13484. Adulteration and misbranding of Berko Vigortone. U. S. v. Beacon Pack- 
ing Corp. Plea of guilty. Fine, $300. (F. D. C. No. 12582. Sample No. 
21937-F.)
INFORMATION FILED: February 26, 1945, against the Beacon Packing Corp., 
Brooklyn, N. Y.
ALLEGED SHIPMENT: On or about September 17, 1943, from the State of New 
York into the State of Pennsylvania.
LABEL IN PART : "Berko Vigortone * * * Manufactured by Berko Malted Milk 
Co., Inc., Brooklyn, N. Y."
NATURE OF CHARGE: Adulteration, Section 402 (b) (1), vitamin A, a valuable 
constituent of the article had been in whole or in part omitted therefrom. The 
product was represented to contain 1,000 U. S. P. units of vitamin A per ounce, 
but contained a smaller amount.
Misbranding, Section 403 (a), the name "Vigortone" on the labels was mis- 
leading, in that it represented and suggested that the article possessed peculiar 
tonic and invigorative properties, whereas it did not possess such properties; 
the labeling was further misleading in that the statements "Vitamin Bi 
and "Vitamin B2" represented and suggested that the article contained an 
amount of vitamin B2 (G) sufficient to make an important contribution to the 
nutritional needs of the body for this substance, whereas it contained only 
a negligible amount of the vitamin, which fact was material in the light of 
the aforesaid statements. The statements on the jar label, "Each Ounce Con- 
tains approximately the following active ingredients: Vitamin A 1,000 U. S. P. 
Units," were false and misleading, since the article contained less than 1,000 
U. S. P. units of vitamin A per ounce, namely, less than 250 U. S. P. units of 
vitamin A per ounce.
Misbranding, Section 403 (j), the article purported to be, and was represented, 
for special dietary uses by man by reason of its vitamin and mineral properties 
with respect to vitamins A, Bi, B2, and D, and calcium, phosphorus, and iron; 
and its label failed to bear such information concerning its vitamin and mineral 
properties as has been prescribed by the regulations as necessary in order fully 
to inform purchasers as to its value for such uses, since its label failed to bear 
a statement of the proportion of the minimum daily requirements for the 
aforesaid vitamins and minerals which would be supplied by the article when 
consumed in a specified quantity during the period of one day, which quantity 
is the amount customarily or usually consumed during a period of one day or 
a quantity reasonably suitable for consumption in that period.
action against the Berko Malted Milk Co., Inc., reported in the following notice 
of judgment, No. 13485, on the grounds (1) that the informations did not 
state facts sufficient to constitute an offense against the United States and (2) 
that prosecution was prohibited by Section 703 of the law (21 U. S. C. A. 373). 
The defendant alleged that the issues involved in both informations were 
identical, except that the Berko Malted Milk Co., Inc., was the manufacturer 
of the product and the Beacon Packing Corp. was the distributor. The de- 
fendant argued in support of its motion that all evidence obtained against the 
defendant was procured as a result of inspection and examination of the 
corporation's books and papers by inspectors of the Federal Security Admin- 
istrator, and that the inspectors made copies of such records "showing the 
movement in interstate commerce" of the product.
On November 13, 1946, the court denied the defendant's motion to dismiss, 
and ruled as follows:
The Beacon Packing Corporation is not a carrier; it is not a person "receiving food, 
drugs * * * in interstate commerce" or a holder thereof, within the purview of the 
statute (21 U. S. C. A. 373), if the latter is presently understood.'
Such carrier, or good faith purchaser, or consignee of the manufacturer, could not be 
the object of a prosecution for violation of the law by suffering the use of its own 
records against it.    That is all.
The Beacon Packing Corporation is not shown to be entitled to the immunity which 
might attach to it, if it were such a purchaser or consignee.
The Information is sufficient in form.    Motion denied.
On May 22, 1947, a plea of guilty having been entered on behalf of the de- 
fendant, the court imposed a fine of $150 on each of the 2 counts of the 
information.