Libby, McNeill & Libby v. United States

• Decision Date: 08 March 1945
• Docket Number: No. 199.,199.
• Citation: 148 F.2d 71
• Parties: LIBBY, McNEILL & LIBBY v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

148 F.2d 71 (1945)

LIBBY, McNEILL & LIBBY v. UNITED STATES.

No. 199.

Circuit Court of Appeals, Second Circuit.

March 8, 1945.

Breed, Abbott & Morgan, of New York City (Michael F. Markel, of New York City, and Lyndle W. Hess, of Chicago, Ill., of counsel), for appellant.

Tom C. Clark, Asst. Atty. Gen., T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y., Morris K. Siegel, Asst. U. S. Atty., of New York City (Vincent A. Kleinfeld, Atty., Department of Justice, and Arthur A. Dickerman, Atty., Federal Security Agency, both of Washington, D. C., of counsel), for appellee.

Before HUTCHESON, SIMONS, and CLARK, Circuit Judges.

SIMONS, Circuit Judge.

The Federal Security Administrator charged with enforcement of the Federal Food, Drug, and Cosmetic Act, acting under authority of § 401, 21 U.S.C.A. §§ 343(g), (k), 341, promulgated regulations establishing a definition and standard of identity for tomato catsup. The appellant produced and shipped in interstate commerce the condemned food product which concededly does not conform to the standard in that it contains sodium benzoate, a substance not permitted as an ingredient. The government's libel charged that the food was misbranded in violation of § 403(g), and this the appellant, as claimant, denies on the ground that the product was not sold as tomato catsup but as "tomato catsup with preservative", the labels upon the containers specifically declaring that the product does not conform to government standard for catsup, and contains 1/10 of 1% benzoate of soda.

Sections 403(g), (k), of the Act declare when a food is deemed to be misbranded, and insofar as the provisions are pertinent, they are printed in the margin.¹ The sole contention urged upon appeal is that the seized product being truthfully labeled, not deceptively packaged, and sold under a name accurately descriptive of its composition, is not misbranded within the meaning of § 403(g), because of the presence in the food of the sodium benzoate. It is urged that the branding of a product as relating to its characteristics and composition, is the sole basis for determining whether it is misbranded, and that the section does not have the effect, nor was it intended by Congress to have the effect of excluding any product from interstate commerce when it is sold for what it is. As a supplementary proposition, it is urged that misbranding of the specific product seized is not to be established by designations of identical products applied to them not by their producer but by retail dealers to their customers.

As produced and shipped by the appellant, the condemned food is packed in #10 cans with the described labels thereon. It is catsup as defined by the Administrator, to which there has been added the minute quantity of sodium benzoate as a chemical preservative. This preservative is harmless, is commonly used in other foods, including oleomargarine, preserves, and jellies, and does not affect the viscosity, taste, smell, or appearance of the catsup. It is explained that there is a wide variation in the degree of concentration of catsup, and a well-established practice in the trade to call a catsup of the higher concentration "fancy", and that of the lower concentration "standard". The difference in specific gravity between the two products is due to the difference in the quantity of added sugar, and the amount of added sugar is determined by the quantity of vinegar added. Catsup is rendered virtually sterile by heat processing, but will spoil after opening unless it contains a preserving agent. Vinegar, sugar, and salt, in combination, are good preserving agents when added in sufficiently large quantities. The amounts required by the standard are relatively small because added only as seasoning ingredients, so it had been the practice in the industry, quite generally, up to 1940, to add sodium benzoate to a lower concentration so as to give it a keeping quality comparable to catsup preserved by added sugar and vinegar.

While fancy catsup is packed in bottles for table use, standard catsup is packed in #10 cans and sold primarily to hotels, restaurants, and similar establishments, although standard catsup, to some extent, is used as table catsup in low priced restaurants. Generally, however, standard catsup is used in cooking and in the preparation of sauces. It costs about 25% less than table catsup because it contains less sugar which is a costly ingredient, and is in response to a demand for a less expensive product.

The district court found the product under seizure to conform in all respects to the definition and standard promulgated by the Administrator, except for the addition of the small quantity of benzoate of soda, but held that it purported to be catsup, and so, since it did not conform to the standard, was misbranded. Decision therefore turns upon the meaning of the word "purport" as used in § 403(g). The appellant contends that the label is controlling, that its product does not thereby purport to be catsup, even though it conforms in all respects to the standard, except for the added ingredient. It is a specific article, namely, tomato catsup with preservative, and since its label truthfully so indicates, there is no misbranding. The label may be disregarded only if it is assumed that § 403(g) expresses an intent on the part of the Congress to outlaw the manufacture of foods not conforming to applicable standards which, but for the standard, would be sold under the same common and usual name.

It is impossible for us, in the light of controlling authority, to accept the contention. The condemned food is tomato catsup, and purports to be tomato catsup.² If producers of food products may, by adding to the common name of any such product mere words of qualification or description, escape the regulation of the Administrator, then the fixing of a standard for commonly known foods becomes utterly futile as an instrument for the protection of the consuming public. Here is no arbitrary or...