26104. Misbranding of salad oil. IT. S. v. 27 Cans of Salad Oil. Exceptions to 
libel filed. Motion to strike exceptions granted. Consent decree of 
condemnation and destruction.     (F. & D. no. 34689.    Sample no. 21277-B.)
This product consisted essentially of sunflower oil with some cottonseed oil 
and was sold as salad oil.
On January 3, 1935, the United States attorney for the District of Connecti- 
cut, acting upon a report by the Secretary of Agriculture, filed in the district 
court a libel praying seizure and condemnation of 27 cans of salad oil at Bridge- 
port, Conn., alleging that the article had been shipped in interstate commerce 
on or about October 8, 1934, by the Agash Refining Corporation, from Brooklyn, 
N. Y., and charging misbranding in violation of the Food and Drugs Act Tho 
article was labeled in part: "Messina Brand Extra Fine Oil for Salads." 
— The article was alleged to be misbranded in that the following statements 
appearing on the label, "Marca Messina Olio Extra Fino Per Insalate, Cucina e 
Mayonnaise Pure Vegetable Salad Oil Olio vegetale contenuto in questa sea- 
tola viene altamente recommandato per uso ii tavola, per insalate, per may- 
onnaise, e per cucinare. Si gara ntisce ad essere assolutamente puro", were 
misleading and tended to deceive and mislead the purchaser since they created 
the impression that the product was Italian olive oil; whereas it was not. The 
article was alleged to be misbranded further in that it purported to be a foreign 
product when not so.
The Lucca Importing Co., Bridgeport, Conn., appeared as claimant for the
goods and the Agash Refining Corporation intervened as manufacturer and filed
exceptions to the libel.   On October 23, 1935, the Government filed a motion
to strike the exceptions of the Agash Refining Corporation.   On November 15,
1935, the Government's motion to strike was heard and was granted, the court
handing down the following memorandum decision:
^HjNCK^JudQ&^Jlix this matter the Agash Refining Corporation was admitted
/"as
^lmTntervenor upon the representation that it was the manufacturer of the
y subject matter of seizure.   The matter comes before the court upon a motion of
the Government as libellant, to strike the exceptions of the intervenor to the
libel.
Thereafter, however, the consignee claiming to be the owner of the goods in 
question, by answer admitted the allegations of the libel, and influenced doubt- 
less by the small value of the seizure, consented to a forfeiture praying, 
however, for a return of the goods under bond.
On argument, the intervenor protested against the judicial elimination of its 
exceptions on the ground that a decree of forfeiture was a reflection, with 
serious commercial consequences, upon its trade-mark which appeared on the 
labels on the goods seized. The exceptions, however, seem not to support that 
contention, for the exceptions contain no reference to any trade-mark owned 
by the intervenor.
Consequently, by reason of the limited language of the exceptions, it does not 
appear that the intervenor has any standing to oppose a forfeiture which the 
Government seeks, and which the claimant has consented to. That being so, 
there is no need for the court to pass upon the underlying question as to 
whether an intervenor who has no standing in the case other than its owner-
ship of the trade-mark appearing on the goods is in a position to contest the 
allegations of the libel, when the claimant has admitted the same.
This matter being in admiralty, the decree will operate only upon the res; 
neither in word nor in effect will it touch any right of the intervenor with 
respect to its trade-mark. And since in open court the intervenor expressly 
disclaimed any desire to repossess the goods, and expressed consent to any 
decree which does not disparage its trade-mark, it cannot possibly suffer 
prejudice from this ruling.
And so, without prejudice to the intervenor with respect to its trade-mark, 
and without expressing any disagreement with the decision of Judge Thomas 
in a similar case wherein it appears that the same label as that here involved 
did not constitute a misbranding within the meaning of the Pure Food and 
Drugs Act, I rule only that the motion to strike the exceptions may be granted 
and that
A decree of forfeiture may enter.
TJiTJuly 28, 1936, the Lucca Importing Co. having consented to the entry of
a decree, judgment of condemnation was entered and it was ordered that the 
product be destroyed.
W. R. GEBGG, Acting Secretary of Agriculture.