80874. Adulteration and misbranding of feeds. IT. S. v. 110 Sacks of Feeding Oat Meal (and 4 other seizure actions against similar products). Tried to the court; judgment for the Government. Decrees of condemnation and destruction. (F. & D. Nos. 41293, 41294, 41462, 41463, 41774. Sample Nos. 902-C, 903-C, 4921-D to 4924-D, Inclusive.) These products were represented to be feeding oatmeal, pulverized oats, or ground oats, but contained in addition thereto other ingredients such as rice hulls, rice fragments, rice bran, barley, barley hulls, and cassava meal. On December 30, 1937, and January 18 and February 18, 1938, the United States attorney for the District of Massachusetts, acting upon reports by the Secretary of Agriculture, filed in the district court libels praying seizure and condemnation of 1,589 sacks of feeds, hereinafter described, in various lots at Southbridge, Fitchburg, Worcester, and Taunton, Mass.; alleging that the articles had been shipped in interstate commerce within the period from on or about August 26, 1937, to on or about December 27, 1937, by P. Fred'k Obrecht & Son from Baltimore, Md.; and charging adulteration and misbranding in violation of the Food and Drugs Act. The articles were labeled in part, variously: "Pulverized Oats * * * Hood Mills Company * * * Balti- more, Md."; "Fine Ground Feeding Oat Meal [or "Ground Oats" or "Pulverized Oats"] Farmers Service Bureau Baltimore, Md." The pulverized oats (two lots) were alleged to be adulterated in that a mixture of finely ground oats, a ground wheat product, and a starchy ma- terial closely resembling cassava starch, in the case of one lot, and a mix- ture of ground oats and finely ground rice bran, in the case of the other lot, had been substituted in whole or in part for pulverized oats. The feeding oat meal (two lots) was alleged to be adulterated in that a mixture of ground oats, finely ground rice bran, rice hulls, broken rice fragments, and a cereal starch, in the case of one lot, and a mixture of oat products, broken rice, rice hulls, rice bran, and cassava meal, in the case of the other lot, had been substituted in whole or in part for "Fine Ground Feeding Oat Meal." The ground oats were alleged to be adulterated in that a mixture of finely ground. oats, ground rice bran, fragments of barley and barley hulls and starchy material closely resembling cassava starch had been substituted in whole or in part for ground oats. Misbranding was alleged in that the statements on the labels, "Pulverized Oats," "Fine Ground Feeding Oat Meal," and "Ground Oats," were false and misleading and tended to deceive and mislead the purchaser when applied to articles of the composition described in the preceding paragraph. Misbranding was alleged for the further reason that the articles were offered for sale under the distinctive names of other articles. P. Peck Obrecht & Son having entered an appearance as claimant, the cases were consolidated and on May 19, 1939, were tried to the court. Decision was reserved. On June 12, 1939, the following memorandum opinion sustaining the charges in the libels was handed down: SWEENEY, Judge. "There are involved in this decision five libels for con- demnation of grain, marked as either pulverized oats,' 'ground oats,' or 'feeding oat meal,' intended for consumption by animals. The claimant in each case is the same person, and the five libels will be treated as one. The cases are similar, except as to the percentage of protein, fat, and fiber found. The libels were brought for violation of section 8 of the Food and Drugs Act, (21 USCA § 8) and for misbranding under section 9 of the same act. "In four of the five cases, analyses by a State chemist showed that the products sought to be condemned contained less of either fat or protein than the tag on the article guaranteed, or indicated an excess over the guaranteed maximum amount of fiber disclosed on the tag. In the fifth case there was no chemical analysis, and, unless this particular seizure can be condemned because of a violation of section 8, the libel must fail. "As to the other four, it is clear that the article offered for sale was not properly branded. The tags on the various sacks informed the public of the minimum of protein and fat contained in the mixture, and the maximum of fiber contained therein. While the deficiencies were slight, nevertheless, there was no disagreement that the deficiencies existed. One who places a tag on his product informing the public that it contains a minimum or a maximum of an ingredient is bound to live up to his claim. Any shortage of a minimum ingredient or any excess of a maximum ingredient cannot be excused on the ground that the product approximated the information given to the public, nor is it any excuse that the deficiencies exist without conscious fraud on the part of the owner. See United States v. Johnson, 221 U. S. 488, 497, and United States v. Thirty-six Bottles of London Dry Gin, et al., 210 F. 271. The articles libeled were misbranded within the meaning of section 9 of the Food and Drugs Act, 21 USCA. "In all of the cases, including the one referred to above in which there was no chemical analysis, a qualitative analysis by the United States Government showed that each of the libeled articles, although purporting to be feeding oat meal,' 'pulverized oats,' or 'ground oats,' contained in addition thereto, other ingredients, such as rice hulls, rice fragments, rice bran, barley, barley hulls. and cassava meal. There was nothing on the tags or on the sacks in which the articles were shipped which informed the public of the presence of this foreign matter. It was not a natural contaminus of the article offered for sale, but was a substituted article within the meaning of section 8 of the act refer- ing to adulterated articles. Adulteration means to corrupt, debase, or make impure by a mixture of a foreign or baser substance. United States v. St. Louis Coffee & Spice Mills, 189 F. 191. The claimant claims that the presence of such foreign matter was without his knowledge, and that it was permissible under the Grain Standards Act of 1916, 7 USCA. The claimant's contention that he had no knowledge of the presence of the foreign matter is of no avail in this proceeding. This is a libel filed against the offending article, and it is no part of the Government's burden to show substitution by the owner or shipper, or even knowledge of it It is sufficient if any article, other than that purported to be sold, has been substituted either wholly or in part for the article that the tag represents the article to be. See United States v. Five Boxes of Asafoetida, 181 F. 561. The contention that the Grain Standards Act of 1916 permits the substitution of rice hulls, rice fragments, cassava meal, barley, barley hulls, or rice bran for others is without merit. It did not purport to repeal, alter, or modify the Food and Drugs Act of 1906. See United States v. 154 Sacks of Oats, 283 F. 985. While I am satisfied that the claimant is a reputable business man, and that he had no knowledge or notice that the foreign substances were contained in the articles, nevertheless, the articles themselves were not only misbranded, but a foreign substance had been sub- stituted in part for the article which it purported to be. "In each of the five cases an order of forfeiture may be submitted." On June 19, 1939, judgments of condemnation were entered and the products were ordered destroyed. M. L. WILSON, Acting Secretary of Agriculture.