3329. Misbranding of fruit puddine. V. S. v. 150 Cases of a Product Pur??
porting to be Fruit Puddine. Tried to the court. Judgment for?
libelant.    Decree   of   condemnation,   forfeiture,   and   destruction.
(F. & D. No. 2818.    I. S. No. 104-d.    S. No. 1010.)
On July 22, 1911, the United States attorney for the District of Massachu??
setts, acting upon a report by the Secretary of Agriculture, filed in the District
Supplement.]   SERVICE AND REGULATORY ANNOUNCEMENTS.	517
Court of the United States for said district a libel for the seizure and con??
demnation of 150 cases, each containing an article of food, to wit, a product?
purporting to be fruit puddine, remaining unsold in the original unbroken?
packages at Boston, Mass., alleging that the product had. been transported from?
the State of Maryland into the State of Massachusetts, and charging mis??
branding in violation of the Food and Drugs Act.
It was alleged in the libel that the food contained in the cases was mis-?
branded in that said food was labeled and branded in part as follows: That is?
to say, certain of the retail packages in each of the cases were branded in sub??
stance as follows: " Fruit flavored puddine?> trade mark registered, rose vanilla,?
Fruit Puddine Company, Baltimore, Maryland, U. S. A.," and certain other?
retail packages in the cases were labeled in substance as follows: "Fruit?
flavored puddine; trade mark registered, cream vanilla, Fruit Puddine Com??
pany, Baltimore, Maryland, U. S. A.," and each of the several cartons in each?
of the aforesaid 150 cases, into which cartons the said food was packed, was?
labeled in substance as follows: "A mixture; the flavorings and colors used in?
the mixture fruit puddine are pure and harmless and are guaranteed by the?
Fruit Puddine Company to comply with the Pure Food and Drugs Act under?
Serial No. 4167," which aforesaid brands and labels would deceive and mislead?
the purchaser to believe that the vanilla used in the preparation of said foods?
was true vanilla flavoring, whereas, in truth and in fact, said foods contained?
no true vanilla flavoring, Jbut, instead thereof, an artificial vanilla was used;?
and, moreover, which said brands and labels would deceive and mislead the?
purchaser to believe that fruit or natural flavoring ingredients entered into?
the composition of said foods, whereas, in truth and in fact, no fruit or natural?
flavoring ingredients entered into the composition of said foods, but, instead?
thereof, artificial flavors were employed.
On August 8, 1911, the Fruit Puddine Co., Baltimore, Md., filed their claim.?
On January 17, 1913, the case came on to be heard before the court without the?
intervention of a jury, and on January 17, 1914, a judgment favorable to the?
Government was made, as will more fully appear from the following opinion?
by the court (Morton, J.) :
This is a proceeding, under the Food and Drugs Act, by information (or libel)?
against 150 cases of a food product called "Puddine" or "Fruit Puddine." A?
jury having been waived by both parties, the case was tried before me upon?
fact and law. I find the material facts, in addition to those alleged in the?
information and admitted in the answer, to be as follows:
" Puddine " or " Fruit Puddine " is the distinctive name adopted and used as?
early as 1889 of a proprietary food product consisting largely of corn-starch.?
It is manufactured by the claimant and is put up in packages or cartons of?
different flavors, adapted to the retail trade. It does not contain any dele??
terious or poisonous ingredient. It is not ?an imitation of, or offered for sale?
under the distinctive name of, any other article; and the name "Puddine" or?
"Fruit Puddine" is accompanied, on the same label or carton, with a true?
statement of the place where it has been manufactured.
The alleged misbrandings lie in the words " Cream Vanilla," " Rose Vanilla,"?
and "Fruit Flavored," which appear upon the cartons. "Cream Vanilla" and?
"Rose Vanilla" are two of the many flavors in which Puddine is manufactured.?
All the cartons in question appear to have been marked "Fruit Flavored?
Puddine," to wltfch is added on some cartons "Cream Vanilla," and on others?
" Rose Vanilla," according to the flavor of the Puddine therein.
The plaintiff contends that branding any article of food with the word?
" vanilla," alone or in combination with other words, is a representation that
518	
BUREAU OF CHEMISTRY.	
[June, 1914.
It is flavored with vegetable extract of vanilla made from the vanilla bean;?
that the word " cream " prefixed to the word " vanilla" means the best or?
highest grade of vanilla; that the words " Cream Vanilla " on the claimant's?
cartons mean " Flavored with the highest grade of vegetable extract of?
vanilla "; that the word " rose " prefixed to the word " vanilla " means a com??
bination of the vegetable flavors of rose and vanilla; that the words " Rose?
Vanilla " on the claimant's cartons mean " Flavored with the vegetable extracts?
of rose and of vanilla "; and that the words " fruit flavored" mean flavored?
with fruits (commonly so-called), capable of being used as flavoring substances.
The contention of the claimants, who are the manufacturers of the product,?
is that " Puddine " and " Fruit Puddine " are artificial words, adopted as the?
name of their product, and constitute a distinctive name for the article within?
section 8, subsection 4 (1), of the act in question; that "Cream Vanilla" and?
" Rose Vanilla " are also artificial words, adopted by them to indicate the taste?
and appearance of their product, and import nothing as to the origin of the?
taste; that they are not false or misleading and that the term " fruit" or?
" fruit flavored," while adopted as an arbitrary or artificial part of the name,?
is in fact true, because the grain out of which the product is manufactured is??
botanically speaking?a fruit.
The words in question are to be construed in their ordinary or customary?
meaning, so far as they have one. U. S. v. Seventy-five Boxes of Pepper, 198?
F. R. 934; U. S. v. Thirty Cases of Grenadine, 199 F. R. 932; Brina v. U. S.,?
105 C. C. A. 558.
The distinctive or trade name of the product is " Puddine " or " Fruit Pud??
dine," always accompanied on the cartons by words indicating the flavor.?
" Puddine " and " Fruit Puddine " are frequently used without the adjective?
"fruit flavored," which is not part of the name. It seems clear that "fruit?
flavored" does signify, as the plaintiff contends, that the article is flavored?
with " fruit" in the common, not the botanical meaning of the word. As no?
such fruit is used in " Puddine," the words " fruit flavored " are untrue and?
misleading as applied to it; and the misleading effect of them is heightened?
by the picture of a dish of fruit which appears on some of the cartons. If?
Puddine were not an article of food known under its own distinctive name,?
it would clearly be " misbranded" within the act, by reason of the words?
" Fruit Flavored " upon the cartons.
The claimant contends, however, that articles of food which come within?
the terms of the proviso to the fourth subsection of section 8 are exempt from?
the operation of the Food and Drugs Act, and are not to be deemed misbranded,?
no matter what misstatements are made upon the cartons. The plaintiff con??
tends (1) that the first paragraph of section 8 prohibits all misbranding as?
therein defined, and is not limited by the proviso in question; and (2) that?
even if the proviso does apply, it is not the intent of it to except from the?
operation of the act anything except the distinctive name itself; that even if,?
as to articles of food which come within the proviso, misstatements which?
form part of the name itself are not forbidden, it is nevertheless true that?
any other false or misleading statement regarding the ingredients or sub??
stances contained in such articles, constitute misbranding.
It has been said that the sole purpose of this statute " was (1) to protect?
purchasers from injurious deceits by the sale of inferior for superior articles;?
and (2) to protect the health of the people by preventing the sale of normally?
wholesome articles to which have been added substances poisonous or detri??
mental to health." Sanborn, J., Hall-Baker Co. v. U. S., 198 F. R. 614, at 616?
(C. C. A. 8th Circuit). In other words deception and unwholesomeness are?
the evils which the act is designed to prevent. The last part of section 8,?
providing that " manufacturers of proprietary foods which contain no un??
wholesome added ingredients" shall not be required " to disclose their trade?
formulas, except in so far as the provisions of this act may require to secure?
freedom from adulteration or misbranding," plainly implies that a proprietary?
product may be misbranded. The report of the committee (House of Repre??
sentatives, Fifty-ninth Congress, first session, Report 2118, March 7, 1906),?
and the debates, so far as they refer to the proviso in question, indicate that
Supplement]    SERVICE AND REGULATORY ANNOUNCEMENTS.	519
the attention of Congress was directed to protecting thereby established dis??
tinctive or trade-names from being outlawed by the act.1
In U. S. v. Forty barrels of Coca Cola, 191 F. R. 431, 440, it was held that?
the proviso in question " was only intended to protect an article sold under?
its distinctive name from the charge of misbranding in so far as any state??
ment or suggestion contained in the name itself is concerned." See, too, U. S.?
v. American Chicle Co., U. S. District Court, District of Oregon.
It is undoubtedly true that persons purchasing a proprietary article of food,?
like Puddine, get what they go for, whether all the statements on the carton?
are correct or not. But it is also true that the purchase of a proprietary?
article may well be induced by false statements concerning it upon the cartons;?
and it is not difficult to imagine cases in which reliance on such misstatements?
would work real injury to the purchaser. For example, if such an article were?
branded " Contains no Sugar," when in fact it did, the misbranding might?
induce the purchase by persons whose diet demanded the absence of sugar. Such?
articles are within the purview of the statute. It does not seem to me that the?
proviso in question was intended to except them absolutely from the provisions?
of the act, and to leave the manufacturers free to make misrepresentations?
concerning them. Such a construction is out of harmony with all the rest?
of the statute, and disregards one of the principal purposes of it. It seems to?
me that the protection afforded by the proviso is limited to the distinctive name;?
and as so limited, I have no doubt that the proviso applies to the first para??
graph of section 8, and fully protects distinctive names from being misbranding.
I therefore find and rule that the words " Fruit Flavored " upon the cartons?
containing Puddine were a statement regarding such article, or the ingredients?
or substances contained therein, which was false or misleading and constituted?
misbranding within the statute.
The conclusion above reached makes it unnecessary to consider whether the?
use of the words " Cream Vanilla " and " Rose Vanilla " constitutes misbrand??
ing ; but I infer from what was said at the argument that this is a point upon?
which a decision is particularly desired by the parties. I therefore proceed?
to find the facts and state my conclusions in reference thereto.
No such extract, flavoring matter, or combination as " rose vanilla" is?
known to the trade, or to the public, except in connection with the defendant's?
product; nor any such extract or flavoring matter as " cream vanilla," except?
perhaps to a limited extent in the bottling trade, in which it is sometimes used?
to signify a high-grade vanilla extract; but such use is not known to the public?
generally, and is wholly unrelated to the use by the claimant. "Cream va??
nilla," as applied to the claimant's product, is certainly not understood by?
the public as meaning " flavored with a high-grade vanilla extract." The word?
" rose" followed by " vanilla" was registered by the claimant in the U. S.?
Patent Office as a trade mark applicable to " Puddine" on the 21st of May,?
1889. Both " rose vanilla " and " cream vanilla " were in use by the claimant?
on Puddine before the Food and Drugs Act went into effect.
Puddine is not flavored with the vegetable extract of vanilla, but with va??
nillin, or synthetic vanilla, which is obtained from oil of cloves. Natural?
vanillin is found in the vanilla bean and forms the characteristic and most im-
xThe legislative history of this act is as follows: The bill which, after amendment,?