Vol. III, p. 127, sec. 1.

Removal of labels and stamp. — In U. S. v. Green, (1905) 137 Fed. 179, it was held that this section does not divest the butter of its interstate commerce character so as to immediately entitle the consignee to remove such marks and labels without liability for violating such Act, the court saying: "Without going into the numerous cases bearing to some extent, even though indirectly, on the question, this court is of the opinion that in making process or renovated butter transported into a state, and remaining therein for use, consumption, sale, or storage therein, subject on arrival in such state to the operation and effect of the laws of such state enacted in the exercise of its police power to the same extent and in the same manner as though such articles had been produced in such state, and declaring that same shall not be exempted from such laws by reason of being introduced into such state in original packages or otherwise, Congress did not intend to confer any power and has not conferred any power on any person to remove the marks, labels, stamps, etc., from process or renovated butter. When the packages are used the marks, stamps, etc., are to be de

Vol. III, p. 128, sec. 4.

margarine by the addition of artificial coloring, and that the same had been sold or removed for sale and consumption without payment of the required tax with intent to defraud the United States.

Moxley v. Hertz, (C. C. A. 1911) 185 Fed. 757.

stroyed. New York has passed no law allowing this to be done, and it is not seen that such a law could be passed in the legitimate exercise of the police power of the state. Section 1 of the Oleomargarine Act was not intended to abrogate any penalty imposed for the violation of the penal provisions referred to, or to permit the acts therein forbidden, or to empower a state to make any law interfering with the operation of such laws, unless there should arise a conflict between the laws of the United States and those of the state passed in the legitimate exercise of its police power. It is perfectly clear that to permit the removal of the stamps, marks, labels, etc., on packages of a food product of this character, and specifically authorized by law, while such articles remain an article of interstate commerce, or even thereafter, when we consider the objects and purposes of the law, would not only defeat the objects and purposes of the legislative body as to inspec tion, etc., but open the doors wide to frauds on the revenue. The placing of the marks, etc., on the packages implies they are to remain."

"Absorption" defined. - In the provision of this section defining adulterated butter as including "any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk, or cream," the word "absorption" is not used in the sense of chemical absorption, and any butter is within the definition which contains an abnormal quantity

of water, whether by chemical absorption or by incorporation. Coopersville Co-operative Creamery Co. v. Lemon, (1908) 163 Fed. 145, 89 C. C. A. 595.

Intent. Butter containing an abnormal quantity of water is subject to the tax imposed by this section without regard to the intent of the manufacturer. Coopersville Cooperative Creamery Co. v. Lemon, (1908) 163 Fed. 145, 89 C. C. A. 595.

[Oleomargarine rules and penalties Regulations respecting amount of moisture. - Though Act Cong. Aug. 2, 1886, ch. 840, 24 Stat. L. 209, 3 Fed. Stat. Annot. 127, authorized the Secretary of the Treasury to prescribe rules and regulations for carrying it into effect, it did not authorize him to promulgate a rule construing this section de claring that butter should be confiscated if it

merce is a misdemeanor. U. S. v. Green, (1905) 137 Fed. 179.

applied to adulterated butter.]

contained an abnormal quantity of moisture, by providing that it should be confiscated if it contained more moisture than sixteen per cent. U. S. v. 11,150 Pounds Butter, (1911) 188 Fed. 157. Contra, Coopersville Co-operative Creamery Co. v. Lemon, (1908) 163 Fed, 145, 89 C, C, A, 595.

Vol. III, p. 130, sec. 5.

or

Regulations. The purpose of this section is to provide for the sanitary inspection and the marking and branding of "process " renovated "butter at the place of manufacture, to the end that none shall be shipped from the factory which can in any way be injurious to the health of the consumer, and the section authorizes the Secretary of Agriculture to cause such inspection to be made, and to "make all needful regulations for carrying this section into effect." A regulation, however, which prohibits a dealer, re

Vol. III, p. 131, sec. 6.

Regulations. This section does not so limit the power of the Internal Revenue Commissioner as to authorize only the making of regulations requiring returns as to the contents of the books required to be kept by wholesale dealers; but he is authorized to adopt a regulation requiring such dealers to make monthly returns showing the packages and pounds of oleomargarine received, the quantity disposed of, and the names and addresses of the consignees. U. S. v. Lamson, (1909) 173 Fed. 673.

The provisions of this section requiring wholesale dealers in oleomargarine to keep books and render returns as required by the Commissioner of Internal Revenue, and the regulation requiring monthly reports by such dealers, do not make the sufficiency of the returns depend on their conformity to the books, but on their conformity to the facts; such dealers being required to make both their books and returns a correct record of the facts. U. S. v. Lamson, (1909) 173 Fed. 673.

Neither is such a regulation unreasonable because it does not apply to dealers in process, renovated, or adulterated butter. U. S. v. Lamson, (1909) 173 Fed. 673.

Where the names of the purchasers as given in a wholesale dealer's return were wholly or partly fictitious or erroneous, there was a violation of the regulation, though the quantity disposed of was correctly disclosed. U. S. v. Lamson, (1909) 173 Fed. 673.

The requirement of regulations made under this section, that dealers shall "make monthly returns on form 217 . . . showing in detail the number of packages and the number of pounds of oleomargarine received, ... also the quantity disposed of, with the name and address of each person to whom sold or consigned," does not require a statement in detail of the number of packages and the number of pounds disposed of to each person, and the forms furnished for such returns cannot impose additional requirements to those of the statute or regulations which will have the force of law, and a failure to comply with which will constitute a criminal offense. U. S. v. Lamson, (1908) 162 Fed. 165.

Under the regulations made by the Commissioner of Internal Revenue pursuant to this section, and in force prior to 1907, which F. S. A. Supp. — 69

ceiving or handling such butter after it has been duly inspected, marked, and branded, and shipped from the factory, from obliterating the marks or brands thereon has no relation to such sanitary purpose, and finds no warrant in the statute, being calculated only to prevent fraud on the part of the dealer in his relations with his customers, and there is nothing in the statute which will support an indictment or information for the violation of such regulation. U. S. v. Bohl, (1903) 125 Fed. 625.

require wholesale dealers to make returns showing, among other things, the names and addresses of all persons to whom sales have been made, and that "the recapitulation should be signed by the firm name . . and the person swearing to the return should sign on the dotted lines below the right hand of the printed affidavit," the oath required is to the recapitulation only, and not to the list of customers contained in the return. U. S. v. Lamson, (1908) 165 Fed. 80.

False oath to return. This section, requiring wholesale dealers to keep such books and render such returns as the Commissioner of Internal Revenue may by regulation require under prescribed penalties for its violation, has no relation to the tax to be assessed on such dealers, and the regulations made thereunder and in force prior to their revision in 1907, in requiring an oath to the returns, do not have the force of law in such sense that a false oath to a return subjects the maker to prosecution for perjury under R. S. sec. 5392, 5 Fed. Stat. Annot. 701. U. S. v. Lamson, (1908) 165 Fed. 80.

Entries in books. The former revised regulations made by the Commissioner of Internal Revenue in December, 1904, governing the keeping of books and the making of returns by wholesale dealers in oleomargarine, pursuant to this section, do not require the entry on the books of the number of packages and pounds of oleomargarine disposed of at any specified time, and the failure to make such entries on the same day or during the same month when the goods are disposed of is not a criminal offense under section 6. U. S. v. Lamson, (1908) 162 Fed. 165.

Indictment. Upon a reasonable construction of regulations made under this section the entries required to be made in the books may be made by the agent of the dealer, and an indictment for failure to make such entries should aver that the dealer did not make and did not cause to be made such entries. U. S. v. Lamson, (1908) 162 Fed. 165. A corporation is a person" within the meaning of section 6, requiring wholesale dealers in oleomargarine to keep certain books and make certain returns, and providing for punishment by fine and imprisonment any person who wilfully violates any of the provisions of this section," although section 5 applies in express terms to corporations, and

"

gives the court discretionary power to punish by either fine or imprisonment or both. U. S. v. Union Supply Co., (1909) 215 U. S.

Vol. III, p. 133, sec. 9.

Constitutionality.

The imposition, under the sanction of this section, of the same manufacturing tax on filled cheese manufactured for export, and in fact exported, as upon other filled cheese, is not obnoxious to the prohibition of U. S. Const., art. 1, sec. 9, par. 5, against the levy of a tax or duty on articles exported from any state. Cornell v. Coyne, (1904) 192 U. S. 418, 24 S. Ct. 383, 48 U. S. (L. ed.) 504.

No exemption of filled cheese manufactured for export, from the manufacturing tax imposed by this Act, was effected by the provi

Vol. II, p. 136, sec. 2.

Section 41 of chapter 661, Laws of N. Y. (1893). See Crossman v. Lurman, (1904) 192 U. S. 189, 24 S. Ct. 235, 48 U. S. (L. ed.)

50, 30 S. Ct. 15, 54 U. S. (L. ed.) 87, disapproving U. S. v. Braun, (1907) 158 Fed. 456.

sion that "the tax levied by this section shall be represented by coupon stamps; and the provisions of existing laws governing the engraving, issue, sale, accountability, effacement. and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by this section," although by R. S. sec. 3385, 3 Fed. Stat. Annot. 738, exported manufactured tbacco and snuff are relieved from the manu facturing tax. Cornell v. Coyne, (1904) 192 U. S. 418, 24 S. Ct. 383, 48 U. S. (L. ed.) 504.

401, affirming (1902) 171 N. Y. 329, 63 N. E. 1097, set out in the original note.

Vol. III, p. 138, sec. 1..

Constitutionality. — No individual has such a vested right to trade with foreign nations as precludes Congress, in the exercise of its plenary power to regulate foreign commerce, from prohibiting, on considerations of public policy, the importation of teas inferior to the government standards, on the theory that the importer is thereby deprived of his property without due process of law. Buttfield v. Stranahan, (1904) 192 U. S. 470, 24 S. Ct. 349, 48 U. S. (L. ed.) 525; Buttfield v. Bidwell, (1904) 192 U. S. 498, 24 S. Ct. 356, 48 U. S. (L. ed.) 536; Buttfield v. U. S., (1904) 192 U. S. 499, 24 S. Ct. 356, 48 U. S. (L. ed.) 537.

Effect of Act of June 30, 1906.

There is

no such repugnancy between this Act and the general Food and Drugs Act of June 30, 1906, 1909 Supp. Fed. Stat. Annot. 137, 34 Stat. L. 768, as to prevent them, generally speak

Vol. III, p. 138, sec. 3.

Opportunity for hearing. - Assuming that no opportunity is afforded by this Act to an importer of teas for a hearing with reference to the establishing of government standards of purity, quality, and fitness for consumption, or on the question whether his tea should be rejected as not entitled to admission into the United States because inferior to the standards, the statute is not thereby rendered objectionable as a denial of due Buttfield v. process of law. Stranahan, (1904) 192 U. S. 470, 24 S. Ct. 349, 48 U. S. (L. ed.) 525.

ing, from standing together. The Food and Drugs Act does not appear to have been intended as a substitute for the earlier statute in the matter of the importation of tea, but both statutes are cumulative in so far as the importation of tea is concerned, and both should be given effect. An importation of tea is, therefore, subject to the provisions of both Acts; that is, it must comply with the standards established by the Secretary of the Treasury under the Tea Inspection Act, and must also stand the tests in reference to adulteration and misbranding imposed by the Food and Drugs Act. Imported tea, although meeting the requirements of the Tea Inspection Act of 1897, is still subject to the provi sions of the Food and Drugs Act of 1906 regarding adulteration, labeling, misbranding, and guaranty. (1907) 26 Op. Atty. Gen. 166.

No delegation of legislative power. - An unconstitutional delegation of legislative power to the Secretary of the Treasury is not made by the provision of this Act for bidding the importation of teas inferior to the government standards of purity, quality, and fitness for consumption, which authorized him to establish such standards upon the reeommendation of a board of tea experts, but such provision merely leaves to the secretary the executive duty to effectuate the legisla tive policy declared in the statute. field. Stranahan, (1904) 192 U. S. 470, 24 S. Ct. 349, 48 U. S. (L. ed.) 525,

Butt

Vol. III, p. 140, sec. 6.

Due process of law. - Due process of law is not denied an importer of teas by the provision of this Act commanding the destruction of teas not exported within six months after their final rejection as not entitled to

Vol. III, p. 141, sec. 1.

What constitutes false labeling.-Wherever the natural inference to be drawn from the form or words of a brand or label is contrary to the fact as to the state or territory in which the article referred to is made, produced, or grown, the case would seem to be within the letter and spirit of this Act. The use of the words "Birkenwald's Daisy Sugar Corn, S. Birkenwald Co., Milwaukee, Wis.," by that company on canned goods produced in another state, was held to be a violation of this section. (1903) 24 Op. Atty. Gen. 695. Importation from foreign countries. This Act applies not only to domestic articles, but also to those imported from foreign countries

Vol. III, p. 143, sec. 2935.

Effect of Food and Drugs Act of June 30, 1906.This section and the Act of June 30, 1906, 1909 Supp. Fed. Stat. Annot. 137, 34 Stat. L. 768, are, generally speaking, cumu lative, and should both be given effect, and an importation of drugs should not be admitted if it fails to conform to the standard established by the former or to the tests imposed under the latter. (1907) 26 Op. Atty.Gen. 311.

Importations from Italy.-On importations originating in Italy, the standard of strength and purity to be enforced is that established by the pharmacopoeia of the United

Vol. III, p. 143, sec. 2936.

Repeal. The provisions of the Drugs and Medicine Act of 1848, incorporated in section 2936. R. S., that importations found to conform to the standard therein imposed shall be thereupon "passed without reservation, on

Vol. X, p. 89, sec. 1.

--

The words "place of manufacture," as used in this Act, do not mean merely the "country of production," but refer to the particular locality in which the goods are produced or manufactured. (1904) 25 Op. Atty.-Gen. 142. False labeling. Food products produced, manufactured, or put up at Marseilles, France, but which are labeled "Bordeaux," are falsely labeled within the meaning of that provision of this Act which forbids the importation of food products falsely labeled in any respect in regard to the place of manufacture, and are therefore not entitled to admission into

admission into the United States because inferior to the government standards. Buttfield r. Stranahan, (1904) 192 U. S. 470, 24 S. Ct. 349, 48 U. S. (L. ed.) 525.

which are labeled as being of domestic origin. (1903) 24 Op. Atty.-Gen. 675.

Omission of place of manufacture. — This Act does not provide that such products shall be labeled or branded so as to show the state or territory in which they are produced. It provides merely that such products shall not be falsely labeled or branded as to the state or territory in which they are made, produced, or grown. The mere omission of the place of manufacture cannot be said to be in violation of that law; nor is the name of the wholesale dealer on the label or brand necessarily a representation that he is the manufacturer or producer. (1902) 24 Op. Atty.Gen. 125.

States, and not that of Italy or any other foreign country. (1907) 26 Op. Atty. Gen. 311.

Importations from Scotland, England, France, and Germany. - Importations orig inating in any of the countries whose pharmacopoeias are mentioned in this section must conform to the pharmacopoeia of the country of their origin; but if produced in any other country, whose pharmacopoeias are not thus standarized, then the pharmacopoeia of the United States must control. (1907) 26 Op. Atty.-Gen. 311.

payment of the customary duties," were repealed by implication, as applied to importations which are subject to rejection under tests of the Food and Drugs Act of June 30, 1906. (1907) 26 Op. Atty.-Gen. 311.

the United States. (1904) 25 Op. Atty.-Gen. 142.

Prohibition of importations from countries prohibiting American products. - The Secretary of Agriculture was not authorized under this Act to request the Secretary of the Treasury to refuse admission into the United States of certain meats and meat preparations coming from Germany, because of the action of the German government in prohibiting the importation of similar goods into that country. (1903) 25 Op. Atty. Gen, 62,

1909 Supp., p. 137, sec. 2.

Certainty and definiteness. — This Act is not void for uncertainty and indefiniteness, in that no standard of grade, quality, or purity is prescribed, but that the determination of the standard is left to the courts, as such objection may be obviated by requiring specific and properly drawn pleadings. U. S. r. 420 Sacks Flour, (1910) 180 Fed. 518.

Conditions precedent. Although an indictment under the Food and Drugs Act for adulteration or misbranding is not demurrable because it contains no allegation of notice from the Department of Agriculture to the defendant of the result of the examination of the article, and that he was given an opportunity to be heard, as required by section 4 of the Act, since such prosecutions may be maintained by the district attorney under section 5 without the intervention of the department, such allegations and proof are necessary in all cases where the prosecution is instigated by officers or agents of the department; and if it appears on the trial that the case is such, there can be no conviction in the absence of such allegation and proof. U. S. v. Morgan, (1910) 181 Fed. 587.

When proceedings for violation of the Food and Drugs Act by adulteration or misbranding are instituted at the instance of the Department of Agriculture, whether such proceedings are in personam or for a forfeiture of goods under section 10, it would seem that the notice of examination and opportunity to be heard provided for by section 4 are necessary conditions precedent and must be alleged and proved; but under section 5 a district attorney may institute such a proceeding upon complaint of any state health officer or any adequate proof without the action of the agents of the department. U. S. r. Seventy-Four Cases Grape Juice, (1910) 181 Fed. 629.

"Misbranded or adulterated."-Where bottles containing intoxicating liquors were labeled as containing Monogram whiskey, and were marked "Blend," and the alcoholic content was less, and the residuum from 100 cubic centimeters was more, than the standard test prescribed by sections 6 and 7 of this Act, it was held that they were misbranded and adulterated." State r. Intoxicating Liq. uors, (1909) 106 Me. 135, 76 Atl. 268.

The officers of a corporation which manufactured a food product, shipped by its manager in interstate commerce, which was adulterated or misbranded, were held to be subject to prosecution therefor where they employed the manager and authorized him to

ing to the states. U. S. v. 420 Sacks Flour, (1910) 180 Fed. 518.

Construction and validity. See note to McDermott v. State, (1910) 21 Ann. Cas. 1315.

This Act was cited in the following cases: Charles . U. S., (C. C. A. 1910) 183 Fed. 566; State v. Eckenrode, (Ia. 1910) 127 N. W. 57.

operate the plant and sell the product without restriction, and the previous course of business had been to ship on orders to other states. U. S. v. Mayfield, (1910) 177 Fed. 765.

Shipment induced by government agent. — The fact alone that the only interstate shipment shown of a misbranded food article by the manufacturer was secretly induced by an agent of the Department of Agriculture was held not to be a defense to a prosecution therefor under the Food and Drugs Act, the reasons for the action of such agent not appearing. U. S. v. Morgan, (1910) 181 Fed. 587.

Mere receipt without delivery. - The mere receipt of an adulterated or misbranded drug does not constitute an offense, where claimants have not delivered, or offered to deliver, the drug in unbroken packages; and it appears that the claimants retained the packages in their possession, opened and tested them, and caused the standard of strength, quality, and purity to be plainly stamped on the containers prior to seizure. U. S. t. Five Boxes Asafoetida, (1910) 181 Fed. 561.

Brand. This section and section 10 require that a different brand or mark shall be placed upon an article transported in interstate or foreign commerce from that required by section 3449, R. S., 3 Fed. Stat. Annot. 795. (1908) 26 Op. Atty.-Gen. 474.

Sale by government officers. A sale under section 1241, R. S., 7 Fed. Stat. Annot. 1017, by government officers, of drugs and medicines purchased for the use of the army and afterwards condemned as being unfit for use, is as much subject to the provisions of the Food and Drugs Act as a sale by a private person would be under similar circumstances, and would render the officers making the sale liable under that Act, unless the drugs and medicines so sold were labeled in accordance with its provisions. (1908) 26 Op. Atty. Gen. 546.

Regulation of sales. This Act regulates sales in the District of Columbia and the territories, but does not extend to sales of importations into one state from another so as to extend to and cover the regulation of such sales by a state law. McDermott r. State, (1910) 143 Wis. 18, 126 N. W. 888.

Information. Since a defendant may not be imprisoned in the penitentiary unless sentenced to confinement for more than a year, no imprisonment in the penitentiary can be imposed for violation of this Act; and hence the institution of proceedings thereunder by