26178. Adulteration and misbranding of honey.     U.  S. v.  19%  Cases of Honey.
Tried to  a jury.     "Verdict for the Government.    Decree of condemna- 
tion.     Product turned over to a charitable institution.     (F. & D.  no.
35461.    Sample no. 24200-B.)
This case involved honey that contained commercial invert sugar.
On May 4, 1935, the United States attorney for the Eastern District of Penn- 
sylvania, acting upon a report by the Secretary of Agriculture, filed in the 
district court a libel praying seizure and condemnation of 19% cases of honey 
at Philadelphia, Pa., alleging that the article had been shipped in interstate 
commerce on or about March 25, 1935, by the Silver Label Products Co., from
89 
122715*—87 1
Brooklyn, N. Y., and charging adulteration and misbranding in violation of the 
Food and Drugs Act. The article was labeled in part: "Relco Brand Pure 
Honey Quality Pack."
The article was alleged to be adulterated in that honey containing commercial 
invert sugar had been substituted for pure honey, which the article purported 
to be.
The article was alleged to be misbranded in that the statement on the label, 
"Pure Honey Quality Pack", was false and misleading and tended to deceive 
and mislead the purchaser when applied to honey containing commercial invert 
sugar; and in that it was offered for sale under the distinctive name of 
another article, namely, "pure honey."
On June 5, 1935, the Silver Label Products Co., claimant, filed an answer to 
the libel denying that the article was adulterated or misbranded. On November 
7, 1935, the case came on for trial before a jury. On November 8 the trial 
was concluded and the court submitted the case to the jury with the following 
instructions: 
x
KIEKPATEICK, Judges Members of the jury: This suit is what is known as a 
libel for the forfeiture of certain property under the Food and Drugs Act.
That act says—I am going to omit all the parts that have not anything to 
do with this case—but that act says any article of food that is adulterated or 
misbranded shall be liable to be seized for confiscation, and proceeding under 
that Act the Government seized nineteen and two-thirds cases of this food 
product which was labeled "Pure Honey."
There is only one question for you to decide in this case, it is very simple, 
keep everything else out of your minds. That question is: Was this article, 
which has been seized and is before you now, adulterated or misbranded 
The act defines what is meant by adulterated. It says, in the case of food, if 
any substance has been mixed with the food product so as to reduce its quality 
or strength, or if any substance has been substituted wholly or in part with the 
food product or if any valuable constituent of the article has been wholly or 
in part abstracted. In other words, you can see what counsel have agreed upon 
as the fact, namely, that it is not a question of whether the thing has been 
made harmful or poisonous or deleterious. It is simply a question of whether 
it is what it purports to be. A man could with perfect freedom sell a product 
that was composed of a compound of .one-fifth honey and four-fifths of sugar 
syrup, if he so stated it on his label. The act goes on to say that any article 
shall be deemed to be misbranded if the package containing it shall be false in 
any particular. The Government says that this article is adulterated, because 
it contains approximately four-fifths of sugar syrup, or what is known as com- 
mercial invert sugar, and that it is misbranded because it is branded "Pure 
Honey", when as a matter of fact it is not pure honey.
That is all you have to determine. You do not need to bother about how it 
got there or why it is there, what the effect of this case would be on anybody's 
business or its effect would be on the Government or the community. Just 
confine yourselves to one simple question of fact. Ask yourselves, are yon 
satisfied from the evidence you have heard here that the articles which have 
been seized and produced here in court do not contain an appreciable quantity 
of commercial invert sugar, because that is the only thing the Government 
says is there. That is what the Government alleges is there, except a small 
Quantity of tartaric acid, which would have to be used, according to the evi- 
dence, In making commercial invert sugar, but that Is not a question for you to 
determine.
The burden is on the Government to satisfy you by the weight of evidence 
that it is correct. If you are so satisfied, you will find, counsel having agreed 
as to the form of the verdict, a general verdict in favor of the libellant, which 
is the same as the plaintiff, but the Government is the libellant here, because 
it has filed a libel. If you are not so satisfied, then you will find a verdict in. 
favor of the defendant.
Now, we must all recognize that this is a matter which must depend upon 
scientific testimony, and we have to get experts to tell us how to test the honey 
and see whether or not it is pure honey. We have not conducted tests here in 
court, because we do not know how it ought to be done and we do not know 
how to do it, and if those tests were conducted here in our presence, they 
would not tell us very much because we haven't the scientific knowledge to 
interpret them. The Government took samples of the product and they sub- 
jected them to certain tests, and we have the testimony of Dr. Lothrop and 
Dr. Osborn who testified with all the degree of certainty which a witness in
such a situation can have that In their opinion there is present in large quan- 
tities in these samples that substance known as commercial invert sugar. 
The defendant produced a witness who testified that in his opinion, as a result 
of certain tests that he made on what are admitted to be samples, the same 
as the Government samples—that in his opinion it does not contain the com- 
mercial invert sugar, and the defendants have appeared personally and testified 
as to the process of manufacture and have denied that they put anything into 
the composition other than pure honey, which they obtained from various 
sources. Now, you have got to weigh that testimony and ask yourselves which 
side has convinced you. In other words, you have to ask yourselves whether 
the Government has convinced you by the weight of the evidence that that 
foreign substance is present
We get a rather peculiar situation here. If the Government chemists—let 
us put it this way: If there is nothing in that sample other than pure honey, 
then these two gentlemen from the Department of Agriculture must be either 
deliberately lying to you or else they must be utterly incompetent and know 
nothing about their business, because no competent man could come here and 
testify as they have testified and be mistaken. You would have to come to one 
of those two conclusions. Now, do you think it is likely? These gentlemen 
so far as the evidence has disclosed here have no interest in the case. Do you 
think it is likely that they would either be deliberately falsifying or that 
they know so little about their business that they would undertake to come 
here and testify as they have testified without any real knowledge or without 
any real demonstration along scientific lines? Of course, you have to ask your- 
selves virtually the same thing about the defendant's witnesses. You must 
compare the experience of these men, you must compare the technic which they 
used to make their investigations and you must consider what is the weight 
of the evidence, and then if the Government has convinced you by the weight 
of the evidence that the substance in question is present, you will find a verdict 
in favor of the libellant.
Let us examine for just a moment the question of these tests. We can't 
very well say, "Oh, well, they are all scientific matters, we don't understand 
a thing about them and we will have to guess at them", because the Govern- 
ment's witnesses and the defendant's witnesses both have fully explained to 
you what was done.
The Government used four tests in the case of this substance and they 
started in—we will say started In, because I don't know which one they 
started with, but let us take the ash test. They burnt this alleged honey— 
you will see it there on the chart—and they found, after they burnt it, the 
residue that was left was very much less than in an average American honey, 
that having been established by their chemistry, apparently. In other words, 
there were 25 parts left over in ash as compared with 180 of the same units, of 
what they would ordinarily expect if it was pure honey, according to the evi- 
dence. They say that indicates from its contents a large quantity of something 
which is not honey, because pure honey is not as combustible as some other 
things, and if you burn honey up you will get 180 units left in ash which won't 
burn or will burn—I don't know which way that works out, and then you have 
so much left. So, if you start out with this test, there would be a large quan- 
tity of something which is not honey, and then you ask yourselves, "What's 
this?" Then they started with the color tests, and they got a red color in both 
of the tests. It may be that those tests are not conclusive. Their own manual 
says if honey has been heated to over 160?, it is possible that you will get that 
red color without the presence of commercial invert sugar. You will remember 
that the defendant's testimony is that they did heat this honey and heated it 
to a very high degree; in fact, they referred to it as boiling it, whatever that 
may mean, and in that way they account for the possibility that the Govern- 
ment may have gotten a red color, because they said they boiled it. You will 
remember and give full weight to the testimony of Mr. Tuber, who testified to 
exactly what their process was; how they took two-thirds of the native honey 
and one-third of the foreign honey and subjected it to 180° P. and kept it 
there for a time, and then poured it hot into the bottles and then cooled it. 
You will remember what the Government witnesses say about that. In the 
first place, they say that if that might be done you might geta red color, but 
that if you did that, if you did what the defendants say they did, the stuff 
wouldn't look like honey, it wouldn't taste like honey, it could not be sold and 
It would not be fit for consumption in all probability. Dr. Osborn, you will 
remember, actually did try to raise that honey to a very high degree of heat,
and he kept some of it at 158? for 18 hours and he didn't get any red color. 
Some of it he heated to 212? for 2 hours and he didn't get any red color, and 
in order to get a red color, he had to heat the honey to 212? and keep it at 
that heat for 18 hours, and then he said he did get a red color, but it wasn't 
honey and it would not be fit for sale.
It is a question of fact, and you must decide it between the two. You will 
remember that in all other questions the burden is upon the Government.
Now, that test was made and they found the presence of some foreign sub- 
stance that indicated, in their opinion, that it was commercial invert sugar, 
and then they put it through two more tests, and one of them was by polariza- 
tion, and that is a very technical matter. The rays of light when they are 
sent into the product will get a twist in one direction (or you will get a twist 
in another direction. ) It is something that cannot easily be demonstrated, and 
they say that these twists of light indicate the presence of commercial invert 
sugar.
The last test was to find out whether there was anything else in there, and 
through an elaborate chemical process, they found the presence of a certain, 
definite quantity of tartaric acid, and they say that fits in with the whole 
theory, because tartaric acid is used to make commercial invert sugar. Now, 
I asked one of the witnesses why commercial invert sugar was used instead 
of ordinary cane sugar, and the answer was because it is a much more satisfac- 
tory adulterant to use, because it is harder to detect. These tests, at least it 
seemed to me, were not extremely simple tests, but they took quite some time 
and quite some scientific knowledge and skill, but that is no reason why they 
should be rejected. The only thing is whether you believe those substances 
were there, whether they have convinced you by the weight of the evidence 
that commercial invert sugar is present in real large quantities. If you so 
find, you will find in favor of the libellant. If you do not so find, you will 
find in favor of the defendant. That is all there is to the case. You can put 
everything else connected with it out of your minds.
Mr. KEOTTGH * May I ask for an exception to that part of your honor's charge 
where you said that were the jury to find that either of these men were 
deliberately lying or were incompetent—
TERM COURT• The Government's 
Mr. KEOUGH f Yes. It does seem to me that there is a wider latitude than 
that
THE.T& COTJBTI What else could they find 
Mr: KEOUGH* Well, as to how far their conclusions may be based upon con- 
vincing scientific evidence—
THE COURT I Members of the jury, you must use your judgment about that. 
If you can find for the defendant and still find that these Government wit- 
nesses are truthful, competent, and skillful, maybe you can do it—I couldn't 
doit.
(Exception noted for defendant by direction of the court.)
Mr. KEOUGH * Also the test described by Dr. Osborn, as I remember, in his 
test he did not include any Puerto Rican honey.
T#*i COURT* That is right. I have not attempted to give you every fact. 
It is your recollection of these facts that governs the case. If I have stated 
anything different from what you remember, you will take your own recollection. 
~~ The jury returned a verdict for the Government. On July 9, 1935, the 
court having denied a motion for a new trial, judgment of condemnation was 
entered and it was ordered that the wrappers and labels be removed from the 
article and that it be turned over to some charitable institution.
HARRY L. BROWN, Acting Secretary of Agriculture.