NOTICE OF JUDGMENT NO. 2316.
(Gi?en  pursuant to section  4  of the Food  and  Drugs  Act.)
ALLEGED ADULTERATION AND MISBRANDING OF CANNED OYSTERS.
On July 1, 1912, the United States Attorney for the Eastern 
District of North Carolina, acting upon a report by the Secretary of 
Agriculture, filed in the District Court of the United States for said 
district an information against G. D. Potter and E. H. Potter, 
trading as the Beaufort Little Neck Clam Co., Hampstead, N. C, 
alleging shipment by said defendants, in violation of the Food and 
Drugs Act, on September 30, 1911, from the State of North Caro- 
lina into the State of West Virginia, of a quantity of oysters which 
were alleged to have been adulterated and misbranded. The product 
was labeled: " Jim Crow Brand. Cove Oysters. First Quality. 
Packed by Little Neck Clam Co.    Beaufort, N. C."
Examination of samples of the product by the Bureau of Chemistry 
of this Department showed the following results:
Can No. 1. 
Can No. 2.
Gross weight (grams) 
360 
356
weight of liquor (grams) 
267 or"9.4 ounces. 
261 or 9.2 ounces.
Weight of oysters (grams)     30 or 1.1 ounces. 
33 or 1.2 ounces.
Liquor (percent) 
89.9 
88.8
Oysters (per cent) 
10.1 
11.2
15 or 16 oysters present.     18 oysters present.
Adulteration of the product was alleged in the information for the 
reason that a certain substance, to wit, water, had been mixed with 
the oysters so as to substitute water for oysters and so as to reduce, 
lower, and injuriously affect the quality and strength of the same. 
Misbranding was alleged for the reason that the labels on the pack- 
ages bore statements, designs, and devices regarding the oysters which 
were misleading and false in that the product was labeled as set forth
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above, whereas, in truth and in fact, the product was not first quality 
oysters but consisted largely of broken pieces of oysters and a large 
percentage of water.
On October 29, 1912, the case having come on for trial before 
the court and a jury, a verdict of not guilty was returned by the 
jury. The following charge was delivered to the jury by the court 
(Conner, J.) :
In this case, the Government charges that the defendants engaged in canning 
oysters in a manner which violates the provisions of the Act of Congress passed 
for the purpose of securing pure food for the people of the United States. That 
oysters were canned, by defendants in North Carolina and sold in West Virginia 
in violation of the provisions of that statute, in that the oysters were adul- 
terated. The defendants admit that they packed oysters in North Carolina 
and shipped them to a house in Norfolk, Virginia, the Norfolk house shipping 
them to Charleston, West Virginia; in other words, the oysters were shipped 
from Hampstead, N. C, to Charleston, W. Va. The defendants say, however, 
that the oysters were not adulterated, and that is the question upon which you 
will pass. It is not a question of law—-it is rather one of fact. The word 
" adulteration " has several definitions as applied to different subjects. In this 
connection, the statute undertakes to define the word " adulteration " to be to 
put something in the can, in this instance, which has the effect of reducing the 
quality or strength of the article to be sold. The oyster, of course, we all 
understand, is not only palatable as an article of food, but is nourishing. In it 
are certain elements which, being taken into the system as food are nourishing. 
It satisfies hunger and nourishes the body. Therefore, the statute provides that 
any substance put into the can which reduces, lessens or weakens the strength 
of the article of food, that is, renders it less efficient, less capable of performing 
the purpose for which it is eaten, is adulteration.
It is in evidence that several cans of oysters, which were shown to you, were 
prepared at Beaufort, N. C, by the defendants, were found in the store of Ruff- 
ner Bros., at Charleston, West Virginia. Certain of these cans were obtained 
by the Inspector, sent out by the Department of Agriculture, carried to Wash- 
ington and there delivered to a chemist employed by the Department, for the 
purpose of ascertaining whether they measure up to the standard required 
by law.
It is in evidence here that two of these chemists examined these oysters. One 
of them tells you that he examined the can and found it to weigh 12.4 ounces 
gross. He then took the oysters out and found the net weight was 10.6 ounces. 
He then separated the oysters from the water found in the can and the water 
weighed 9.4 ounces, the oysters weighing 1.2 ounces, making the net weight of 
the contents of the can. He then shows you the can and what was in it, which 
you have seen, and you can use this information in coming to your verdict. 
These facts are without contradiction. The chemists tells you the process by 
which the oysters are prepared for canning. He tells how they are put in steam 
boxes, how steamed, shucked, run through fresh water and washed out and 
put into the Kans. He tells you it is usual to put into the can some water 
with a certain per cent of salt. So much water is poured into the cans as will 
fill in the spaces which are left between the oysters, the cans are then filled up, 
and that quantity of water will not injure the oysters, and while not necessary 
for their preservation, will not greatly injure them. He then shows to you a 
sample of oysters purchased in Baltimore, for which he says he gave a higher 
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price than for the oysters in controversy, it is conceded that the oysters canned 
by the defendants are sold at 40 cents a dozen cans and retail at 5 cents per can. 
The Government says that upon this testimony you ought to find that these 
oysters canned in the manner and found in the condition described are adulter- 
ated—that is, more water was put in than necessary for their preservation; in 
other words, water put in merely to fill up the can. They counted the oysters 
and found in one can 15 and in another 18. You saw what proportion of the 
glass they filled when poured out. One of the defendants goes upon the stand 
and states that he canned these oysters in the manner described by the Govern- 
ment expert, and says after the oysters are ready to be put into the cans that 
they have different standards, and that it depends not upon the quality but 
upon the quantity of oysters put into the can. For instance, they put into the 
cans of the "Jim Crow Brand " 1.5 ounces, and that they are then closed up and 
labeled or branded "Jim Crow Brand," and that the words " First Quality, 
Cove Oysters, Packed by the Little Neck Clam Company," etc., also appear; 
and he further says that he takes oysters, without regard to their size, and puts 
.them into cans not exactly the same size, which he brands "Harbor Island," 
and these cans contain three or four ounces, that there are other brands which 
are sold at different prices. The defendant says that the brand does not indi- 
cate the quality of the oyster, the size or fitness for eating, but only the quantity 
put into the can, and that is what is meant when he says that the Jim Crow 
Oyster is a " light weight," and that weight is the only standard by which the 
business is  carried on  and  conducted.
The Department has, I think correctly, interpreted and construed this statute 
to mean that in putting up an article like oysters a sufficient quantity of brine 
may be put into the can to preserve it. Literally construed, to put any water into 
the can would be adulteration, but the Department says in administering this 
law it will recognize the right of a person canning these articles like oysters, 
etc., to put into the can sufficient quantity of water or brine to preserve it. 
Therefore, in this case, if no more water was put into this brand of "Jim Crow " 
oysters than was necessary to keep them in proper shape and form for use and 
consumption, and it did not lower or lessen the value of the oysters, as an article 
of food, the defendants have not violated the law, and if you find that this is 
the case, you will say that the defendants are not guilty. However, if they put 
more water in this brand of oysters than was necessary to keep them in proper 
condition—more water than was reasonably necessary, and which had the effect 
upon the oysters of extracting from or weakening them as an article of food, 
then you will say that the defendants are guilty.
Mr. Potter tells you that the different prices charged indicate not the quality 
but the quantity of the oysters, and that there is no purpose in the way these 
oysters are branded to mislead any one as to the quantity or quality, as the 
trade understands that when he says a light weight oyster the can contains 
only 1.5 ounces. The chemist says upon weighing this can and the contents he 
found the oysters only weighed 1.2 ounces, whereas according to the standard of 
Mr. Potter there ought to have been 1.5 ounces; therefore, if the oysters, as 
originally canned, only weighed 1.2 ounces, this can would not measure up to 
his own standard. How this difference occurred, I do not know, unless you 
should come to the conclusion that the difference in weight is accounted for 
by the effect of the water upon the oysters, absorbing from the oysters some 
organic matter. That is a matter for you to say, however. If you find that the 
effect of the water was to reduce the strength of the oysters, you will find the 
defendants guilty. Or, if you find that more water was put in than the proper 
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method of canning as defined by the department states shall be placed in such 
articles of food, you will say that they are guilty; otherwise, not guilty.
As it has been said to you, in a case of this kind of article, the purpose of 
the law is to protect the people against impure food, where the quantity or 
quality, or value of a food, is so adulterated as to reduce the strength of the 
food value. The whole purpose of the law is to have the quality of an article as 
welt as the quantity just as described upon the label. You will try the case 
and say whether in your opinion the defendants are guilty; otherwise, you will 
say that the defendants are not guilty.   Take the case, gentlemen.
W. M. HAYS, 
Acting Secretary of Agriculture,
WASHINGTON, D. C., February 5, 1913,
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