12919. Adulteration and misbranding of powdered colocynth apple.    U. S.
v. Mcllvaine Bros., a Corporation. Tried to the court and a jury. 
Verdiet of guilty. Fine, $100 and costs. (F. & D. No. 18361. I. S. 
No. 473-v.)
On June 6, 1924, the United States attorney for the Eastern District of 
Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in 
the District Court of the United States for said district an information against 
Mcllvaine Bros., a corporation, Philadelphia, Pa., alleging shipment by said 
company, in violation of the food and drugs act, on or about June 8, 1923, from 
the State of Pennsylvania into the State of New York, of quantities of pow- 
dered colocynth apple which was adulterated and misbranded.   The article
was   labeled   in   part:   " Powdered   Colocynth   Apple   Mcllvaine   Brothers 
*    *    *   Philadelphia, Penn.,  25 lbs."
Analysis of a sample of the article by the Bureau of Chemistry of this, 
department showed that it contained approximately 25 per cent of seeds; 
and that it yielded 11.39 per cent of fixed oil.
Adulteration of the article was alleged in the information for the reason 
that it was sold under a name recognized in the United States Pharmacopoeia,- 
and differed from the standard of strength, quality, and purity as determined* 
by the tests laid down in the said pharniacopceia, official at the time of inves- 
tigation, in that it contained 25 per cent of seeds, -and upon extraction with* 
purified petroleum benzine yielded 11.39 per cent of fixed oil, whereas the- 
said pharmacopoeia provided that colocynth apple should contain not more- 
than 5 per cent of seeds, and upon extraction with purified petroleum benzine" 
should yield not more than 2 per cent of fixed oil, and the standard of the 
strength, quality, and purity of the article was not declared on the container 
thereof.
Misbranding was alleged for the reason that the statement, to wit, " Colo-* 
cynth Apple," borne on the label attached to the package containing the said 
article, was false and misleading, in that it represented that the article con- 
sisted wholly of colocynth apple, to wit, a product that contained not more 
than 5 per cent of seeds and yielded not more than 2 per cent of fixed oIF,. 
whereas, in truth and in fact, it did not so consist but did consist of a product 
which contained 25 per cent of seeds and yielded 11.39 per cent of fixed oil- 
Misbranding was alleged for the further reason that the article was an imita- 
tion of colocynth apple and was offered for sale and sold under the name of" 
another article,  to wit, colocynth  apple.
On June 20, 1924, the case having come on for trial before the court and1 
a jury, a verdict of guilty was returned by the jury, and the court delivered 
the following opinion (Dickenson, D. J.) :
"A statement of the cause of action and of the defense out of which the* 
question to be decided arises masr begin with the act of Congress directed' 
against adulterations and misbranding of drugs.    There is a product known 
to  the trade as powdered  colocynth.    This  has  recognition  in  the  United" 
State   Pharmacopoeia  and  to  it  is   applied   a' pharmacopoeial   standard   of 
strength, quality, and purity.    As the trade name indicates, this product is- 
sold to druggists in a powdered form.   What may be called the raw product 
goes to the manufacturer in a form which gives it, because of this form,, 
the name of apple, and makes it known to the trade as ' colocynth apples.' 
In the raw product form these apples contain seeds.    If these apple seeds- 
and all are reduced to powder it will contain about 25 per cent of seed.   In 
the standard powdered  colocynth the percentage  of seed ingredient  should 
not exceed  5  per  cent.    The  defendants sold  the  product  of  which   com- 
plaint is  made,  which  was  branded  and  invoiced  as  ' powdered  colocynth 
apple.'    The seed ingredient exceeded the 5 per cent limit and reached ap- 
proximately 25 per cent.    If this had been branded and sold as powdered 
colocynth, a finding of misbranding and adulteration would not be opposed. 
The question raised is whether the addition of the word apple relieves the 
defendants  of  the  charge  of misbranding and  of  adulteration.     The  real 
test is to be found in the effects and consequences.    To the general public, 
such a branding without a doubt would be misleading, and from the same 
viewpoint would be an adulteration because the significance of the addition 
of the word apple would be lost  upon them.    Inasmuch,  however,  as the 
dealings of the defendants are with the trade, the purchasers would be ex- 
pected and presumed to know what difference in the product the difference 
in the label indicated.    An administrative ruling would call for the decision 
that there was a misbranding because anything should be condemned which- 
might mislead.    The defendants themselves accept this view and have changed 
the  descriptive  branding so  as  to make  the difference  between  ' powdered 
colocynth' and ' powdered colocynth apple' clear.
" The question before us is the narrower question of whether there should, 
be a judicial determination that the defendants have incurred the penalty 
of the act. In view of the fact that the defendants have changed the mark- 
ings of the product so as to make it clear that there is no pretense that it 
is the powdered colocynth described in the United States Pharmacopoeia, and 
that it complies with the standard of quality officially established for that 
product but is something different therefrom, the present ruling is reduced 
to the more or less formal one of whether the original branding adopted by
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the defendants was a violation of the statute. The result of most importance 
is that manufacturers should be enabled to know definitely what is and what is 
not a compliance with the statute. An administrative ruling, if followed by 
a manufacturer, protects him from further criticism but does not neces- 
sarily give him the protection, to which he is entitled, against his trade 
rivals making use of the branding which he has voluntarily abandoned. 
Nothing short of a judicial ruling will do this. This defendant thus becomes 
as much concerned with a ruling condemning the branding first adopted as 
are those who are concerned with the administration and enforcement of the 
act. Fortunately, the Supreme Court of the United States in the apple 
cider vinegar case (265 U. S. 439) has charted the course to be followed. The 
general rule is that the act of Congress should be so read as to further 
the accomplishment of its purposes, and that not only any branding which 
is misleading or liable to mislead but also any which is ambiguous should be 
visited with the condemnation of the act.
. " Following the course thus indicated, we encounter the fact finding now 
made that the branding first given this product has the vice of ambiguity, 
in that, although it is not expressly stated that the product is what is known 
to the trade as powdered colocynth and it is stated that it is powdered 
?colocynth apple, yet it is none the less true that the difference in the product 
is not so stated as to command attention to the fact that there is a difference 
but is so stated that the difference may be overlooked and the purchaser be 
buying one product with the thought in his mind that he is buying another.
"As we interpret the spirit and true meaning of the ruling cited, it is that 
a branding which is misleading because of its ambiguity is as much within the 
inhibition of the statute as if it was misleading in statement.
" This leads to a finding in favor of the plaintiff and against the defend- 
ants, with costs. Following the usual rule no formal judgment or decree is 
now entered, but the parties have leave to submit a form of decree or judg- 
ment in accordance with this opinion."
On October 10, 1924, the court imposed a fine of $100 and costs against the 
defendant company.
W. M. JARDINE, Secretary of Agriculture.
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