Com. v. Di Meglio

• Decision Date: 16 April 1956
• Docket Number: No. 73,No. 72,72,73
• Citation: 56 A.L.R.2d 1120,385 Pa. 119,122 A.2d 77
• Parties: , 56 A.L.R.2d 1120 COMMONWEALTH of Pennsylvania v. Frank DI MEGLIO, Appellant in, and Nick Di Meglio, Appellant in
• Court: Pennsylvania Supreme Court

Page 77

122 A.2d 77

385 Pa. 119, 56 A.L.R.2d 1120

COMMONWEALTH of Pennsylvania v. Frank DI MEGLIO, Appellant in No. 72 and Nick Di Meglio, Appellant in No. 73.

Supreme Court of Pennsylvania.

April 16, 1956.

Lewis H. Van Dusen, Jr., Ernest L. Nagy, Henry S. Drinker, Philadelphia, Arthur D. Wingebach, White Plaints, N. Y., for appellants.

Lois G. Forer, Deputy Atty. Gen., Herbert B. Cohen, Atty. Gen., for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY, Justice.

These appeals involve the construction and application of the Act of May 13, 1909, P.L. 520, as amended, 31 P.S. § 1 et seq., known and hereinafter referred to as the General Food Law.

Appellants were convicted in a summary proceeding before a justice of the peace on a charge of violating the General Food Law and the regulations of the Department of Agriculture published in connection therewith, by offering for sale lemon pies containing artificial color. The Court of Quarter Sessions of Delaware County allowed an appeal and after a hearing de novo without jury at which extensive testimony was taken, defendants were again found guilty. The court en banc dismissed defendants' motion in arrest of judgment and later sentences of fines and costs were imposed. Appeals were taken to the Superior Court which affirmed the judgment of the court below in an opinion reported in 179 Pa.Super. 472, 117 A.2d 767. We allowed appeals from the decision of the Superior Court.

Appellants, Frank Di Meglio and Nick Di Meglio, are the proprietors of a restaurant and cafeteria business in the City of Chester. A representative of the Department of Agriculture in the regular course of his duties visited appellants' restaurant and obtained two pieces of lemon pie which were being held for sale to the general public. It is not disputed that these pieces of pie contained U. S. Certified Color in the form of artificial coal tar dye. ¹ They had been baked by the appellants and were made by adding a certain amount of eggs and water to a pie filling mix known as 'Jell-O Lemon Flavor Pie Filling and Pudding'. This mix was made by the General Foods Corporation in New York where it is packaged and shipped to the appellants in five- pound packages, the label of which specifies that U. S. Certified Color is contained therein. ² It was conceded by the Commonwealth at the trial that the presence of artificial color did not make the pies in question in any way unwholesome or harmful to health.

Section 1 of the General Food Law, supra, makes it unlawful for any person to offer for sale any article of food which is adulterated within the meaning of the Act. Section 3 of the Law provides, inter alia, that 'For the purpose of this act, an article of food shall be deemed to be adulterated, * * * Fourth. If it be mixed, colored or changed in color * * * whereby damage or inferiority is concealed, or so as to deceive or mislead the purchaser; or if by any means, it is made to appear better or of greater value than it is.' Section 8 charges the Department of Agriculture with the duty to enforce the Act and to '* * * make rules and regulations for the proper enforcement thereof, including rules and regulations setting up definitions and standards of articles of food * * *'. Pursuant to Section 8, the Department of Agriculture has promulgated certain regulations. Section 604 of these regulations defines bakery products as including pies; Section 1003 provides that 'Bakery products of all varieties, except cheese crackers and cheese wafers, shall be free from added color, either of synthetic (coal tar) or natural origin. The addition of pumpkin, squash, carrots or other highly colored ingredients to bakery products, which may give the fictitious appearance of egg richness, is prohibited regardless of labeling.'

Section 1003 of the regulations clearly exceeds the authority granted by the Legislature to the Department of Agriculture by Section 8 of the General Food Law in so far as it absolutely prohibits the use of added color in pies regardless of whether or not there is or may be deception of the general public. Under Section 8 of the General Food Law, the Department of Agriculture has authority to make rules and regulations for the proper enforcement of the law itself, and to set up definitions and standards of articles of food. Since Section 3, Fourth, of the General Food Law prohibits the use of added color only in those cases where damage or inferiority is concealed, or where the purchaser is misled, or where the product is made to appear better or of greater value than it is, regulation 1003 is invalid to the extent that it goes further and enjoins the use of added color under all circumstances in the manufacture of bakery products. The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the Legislature as expressed by the statute. Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528. See Lancaster Transportation Company v. Pennsylvania Public Utility Commission, 169 Pa.Super. 284, 82 A.2d 291.

We turn therefore to the statute itself. Although there are no cases interpreting Section 3, Fourth, of the General Food Law now being considered, in the recent case of Commonwealth ex rel. Woodside v. Sun Ray Drug Company, 383 Pa. 1, 116 A.2d 833, this Court set forth the governing principles where a statute has attempted to prevent the sale of a healthful and nutritious food product. We held that in the absence of proof of customer confusion between Malt-A-Plenty base, an admittedly healthful product, and ice cream, and of any sales of Malt-A-Plenty base as ice cream, its sale could not constitutionally be restrained. We pointed out that the basis of every exercise of the police power must be to promote the health, safety or general welfare of the public. We also stated that the Legislature, under the police power, may regulate or prohibit the sale of an article even though it is not harmful for public consumption if there is danger of fraud or deception of the public in substituting an imitation article for the genuine.

Section 3, Fourth, of the Law declares a food to be adulterated if it is colored or changed in color '* * * whereby damage or inferiority is concealed, or so as to deceive or mislead the purchaser; or if by any means, it is made to appear better or of greater value than it is.' We are of the opinion that the Commonwealth has failed to prove that the pies in question were adulterated within the meaning of the General Food Law. It is undisputed that appellants' pies were free from impurities, contained sound food value, and that none of the ingredients were in any way deleterious to health. The test of adulteration within the meaning of this section of the Law is not whether the article is fit for human consumption, but whether it has been mixed or colored to conceal damage or inferiority, or in such a manner that the public will be confused or deceived, or whether there is simulation in any manner by which an inferior product is made to resemble a superior one. Therefore the burden was on the Commonwealth to prove that appellants' pies contained damaged, inferior or less nutritious ingredients than some established standard for a lemon pie, and that the use of color concealed these defects, or that by some means an inferior pie was made to appear better than it was or to have a greater nutritional value than it actually had.

Statutes similar to that which is involved in the instant case have been considered on many occasions by the Federal Courts. In United States v. 88 Cases, More or Less, Containing Bireley's Orange Beverage, 187 F.2d 967, certiorari denied 342 U.S. 861, 72 S.Ct. 88, 96 L.Ed. 648, the Court of Appeals of the Third Circuit construed that portion of the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C.A. § 301 et seq., which provides that food is deemed to be adulterated if any substance is added thereto '* * * so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is.' The food, Bireley's Orange Beverage, was alleged to be adulterated in that it contained certain substances, including yellow coal tar dyes, so as to make it appear better or of greater value than it is. The Court said at page 972 of 187 F.2d: '* * * Without a finding that a marketable inferior product is likely to be confused with a specified superior counterpart, we think there can be no appearing 'better than it is' within the scope of disapproval of a section patently concerned only with confusion. Thus, in the case before us, proof of violation of the statute requires first description and definition of the superior counterpart, and second, proof that the consumer is likely to mistake the inferior for the superior.' The Court held that the United States could secceed only by showing that the ordinary consumer would confuse Bireley's with pure orange juice.

In United States v. Ten Cases, More or Less, Bred Spred, etc., 8 Cir., 49 F.2d 87, 90, the statute being construed provided that food shall be deemed adulterated "* * * if it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed." Bred Spred, which bore some resemblance to jam, contained substantially less fruit than ordinary commercial jam. The Court held that the product was not adulterated, saying at page 90: 'It is apparent that two things were required to be proven in the case at bar, as respects adulteration: First, that Bred Spred was a damaged or an inferior food product, because one or more of its constituents was damaged or inferior; second, that it was mixed in a manner whereby the inferiority was concealed. There was no proof of either of these...