28264. Alleged adulteration and misbranding of jellies.    U. S. v. 365 Cases of
Assorted Jellies and other products; also U. S. v. 60 Cases and 80 Cases 
of Assorted Jellies. The former tried to the court and a jury. Directed 
verdict for the claimant. Decrees entered in both actions ordering 
libels dismissed and products returned to claimant. (F. & D. Nos. 38193, 
39597, 39598.   Sample Nos. 3433-C, 3434-C, 35940-C, 35941-C.)
On September 10, 1936, the United States attorney for the Western District of 
Texas, acting upon reports by the Secretary of Agriculture, filed in the district 
court libels praying seizure and condemnation of 365 cases of jellies, jams, pre- 
serves, and marmalade at El Paso, Tex., alleging that the articles had been 
shipped in interstate commerce on or about February 26, March 31, May 27, and 
July 12, 1936, by the Tropical Preserving Co. from Los Angeles, Calif., and 
charging adulteration and misbranding in violation of the Food and Drugs Act. 
On January 27,, 1937, an amended libel was filed, which covered 106 cases of 
jellies only, shipped as alleged in the original libel.
On May 19, 1937, a libel was filed against 130 cases of jellies at El Paso, Tex., 
alleging shipment by the Tropical Preserving Co. from Los Angeles Calif., on or 
about April 9,1937, and charging adulteration and misbranding. The said jellies 
were labeled in part: "Tropical Brand * * * Jelly * * * Tropical Pre- 
serving Co. Los Angeles, Calif."
The amended libel alleged Adulteration of the jellies in that water, pectin, and 
excess sugar (some lots also containing added acid) had been mixed and packed 
with the articles so as to reduce and lower their quality and strength in that 
the said products had been made from less fruit juice and more sugar than 
jellies should be made from, namely, equal or approximately equal parts of fruit 
juice and sugar in the original batch, and the said products all contained added 
pectin (and in some instances added acid) and water which should have been 
removed by boiling in the manufacture of the article: in that products made 
from less fruit juice and more sugar than jellies should be made from, namely, 
equal parts or approximately equal parts of fruit juice and sugar in the original 
batch together with excess added water and pectin (and in the case of certain 
varieties also added acid) not ingredients of jellies and in semblance of jellies, 
had been substituted for pure jellies, which they purported to be; and in that 
they had Been mixed in a manner whereby inferiority was concealed.
They were alleged to be misbranded in that the statements "Pure Concord 
Grape [or "Black Cap Raspberry," "Strawberry," "Loganberry," "Red Rasp- 
berry," "Blackberry," "Currant," or "Red Raspberry-Apple"] Jelly Home Made 
Style," borne on the labels, were false and misleading and tended to deceive 
and mislead the purchaser; and in that they were imitations of and were offered 
for sale under the distinctive names of other articles.
On October 15, 1937, L. H. Karosen, trading as the Tropical Preserving Co., 
having appeared as claimant in the action first instituted, the case came on for 
trial before the court and a jury. On October 19, 1937, the evidence having 
been adduced counsel for the claimant and for the> Government moved for per- 
emptory instructions. Following the completion of arguments of counsel in 
support of their respective motions the court delivered the following rulings, 
opinion, and decision orally from the bench:
BOYNTON, District Judge: This action is in its nature a libel brought by the 
Government under the Food and Drugs Act as amended for the seizure and 
condemnation of articles of jellies, commodities which are designated as jellies, 
a description of which is set forth in the caption of the libel and further in 
detail in the allegations contained in the bill, wherein the libel seeks to have the 
commodities condemned as adulterated within the meaning of the Food and 
Drugs Act in the third count of the libel, and further in the fourth count as 
in violation of the Food and Drugs Act, Sec. 8 thereof, as being misbranded 
within the contemplation of the Act, on the grounds as set forth in the libel.
The court, in entering upon consideration of the questions of law and fact 
involved in this case, finds that there was no particular detail as to formula as 
to what constitutes jelly as set forth in the provisions of the Act, or in rules 
that may have been promulgated by the Secretary of Agriculture in connection 
therewith.
The Government, for recovery in this case, contends that jelly is such a well 
known and recognized commodity in the commercial world in the States of the 
United States as to have a strict standard as to what constitutes jelly. That it 
is recognized in the trade that jelly should consist of fifty parts of fruit juice 
and fifty parts sugar; and the Government's contention in this case is that the 
jellies here in question are shown not to contain ingredients of fifty parts of 
fruit juice and fifty parts of sugar, as disclosed by analyses as made by chemists, 
who are offered as witnesses on behalf of the Government, and who testified on 
trial of this cause that there was more water contained in the jellies here in 
question than would have been the case had fifty percent fruit juice and fifty 
percent sugar been used in the manufacture thereof, and by reason thereof that 
resulted in lessening the ingredients in what is known and recognized as jellies 
according to the Government's contention, and therefore is an adulteration, 
shows an adulteration coming within the meaning of the Food and Drugs Act, 
and that, while the same was labeled as jellies, it is a misbranding.
The court finds under the provisions of the Food and Drugs Act, as set forth 
in Clause 4 of Section 8 of the Act, and subdivisions thereunder, viz, first and 
second, that jelly is a compound and that it falls under the provisions of the 
fifth clause of Section 8 of the Act, which relates to canned food in hermetically 
sealed containers as therein set forth; and that under the evidence in this case 
it is not shown that the jellies here in question, seven varieties of jellies, samples 
of which are offered in evidence herein, contained in 365 cases of assorted jellies, 
in controversy in this case, to be adulterated within the meaning of the Food 
and Drugs Act, making special reference to Clause 4 under Section 8 of the Act, 
and Clauses First and Second and Clause 5. As the uncontroverted evidence in 
this case shows that no foreign substance, that is, no ingredients foreign to that 
which is contained in fruit juice, was injected into the manufacture of the 
jellies in question.
According to the testimony of the Government's witnesses, chemists, and 
analyses here it discloses, and said witnesses testified to the effect that there 
was no ingredient found in these jellies that are not contained in jellies, "pure 
jellies"; but that the difference, if any, from what the Government contends is 
standard, as recognized by the public, of fifty parts of fruit juice and fifty parts 
of sugar, has added in this compound, as contained in these jellies here in 
question, an excess of water.
The court in passing on this question takes into consideration all of the testi- 
mony that is offered on trial of the case, and finds that there are no ingredients 
contained in the jellies here in question that are not contained in jellies pro- 
duced in accordance with the standard as contended for by the Government in 
this case, as to the quantity of fruit juice and sugar.
There is testimony in this case by the claimant herein, L. H. Karosen, the 
manufacturer, doing business as Tropical Preserving Co., and "Victor J. Morley, . 
the superintendent of that preserving plant, located at Los Angeles, Calif., that ( 
in the manufacture of these jellies in question that 50 percent of fruit juice and 
50 percent sugar was used in each and every instance in the manufacture of the
same, and testifying that there was no pectin or acid added to the jellies when 
manufactured.
The Court therefore holds that the Government's evidence in this case, relying 
upon analyses that were made, and upon same only, is of a character that 
is insufficient, speculative in its nature, such as is insufficient to meet the burden 
that rests upon the Government in a case of this character, which is penal in 
its nature.
The Court also makes the same finding and the same ruling on the count of 
misbranding which is here predicated and based upon the adulteration. The 
Court bearing in mind and carefully considering decision of the Supreme Court 
of the United States in the case of United States vs. Ninety-Five Barrels, More or 
Less, Alleged Apple Cider Vinegar, Douglas Packing Company, Claimant, reported 
in 265 U. S. 438; and regards the decision rendered by the Court in said case, 
and the language used in the Court's opinion therein, in which the Court uses 
this language:
"If an article is not the identical thing that the brand indicates it to be, it is 
misbranded. The vinegar in question was not the identical thing that the 
statement 'Excelsior Brand Apple Cider Vinegar made from selected apples,' 
indicated it to be,"
is in support of the Court's ruling in this case on the question of misbranding. 
That case, and all cases which the Court has been cited undertaking to rule 
upon the question of whether or not the charge of misbranding as used upon 
the label or package in question constitutes a violation of the Food and Drugs 
Act, finds that there was some specific, direct, definite and distinct language 
used on the label in question on the commodities in question which was in 
its nature misleading. If the Court construes aright the decision of the 
Supreme Court in the case, supra, reported in 265 U. S. 438, the decision in that 
case holds misbranding, the articles to be misbranded, is by reason of the fact 
that the article there is referred to as "Excelsior Brand Apple Cider Vinegar 
made from selected apples," and that it was shown in said cause that the 
vinegar there in question was not apple cider vinegar made from selected apples, 
but was,—so declared in that decision,—made from dried apples, and that you 
could not make apple cider vinegar,—it was not apple cider vinegar that was 
made from dried apples, and this reference to selected apples conveyed the idea 
of fresh apples.
This jelly here in question in the suit at bar, there is no question whatever 
but what the same was made from fruit juice of the character of fruit designated 
in each one of the labels, and therefore the Court is of opinion, and so holds, 
that there was no misbranding; that is that the labeling of the jellies here in 
question was not of a character as to mislead the public, purchasers or consumers 
of such jelly, as in the case of United States vs. 95 Barrels of Vinegar. In this 
particular case there was no ingredient used that was not contained in jellies 
made in accordance with even the standard as contended for by the Government.
Therefore, gentlemen, without further elaborating the Court's findings in this 
case, the Court will give the jury a peremptory instruction to return a verdict 
against the Government, and in favor of claimant in this case.
The Court regards this case as a case of grave importance, that the burden 
rests upon the Government to make out its case with clear, satisfactory, con- 
vincing evidence, which, in the opinion of the Court, has not been met.
This cause, as counsel for the Government says, is somewhat in the nature 
of blazing the way, and there is no case that has been presented to the Court, 
or acted upon by any Court, similar in its character. With reference to the 
record in this case, the record is full and complete and can be taken up and 
this question passed upon by the Higher Courts and determine whether or not the 
facts disclose an Adulteration of misbranding within the meaning of the Food and 
Drugs Act under the language as used by the Act. Perhaps the Secretary of 
Agriculture some day will promulgate some rules and not leave the matter in the 
realm of uncertainty and speculation, as this Court feels is the case in this 
particular cause.
The Court will overrule all exceptions urged by counsel for the claimant 
herein, as the Court announced it was reserving its ruling upon such matters, 
objecting to the witnesses being permitted to testify, and who were allowed to 
testify by the Court in this case, and whose testimony is in the record, but the 
Court reserved definite ruling upon the same, as bearing upon the question of 
what was recognized in the trade as good commercial practice as to the formula,
if there existed any, as to the ingredients that entered into the manufacture of 
commodities designated as jellies; so you will have a complete record in the case.
The jury returned a verdict as instructed.    On October 19, 1937, judgment / 
was entered ordering the goods returned to the claimant.    On December 22, ' 
1937, judgment was entered in the remaining case ordering the libel dismissed 
and the goods returned.
HARRY L. BROWN, Acting Secretary of Agriculture.