3109. Misbranding of champagne. U. S. v. 5 Cases of Champagne, So-called. Tried to the?
court. Finding in favor of the Government. Judgment of condemnation and?
forfeiture.   Goods released on bond.   (F. & D. No. 5227.   S. No. lfl3.)
On or about' May 21, 1913, the United States Attorney for the Northern District of?
New York, acting upon a report by the Secretary of Agriculture, filed in the District?
Court of the United States for said district a libel for the seizure and condemnation of?
5 cases, each containing 24 pint bottles of so-called champagne, remaining unsold in?
the original unbroken packages, and in the possession of James L. Green, Watertown,?
N. Y., alleging that the product had been shipped by Henry H. Shufeldt, Peoria, 111.,?
and transported from the State of Illinois into the State of New York, and charging?
misbranding in violation of the Food and Drugs Act. The product was labeled: (On?
cases) "Special Gold Cabinet Superior Quality." (On bottles) "Special Gold Cabinet?
Superior Quality.    Gold Cabinet Superior Quality.    Extra D$y."
Misbranding of the product was alleged in the libel for the reason that it was labeled?
as set forth above and purported and was represented to be champagne, when, in truth?
and in fact, the cases and bottles aforesaid did not contain champagne, but the article?
of food therein contained was a wine artificially carbonated in imitation of champagne,?
and the article by the label aforesaid and the false representations thereon contained?
was so labeled and branded as to deceive and mislead the purchaser thereof, and said?
label and representations thereon contained were false and misleading, in that the?
wine was not a champagne, nor was it a wine of superior quality, nor was it a wine?
commonly known as "Extra Dry," and said labels and the words thereon printed were?
false and misleading and constituted a misbranding within the meaning of the statute.
On June 13, 1913, the case having come on for a hearing, the said James L. Green?
having "appeared personally but having interposed no answer and no defense to the?
libel, and a jury being waived and the cause having been duly tried in court, and?
witnesses having been sworn and given their testimony in behalf of the libelant,?
decision was reserved by the court On June 23, 1913, condemnation of the product?
was ordered by the court, as will more fully appear from the following opinion by the?
court (Ray, /.):
About March 15, 1913, James L. Green, a wholesale liquor dealer of Watertown,?
N. Y., ordered from Henry H. Shufeldt & Co., of Peoria, III., five cases of champagne,?
and said Shufeldt & Co. shipped and billed to him five cases of so-called champagne?
to fill the order, and same was shipped and transported and received in interstate?
commerce. Each case contained 24 bottles and each bottle holds about 1 pint of a?
liquid mixture which on due examination and test is found to consist of a very cheap,?
ordinary, low-grade carbonated white wine. It is not champagne in any sense of?
that word, but a low-grade, cheap white wine charged with gas. It is bottled and?
labeled in the following manner: The bottle itself is of the same shape and made in?
imitation of the ordinary champagne bottle.   This bottle is corked and dressed
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[May, 1914.
about the neck the same as and in very close imitation in every way of the ordinary?
genuine champagne bottle, or bottle containing champagne; for instance, Mumm's?
Extra Dry. It has the same style of label and seal, both attached in the same man??
ner. On the label is the name "Special Gold Cabinet, Superior Quality." There?
is also a coat of arms and on one side initials "H. H. S. & Co." and on the other "3015."
In short, the bottles containing the cheap carbonated wine are such a close imitation?
in form or shape, dress, corking, and label that the ordinary observer would and does?
easily mistake, accept, and use the imitation as a genuine bottle of imported cham??
pagne. This would and does happen with a large number of purchasers and users,?
and it may be said with the ordinary user, unless he gives the labels an inspection to?
determine whether it is the genuine champagne bottle. Evidently it is gotten up?
and dressed and labeled in this way to deceive the ordinary purchaser and user of?
champagne. The wooden boxes and markings and labels thereon in which shipped?
also closely imitate the boxes in which genuine champagne is shipped. This is?
such an imitation as would make a case of unfair competition in trade. The Food?
and Drugs Act, June 30, 1906, provides amongst other things, "The term 'food' as?
used herein shall include all articles used for food, drink, confectionery, or condiment?
by man'or other animals, whether simple, mixed, or compound." Section 2 pro??
hibits the introduction into any State from another State of any article of food which?
is adulterated or misbranded within the meaning of the act. Section 8 provides,?
"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 on 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, or * * *. Provided, That an article of food (drink)?
which does not contain any added poisonous or deleterious ingredients shall not be?
deemed to be adulterated or misbranded in the following cases: First, in case of mix??
tures or compounds which may be now or from time to time hereafter known as arti??
cles of food, under their own distinctive names, and not an imitation of or offered for?
sale under the distinctive name of another article, if the name be accompanied on the?
same label or brand with a statement of the place where the article has been manu??
factured or produced." And "Second, In the case of articles labeled, branded, or?
tagged so as to plainly indicate that they are compounds, imitations, or blends, and?
the word compound, imitation, or blend, as the case may be, is plainly stated on the?
package in which it is offered for sale." In this case there is nothing to indicate to?
the purchaser that these bottles contain an imitation or that an imitation is intended.
Section 10 provides for the seizure and condemnation of adulterated or unbranded?
articles while being transported in interstate commerce or after transportation and?
while unsold or in original unbroken packages, which is this case.
This wine in question was and is an imitation of genuine imported champagne, and?
was and is so labeled and branded as to deceive and mislead both the purchaser and?
users into the belief that it is genuine champagne. Is it within the proviso or excep??
tion quoted? It contains no added poisonous or deleterious ingredient or ingredients.?
It was not and is not offered for sale under the distinctive name champagne, as that?
word is not on either bottle, label or package, if the statute means by "offered for sale?
under the distinctive name of another article" that it must 'be so advertised or bear?
on the package containing it the distinctive name of some other article. Even if it?
has a distinctive name "Special Gold Cabinet" still it is "an imitation of" and was?
actually "offered for sale" under the name "champagne," which is the distinctive?
name of another article. That is, '' champagne " was ordered, and the seller sent this?
article as and for champagne, thus not only offering it for sale as champagne but selling?
it as champagne. By his acts he represented it to be champagne. Hence tliis car??
bonated wine contained in these bottles and packages is not within the proviso or?
exception and must be held to be misbranded and subject to seizure and condemnation.?
It is not sufficient to remove an imitation and misbranded article from the condem??
nation of this law that it has a distinctive name appliedto it, as the very language of?
the proviso requires that if known under its own distinctive name (if it has one) it, the?
article, must not be either an imitation of another article or offered for sale under the dis??
tinctive name of another article. Here this carbonated wine contained in these bottles?
and cases was in fact offered for sale and sold under the distinctive name of champagne,?
another article, and, what is conclusive, was and is, in fact, an imitation of imported?
champagne. Again, can a distinctive name be given to an imitation article unless it be?
to distinguish one imitation from another? Clearly this can not be done so as to bring?
a wine made and bottled and dressed in imitation of champagne and sold and offered?
for sale as champagne and delivered to fulfill orders for champagne within the exception?
or proviso quoted when it is so labeled or branded as to deceive and mislead the pur??
chaser.
- In this case it is sufficient to bring these cases of wine, the wine contained in?
these bottles, within the condemnation of the statute, and without the protection
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of the exception or proviso, that they are in fact " an imitation of another?
article," viz., genuine imported champagne, and are labeled and branded so as?
to deceive or mislead the purchaser, and are not labeled, branded, or tagged so as?
to plainly indicate that they are imitations, and the word "imitation" is not on?
the package. It must be borne in mind that in stating that this wine was?
actually offered for sale and sold under the distinctive name "champagne" I?
do not mean that the word champagne was on the bottles, labels, or packages,?
but that the purchaser ordered champagne and expected to get champagne, and?
the seller knew this and supplied this cheap, carbonated wine put up in these?
bottles, dressed, ornamented, and labeled in close imitation of champagne, and by?
these acts represented to the purchaser that he was selling and shipping to him genuine?
champagne. I think these facts bring the act of the seller within the language of the?
act "offered for sale under the distinctive name of another article." Hence I hold?
that within the meaning of this statute this wine was not only offered for sale but?
actually sold "under the distinctive name of another article"?that is, genuine?
champagne. Again, these bottles containing this wine?that is, the package contain??
ing it, both bottles and box?bore designs and devices thereon plainly intended to?
relate to the contents of such bottles and indicate to the purchaser and user thereof?
the nature and character of the substance contained in such bottles. In addition to?
the marks and words and designs mentioned there were the words "Extra Dry,"?
indicating a grade of champagne, and these words were a plain misrepresentation and?
misstatement as to the character and quality of the contents which were not '' extra?
dry." These designs and devices very plainly said to a purchaser, "champagne,"?
and were intended by the seller to say to the purchaser, "this bottle contains extra?
dry champagne." These designs and devices were false and misleading. The designs?
and devices and certain of the words on these bottles could relate to the substances?
contained therein only and had but one purpose and meaning. It was the purpose?
of Congress in enacting this "The Food and Drugs Act, June 30, 1906," to put a stop?
to the transportation and sale in interstate commerce of adulterated and misbranded?
articles of food, drink, and drugs. It was intended to reach all forms of misrepresen??
tation by misbranding, by the use of words, or by the use of designs or devices, pictures,?
etc., calculated to mislead and deceive, cheat, or defraud the purchasers. If A in?
New York orders of B in Illinois one thousand 1-pound packages of corn and one?
thousand packages are shipped and transported from the one State to the other in ful??
fillment of the order and such packages have labels reading "Fine Illinois" with the?
picture thereon or on the package itself of an ear of corn, but the packages in fact?
contain sawdust only, is there or is there not an offer for sale under the distinctive?
name of another article, and is or is not the package so labeled or branded as to deceive?
or mislead the purchaser, and does or does not the package containing the sawdust?
or its label bear a design or device regarding the substance contained in such package?
which is false or misleading in any particular? What does the picture of the ear of?
corn on the package say? And, in such case, is there or is there not a violation of the?
act in question? Having in view the evils to be remedied, the purpose of Congress?
and the language of the act, it seems to me there can be but one answer.
A statute, if its wording will permit, is always to be construed so as to make effectual?
the intent of the law-making body in enacting it. In selling articles of food, including?
liq.uids for drinking, frauds on the public may be perpetrated in two ways, one, by?
adulterating or artificially coloring, etc., the article itself, and two, by putting it in?
packages or receptacles so formed or labeled and dressed as to induce the purchaser?
to take it as one article when in fact it is another. Congress aimed at both modes of?
committing a fraud on the public.
There will be a judgment of condemnation.
On July 14, 1913, judgment of condemnation and forfeiture was entered and it was?
ordered by the court that the product should be released to the said James L. Green?
or other person rightfully claiming the property in lieu of the retention and destruction?
thereof upon payment of the costs of the proceeding and the execution of bond in the?
sum of $100 in conformity with section 10 of the act.
B. T. GALLOWAY, Acting Secretary of Agriculture.
WASHINGTON, D. C, May 6, 1914-