19636. Alleged Misbranding of flonr and corn meal. XJ. S. ~v. American 
Maid Flonr Mills. Information quashed. (F. & D. No. 26606. I. S. 
Nos. 026996. 026998, 026999, 027000, 029990, 029991, 029992, 029995.)
This action was based on interstate shipments of four lots of flour and corn 
meal in sacks that were represented to contain 24 pounds of the articles. Exam- 
ination showed that a large number of the sacks contained less than 24 pounds 
net, and that the average net weight of all sacks was less than 24 pounds.
On September 26, 1931, the United States attorney for the Southern District 
of Texas, acting upon a report by-the Secretary of Agriculture, filed in the 
District Court of the United States for the district aforesaid an information 
against the American Maid Flour Mills, a corporation, Houston, Tex., charging 
shipment by said company, in violation of the food and drugs act as amended, on 
or about February 20, 1930, from the State of Texas into the State of Louisiana, 
of quantities of flour and corn meal that were alleged to be misbranded. The 
articles were labeled in part: " 24 Lbs." or " 24 Lbs. Net."
It was alleged in the information that the articles were misbranded in that 
the statements " 24 Lbs." and " 24 Lbs. Net," borne on the sacks, were false 
and misleading, and for the further reason that the articles were labeled as 
aforesaid so as to deceive and mislead the purchaser, since the sacks did not 
contain 24 pounds of the articles, but did contain in practically all of the said 
sacks less than 24 pounds. Misbranding was alleged for the reason that the 
articles were food in package form and the quantity of the contents not plainly 
and conspicuously marked on the outside of the packages, since practically all 
of the packages contained less than declared.
On November 5, 1931, a motion to quash the information and a demurrer 
were filed on behalf of the defendant company. On February 6, 1932, the 
defendant's motion to quash was granted, the court handing down the following 
opinion. (Kennerly, D. J.): "This is a criminal information filed by the 
United States District Attorney against the American Maid Flour Mills, charg- 
ing in six counts, under sections 1 to 15, of title 21, U. S. C. A., and particularly 
under paragraph 3 of section 10 of such title, the Misbranding of certain sacks 
of flour, meal, etc., shipped in interstate commerce. It is alleged that such sacks 
were branded as containing each twenty-four (24) pounds, when in truth and 
fact they contained less, etc.
"(1) Defendant moves to quash the information, upon the ground, among 
others, that the statute under which the prosecution is brought violates the 
fifth and sixth amendments of the Federal Constitution, in that such statute, 
and particularly the provision as to ' reasonable variations,' constitutes a fixing 
by Congress of an unascertainable standard of guilt, and is inadequate to inform 
persons accused of criminal violations thereof, of the nature and cause of the 
accusation against them. That such motion is in that respect well taken, I 
entertain no doubt. United States v. Shreveport Grain, 46 Fed. (2d) 354, and 
cases there cited, including United States v. Cohen, 255 U. S. 93. Counsel for 
the Government strongly press upon me that the line of decisions repi-esented 
by Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, is controlling. In disposing of 
this contention, I cannot do better than to point to the language of Chief Justice 
White in United States v. Cohen, supra, as follows:
" But decided cases are referred to which, it is insisted, sustain the contrary 
view. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. Ed. 417, 29 Sup. Ct. 
Rep. 220; Nash v. United States, 229 U. S., 373, 57 L. Ed. 1232, 33 Sup. Ct. Rep. 
780; Fox v. Washington, 236 U. S., 273; 59 L. Eu. 573, 35 Sup. Ct. Rep. 383; 
Miller v. Strahl, 239 U. S. 426, 60 L. Ed. 364, 36 Sup. Ct. Rep. 147; Omaeche- 
varria v. Idaho, 246 U. S. 343, 62 L. Ed. 763, 38 Sup. Ct. Rep. 323. We need not 
stop to review them, however, first, because their inappositeness is necessarily 
demonstrated when it is observed that, if the contention as to their effect 
were true, it would result, in view of the text of the statute, that no standard 
whatever was required, no information as to the nature and cause of the
accusation was essential and that it was competent to delegate legislative 
power, in the very teeth of the settled significance of the fifth and sixth amend- 
ments and of other plainly applicable provisions of the Constitution; and sec- 
ond, because the cases relied upon all rested upon the conclusion that, for 
reasons found to result either from the text of the statutes involved or the 
subjects with which they dealt, a standard of some sort was afforded. Indeed, 
the distinction beween the cases relied upon and those establishing the general 
principle to which we have referred, and which we now apply and uphold as 
a matter of reason and authority, is so clearly pointed out in decided cases 
that we deem it only necessary to cite them. International Harvester Co. v. 
Kentucky, 234 U. S. 216, 221; Collins v. Kentucky, 234 U. S. 634, 637; Ameri- 
can Seeding Machine Co. v. Kentucky, 236 U. S. 660, 662; and see United 
States v. Pennsylvania R. R. Co., 242 U. S. 208, 237-238.
"(2) Defendant, in like manner, attacks the information because of the 
provisions of paragraph 3 of section 10, permitting the fixing of tolerances 
and exemptions (and possibly of variations) by rules and regulations promul- 
gated by the Secretaries of the Treasury, Agriculture, and Commerce under sec- 
tion 3 of title 21. There is no allegation in the information of the promulgation 
of, nor the violation by defendant of, any such rules and regulations. The 
only charge is a violation of the statute. Defendant, therefore, eannot raise 
this point on motion to quash.
"(3) Defendant also demurs to the information, upon the ground that 
it is vague, indefinite, insufficient and fails to state an offense under the laws 
of the United States. I think if the statute in question is valid, the in- 
formation is sufficient. If defendant desired more detailed information re- 
garding the offense with which it is charged, its remedy was to call for bill 
of particulars.
" It seems unnecessary to discuss the other questions raised. The motion 
to quash will, for the reason stated, be granted."
The information was dismissed in accordance with the above opinion.
ABTHUB M. HYDE, Secretary of Agriculture.