Petition for a Writ of Certiorari — United States v. 88 Cases of Bireley's Orange Beverage, General Foods Corp.

INDEX

Page

Seria oa atea tice k ina 2 Gap Puce Wad nos Mee AOS 1

SOUR cee fe NES Sok Pore Soe ib ieee ios Wid Hine ESS 2

BOURSES A FEE OT CET Ce TO 2

NUNN NN elo 8S cs cccnce ss vane ve eek ALT A wey IRS RS 3

NIE roi ed he RNG aS WS wn NO RS ORES +

Reasons for granting the writ .........................4.. 8

NS Pee a oy or aes teed ek eb awe eA o Ke ea hee 20

CITATIONS

Cases:

Aronberg v. Federal Trade Commission, 132 F. 2d 165 12

Charles of the Ritz Distributors Corp. v. Federal Trade

Commission, 143 F. 2d 676........................ 12

Dorfman, et al. v. Federal Trade Commission, 144 F. 2d

Oj. RES AEE ote hd ae AUR Sn stay a ick IP IRE laa Poe: 12

Federal Trade Commission v. Standard Education So-

GPRM Be ES ceicecc st jesslc oe he kK vcceiees spans 0k 10,12

Florence Mfg. Co. v. J. C. Dowd & Co., 178 Fed. 73 .... 11

Gulf Oil Corp. v. Federal Trade Commission, 150

I oo ad ahs asl Gas Pa ieg wes cS pCR ae we 12

Jordan v. DeGeorge, 341 U. S. 223............... 0... 18

P. Lorillard v. Federal Trade Commission, 186 F. 2d 52. . 12

Prudential Ins. Co. v. Faulkner, 68 F. 2d 676......... 19-20

Stanley Laboratories, Inc. v. Federal Trade Commission,

NCR Aan i as oe cic RMI tee oa rey esd om uss 12

United States v. Dotterweich, 320 U. 8. 277....... .... 14, 16

United States v. El-O-Pathic Pharmacy, et al., decided

ame 20) Td, a Oe ck os ee wkb 03455 10,11

United States v. Lexington Mill & Elevator Co., 232

MN A dns sera bd Washers nb hee Bone MEA k eae eed 13

United States v. 62 Packages * * * Marmola Pre-

scription Tablets, 48 F. Supp. 878, affirmed, 142 F. 2d

107, certiorari denied sub nom. Raladam Co. v. United

Oe RP PV eee ee rere rT 10-11

United States v. Petrillo, 332 U.S.1.................. 18

United States v. Sullivan, 332 U.S. 689........... .... 17,18

Williams v. United States, 341 U.S. 97........... .... 18

Statute:

Federal Food, Drug and Cosmestie Act of 1938, 52 Stat.

1040, as amended by the Act of June 24, 1948, 62 Stat.

582, 21 U.S.C. 301, et seq.:

SR arr rd Saree ses pee ore 3

oxo ab is k's ak nee aKie ae tes 2, 4,13

Federal Trade Commission Act, as amended, 15 U.S.C. 52,

CLL Mag ai NE GS GEDA EER ge ORE ah aisha Bie ark ed 12

(1)

EET RELL LOTS BI EAA LE USED ER TS Ae ON ER SERA ER ND

’

Inthe Supreme Gourt of the Wnited States

OctToBER TERM, 1951

No. 274

UNITED STATES OF AMERICA, PETITIONER

v.

88 Cases, Etc., ‘‘BrRELEY’s ORANGE BEVERAGE”’,

GENERAL Foops CORPORATION, CLAIMANT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to re-

view the judgment of the United States Court of

Appeals for the Third Circuit, entered March 23,

1951, vacating a decree of condemnation against

the respondent product.

OPINION BELOW

The opinion of the Court of Appeals (III R.

481-490)’ is reported at 187 F. 2d 967.

1 The printed record consists of the appendices to the briefs

filed in the Court of Appeals. The appendix to the Libellant’s

(Government’s) brief, in two volumes paginated consecutively,

(1)

JURISDICTION

The judgment of the Court of Appeals was en-

tered on March 23, 1951 (III R. 491). Petitions

for rehearing by both sides (III R. 499-523) were

denied on May 28, 1951 (III R. 524). The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

Section 402(b)(4) of the Federal Food, Drug

and Cosmetic Act provides in pertinent part that a

food shall be deemed to adulterated ‘‘if any sub-

stance has been added thereto or mixed or packed

therewith soasto * * * make it appear better

or of greater value than it is.’”’ The libel charged

that the respondent product was adulterated within

the meaning of this section in that it consisted of a

small quantity of concentrated citrus juice mixed

with and added to yellow coal tar dyes, water,

sugar, lactic acid, and orange oil, so as to make the

food look, taste and smell like orange juice or a

beverage containing a large quantity of orange

juice. The questions are:

1. Whether the protection of the Food, Drug

and Cosmetic Act extends, as the court below held,

only to the ordinary consumer who has and exer-

cises a normal measure of the laymen’s common

sense and judgment, or whether, as other Courts of

will be designated I R. and II R., respectively, and the ap-

pendix to claimant’s (respondent's) brief, which now includes

the proceedings in the Court of Appeals, will be designated

III R.

é

SPREE EE PORTIS SP LIE ILI ELLIMAN TALI ALLENS TT URL EEA ISRES ZN —

3

Appeal have held, the Act was designed to protect

that segment of the public which includes ‘“‘the

ignorant, the unthinking and the credulous, and

those who do not stop to analyze in making a pur-

chase.”’

2. Whether Section 402(b) (4) applies to a food

having a deceptive appearance as to the quantity

of its most valuable ingredient (orange juice) but

which is not necessarily confused with another and

superior food, in this case 100 per cent orange juice.

3. Whether, in the circumstances of this ease,

tne Court of Appeals erred in ruling that expert

testimony and exhibits to demonstrate the signifi-

cance of the lack of vitamin C in the respondent

product was such shocking and sensational evi-

dence as to require reversal, because the claimant

had admitted that the product contained no vita-

min C.

STATUTES INVOLVED

The Federal Food, Drug, and Cosmetic Act of

1938, 52 Stat. 1040, as amended by the Act of

June 24, 1948, 62 Stat. 582, 21 U.S.C. 301, et seq.,

provides in pertinent part:

Section 304 [21 U.S.C., Supp. IV, 334].

(a) Any article of food, * * * that is

adulterated or misbranded when introduced

into or while in interstate commerce or while

held for sale (whether or not the first sale)

after shipment in interstate commerce * * *

shall be liable to be proceeded against while in

interstate commerce, or at any time thereafter,

Bierce revs ononeegenmurmsecsce cere mS ECA eS HELO DRAENOR Ro te ese is em

4

on libel of information and condemned in any

district court of the United States within

the jurisdiction of which the article is

mae: * * *

Section 402 [21 U.S.C. 342]. A food shall

be deemed to be adulterated—

* * * * *

(b) * * * (4) if any substance has been

added thereto or mixed or packed therewith

so as to increase its bulk or weight, or reduce

its quality or strength, or make it appear bet-

ter or of greater value than it is.

STATEMENT

Pursuant to Section 304(a) of the Federal Food,

Drug, and Cosmetic Act, the Government brought

this action in the District Court for the District of

New Jersey to condemn a number of cases of a

food labeled ‘‘ Bireley’s Orange Beverage’’. The

libel charged that the food was adulterated within

the meaning of Section 402(b) (4)—

(1) In that yellow coal tar dyes had been

mixed therewith so as to make the food look

like a product composed entirely or in large

part of a fresh orange juice and thus better

and of greater value than it is. |

(2) In that it consisted of a mixture of a

small quantity of concentrated citrus juice or

juices and water, to which had been added

additional water, in excess of that combined

in the fresh juices from which the concen-

trates were made, sugar, lactic acid and orange

oil, which substances so added to the said food

increased the bulk thereof and gave it the

taste and odor of an orange juice or of a bev-

SPCR E OORT AaB Oe MRED GEN a Heese —

5

erage containing a large quantity of an orange

juice, thereby making the food appear better

and of greater value than it is. (III R. 6-8).

‘‘Bireley’s Orange Beverage’’ is a non-carbon-

ated or ‘‘still’’ liquid packed in distinctive bottles

of 6% ounce capacity. The product is basically

greatly diluted orange and lemon juice. Each

bottle contains about 6 per cent orange juice and

2 per cent lemon juice, 14 ounce altogether, diluted

with almost 6 ounces of water (III R. 47-48, I R.

38-43, II R. 400). To overcome the obvious com-

mercial disadvantages of so weak a mixture, there

are added two yellow coal tar colors, sugar, lactic

acid and orange oil to make a sweetened, flavored,

acidulated, and colored water with the odor and

taste characteristics of an orange juice. (III R.

47-48, I R. 38-43, II R. 352, 384, 400).

The drink contains practically no vitamin C, the

principal nutrient of citrus juices (I R. 19-20, IIT

R. 59, 63). It was represented, however, as ‘‘not

an ordinary soft drink’’ but a ‘‘good source of

vitamin C.’’ (II R. 431, 482, 440, see also 423-

436). At the time of its seizure the drink was dis-

tributed not only through the usual channels for

soft drinks, but also through dairies which mar-

keted it in ordinary quart milk bottles and in the

distinctive smaller-sized bottles shaped to re-

semble milk bottles, adopted for dairy bottling

equipment. (II R. 370-371, 383-386).

The Government also adduced evidence that

mothers had purchased this food under the false

OO i EPs ERB A NTRS RTE ORES ER ORI ARERR BI SRR Ro

’

6

impression gained from its appearance that it was

orange juice and had fed it to their babies as a

dietary source of vitamin C, with the result that

the infants developed scurvy, a dietary deficiency

disease (III R. 180-186, 191-201, 207, 211, 215-219,

223-251, 281-283, II R. 376, 380-383, 420-421) ; that

extensive surveys among consumers were con-

ducted and that to at least 1522 of the 3539 persons

interviewed the article appeared to be a food com-

posed entirely or in large part* of orange juice

(II R. 401, 404, 407, 410, 412, 417).

The evidence further established that the easily-

accomplished elimination of the coal tar dye colors

would leave the drink with a very unappetizing,

water-like color and without commercial value

(I R. 45-49, II R. 387) ; that the colors were added

to give the drink ‘‘eye appeal’’ so as to promote

‘impulse purchasing”’ (II R. 386-387, III R. 292-

293, 294-295); that the drink has the color of a

California Valencia orange and of California

Valencia orange juice produced at certain times of

the year (I R. 48-45, IT R. 340, 382-383, ITT R. 58) ;

that the orange and lemon pulp contained in the

drink give the colored mixture a cloudy appearance

commonly associated with citrus juices (11 R. 351-

352, 383-384) ; that orange oil was added to simu-

late the taste of juice as squeezed from oranges (IT

R. 341-342) ; and that sugar, lactic acid and orange

oil impart to the 87 per cent of water in the drink

2 More than 25 per cent orange juice.

7

the taste and odor characteristics of an orange. juice

(I R. 41-43, IIT R. 47-48, 207).

The product was promoted by advertising claims

that each bottle contained the juice of a whole

orange (II R. 436), and that it had nutritional

value comparable to orange juice (II R. 431, 432,

436, 437, III R. 297-298, 301-302) .*

The evidence also showed that orange juice is

generally recognized as one of the most important

foods for supplying vitamin C, and for that reason

is extensively recommended and used for its

dietary value, particularly in infant feeding. (I

R. 61, IIT R. 235, IIT R. 178.)

The case was tried before a jury, and a verdict for

the Government was returned (III R. 470). Upon

appeal, the Court of Appeals for the Third Circuit

reversed upon the grounds (1) that the trial court

erred in instructing the jury that it was their

function ‘‘to determine whether any part of the

public, the vast multitude which includes the

ignorant, the unthinking and the credulous, and

those who do not stop to analyze in making a pur-

chase would be”’ misled as to the amount of orange

juice in the respondent product; (2) that in order

to prove a violation of Section 402(b) (4) the Gov-

3“Made from the concentrated juice of fresh oranges with

only water and sugar added” (II R. 431); “Provides real fruit

nutrition”, “No artificial flavoring” (II R. 432); “A beverage

with nutritional value”, “A refreshing, nourishing drink”, “The

refreshing quencher made of oranges” (II R. 436); “Enjoy

real iruit nutrition” (II R. 437). [Underscoring in original. |

All of these statements are untrue or misleading.

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Biitasicitteaainis sees nars Sects

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8

ernment must show that the consumer is likely to

confuse the product with a specified superior coun-

terpart, i.e., undiluted orange juice, and that the

charge to the jury, which permitted comparison

also with beverages composed in large part of

orange juice, failed to submit the case on such

basis; and (3) that the trial court erred in admit-

ting evidence of the results of experiments in

feeding guinea pigs, and evidence showing the de-

velopment of scurvy in children who drank the

respondent product instead of orange juice (III

R. 481-490).

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals held that the correct

standard as to deception is not ‘‘whether any part

of the public, the vast multitude which includes the

ignorant, the unthinking and the credulous, and

those who do not stop to analyze in making a pur-

chase would be’’ misled, as the trial court charged

(III R. 456), but the ‘‘reaction of the ordinary

consumer under such circumstances as attended re-

tail distribution of this product.’”’ The court ex-

plained that ‘‘when a statute leaves such a matter

as this without specification, the normal inference

is that the legislature contemplated the reaction of

the ordinary person who is neither savant nor dolt,

who lacks special competency with reference to

the matter at hand but has and exercises a normal

measure of the layman’s common sense and

judgment.’’ The opinion goes on to explain that

9

‘‘what constitutes the norm of common sense and

judgment is peculiarly the province of the jury to

decide by relating common experience in the con-

duct and reaction of people to the circumstances at

hand and by weighing such evidence as may be

offered of the actual reactions of numbers of ordi-

nary people in similar circumstances.’”’ (III R.

484.)

If the Court of Appeals had criticized the

charge merely on the ground that the phrase ‘‘any

part of the public’’ permitted consideration of the

effect upon any insignificant part of the public—

de minimis—as distinct from a substantial por-

tion, the question would be whether the charge

as a whole would be so understood by the jury.‘

But the court below went further. In holding that

the test of deception to be applied is the reaction

of the ordinary person or ordinary consumer, the

court, contrary to the decisions of other courts

(see pp. 10-13, infra), has ruled out the ignorant,

the unthinking and the credulous, whether or not

they form a substantial portion of the public, if

they are below the ‘‘norm of common sense and

judgment’’. The court holds, in effect, eit er that

the ‘‘ordinary consumer”’ does not include ignor-

ant, unthinking and credulous persons, or that

*Shortly after the passage in question the trial judge in-

structed the jury: that the Government sought to show “the

impression to many of the public”, although no proof of decep-

tion to any particular number or percentage of persons was

required (III R. 457). In fact, the evidence shows that a

very substantial part of the public is deceived.

10

Congress did not intend the Act to protect them.

The standard enunciated by the court below, if

permitted to stand, would result in depriving sub-

stantial segments of the population of protection

from unscrupulous vendors who do not hesitate to

do an illicit business in adulterated and mis-

branded foods and drugs. It would mean that the

statute does not protect against practices that

would deceive perhaps 40 per cent of the popula-

tion who are on the below-average side. Such a

restrictive standard was not intended by Congress.

Rather, it was the Congressional purpose to pro-

tect all substantial segments of the consuming

public, which includes those who are educated and

intelligent, those with a normal measure of the

layman’s common sense and judgment, and those

who are ignorant, unthinking and credulous. The

credulous, of course, are not necessarily dolts or

unintelligent ; they may merely be unsuspicious or

trusting, or unaware of modern methods of food

fabrication. Cf. Federal Trade Commission v.

Standard Education Society, 302 U. S. 112.

The decision below on this aspect of the case can-

not be reconciled with the test as to deception ex-

pressed in United States v. 62 Packages * * *

Marmola Prescription Tablets, 48 F. Supp. 878

(W.D. Wis.), affirmed, 142 F. 2d 107 (C.A. 7),

certiorari denied sub nom. Raladam Co. v. United

States, 323 U.S. 731, and United States v. El-O-

Pathic Pharmacy et al., C.A. 9, decided June 18,

1951. Both cases involved misbranding of drugs

11

alleged to be dangerous to health. In the former

case the district court (p. 887), and in the latter

case the Court of Appeals for the Ninth Circuit,

stated in their opinions, in substantially the

language in the charge in this case, that the

purpose of the Food, Drug and Cosmetic Act is

to protect the public, the vast multitude

which includes the ignorant, the unthinking,

and the credulous who, when making a pur-

chase, do not stop to analyze.

The language in the instruction which the court

below held erroneous originated in the opinion of

the Court of Appeals for the Second Circuit in Flor-

ence Mfg. Co. v. J. C. Dowd d&: Co.,178 Fed. 73,

which involved the question whether selling a tooth

brush under a certain trademark constituted a

deceptive competitive practice. The opinion stated

that (p. 75):

the courts look with suspicion upon one

who, in dressing his goods for the market, ap-

proaches so near to his successful rival that the

public may fail to distinguish between them.

The law is not made for the protection of ex-

perts, but for the public—that vast multitude

which includes the ignorant, the unthinking

and the credulous, who, in making purchases,

do not stop to analyze, but are governed by

appearances and general impressions.

This rule and the standard thus stated has been

adopted and restated in at least three cases in

courts of appeals involving trademarks and mis-

PRs cc gseci0 eA EERE REF AAT LD LOE IIRL AER ESOL INE OLED STEINER SEES reap

MOORE SEER, OLED BENS OPI ET IIE, MMA SY LIE LE LIRR SINE BIO DEIN ELE SIME CIEE SERA TES DMM RITUR: UR CIN NN a

12

leading advertising with respect to drugs and cos-

metics, which were brought under the 1938 amend-

ments of the Federal Trade Commission Act.

Aronberg v. Federal Trade Commission, 132 F. 2d

165, 167 (C.A. 7); Stanley Laboratories, Inc. v.

Federal Trade Commission, 138 F. 2d 388, 392-393

(C.A. 9) ; Charles of the Ritz Distributors Corp. v.

Federal Trade Commission, 143 F. 2d 676, 679

(C.A.2). The same standard has also been adopted

and restated in other courts of appeals in Federal

Trade Commission Act cases not involving drugs or

cosmetics. E.g., Dorfman, et al. v. Federal Trade

Commission, 144 F. 2d 737, 739 (C.A. 8); Gulf Oil

Corp. v. Federal Trade Commission, 150 F. 2d 106,

109 (C.A. 5); P. Lorillard v. Federal Trade Com-

mission, 186 F. 2d 52, 58 (C.A. 4). See also Fed-

eral Trade Commission v. Standard Education So-

ciety, 302 U.S. 112.

The 1938 amendments of the Federal Trade

Commission Act were enacted as a companion meas-

ure to the Federal Food, Drug, and Cosmetic Act

of 1938. These amendments prohibit the dissemi-

nation of an advertisement to induce the purchase

of a food, drug, device or cosmetic which is mislead-

ing in a material respect (15 U.S.C. 52, 55(a)). It

is evident that the purpose of the 1938 amendments

of the Federal Trade Commission Act is identical

with the purpose of the Federal Food, Drug, and

Cosmetic Act to prevent deception of consumers.

It follows that the scope of protection of consumers

against deception is identical in the two acts. Thus

13

the test of deception of consumers expressed by the

court below is inconsistent with the opinions of the

Courts of Appeals for the Second, Fourth, Fifth,

Seventh, Eighth and Ninth Circuits in Federal

Trade Commission Act cases.

Further support for our position that Section

402(b) (4) was not intended to be limited to pro-

tecting the ‘‘ordinary consumer”’ or the ‘‘ordinary

person,’’ in the narrow sense that the opinion below

indicates, is found in the decision of this Court in

United States v. Lexington Mill & Elevator Co.,

232 U.S. 399. The question in that case concerned

the correct interpretation of that part of the defini-

tion of an adulterated food in the Federal Food and

Drugs Act of 1906 which stated that a food is adul-

terated if it contains a poisonous or deleterious

ingredient which may render it injurious to health.

This Court said that the flour involved in that case

(p. 411)—

may be consumed, when prepared as food, by

the strong and the weak, the old and the young,

the well and the sick; and it is intended that

if any flour, because of any added poisonous

or deleterious ingredient, may possibly injure

the health of any of these, it shall come within

the ban of the statute. [Italics supplied. ]

This decision must be taken to mean that the

strong, the weak, the old, the young, the well and the

sick, all must be included in addition to the ‘‘ordi-

nary person”’ or ‘‘ordinary consumer”’ in the pro-

tection intended to be afforded by the Act. The

9

present statute certainly was not meant to be nar- |

rower in the protection afforded the public than its

predecessor. United States v. Dotterweich, 320

US. 277, 282.

We submit that the question as to the portion of

the public which must be shown to be misled is a

very important one in the enforcement of the Food,

Drug and Cosmetic Act, and that, in view of the

difference between the approach taken by the court

below and that taken by other courts, the issue

should be resolved by this Court.

2. The libel alleged (III R. 6-7) and the charge

to the jury repeatedly stated (III R. 437, 438, 455-

456, 457-458) that Section 402(b) (4) would be vio-

lated if persons thought that ‘‘Bireley’s Orange

Beverage’’ was composed entirely or ‘‘in large

part”’ of fresh orange juice. The Court of Appeals

held, however, that there would be no adulteration

so long as the ordinary consumer did not br ‘eve the

beverage was composed entirely of orange juice.

This holding was required, the court said, because

to interpret the statute to apply to a food having a

deceptive appearance as to the quantity of one of

its valuable ingredients, but not likely to be mis-

taken for another and superior food, would raise

serious difficulties of vagueness. The court said:

* * * proof of violation of the statute re-

quires first description and definition of the

superior counterpart, and second, proof that

the consumer is likely to mistake the inferior

for the superior. [III R. 486.]

LIAL A? SOR IMIE I yD SIRT! Ir Sh SRF MN PGI RETESET IE EMEA EN RII BEB OP BEN IRMELES TA RP INS DENG BN OE LEN sl

15

‘‘A beverage containing a large quantity of

orange juice’’ (III R. 7), as described in the libel,

seems clearly to be a ‘‘superior counterpart”’ to a

beverage containing a small part of orange juice.

But in any event, we believe that the proper test is

what the food actually is and whether its outward

appearance reflects its true composition. Here the

food contains only 6 per cent orange juice, but the

proof showed and the jury obviously found that

substances had been added to give it the deceptive

appearance of being composed entirely of fresh

orange juice or of containing a large quantity of

fresh orange juice. If the product, by the addition

of artificial ingredients, was made so to resemble

orange juice that the consumer would be led to

believe that it contained more orange juice than it

did, it was made to appear better and of greater

value than it is and the statute was violated. The

District Court’s charge stated a reasonably definite

standard for the application of Section 402(b) (4).

On the other hand, the Court of Appeals’ re-

quirement of proof of confusion with undiluted

orange juice would in a large measure nullify the

protection of consumers intended by Section 402

(b) (4). Toa great many consumers, as shown by

the record, the respondent product appears to con-

sist of a substantial amount of orange juice, rang-

ing from 25 to 100 per cent. That this is no mere

accident is shown by the proof that ingredients

were added so as to make the product simulate

— SURE AN OSE BAI SENET SII BN ME, REF GLP LIE INS EAL NI TE ONE ISE SEU TANTEI TN

’

16

orange juice in taste, appearance, and odor, and the

further proof as to merchandising methods used

and the references to orange juice in the advertis-

ing claims. The court below conceded that ‘“‘liter-

ally the product appears better than it is if it ap-

pears to the consumer to contain more than 6%

orange juice’”’ (III R. 485). Under the instruc-

tions of the trial court, the jury found that the

product appeared to be composed entirely or in

large part of fresh orange juice. Surely, then, it

was made to ‘‘appear better or of greater value

than it is,’’ within the proscription of Section

402(b)(4). Since, as the proof showed and the

jury found, the product was designedly foisted

upon substantial numbers of consumers as a food

containing largely orange juice, the claimant is

hardly in a position to insist that the statute re-

quires, as a condition of condemnation, that its

product be compared with undiluted orange juice

and proof of confusion with such juice. Cf. United

States v. Dotterweich, supra.

Such a requirement would permit economic adul-

teration, in such cases as this, so long as the con-

sumer is not deceived into thinking that he is buy-

ing the pure article. We think this is an unreason-

able restriction upon the plain terms of Section

402(b)(4). It categorically forbids economic

adulteration whereby a food is made to appear bet-

ter or of great value than it is. It is aimed at the

very practices this record discloses—the dilution

of valuable foods and the substitution of other

Pmxs eae

17

worthless, albeit harmless, ingredients. Where, as

here, the product contains only an insignificant

proportion of its only valuable constituent, it is not

unreasonable to the manufacturer to hold him to

acount when he has successfully deceived substan-

tial numbers of consumers into thinking that the

product is composed in large part of that constitu-

ent. In the circumstances of this case, the test of

consumer deception adopted by the District Court

does not, as the Court of Appeals thought (III R.

485-486), place an unreasonable burden on the

manufacturer to speculate on consumer judgment

as to the exact percentage of a valuable food his

product contains.

The court below was concerned with the indefi-

niteness of the statute if construed so as to permit

comparison with anything but a defined food such

as pure orange juice, and for that reason prohibited

comparison with a product containing pure juice

‘tin large part’’. Of course, ‘‘extreme possible ap-

plications’? (United States v. Sullivan, 332 U.S.

689, 694) ean be imagined in which it might be diffi-

cult to draw a line. But the hypothetical ‘‘guess

whether an artificial beverage contains five, six,

seven, or some other percentage of orange juice”’

(III R. 485-486) is not required in this case and

probably never will be in any other. Compare

United States v. Sullivan, at 694. There is no diffi-

culty in determining that a beverage containing six

per cent orange juice is not composed ‘‘in large

part’’ of orange juice. The possibility of hard bor-

Sastydraks PRR cee Coane nea names fees

18

derline situations does not make a statute too vague

or illusory (Jordan v. DeGeorge, 341 U.S. 223, 231;

Williams v. United States, 341 U.S. 97, 101; United

States v. Petrillo, 332 U.S. 1, 7),° or justify a re-

strictive interpretation which will prevent appli-

cation of the statute in clear cases (United States

v. Sullivan, 332 U.S. 689, 693-694).

3. The Court of Appeals held that the trial court

erred in admitting evidence showing the harmful

effects of a deficiency of vitamin C in the diet. The

evidence consisted of (1) the testimony of an ex-

pert who had conducted tests upon guinea pigs

with orange juice and with ‘‘ Bireley’s Orange Bev-

erage,’’ (2) photographs of the subjects, and (3)

testimony showing the development of scurvy in

children who drank the Bireley product. The pur-

pose of this evidence was to demonstrate the nutri-

tional superiority of orange juice over ‘‘ Bireley’s

Orange Beverage’’ in order to support the charge

in the libel that the Bireley product appeared to be

better or of greater value than itis. This was rele-

vant and could be shown by expert testimony or by

actual demonstration or experiments which might

be more effectual. The Court of Appeals concedes

that this evidence was relevant, but it holds the evi-

dence should have been excluded because of its

‘¢sensational and shocking nature.”’

A trial court, in the exercise of a sound discre-

5“That there may be marginal cases in which it is difficult

to determine the side of the line on which a particular fact

situation falls is no sufficient reason to hold the language too

ambiguous to define a criminal offense.” [332 US., at 7.]

PRAISE TERE OLD. POM IR LEER RL ORNES YENI AER SOE IER IMI RMR WBE Bes EIB TN MRA ee

—

tion, must determine whether the probative value

of proffered evidence outweighs the risk that its

admission will confuse, mislead, shock or unduly

prejudice the jury. The trial court in the present

ease weighed the competing considerations in pass-

ing on the question of relevance (III R. 64-66), and

determined that the evidence pertaining to scurvy

was admissible. Only if it was clearly wrong was

the court’s ruling reversible.

The record also reveals (III R. 64) that the trial

court gave careful consideration to the objection

made to the introduction of the pictures of the

guinea pigs. The court explained why it decided

that evidence relating to the vitamin C content of

the seized food was material. It stated that, as

part of the issue whether the food appeared to be

of greater value than it actually is, it was incum-

bent upon the Government to show the value of the

food. The court pointed out (III R. 65) that, de-

spite the concession on the part of claimant’s coun-

sel that there was no vitamin C in the food, the

Government was entitled to offer formal proof of

the significance of this fact.

Thus, there is no question as to the relevance

of this evidence. The mere fact that it might be

considered ‘‘sensational and shocking’’ does not

call for its automatic exclusion. The principle that

relevance, and not the character of the relevant evi-

dence, is the guide to its admissibility was recog-

nized in Prudential Ins. Co. v. Faulkner, 68 F. 2d

676, 678 (C.A. 10). There the court. said:

19

ee

a — SUEDE PEL IEE LEP LL EISELE GEE LEASE NBGA LONE SSN TP NS TOMER PRESSES AI

’

20

The true test of admissibility of testimony

in a situation similar to the one presented

here is its relevancy and materiality. Testi-

mony pertinent to a material issue will not be

excluded merely because it may have a preju-

dicial effect on the opposing party or may

arouse the jury. * * * (citing cases)

The admission of such evidence is left to the court’s

sound discretion. Certainly, once the trial court

determines that the evidence has value, an appel-

late court should not reverse because it considers

the trial court’s estimate of the effect of the evidence

wrong.

The ruling of the Court of Appeals on this point

presents a dilemma. The Government had the bur-

den of demonstrating the significance of the adul-

teration of the food to the jury. Ordinarily, jurors

have no common knowledge of the purpose of vita-

min C in the diet or the consequences of a dietary

deficiency of vitamin C. But the showing of the

significance of the adulteration risks reversal on

appeal if too well presented.

CONCLUSION

For the reasons stated, we respectfully submit

that this petition for a writ of certiorari should be

granted.

Puiuie B. PERLMAN,

Solicitor General.

Aveust, 1951

w U. S. GOVERNMENT PRINTING OFFICE: 198! 964655 140

oe

S| ws

IN THE CHA

Supreme Court of the United States

October Term, 1951.

No. 274.

UNITED STATES OF AMERICA,

Petitioner,

v.

88 CASES, ETC., “BIRELEY’S ORANGE BEVERAGE”

GENERAL FOODS CORPORATION,

Claimant.

RESPONDENT’S REPLY AND BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI.

Henry S. Drinker

117 So. 17th Street,

Philadelphia 3, Pa.,

Counsel of Record for

Respondent.

Lester BE. Wartersury,

250 Park Avenue,

New York 17, N. Y.,

Of Counsel.

International, 236 Chestnut St., Phila. 6, Pa.

aud

IRAN AER EPA ~paif

PPT na

TABLE OF CONTENTS OF BRIEF.

Page

EN oo a ay Ve avee ewe luetws Komcuukn 1

Reasons For DENYING PETITION ...........000000005 1

Soe oni page wate MORRO oe ok hadi ebeks 21

MINE ii oe vnc we GA De Cabas nde kc ed eabiacste 26

TABLE OF CASES CITED.

Page

Allen v. Stokes (1940) 260 App. Div. (N. Y.) 600.... 20

Berger v. United States (1935) 295 U. S. 78 (p. 88)... 21

Florence Manufacturing Company v. J. C. Dowd & Co.

(1910) 178 Fed. 73 (C. C. A. 2) ...........00.- 7

Gaynor v. Atlantic Greyhound Corp. (1949) 86 F.

ae: BRO CE. TE RD. v0 oes dicesvccincaacesns 23

Launikitas v. Wilkes-Barre Traction Co. (1913) 241

Ph, Ss Oe E,W Ah Sas Raa c de cnn acdcvnscedes 23

McGlothan v. P. R. R. (1947) 72 F. Supp. 176 (D. C.

PEE wisundcdanoksssanteensnenasndseteaeonss. 23

Moyer v. Aetna Life Ins. Co. (1942) 126 F. (2d) 141

Pe Ske cds xknckpearngecnseasseeaeanese 23

Prudential Insurance Company v. Faulkner (1934)

Oe. COR) BPO 0. GB. OOD ic. dvcsvecnsencens 20

Rost v. Brooklyn Heights R. R. Co. (1896) 10 App.

eae eee rE rrr rr 20

Selleck v. City of Janesville (1899) 104 Wis. 570... 20

U.S. v. Cataldo (1946) 157 F. (2d) 802 (C.C.A.1)... 8

U.S. v. El-O-Pathie Pharmacy (1951) F.(2d),

1 CCH F. D. C. Law Rep. | 7206 (C. A. 9) ....... 7

U. S. v. 9 Bottles [Colusa Natural Oil] (1947) 78 F.

Supp. 721 (D. C. Iowa), affirmed sub nom. Colusa

Remedy Co. v. U. S. (1949) 176 F. (2d) 554 (C. A.

8), cert. denied (1950) 338 U. S. 911 ........... 8

U. S. v. 116 Boxes [Arden Assorted Candy Drops]

(1948) 80 F. Supp. 911 (D. C. Mass.) ......... x

U. S. v. Pinaud, Ine. (1947) 1 CCH F. D. C. Law Rep.

OTe es i ae as ethene onde wenn 8

U. S. v. Sekov Corporation (1943) K & D 448 (D. C.

ED ka vas dee cbeck capiane bbawen bana saies 9

U. S. v. 704% Dozen Bottles [‘‘666’’] (1942) K & D 89

CEN: Gy SD Si cdcactaenuacanedecnnctnutous 9

TABLE OF CASES CITED (Continued).

U. S. v. 62 Packages [Marmola Prescription Tablets]

(1943) 48 F. Supp. 878 (D. ©, Wis.), affirmed

(1944) 142 F. (2d) 107 (C. C. A.7 ), cert. denied

sub nom. Raladam Co. v. U. 8. (1944) 323 U. S.

EE SAR Stn ae hirn Cheatin aeara esc eseo od cnc

U.S. v. Sullivan (1947) 332 U. S. 689 .............

U. S. v. 30 Cases [Leader Brand Strawberry Fruit

Spread] 93 F. Supp. 764 co, Bowe) ....... 0.

U.S. v. 2 Boxes [Poppy Seeds] (1945) 147 F. (2d) 123

og we cain EE Ee

Ae mt Oe hey

pests .

Page

STATUTES AND AUTHORITIES CITED.

Page

1950 Census of Population, Preliminary Reports,

Series P-C No. 3, Bureau of the Census (Govern-

ment Printing Office, Washington, 1950), p. 8 ... 2

1 CCH F. D. C. Law Rep. { 3034 «0.6... . eee e eee ees 18

21 CFR:

§1.10(0)(1) wo. cece ececer eee eee ener eer emececs 9

§ 1.105(C) (1)... c cece e eee e eee rere een e en eeeees 9

§1.105(£) (1)... ec eee ere cence ence een ceeneees 9

§1.12(c) and (d) ....... eee e eee renee tence ees 9

§1.208(a)(1) occ ceceeeeee ev eceeeneeeerenens 9

§1.9(a)(1) and (2) ...... eee eee eee erences 9

39 Col. L. Rev. 259 (February 1939) ........-+++-- 24

Consumer and Opinion Research, by Albert B. Blank-

enship (Harper & Brothers, New York, 1943)... 26

Cong. Rec. Nov. 26, 1945 (Vol. 91, No. 208) pp. A5488-

A5490 (Speech of Hon. B. Carroll Reece) ...... 24

1 Encye. Brit. (1942) 224 .........eeee sere ences 14

Federal Food, Drug, and Cosmetic Act, by Charles

Wesley Dunn (G. E. Stechert & Co., New York,

rrr errr rere rr er errr try ter 12,14

Federal Food, Drug, and Cosmetic Act: 1938-1949, by

Vincent A. Kleinfeld and Charles Wesley Dunn

(Commerce Clearing House, Inc, New York,

rrr rere ttre rer ttre 9

Federal Food, Drug, and Cosmetic Act of June 25,

1938 (21 U.S. C. 301, et seq.) :

CPURE) «onc cecrcccstcnvcccceveneeconees 3

SC BONCD) once csr cacccrcansevsccrssveecens 3

3

MS. Ayah Uhiaeat en isave genie ene 3

8

3

a

STATUTES AND AUTHORITIES CITED (Continued).

Page

OEE Seek a ce Keadtatiusscutou cee 9

i cos pg ON ORO RABI Eye. 5, 11

oe i, SE EES A RE IAS 8

tose CO CT ONL 4

PIE. S uricspccsiteusebirz ule whmeieats 4

UNE ic eas nha oc 4 dein anurans Ae 4

hyo OE CE EO re Re pT Cs 18

OT ik 88 Pie4 Wi cae ea cn ee 9

Food and Drugs Act of June 30, 1906, 34 Stat. 768,

21 U.S. C. (1934 ed.) §1 et seq. ............... 5

Food and Drug Administration Service and Regula-

tory Announcements: F. D. C. No. 2, Rev.1.... 14

Food Field Reporter, October 11, 186, p. 46 ........ 18

Gauging Public Opinion, by Hadley Cantril (Prince-

ton University Press, Princeton, 1944) ......... 26

A Guide to Public Opinion Polls, by George Gallup

(Princeton University Press, Princeton, 1948)... 26

How to Conduct Consumer and Opinion Research,

Edited by Albert B. Blankenship (Harper &

Brothers, New York, 1946) .................... 26

Interpretation, § 201, Art. 17, Agriculture and Markets

Law (New York), July 1950, Ch. 48, Laws of 1922,

O-RING isores 16

Memorandum, Bureau of Foods, Drinks and Hotels,

Department of Health (Kentucky), May 15, 1936,

Citing Definition of Orangeade, January 1932... 16

National Bottlers’ Gazette, Vol. 68, No. 815 (January

OEE sedis ti ccddindectcgeg eee 18

Official Bulletin, Beverage Law and Regulations, De-

partment of Health (New Hampshire), 1949,

Regulations Nos. 11(e) and 12, pp.14and18... 16

Official Bulletin, Definitions-Identity, Beverages and

Beverage Materials, Department of Agriculture

| Ter ne ane 16

STATUTES AND AUTHORITIES CITED (Continued).

Official Bulletin, Division of Foods and Dairies, De-

partment of Agriculture (Ohio), Regulation No.

PE ons oS cdcencnsddemcncecnscuseeccensecses

Official Bulletin, Orange Drinks, Bureau of Foods and

Standards, Department of Agriculture (Michi-

eee eee eee ee

Official Bulletin, Rules and Regulations, Food Com-

missioner and Chemist, State Laboratories (North

Dakota), May 15, 1950, Regulation Nos. 17(a)

I wikia Seria cnswsnesksanseesecenesssess

Officia! Bulletin, Standards and Definitions and Rules

and Regulations, Bureau of Food, Department of

Agriculture (Minnesota), January 1949, Regula-

tions Nos. 4(c) and (i), p. 148 ........----+es

Official Bulletin, Title 2, Department of Agriculture,

Bureau of Foods and Chemistry (Pennsylvania),

Chapter XVI, No. 1618 ..........--.-eeeeeees

Official Bulletin, Title 2, Department of Agriculture,

Bureau of Foods and Chemistry (Pennsylvania),

Chapter XVI, No. 1619 ........- 6... eee eeeeeeees

Official Bulletin, Title 2, Department of Agriculture,

Bureau of Foods and Chemistry (Pennsylvania),

Chapter XVI, No. 1620 ............--- eee eee ees

Preventing Economic Adulteration of Food, by Daniel

P. Willis, 1 Food Drug Cosmetic Law Quarterly

20 (March 1946) ...........cccccccccccccecces

Regulation, Chemical Division, Department of Agri-

culture (Florida) ..........-..ceeeeececcccces

Statistical Abstract of the United States: 1950.

Bureau of the Census (Government Printing

Office, Washington, 1950), p. 30 and p. 115 .....

Statistical Handbook of Agriculture in the United

States (Bureau of Agricultural Economics, June,

BR OE inn tnsevesnaccccsuveseeccereesons

Page

16

16

16

16

15

15

15

16

———<

STATUTES AND AUTHORITIES CITED (Continued).

Page

Statistics on the Blind, by Ralph G. Hurlin, in Outlook

for the Blind (Published by The Foundation for

the Blind, Inc., New York), March, 1947 ........ 2

Supreme Court of the United States Rules:

SSE ca aa 21

LL NSS ESE ESR ae Rane er ne 10, 27

oe, Aree 19

PW MA OO noon cvniisessnccvescvncvecs, 24

21 U.S. C. (1934 ed.) §8 2.2... eee eee, 5

Wheeler-Lea Act of March 21, 1938, 52 Stat.111 .... 24

The World Almanac and Book of Facts: 1950 (New

York World-Telegram and The Sun, New York,

I oes bx cee Cok dds xaos ooanx.. 3