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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1924
- **Citation:** 265 U.S. 438

## Text

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- . : 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

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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

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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

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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

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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.

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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

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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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SRNR Se SARE epee IN, SOMITE PCTS

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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

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Pid! E01, ole

Se aie Pat le, ae he

ptt at) oes

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—
x
f
-
3
4
'
i
t
we
&
&
¥
&

Tin POSS Moda ens CSO eM tet PTD ead le es Me

58

be sold under a label which led the purchaser to be-
lieve that he was buying the former article, there was
a misbranding.

An analogy is sought in the case of oleomargarine,
but as the ingredients in oleomargarine differ from
those in butter, the case is not parallel.

None of these situations are analogous to the in-
stant case, and the language of the Court, in condemn-
ing the labels and products therein involved, would not
apply to claimant’s product.

The instant case stands upon its own facts, and
involves neither substitution, imitation, inferior prod-
ucts, or any of the other grounds considered in the cited
cases. The Government’s principal argument for mis-
branding is that the consumer is deceived, that claim-
ant’s label ‘‘exhales deceit,’’ not because an inferior
product is marketed, not because the product is differ-
ent in any single respect that the Government is able
to point out, not because the product is not apple cider
vinegar, but because it is manufactured in a manner
different than the Government claims it is popularly
supposed to be produced. That such a conclusion is
unjustified is apparent from the facts and was one of
the grounds for reversing the District Court.

‘“‘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. The danger of reliance on judicial knowl-
edge founded on past impressions is well illustrated
by the salad oil cases. The very branding which
the court, in Brina v. U. S., 179 Fed. 373, said it
judicially knew was so untrue as to compel the con-
clusion of misbranding, two years later, was shown

a

|

|

59

to the same court in Von Bremen v. U. S., 192 Fed.

904, to be so true as to require an instructed ver-

dict for the respondent. In the present ease it is

conceded that this identical product has been sold
and accepted by the trade under this name in great
quantities for many years and without challenge
until now. While there is nothing in the agreed
statement of facts to show how far this acceptance
has been with knowledge, yet the court can not
judicially know that this acceptance was so wholly
without knowledge of the facts as to be unim-

portant.’’ Ree. pp. 33-34.

The Government intimates that unless its dis-
tinction in the labeling of vinegars is enforced, unfair
competition among the producers of different types of
vinegar is promoted. The question intimated is en-
tirely outside the purpose and scope of the Pure Food
and Drugs Act and is not in any Way an issue in this
ease, but granting for argument that it is an issue and
that there is cause to consider it, the facts are contrary
to such a conelusion.

The process of manufacturing vinegar from the
juice of apples that have been evaporated is not a new
process, but is one that has been in general use among
manufacturers since prior to the Pure Food and Drugs
Act, and vinegar so produced has for years been sold
under the label ‘‘Cider Vinegar.”’ Apples to be evapor-
ated must be apples that are sound and free from rot
and the vinegar manufactured from such apples must,
therefore, be of a better grade than vinegar manu-
factured from the ordinary run of cider apples. The
further fact that the preserving of apples for vinegar
purposes by evaporation will help to conserve the apple
crop and so tend to prevent a cornering of the vinegar
market, through securing control of the fresh apple

¥

PUNO —aT
Bes

RE BEE

a,

60

crop, indicates that rather than promoting unfair com-
petition among the vinegar manufacturers it operates
as a preventive and assures the public of a uniform
vinegar manufactured throughout the year. An appal-
ling waste in the apple crop is avoided and an industry
which would be confined to manufacture during a short
period of time is permitted to employ its labor and
capital over the entire period of the year.

Considering the facts in this case impartially, can
it be fairly claimed that claimant’s vinegar is anything
else than apple cider vinegar? Evaporation, according
to any known scientifie test, removes no constituent part
of the apple other than water. Yet the Government in-
sists there may possibly be a difference in the vinegars
and demands a label that indicates a difference.

What possible benefit can result to anyone from a
label that suggests a fancied difference where none in
fact exists? Why discriminate against vinegars? An
apple pie is an apple pie whether made from apples
which have been evaporated or apples which have not.
The same is true of peach or apricot pie. Maple syrup,
whether made from maple sap or maple concrete, is
maple syrup. Cider reduced by freezing or by boiling,
and to which the water frozen out or boiled out is later
restored, is still cider.

Cider is frozen or boiled to eliminate part of the
water in order to reduce its bulk and thus facilitate pre-
serving and storing, and maple sap is converted to
maple concrete for the same purpose. So in the case of
claimant’s vinegar, the water is partially removed from
the apple to prevent the waste and deterioration inci-
dent to handling and storing of raw apples or the juice
thereof. Is this apple juice, remaining after reduction

a

61

by eliminating part of the water, to be condemned be-
cause stored and preserved in the cellular tissue and
portion of the apple itself rather than in some other
appropriate container?

‘The conservation of our food product is of
some concern to the public and perhaps second in
importance only to the demand for pure and un-
adulterated food. * * * Therefore, an efficient and
harmless method of preserving the fruit until it can
be used for this purpose is in the direct interest of
the public, and if this method has accomplished
that object without changing the product it should
be encouraged rather than condemned.’’ Record,
p. 32, Opinion C. C. A.

The Food and Drugs Act deals with substantial and
not fanciful things. Neither the letter nor the intent of
the law as to misbranding justifies a distinction between
vinegar made from apples by a continuous process and
vinegar made by the same process slightly interrupted,
when the product is the same. When a purchaser is
securing an article branded for what it is, there is no
deception. Claimant’s product is not an imitation, and
is not offered for sale under the distinctive name of
another article. The label is not misleading, and con-
tains no statement regarding the ingredients which is
misleading in an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0055%3A2. Public record. Not legal advice.