegar, have

consequently aequired great value, and to require claim.

ant now to distinguish that part of its vinegar made

from apples which have been subjected to the process

of evaporation from that made from apples which have

not, when the vinegars differ only in the process of man

ufacture, would arbitrarily subject claimant to a great

loss incident to establishing new labels and result in

no benefit whatever to consumers and purchasers.

The vinegar being the same in each instance, and

the purchaser being concerned only with the quality,

character and purity of the ultimate product, any label.

ing requiring a distinction between identical products,

because of process of manufacture alone, should be op-

tional and not compulsory.

QUESTIONS IN THE CASE.

The libel as filed in the instant case charged adul-

teration and misbranding, contrary to the Food and

Drugs Act.

** ApULTERATION.—In the case of food:

First. If any substance has been mixed and

packed with it so as to reduce or lower or injuri-

ously affect its quality or strength.

Second. If any substance has heen substituted

wholly or in part for the article.”’ (See. 7, 34 Stat.

L. 769).

The District Court found no adulteration, and inas-

much as the agreed statement of facts practically pre

cludes that question, and the Government has abandoned

it, we may eliminate adulteration from further consid-

eration.

13

‘* MISBRANDING:

See. 8. That the term ‘misbranded,’ as used

herein, shall apply to all drugs, or articles of food,

or articles which enter into the composition of food,

the package or label of which shall bear any state-

ment, design, or device regarding such article, or

the ingredients or substances contained therein

which shall be false or misleading in any particular,

7 + *

That for the purposes of this Act an Article

shall also be deemed to be misbranded:

In the case of food:

First: If it be an imitation of, or offered for

sale under, the distinctive name of another article.

Second: If it be labeled or branded so as to de-

ceive or mislead the purchaser, * * *

Fourth: If the package containing it or its label

shall bear any statement, design, or device regarding

the ingredients, or the substances contained therein,

which statement, design, or device shall be false or

misleading in any particular.’’ (Section 8, first, sec-

ond and fourth paragraphs, 34 Stat. L. 769, as amend-

ed 37 Stat. L. 416 and 732.)

Conceding that only mature, sound apples, selected

so as to be free from rot and ferment can be evaporated;

that evaporation merely changes the form of the apple

to the extent of removing about eighty per cent. of the

water thereof; that the same receptacles are used in man-

ufacturing vinegar from apples that have been evapo-

rated as from apples which have not been evaporated ; that

the process is identical in each instance, except that in

the case of apples which have been evaporated the slight

quantities of sulphur taken up during evaporation are

removed, and the water which has been evaporated out

is restored, the product in each case being identical ex-

cept for a harmless trace of barium (and was so found by

y pee

Bess Me en

ype OPTERON ORS Yad Asie SCRA — —

is » HET DO ACI REEL on

14

the District Court), (Ree. p. 15), the question is whether

vinegar so produced through the use of apples which have

been subjected to evaporation is misbranded if labeled

‘“*Apple Cider Vinegar made from Seleeted Apples.”’

Does the fact that the apple, from the time it is

picked from the tree to the time it is ultimately dejuiced

for vinegar purposes, is held and preserved through

evaporation or dehydration rather than by storage in the

raw state, it being admitted that dehydration or evapora-

tion removes only a portion of the water in the apple,

necessarily mean that when this water is restored and

the manufacture of the vinegar again taken up and ear-

ried through, just as with an apple which had not been

evaporated, the vinegar so produced is not entitled to be

labeled ‘* Apple Cider Vinegar’’?

Is the manufacturer of apple cider vinegar, to be

exempt from the charge of misbranding, when using the

label ‘‘Apple Cider Vinegar made from Selected Ap-

ples,’’ limited to the use of the juice of apples which have

not been evaporated, to the exclusion of the juice of ap-

ples, which, to facilitate preserving and shipping and to

conserve the apple crop, have been evaporated, when the

vinegar, which is the ultimate product, is in each case

pure, wholesome, and to all intents and purposes iden-

tical?

Is apple cider vinegar, which is defined as being the

product made by the alcoholic and subsequent acetous

fermentation of the expressed juice of apples, a product

that can be manufactured only from apples which have

not been evaporated? Is the term ‘tapples’’ as so used,

a generic or class term, and is it subject to the limita-

tion and strict interpretation which the Government seeks

to place upon it, namely, that it means only *‘fresh’’ or

**unevaporated’’ apples?

: Bee

15

Apple cider vinegar is a manufactured article, twice

removed from its original form of apple juice. The man-

ufacturer of all apple cider vinegar starts first with apples

evaporated or unevaporated from which is secured juice.

The juice, after the alcoholic fermentation of its sugars,

becomes hard cider. The hard cider, through oxidation

of its alcohol to acetic acid becomes vinegar, and this

vinegar, either ultimately, or during the process of its

manufacture, by the addition of pure distilled water, is

diluted to the acetie acid strength required for condiment

purposes. The juice from the apple which has been

evaporated ferments and passes through the same stages

in becoming vinegar as does the juice of the apple which

has not been evaporated, Apples, and nothing else, be-

ing used in manufacturing both Vinegars, in the case of

apples which have been e ‘aporated the process varying

to the extent only of removing and later replacing part of

the water of the apples, the aleoholie and acetic fermenta-

tion being the same, the ultimate product must necessari-

ly be the same. To require a label to distinguish identical

products solely because of the process of manufacture,

is not the purpose or intention of the Pure Food and

Drugs Act.

COMMENTS ON THE FACTS.

At all times during the prosecution of this case there

has been a determined, studied and well defined effort

on the part of our opponents to create the impression

that claimant is not regarded by reputable vinegar manu-

facturers as a legitimate Vinegar maker; that claimant

manufactures vinegar only from apples which have been

evaporated; that its vinegar is a cheap, inferior article;

that its vinegar is made from a substance other than ap-

ples; that too great an amount of water is used in the

16

process of manufacture; that its vinegar is a waste vine-

gar, the by-product of pectin.

In furtherance of this effort, there is a constant en-

deavor, by inference and otherwise, to give to the plain

recitals in the agreed statement of facts, and to some of

the court’s findings, a strained construction and _ inter-

pretation.

Not only that we may clearly present the simple

question involved in this case, but so that claimant’s

cause may be fairly considered, all unwarranted impres-

sions should first be eliminated. The record in the case

is claimant’s best argument, and a most cursory examina-

tion will suffice.

Claimant could not produce and market 100,000 bar-

rels of vinegar a year and distribute its product through-

out the United States, and be other than a manufacturer

in good standing in the trade.

Agreed Statement of Facts, Paragraph 6:

**Since January 1, 1906, until the commencement

of this aetion, claimant has sold, throughout the ?

United States, its product, manufactured from un-

evaporated as well as evaporated apples. * * * At

the time of the commencement of this action, claim-

ant was so manufacturing and selling about 100,000 |

barrels of vinegar a vear.’’

Agreed Statement of Facts, Paragraph 10: '

**Since January 1, 1906, the claimant has manu-

factured such products and sold them labeled ‘ Apple

Cider Vinegar’ and ‘Apple Cider’, respectively, and

in doing so acted in good faith. * * *”’ ;

The 100,000 barrels of vinegar a vear includes vine-

gar made from unevaporated as well as evaporated ap-

ples, claimant manufacturing all that it can from un-

evaporated apples during the apple season.

17

Agreed Statement of Facts, Paragraph 1:

“os *" * It is now and has been since January

first, 1906, engaged in manufacturing food produets

trom evaporated and unevaporated apples. From

fresh apples it manufactures Apple Cider and Apple

Cider Vinegar, and from the evaporated apples it

manufactures, by a process which is fully described

in section numbered (4) hereof products which it

designates as ‘Apple Cider’ and ‘Apple Cider Vine-

var’, * % HID

Paragraph 2:

‘During the apple season, between about

September 25th and December 15th, sound, mature

unevaporated apples are used by claimant, and for

the balance of the year evaporated apples of like

quality.”’

Paragraph 4:

‘Claimant employs the same receptacles, equip-

ment and process of manufacturing for evaporated

as for unevaporated apples.’’

Paragraph 6:

‘*Since January 1, 1906, until the commence-

ment of this action, claimant has sold, throughout

the United States, its product, manufactured from

unevaporated as well as evaporated apples.’’

There is no evidence whatever that vinegar made

from evaporated apples is cheaper than that manufac-

tured from unevaporated apples. Relative costs do not

appear in the case. Is it not more reasonable to infer,

from a consideration of claimant’s process (if inferences

are permitted), that the cost of producing vinegar from

apples which have been evaporated is greater, inas-

much as the expense incident to the process of evapora-

tion and the additional storage and handling are not

present when the unevaporated apple is used?

18

It is unequivocally conceded that so much of claim-

ant’s vinegar as is manufactured from the apple which

has been evaporated is not inferior to that manufactured

from the unevaporated apple.

Agreed Statement of Facts, Paragraph 3:

‘There is no claim by libellant that the vinegar

manufactured by claimant, and seized in the re-

spective actions in this jurisdiction, is inferior to

that made from unevaporated apples.’’

A comparison of the analysis of the sample of vinegar

seized in this action with the standard prescribed for

vinegar by the Government, establishes that the vine-

gar seized is superior to prescribed Government standard.

A nalysis of

Government Standard Vinegar Seized

Alecohol—Amount not specified .......... 1.47

Acid, grams per 100 ce. not less than 4.0. . 4.44

Solids, grams per 100 ce. not less than 1.6 2.33

Reducing sugars—<Actual amount not spee-

ified, but must be not more than one half

ET SOs EE kn dd Ko nhac kakndsa ds 0.39

Non-sugar Solids, is the difference be-

tween total solids and the reducing

sugars. Actual amount not specified. . 1.94

Ash, grams per 100 ce. not less than 0.25.. 0.40

Pereentage of ash in non-sugar solids,—

Se Vid can «cy hrs badua axe 20.6%

Alkalinity of Soluble Ash, not less than

30.00 ec. of decinormal acid ............ 40.0 ce

Pereentage of reducing sugars in solids,

OE SN SU I ok oes cba w lacs aes 16.7%

Soluble F, O; (phosphoric acid) milligrams

per 100 ce. not less than 10. ........... 10.1

Demis

19

Polarization, must be laevo-rotatory, that

is, must show a minus polarization .... — 1.5°V

Ratio non-sugar solids to the sum of. aleo-

hol and acid—Figure not specified .... 32.8%

Sulphates—Not specified ............... Slightly

above normal

Furthermore, the New York ease, in which ease claim-

ant’s present label was sustained and which we will cite

later, conclusively established the excellence of claimant’s

product.

Judge Westenhaver did not find. after tasting the

various samples submitted, that the vinegar seized was

inferior in taste or flavor to that made from fresh apples.

His only finding was that in all the samples submitted

there were slight differences in taste and color (Ree. p.

15), but all samples had the appearance and taste of cider

and vinegar. No preference was expressed. A difference

in appearance and taste would be apparent in any

samples of ciders and vinegars, whether the samples

were all made from apples which had been evaporated

or not, since the taste of all cider or vinegar will vary,

depending on whether it was made from a sour or sweet

apple, early or late apple, green or ripe apple, sound or

imperfect apple, selected or cull apple, the season when

made, whether aged in barrels, the extent of fermenta-

tion, the manner in which it was bottled, and how it was

handled generally. It is a matter of common knowledge

that, as vinegar stands or is exposed to the air, it neces-

sarily changes in color through further oxidation.

There is no justification whatever for the comment

that any difference in the taste of the vinegars is due to

the escape ‘tof congeneric substances in dehydration,”’

20

for the Agreed Statement of Facts, in paragraph 4, finds

the only difference between the vinegars is that one

carries a trace of barium, which trace in no way affects

the character or quality of the vinegar or renders it

deleterious or injurious to health.

Furthermore, in Paragraph 3 of the Agreed State-

ment of Facts it is admitted that

‘**in the present state of chemical science no accepted

test or method of analysis is provided, so far as the

parties to this controversy are advised, for determin-

ing to what extent any constituents of the apple other

than water are removed by the process of dehydra-

tion. * * * The principal result of the dehydration

process is the removal of about eighty per cent. of

the water.’’

Under such conditions is it reasonable to suppose

that there would be any noticeable difference between the

taste, flavor or color of vinegar made by either process?

Again, the fact that only perfect fruit can be evapo-

rated (Agreed Statement of Facts, Paragraph 3):

‘“‘Only mature, sound fruit, free from rot and

ferment, can be economically and advantageously

used.’’

would necessarily mean, (if we may again indulge in in-

ferences), that the vinegar from the apple which is evapo-

rated would be superior to the other, especially in view

of the so-called general knowledge as to the character of

cider apples.

Cider apples, loaded in bulk and carried in box cars

for weeks after loading, subjected to various tempera-

tures, necessarily are bruised, and rot and decay, and a

large part of the value of the apple is thus lost which

otherwise is saved through evaporating the apples at the

| a 7

21

point of production and shipping in the preserved con-

dition.

The Agreed Statement of Facts, as we have already

observed, states repeatedly that the only substance used

by claimant is apples. In the apple season fresh apples

are used, thereafter, evaporated apples of like quality

are used,

Agreed Statement of Facts, Paragraph 2:

‘‘During the apple season, between about Sep-

tember 25 and December 15th, sound, mature un-

evaporated apples are used by claimant, and for

the balance of the year evaporated apples of like

quality, including as large a portion thereof as

claimant can manufacture in its own e yaporating

plants, located, one in Vermont, one in Massachu-

setts and one at Canastota, New York.”

The quantity of water in the vinegar manufactured

from evaporated apples is the same as that in the un-

evaporated apples.

Agreed Statement of Facts, Paragraph 4:

‘“‘In manufacturing from evaporated apples,

claimant places in a receptacle a quantity of such

evaporated apples to which an amount of pure

water substantially equivalent to that removed in

the evaporating process has been added. * * *”

And the resultant liquid in the case of evaporated

apples (Agreed Statement of Facts, Paragraph 4)—

‘(* &

is substantially equivalent in quantity to

that which would have been obtained had unevapo-

rated apples been used, carries a small and entirely

harmless quantity of sulphur dioxide which is re-

moved during the process of fining and filtration by

the addition of barium carbonate, or some other

proper chemical agent, which by precipitation elimi-

nates such sulphur compounds.’’

22

The sulphur dioxide present in the juice is re-

moved as part of and during the process of fining and

filtration, with a view to clarifying and producing as uni-

form and as pure a juice as possible, and with no ul-

terior motive whatever. This trace of sulphur dioxide

has served its purpose in preserving the apple, which is

the container for the juice, and, its presence being no

longer required, it is removed from the juice just as are

the bits of pulp, or any other substances or particles

therein, not useful in or essential to the juice for vine-

gar purposes.

Our opponents say finally:

‘*No one ever heard of any substance, about

seventy-five per cent. of which is a substitute, being

called cider, until some manufacturer of pectin, de-

sired to realize additional profits by selling this by-

product as genuine cider.’’ (Government Brief,

Page 48.)

Later, in our brief, we will show that the Depart-

ment of Agriculture advocates a process for removing

75 to 80 per cent. of the water from cider in order to

better preserve it, approves restoring the water when

the cider is to be used, and sanctions the sale of the

restored product as ‘‘cider’’ or ‘‘fresh cider.’’

Claimant manufactures pectin, but the pectin is

manufactured as a by-product of the vinegar, and from

a material which remains after the production of vine-

gar, which material was formerly wasted and lost.

The Agreed Statement of Facets rebuts conclusively

the insinuation that claimant manufactures vinegar only

from evaporated apples for the purpose of securing

pectin.

23

Agreed Statement of Facts, Paragraph 1:

“* * * From the pulp of unevaporated apples

and the pulp of the evaporated material it manu-

factures a product which it ealls ‘Peetin’.”’

The pulp remaining after the une raporated apple is

dejuiced is just as useful and valuable for manufactur-

ing pectin as that from the evaporated apple.

‘‘Pectins,’’ as defined in the New International En-

cyclopedia, are

“Substances of general distribution in ripe

fruits and rather commin in organs of flowering

plants. They probably originate from the pectose

of the middle lamella of cell walls and are found in

great abundance in fruits during ripening. * * * Tn

hoiled concentrated fruit juices they also coagulate

probably independently of enzymes and along with

sugars, organic acids and other substances consti-

tuting jellies.”’

‘*Pectose,’’ ‘pectase,”’ ‘*pectine,’’ ‘‘pectie acids,’”’

are defined in the Americana Kneyelopedia as

‘‘A group of closely related substances found

in the cell walls of certain fruits and vegetables

during various stages of ripening, to which the

power of forming a jelly is due.’

Is the inference justified therefore that claimant’s

vinegar is a by-product or waste product incident to

the manufacture of pectin from the pulp of evaporated

apples or that pectin is procurable only from evaporated

apples?

ARGUMENT.

Considering then, only the real issues developed

from the actual facts, we have the simple question of

Whether a product manufactured by different methods

shall be labelled to indieate the process. So long as the

ROBEY FO 2

24

purchaser is securing the product which he is interested

in buying, of what consequence is the process of manu-

facture, provided it is sanitary, clean and pure, and

does not alter the character or quality of the article?

Notwithstanding vinegar made from the juice of

apples which have been evaporated is identical to that

made from the juice of apples which have not been

evaporated, the Government insists that because the

process differs only through holding the apples in the

one case in an evaporated state before pressing out the

juice, the vinegars should bear distinctive labels. In

support of its position, it quotes the definitions of

‘*Cider’’ and ‘‘Vinegar’’ in Webster, the Encyclopedia

Britannica, Nelson’s Encyclopedia, The Farmers’ Bulle-

tin, and in the cases of Eureka Vinegar Company vs.

Gazette Printing Company, 35 Fed. 570, Monroe Cider

Vinegar & Fruit Co. vs. Riordan, 280 Fed. 624, 626, 627,

and Sterling Cider Co. vs. Casey, 285 Fed. 885. To

these may be added the definitions in Century, Stand-

ard, Murray, the Encyclopedias Americana and New

International, in all of which appear only the words ‘‘ex-

pressed juice of apples.’’ Nowhere, not even in the very

standards prescribed by the Department itself, is the

term ‘‘expressed juice of apples’’ limited to the ex-

pressed juice of ‘‘fresh’’ or ‘‘unevaporated’’ apples.

For the Government to maintain its claim on the defini-

tions alone, it must do so, not by standing on the defini-

tions and standards, as written, but by qualifying them

through the addition or reading in of the words ‘‘fresh”’

or ‘‘unevaporated’’ to qualify the word ‘‘ Apples.’’

The case of Smith vs. Rheinstrom, 65 Fed. 984, is

cited, as defining juice but an examination of the facts

in that case, and a comparison with the instant case,

readily shows its inapplicability.

RAL aN A ERNE EAE a EP Rn YON Ity IE WN Nh i he: Nive tLe Sindee? ncaa

25

In the Rheinstrom case the Tariff Act imposed a

duty on cherry juice, a finished product. When eighty

per cent. of the water was extracted from the juice, a

gallon of the concentrated juice for revenue purposes

had a greater value than a gallon of the juice in its

original form. The concentrated juice differed in value,

in aleoholie content, in specific gravity and color, and

since the Tariff Act was one based on the value of the

product and alcoholic content, necessarily the concen-

trated juice would carry a higher rate, and for dutiable

purposes was a different article. To carry out the anal-

ogy, so far as the instant case is concerned, if the im-

porter had restored water to the concentrated juice and

added no aleohol, there would be no question but the

article would have been admitted as cherry juice.

The Rheinstrom case was decided in 1895, and in

November, of 1921, in the case of Tower & Sons vs.

United States, Voi. 40, Treasury Decisions, T. D. No.

38,948, the United States Court of Customs Appeals,

consisting of Presiding Judge Devries and Associate

Judges Smith, Barber and Martin, considering with ref-

erence to cider instead of concentrated cherry juice the

same tariff provision discussed in the Rheinstrom case,

held that boiled cider, reduced to one-fifth in volume of

the original, should be rated as ‘‘cider.”’ Judge Martin,

writing the opinion of the Court, says:

‘‘The importation consists of apple juice which

has been boiled down to about one-fifth of its origi-

nal volume, having now a consistency like thin

maple syrup, containing no foreign ingredient and

having suffered no chemical change whatever, ex-

cept possibly a negligible alteration of its sugar

content, such as is unavoidable in the operation.

Its present consistency prevents its use as a bev-

erage but it may be restored to that use by simply

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26

adding water to it and that is one of the recognized

and considerable uses of the importation in domes-

tic trade. * * * It is obviously true that the appel-

lants, by importing boiled cider rather than fresh

cider, save in the cost of containers, in freight, cart-

age, storage, and, aceording to their claims, in the

assessment of duties. But all of these facts were

within legislative cognizance when the paragraph

was enacted and when the term ‘cider’ was written

into the provision without words of limitation it

must be assumed that it was intended to include all

kinds of cider, notwithstanding the fact that some

might be reduced in volume by means of boiling.”’

Is not the language of the Court in the Tower case

most applicable to the instant case? All of the defini-

tions refer to the expressed juice of apples, and is it not

fair and reasonable to say that the word “apples”

in the definitions contemplates all kinds of apples,—

fresh, evaporated, ripe, green, ete?

In the instant case, concentrated apple juice is mere-

ly a stage in the process of the manufacture of vinegar.

The finished product is the juice of an apple fermented

finally into vinegar and the acetic strength reduced

through the addition of water.

So long then, as this juice is expressed or pressed

from the apple, and that claimant presses out the juice

is not questioned, nothing else is required, and since

evaporation merely concentrates the juice and does not

destroy it, claimant’s vinegar complies with all defini-

tions.

The Government, at Page 18 of its brief, says:

‘*The evaporated apples used by claimant re-

tain twenty per cent. of the natural quantity of

water. By subjecting them to high pressure a vis-

cid exudation can be squeezed out of them. Can

27

such exudation be properly called the ‘juice’ of the

apples? There is no difference between such a prod-

uet and that procured by expressing the juice and

reducing it eighty per cent, by boiling. In each

instance eighty per cent. of the water content has

heen removed.’

The Treasury Decision heretofore cited answers

the query.

Again, at Page 20 of its brief, the Government

states:

**No substance ean be genuine apple juice other

than that actually expressed from the apple. Such

juice is composed of water and solids, one of which

is sugar. If after the removal of the water squeezed

from the apple and the substitution of other water,

it remains apple juice, then the sugar might be re-

moved and other sugar substituted, and it would stil]

he apple juice. And thus, one by one, every ingred-

ient might be removed and an equivalent substituted,

and it would still remain apple juice, though not a

drop or a particle of it had ever been inside an ap-

ple.’’

In 1914, the Department of Agriculture, in its Year

Book, published an article by H. C. Gore, Chemist in

Charge, Fruit and Vegetable Utilization Laboratory,

Bureau of Chemistry, entitled ‘‘Apple Sirup and Con-

centrated Cider: New Products for utilizing Surplus

and Cull Apples.’’

Twenty-five per cent of the apples grown in

American orchards never figure in the food supply

of the nation, according to estimates of specialists

who have been studying apple production. These

waste apples are either good fruit for which the

farmer can find no profitable market and therefore

allows to rot under the trees, or surplus culls, left

£

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28

undisposed of after all demands for vinegar and

fresh cider have been met. Food conservationists

who have long been studying the problem of redue-

ing this waste are inclined to attribute the loss of

good fruit, in some measure at least, to defects in

existing marketing systems and the failure of orch-

ardists to avail themselves fully of cold storage as

a means of keeping fruit from the season of plenty

to the season of searcity and better prices. The

problem, however, of turning the culls and the ap-

ples too small for retail sale into profit seems to

eall not for improved marketing conditions, but for

the transformation of this material into new forms

on fooa, *°* *

The problem, therefore, was still unsolved when

a series of apple crops larger than the average re-

sulted in an even greater waste than usual and stimu-

lated the Department of Agriculture to institute

systematic studies into methods of treating apple

juice. * * * After some experiments, the cider was

frozen solid and the ordinary centrifugal machine

long used in the sugar industry was employed as a

convenient instrument to separate the sirupy por-

tion of the cider from the water-ice by means of

rapid whirling. This process, it was found, per-

mitted the reduction of 5 gallons of cider to 1 gal-

lon of eider concentrate, which preserved all the ori-

ginal flavor of fresh cider and could be instantly re-

stored to cider by the simple addition of the water

that had been extracted. This product, it was seen

at once, was so reduced in volume and weight as

to make shipments from apple orchards to the large

cities profitable for much longer distances. Labor-

atory tests bore out the theory that in its concen-

trated form the cider would keep much longer than

in its original condition and in cold storage would

keep indefinitely. The new product thus promises

to make fresh cider available at soda fountains

throughout the summer months.’’ Pages 227-8-9.

tion

29

Again, at Page 238, in speaking of the concentra-

of sweet cider by freezing, Mr. Gore says:

‘*During the apple-harvesting seasons of 1913

and 1914 the department experimented extensively

on a commercial method of handling fresh cider so

as to reduce its bulk to a point where longer ship-

ment would be possible and also to secure a prod-

uct that would keep better and could thus be sold

over a longer period than is possible with ordinary

apple juice.

Analyses show that ordinary cider contains

from 12 to 14 per cent of solids, mostly sugars, which

make up from 10 to 12 per cent, and malie acid. The

remainder of the cider is water, which experiment

quickly showed can be withdrawn by freezing. Re-

placing the water so removed with ordinary drink-

ing water will restore the cider to its original

quality.

After varied experiments it was found that 5

gallons of cider could be reduced by freezing and

treatment to 1 gallon of sirupy cider concentrate.

* * * When kept cool, as in a household refrigera-

tor, concentrated cider, it was found, would not

spoil for many weeks. When kept at or below 32°

F’. in cold storage it was found that concentrated

cider could be kept from one season to the next and

thus make fresh cider available as a beverage dur-

ing the summer months. * * *”

Mr. Gore then gives diagrams, costs and the process

in detail for freezing cider, and at Page 241 says:

‘The fully concentrated cider will be a some-

what thick liquid with the cloudy appearance and

color of unfiltered fresh cider, If kept sealed at

household refrigerator or in cold-room tempera-

tures, it will keep for weeks. Where allowed to be-

come warm, it will gradually ferment, but will spoil

much more slowly than ordinary cider. Concen-

trated cider intended for use during the following

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spring or summer should be put into cold storage

at once and kept at or below 32° F. It can be shipped

quywhere in winter weather in unheated cars with-

out danger of spoiling. It can be bottled, canned,

or shipped in clean kegs. Inasmuch as 1 gal-

lon can represents 5 gallons of cider and the equiva-

lent of 250 gallons of fresh cider can be put in a

50-gallon barrel, the concentrated product can be

shipped profitably for much longer distances to

market than can the bulky fresh cider. In addition

to saving 80 per cent on the freight, the reduction

in volume permits the shipper to use containers one-

fifth the size, which is an important saving in coop-

erage. The saving in containers, which have always

been relatively expensive items in shipping cider,

should alone nearly offset the cost of freezing and

concentration. In addition there is the saving of

drayage and other handling costs. On its arrival at

the market the retailer can at once restore it to cider

by adding 4 parts of water, or he can sell it in the

convenient concentrated form to his customers.

* * * In this way concentrated cider made in the

fall can be kept over and used in the soft-drink

trade during the hot months, at soda fountains, and

in the home. * * *”’

Page 244:

**A process which will make pure, fresh cider

available as a summer drink at our soda fountains

should open up a new and valuable market for the

juice of surplus apples.”’

Science has discovered no test which indicates that

anything more than water is removed from the apple

through evaporation. The Department makes no dis-

tinction between fresh cider, so-called, and the dehy-

drated cider restored with water. What difference is

there between restoring the water to cider than the

water to the juice in the evaporated apple?

Bey

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31

If the concentrated cider when the water is restored

is real, genuine cider, can it reasonably be claimed the

juice of the evaporated apple when the water is restored

is imitation instead of genuine apple juice?

It is a matter of common knowledge that the Gov-

ernment advocates the evaporation and dehydration of

fruits and vegetables, advertising, and insisting that

evaporation and dehydration in no way detracts from the

food value, the effect being merely the extraction of a

percentage of the water and moisture therefrom. The

fruits and vegetables can thus be better preserved; there

is less rot, decay and deterioration: the Space occupied

is reduced, so that cheaper freight rates can be secured

and shipments can be made in greater volume and with

fewer cars; during the fruit and vegetable seasons the

fruits and vegetables can be gathered to better ad-

vantage, and through being dehydrated, can be pre-

served more economically for future consumption.

The inconsistency of the Government in requiring

a distinction in the labeling of vinegar made from evapo-

rated and unevaporated apples is again manifest when

we consider the regulation in regard to maple sugar,

Which is another instance identical with the vinegar

situation.

The Department, in Circular 156, and its other eir-

culars, in relation to maple sugar, defines it as follows:

‘‘Maple sugar, maple concrete, is the solid

product resulting from the evaporation of maple

sap or maple sirup.”’

Maple sirup is defined as,

i.

‘‘Maple sirup is sirup made by the evaporation

of maple sap or by the solution of maple concrete,

and contains not more than thirty-five per cent (35% )

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32

of water, and weighs not less than eleven (11)

pounds to the gallon (251 eu. in.).’’

Under that Cireular, maple sirup made from maple

concrete, as well as maple sap, is entitled to be labeled

‘*Maple Sirup.’’ The maple concrete may be said to be

but a step in the process of manufacturing maple sirup.

What difference can there be between the process of

maple sap to maple sirup and the juice of the evapo-

rated apple to cider? Maple sirup may be made im one

uninterrupted process, that is, from sap to strup, or the

intermediate stage may be invoked, of securing the sugar

by evaporation, holding the sugar and later making the

sirup. We cannot conceive of a situation more compara-

ble to the vinegar process.

The Government, in commenting on this regulation,

at page 51 of its brief, seeks to avoid the parallel by

ee

claiming a difference between the words ‘juice’? and

‘*sirup.’’ The similarity in the comparisons is not juice

and sirup, but juice and sap and sirup and vinegar. It

also answers that if the public knows that genuine maple

sirup is made both ways and recognizes one as good as

the other, that either can be branded *‘maple sirup.’’

By the agreed statement of facts it appears that for

the past twenty years vinegar made from evaporated ap-

ples has been marketed and sold in large quantities, that

it is as good as vinegar made from the juice of apples

which have not been evaporated. Is there anything in

the record to show that the public is unacquainted with

these facts? Claimant is condemned for urging the very

arguments the Government insists upon as justifying its

sirup regulation.

The Government, at page 36 of its brief, cites the

ruling of President, now Mr. Chiet Justice Taft, with

reference to the branding of whiskies.

weed 5

§: Reger a

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.

33

Claimant is heartily in accord with this ruling.

Claimant’s vinegar is apple cider vinegar whether made

from either kind of apples, and inasmuch as the public

wants apple cider vinegar and is getting apple cider vine-

gar, there is no deceit. The public is concerned with the

product rather than with the method of manufacture.

As Mr. Chief Justice Taft said, in considering the differ-

ent and improved processes for distilling whiskey, and

the publie’s knowledge thereof :

“If high wines at from 140° to 160° when re-

duced to potable strength and containing a very small

quantity of fusel-oil and flavored by brown sugar

are whiskey, as he has found, then the mere improve-

ment in the process by continuous distillation, so as

to give a product of from 160° to 188° proof and still

further to reduce its fusel-oil, is not to change its

whole nature, or to make what was genuine whiskey

imitation whiskey, because of a slightly reduced trace

of one ingredient. The distinction is too impractic-

able in my judgment for the execution of the law.

It may be that the public were not fully or exactly

advised as to the change in process when it was made,

but the change in the process was slight and affected

economy im the production rather than the flavor

of the product, and if the public detected no dif-

ference in the flavor in the product of the improved

process, as they did not, but continued for forty years

to regard it as the same, there was no deceit in con-

tinuing to call whiskey that which was thus merely

improved in its manufacture without substantial

change of composition of flavor.’’

Is not this exactly what claimant is insisting, and

what the Circuit Court of Appeals below held in the in-

stant case?

‘‘The important question in each case is

whether the product is the identical thing that its

brand indicates. If it is the identical thing indicated

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by the brand, the method of its manufacture, regard-

less of the information of the general public upon

that subject, is wholly unimportant.’’? Rec. p. 31.

The Government’s reference to spirits made from

molasses (page 37 of its brief), is entirely beside the

instant case. Whiskeys are made from grains and rum

from molasses. The primary substance in each case is

different. They, therefore, require different brands in

the absence of having acquired a common trade name.

Apple juice is apple juice, whether from evaporated or

unevaporated apples, and there is, consequently, no apt-

ness in the analogy which the Government there seeks to

draw.

Under Sections 3 and 4 of the Food and Drugs Act,

the enforcement thereof is entrusted to the Secretaries of

Agriculture, the Treasury and Commerce and Labor,

jointly, and the extent of the authority of the officers

charged with the administration of the Act is clearly

defined and closely limited. The rules and regulations

promulgated by the three Secretaries are limited, and

the validity of any of them may be challenged by the

parties interested in the proceeding. They represent, in

other words, the opinion only of the Department in re-

gard to adulteration and misbranding.

On February 27, 1912, Food Inspection Decision No.

140 was issued by the Board of Food and Drug Inspee-

tion, and is the first attempt on the part of the Depart-

ment to give vinegar made from apples which have been

evaporated a separate classification. It is under this

F. I. D. that the Government now charges misbranding.

“*1, Vinegar, cider vinegar, apple vinegar, is

the product made from the alcoholic and subsequent

acetous fermentations of the expressed juice of ap-

ples.

f

35

2. Wine vinegar, grape vinegar, * * *

3. Malt vinegar, * * *

4. Sugar vinegar, * * *

d. Glucose vinegar, * * *

6. Spirit vinegar, distilled vinegar, grain vine-

ati

Several questions regarding these definitions

have been raised and after investigation the board

has reached the following conclusions:

Meaning of the term ‘vinegar.’—While the term

‘vinegar’ in its etymological significance suggests

only sour wine, it has come to have a broader signifi-

cance in English-speaking countries. In the United

States it has lost entirely its original meaning and

when used without a qualifying word designates only

the product secured by the alcoholic and subsequent

acetous fermentation of apple juice.

‘Second pressings.’ It is held that the number

of pressings used in preparing the juice is immaterial

so long as the pomace is fresh and not decomposed.

The practice of allowing the pomace from the presses

to stand in piles or in vats for a number of days,

during which time it becomes heated and decom-

posed, and then pressing, securing what is ordinarily

called ‘second pressing’, in the opinion of the board

produces a product which consists in whole or in

part of a filthy and decomposed material and is there-

fore adulterated.

Vinegar from dried-apple products.—The prod-

uct made from dried-apple skins, cores, and chops,

by the process of soaking, with subsequent alcoholic

and acetous fermentations of the solution thus ob-

tained, is not entitled to be called vinegar without fur-

ther designation, but must be plainly marked to show

the material from which it is produced. The dried

stock from which this product is prepared must be

clean and made from sound material. * * *

wal

LAR YP ENTER AISA CII TENE RN

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36

Acid strength—All of the products described

above should contain not less than four (4) grams of

acetic acid per one hundred (100) eubie centimeters.’’

Food Inspection Decision, No. 140.

This F. I. D., while appearing to approve the defini-

tion of ‘apple vinegar’’ as given in Circular No. 19, which

was in effect at the time the Pure Food and Drugs Act

was passed, varies that definition and defines it as being

the product made ‘‘from’’ instead of ‘‘by’’ the alcoholic

and subsequent acetous fermentations of the ‘‘ EXPRESSED

juice of apples,’’ instead of ‘‘the juice of apples.’’

The definition in F. I. D. 140 does not change Cireu-

lar 19, which was in effect at the time of the publication

of this F. I. D. While it may represent the interpretation

which the Board of Food and Drug Inspection placed

upon the standard prescribed by Circular 19, it is not,

nor has it become a standard, and at the time of its issu-

ance did not alter, but merely attempted to interpret, the

standard prescribed by Circular 19.

Circular No. 136, which was properly promulgated

and adopted May 14, 1919, seven years after F. 1. D. 140

was issued, entirely ignores the interpretation placed on

the definition in Cireular 19 by F. I. D. 140, and defines

cider vinegar as being made from the ‘‘ juice of apples,”’

and not the ‘‘expressed juice of apples,’’ and creates no

separate class for vinegar from dried apple products,

This would indicate that the Secretaries in re-adopting

and approving the Standard in Cireular 19, by ignoring

the interpretation placed thereon by F. I. D. 140, did

not intend that this F. I. D. should be further considered.

Had it been otherwise, the standard prescribed by Cir-

cular 136 would have been in the words, and as indicated

by F. I. D. 140. It is evident, therefore, that the defini-

tions and standards, shown in F. I. D. 140, have been

37

superseded and are overruled and disregarded by Cir-

cular 136.

The term ‘‘apple,’’? as used in the Department’s

standards, is not qualified or limited by such words as

‘“‘fresh’’ or ‘‘unevaporated.’’ It is intended as a ge-

neric or class term only, signifying the primary source

from which the substance must come out of which the

vinegar is made, in order to justify the use of the term

‘“‘apple cider vinegar.’’ As such, it would inelude all

kinds of apples, ripe, green, sto ‘age, fresh or evapo-

‘ated. The definitions for ‘‘¢ider”’ a: | ‘*vinegar’’ re-

gard apples only as the primary source from which the

juice of apples is to be obtained, and it is from this

juice, through alcoholic and subsequent acetous fermen-

tation, that cider and vinegar is secured. The clear

meaning and only requirement of the regulations and

definitions is that apple cider vinegar shall be an apple

derivative. Certainly an apple which is in an e rapo-

rated state is none the less an apple.

Evaporation removes about seventy-five per cent.

of the water in the apple, the remaining twenty-five per

cent. carrying in solution all of the soluble parts of the

apple, is none the less juice by reason of that fact. It

is simply a richer, more sirupy juice, but is nevertheless

juice.

The Allen patent tor a dry mince pie compound

recognizes that cider or juice remains in the apple after

evaporation. In Dougherty vs. Doyle, 63 Fed. 475, in-

volving the Allen patent, it appears that the water was

evaporated from the apple for the purpose, as stated

by the patentee,

‘*so that I have the cider in my compound without

useless water, which may be added when the con-

sumer wishes to use it.’’

SSeNK RTP

. PEROT Re Rho Bh 258 eos ZN MOAT KA CP sae SS 5S ON SID Ro CRE CEU EP —

. « MRT? wey ot Get oa eae

38

The elimination of part of the water of the apple

in the manufacture of vinegar is immaterial. Vinegar

3 produced from unevaporated apples is always reduced

3 by the addition of water. The content of acetic acid is

: so great that, unless reduced, the vinegar would not be

a a condiment, and the regulations for the labeling of vin-

: egar provide for stating the per cent. to which the

vinegar is reduced by the addition of water.

Any argument, therefore, on the part of the Govy-

ernment which seeks to claim that the water in the apple

is restricted to native water becomes immaterial, for

what difference is there whether, in securing the neces.

sary acid content for the vinegar, water is added early

or late in the process of manufacture? It is a well

known fact that, in the manufacture of cider or vinegar

from apples, fifty per cent. in water of the weight of

the pomace resulting from the first and subsequent

on kon te ae

25 eel

pressings is added to it before the second and subse-

quent pressings are made. The New York case (which

we will later quote in detail) comments on the general

practice of second pressings of the pulp of unevapo-

rated apples after adding water. Second pressings are

also sanctioned by F. I. D. 140, as heretofore noted.

Z The regulations permitting second pressings with-

: out a distinguishing label, and compelling a distinguish-

% ing label when apples which have been evaporated are

used, is another illustration of the inconsisteney in the

Department’s regulations. What possible difference is

there in theory or in principle, between the addition of

water to the pomace after the first pressing and replac-

ing the water in evaporated apples?

The New York State Courts, within the past year,

have passed on the precise question involved in the case

at bar, namely, whether vinegar made from apples that

me a

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39

have been evaporated is apple cider vinegar made ex.

clusively from the pressed juice of apples. (In view of

the importance of this case, and its bearing on the pres-

ent controversy, we shall quote in detail the opinions of

the different Courts during the various stages of the

case. )

The evidence in that case is most complete in that

samples from the juice of apples that have been ev ap-

orated and of apples that have not, as well as samples

of the juice of both kinds of chops, cores and skins, were

submitted, together with samples of the ciders and vine-

gars from each. A comparative analysis of all of the

samples was in evidence and claimant’s process of

pressing ov? the juice was explained and deseribed to

the most minute detail.

The trial Court, at the conclusion of all the testi-

mony, directed the jury to return a verdict for the State,

Mr. Justice Thompson delivering the opinion:

‘**T am unable to conform my mind to the views

of counsel. I feel that the statute was designed to

secure to the consumer under this rule that the leg-

islature has made, the delivery of vinegar derived

solely from the juice of the fresh fruit, when he

shall purchase the vinegar, and I feel that that is

the attitude of the court and spirit of the law at this

time, in the light of the more modern Sales Act or

Personal Property Law that we have in all States,

and the pure food laws and farm and market laws,

und the fact that the producer and consumer are

so much more remote from each other in these times

than they were in years past. I feel that in view

of these things the law requires under these condi-

tions, and the tendeney of judicial action is, that

these laws must be strictly construed and strictly

interpreted and enforced. So my ruling in this

case may be stated and made a part of the record

to the effect, that I grant this motion upon the as-

PORES ARE AEN GACS SRYT Ge IRIE A EGE SS

40

sumption that this statute prohibits the sale of cider

made from evaporated fruits, under this sort of

branding, at least, and that it only authorizes under

this branding, or this marking, the sale of vinegar

made from the natural fruit without the interven-

tion of the process of evaporation.”

The Douglas Packing Company moved for a new

trial upon exceptions taken at the trial, and upon its

application the trial Court ordered the motion for a

new trial to be heard in the first instance in the appel-

late division. The appellate division of the Supreme

Court affirmed the decision without opinion. Mr. Jus-

tice Clark, however, filed a dissenting opinion:

**The primary purpose of the statute (See. 72 of the

Agricultural Law, now Sec. 209 of the Farms & Markets

Law), requiring that containers of vinegar should be

branded as prescribed in the statute, and that no person

should mark or brand as or for cider or apple vinegar

any package containing that which is not cider or apple

vinegar, was to insure to the public an article that was

pure, to the end that the health of citizens would be safe.

guarded.

There was no evidence in this case that the product

of defendant-appellant was not of the finest quality and

absolutely pure. The juice of the apple was obtained

by pressing, and I cannot see what possible difference

it made whether the pressing was by pressure applied

from above or below.

Defendant’s vin

This text is long and has been trimmed here. Open the source document for the complete record.