6589. Adulteration and misbranding of Spark Olive.    U. S. v. 33 Cases of Spark
Olive. Tried to the court. Judgment for the Government. Decree of 
condemnation and destruction.     (F. D. C. No. 10055.    Sample No. 3706-F.)
LIBEL FILED :   June 7, 1943, Northern District of Oklahoma.
ALLEGED SHIPMENT : On or about April 3 and 22,1943, by the Kansas Milling Co., 
Wichita, Kans.
PRODUCT: 33 cases, each containing 12 1-pound bottles, of Spark Olive, at 
Tulsa, Okla.
LABEL IN PART: "Spark Olive New Process, Sugar Coated Treated to Pre- 
serve the Rich Qualities of Wheat Germ." (Vignette of football player, base- 
ball player, golfer, and swimmer.)
whole or in part of a filthy substance, insect fragments, larvae, and a rodent 
excreta pellet.
Misbranding, Section 403 (a), the name of the article, "Spark Olive," was 
false and misleading since it represented and suggested that the article would 
have a stimulating effect on the system of the user, whereas use of the 
article would not have such an effect; and the vignettes and statements in its 
labeling which represented and suggested that the article was rich in vitamins 
B, E, and G; that ingestion of the article according to directions afforded one 
of the best ways of getting necessary amounts of vitamin B2, E, and G; that the 
article, when taken as recommended, would be effective in promoting health, 
alertness, tuning-up the system, keeping a person fit, maintaining proper appe- 
tite, promoting normal functioning of nerves and the digestive system, normal 
growth, and the normal functioning of the reproductive system; that it would 
be effective in the prevention and treatment of pellagra, dermatitis, cataract, 
and- skin infections; and that it contained an abundance of highly valuable 
minerals, were false and misleading since the article was not rich in vitamins 
B, E, and G; when used as recommended it did not afford one of the best ways 
of getting necessary amounts of vitamins B2 and G; the need for vitamin E 
in human nutrition has not been established, and the article was not effective in 
promoting the benefits mentioned or in the prevention or treatment of the 
conditions mentioned; and it did not have an abundance of highly valuable 
minerals; Section 403 (j), the article purported to be and was represented 
as a food for special dietary uses by reason of its vitamin and mineral content, 
and its label failed to bear such information concerning its vitamin and mineral 
properties as has been determined to be and by regulations prescribed as neces- 
sary in order fully to inform purchasers of its value for such uses. 
DISPOSITION : On September 13, 1943, the Kansas Milling Co., claimant, having 
filed an answer to the libel and submitted a list of 11 interrogatories, and the 
Government having filed a motion to quash the interrogatories, the court, after 
argument of counsel and consideration of authorities, sustained the motion in 
regard to 8 of the interrogatories and overruled the motion with respect to 
the other 3, in which "information was requested as to (1) the percent of free 
sugar, wheat bran, starch, insect fragments, and rodent excreta in the product; 
(2) whether any analytical tests or experiments were made to determine the 
therapeutic characteristics or vitamin potency of the product; and (3) the 
basis for the allegations in the libel that the article was not effective in 
promoting the benefits mentioned and in the prevention and treatment of the 
conditions mentioned, and that it did not have an abundance of highly valuable 
minerals.
Answers to these three interrogatories were subsequently filed and on Novem- 
ber 12, 1943, the case came on for trial, at the conclusion of which, the court, 
on November 13, 1943, handed down its findings of fact and conclusions of law 
incorporated in the following decree of condemnation and destruction:
SAVAGE, District Judge: "This matter coming on for hearing this 12th day of 
November, 1943, in its regular order and the plaintiff, United States of America, 
appearing by Whit Y. Mauzy, United States Attorney for the Northern District 
of Oklahoma, and intervener, Kansas Milling Company, appearing by its attor- 
neys, T. E. Scofleld and Ray S. Fellows, and all parties announcing ready for 
trial and the court, after the introduction of evidence and after argument of 
counsel, finds:
"That the 33 Cases, each containing 12 bottles of an article labeled in part, 
1 Lb. Net Weight Spark O' Life and containing a sugar coated wheat germ, 
was shipped in interstate commerce by the St. Louis-San Francisco Railway 
Company, on the 3rd day of April, 1943, and on the 22nd day of April, 1943, 
by shippers truck, said 33 cases having been shipped by the Kansas Milling 
Company from Wichita, Kansas, to Tulsa, Oklahoma, and was conveyed in 
interstate commerce and at the time of the filing of the complaint was in the 
possession of Joe Hodges Warehouse of Tulsa, Oklahoma, which 33 Cases were 
manufactured by the Kansas Milling Company of Wichita, Kansas.
"The court further finds that said 33 Cases are misbranded in violation of 
Title 21 U. S. C, Section 343 (a), in the following respects:
"1. That the statement 'A NATURAL FOOD RICH IN VITAMIN B, E 
AND G' is misleading only in that the term Vitamin B, has no scientific 
significance.
"2. That the statements 'FOR HEALTH—FOR ZIP—A TUNE-UP!' are 
merely sales talk and not misleading.
"3. That the statement It's one of the best ways of getting necessary amounts 
of Vitamins B-1, B-2, E, and G,' is misleading with respect to the inclusion of 
the terms B-2 and G, which are synonymous and tend to indicate that they 
are two different vitamins.
"4. That the statement 'Vitamin B essential for appetite, normal function of 
nerves and digestive system, promotes natural growth' is ambiguous in that 
Vitamin B has no scientific significance.
"5. That the statement on the label as to Vitamin E is misleading.
"6. That the statement 'Essential in prevention of Pellagra, Dermatitis, Cata- 
ract' is misleading and that the statement as to skin infection is too broad.
"7. That the statement on the label 'Also an abundance of highly valuable 
minerals' is misleading.
"The court further finds that said article is misbranded in violation of Title 
21 U. S. C.r Section 343 (j) in that it purports to be and is represented as a 
food for special dietary uses by reason of its vitamin and mineral content and 
that said label fails to bear the necessary information required under the 
regulations prescribed for label statements concerning dietary properties as 
promulgated by the Administrator as published in the Federal Register of 
November 22, 1941.
"The court further finds that the trademark 'SPARK O' LIFE' standing alone 
or apart from the label is not misleading nor Misbranding of the product in 
violation of Title 21, U. S. C, Section 343 (a).
"The court further finds that all other statements on the label are not 
misleading.
"The court further finds and concludes for the reasons above stated, that 
said 33 Cases of Spark O' Life should be condemned, forfeited and confiscated.
"IT IS THEREFORE ORDERED, ALLEGED and DECREED that the said 
33 Cases of Spark O' Life be and the same hereby are condemned, forfeited 
and confiscated.
"IT IS FURTHER ORDERED, ALLEGED and DECREED that the said 
33 Cases of Spark O' Life be destroyed."