United States v. 30 CASES, ETC.
| Decision Date | 04 November 1950 |
| Docket Number | Civ. A. No. 1-74. |
| Citation | 93 F. Supp. 764 |
| Parties | UNITED STATES v. 30 CASES, MORE OR LESS, LEADER BRAND STRAWBERRY FRUIT SPREAD, etc. |
| Court | U.S. District Court — Southern District of Iowa |
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Wm. R. Hart, U. S. Atty., Iowa City, Iowa, Cloid I. Level, Asst. U. S. Atty., Des Moines, Iowa, William R. Sheridan, Asst. U. S. Atty., Keokuk, Iowa, for libelant.
Arthur L. Israel, Chicago, Ill., and Don E. Neiman, Des Moines, Iowa, for libelee.
This suit seeks to condemn articles of food under the provisions of Section 342 (b) (4) and Section 343(g) (1), Title 21 U.S.C.A., and the regulations promulgated by the Federal Security Administrator, pursuant to Section 341, Title 21, U.S.C.A., upon the claim that the foods in question were adulterated and misbranded when introduced into and while in interstate commerce.
Claimant made answer, admitting that the articles involved were "Foods" within the meaning of the Act, that these articles were shipped in interstate commerce, that definitions and standards of identity have been prescribed for strawberry, peach and apricot jams, and that the foods here involved do not conform to such definitions and standards.
Claimant denies that the articles are misbranded or adulterated, claiming that the articles seized do not purport to be anything else than "strawberry fruit spread", "peach fruit spread", and "apricot fruit spread," being plainly labeled with a list of all the ingredients in the order of their predominance and being clearly and plainly distinguishable from jams or preserves of the same flavor.
Claimant further affirmatively contends that the standards promulgated by the Administrator for jams and preserves do not apply to the articles here seized, in that, these foods are distinctive in content as well as in name, in the manufacture of which it has exclusive proprietary rights.
Claimant's answer further — "reserves the right to contest the validity of such definitions and standards as is provided for in Section 701(e) (6) of the Act." No evidence having been adduced in support of this last affirmative defense and no authorities shown in behalf thereof, no further consideration will here be given thereto.
The products seized were uniform 2 lb. glass jars which claimant sold to wholesale grocers and retail stores, which jars and lids are typical of the type used in packaging standard jams and preserves in the industry. The labels used are typical in appearance with standard jams, preserves and jelly labels, known in the industry as "spot labels". There appears no element of dissimilarity between the labels upon the seized articles and those customarily used on standard jams, preserves and jellies. The labels bore the words —
"Leader Brand Strawberry Fruit Spread" "Leader Brand Peach Fruit Spread" "Leader Brand Apricot Fruit Spread"
below which appeared in small type a list of the ingredients, but with no statement or notation as to the percentages of each.
The general appearance of the jar in each of these articles is similar as to color and consistency with similar sized jars of standard preserves and jams. It is true that each of the flavors seized was somewhat lighter in color and thinner in consistency than the related standard jams and preserves, but not so much so as to be discernible or apparent unless held up to the light and carefully observed. One of claimant's own witnesses, when confronted on cross examination, found himself unable to correctly distinguish between strawberry fruit spread and standard strawberry jam, although, on direct examination, the witness had stoutly maintained he was easily able to do so.
I must conclude that to the ordinary housewife or purchaser of the product from the grocer's shelf, no difference would ordinarily be detected between the products seized and the standard jams and preserves.
It was further shown by a preponderance of the evidence that the claimant on one occasion referred to these articles in its invoice as. "95 Cs preserves 3,040 lbs;" that at least one wholesale grocer likewise at times invoiced the articles in question in the same manner; that as late as March 20, 1950, the sales dodgers distributed to the retail trade by at least one wholesale grocer referred to the Leader Brand products as "fruit jam spread"; and in at least one newspaper advertisement by a retail store the following wording appeared in the ad in connection with one of the condemned articles: "Leader Brand Strawberry Jam"; and in some instances retail grocers themselves were confused as to whether these items were or were not jam.
The evidence discloses that the foregoing representations did not constitute the universal practice, but I must conclude that the showing made does establish by a preponderance of the evidence that there was a substantial amount of actual representation of these seized items to be jams and preserves.
Additionally, it was established without substantial controversy that the Leader Brand products were universally placed by retail grocers for display and sale in their stores in the jams, preserves and jelly shelf section thereof, with no notice of any kind to the unwary and inexperienced purchaser of any differential or distinction between the Leader Brand Products and the standard jams and preserves as to quality.
It is contended by the claimant that the very fact that a two-pound jar of the Leader Brand Product sold at a much lesser retail price than a comparatively sized jar of a standard jam or preserve should have been notice in and of itself. I cannot subscribe to this view. This court must notice modern merchandising methods which frequently make it possible for consumers to buy commodities below the cost price to the retailer himself, a fact well known to the ordinary housewife. Further, it is a matter of common knowledge that since the enactment of the Food, Drug & Cosmetic Act of 1938, 21 U.S.C.A. § 301 et seq., consumers of food products have come more and more to rely upon the uniform quality of standardized commodities, generally the effect of which is to make all less wary and more credulous. Indeed, the brand name itself — "Leader Brand" — appearing in bold print on the label gives further credence to the belief by many that the cheapness of the price of this product was due to the fact that it was a leader article.
Upon the question of adulteration, it should be noticed that the standard admittedly fixed for jams and preserves by the Administrator requires 45 per cent. fruit by weight and 55 per cent. sugar by weight, whereas the formula of composition under which the condemned articles were manufactured is as follows:
100 pounds of fruit
100 pounds of sugar
68.5 pounds of corn syrup
80 fluid ounzes of 50% citric acid solution
170 pounds of pectin solution
The batch is then cooked to 68% soluble solids content. Both standard jams and Leader Brand products contain 32% water. However, in the manufacture of standard jams no water is introduced from the tap, whereas in Leader Brand Products 22.8% of the water remaining in the product comes from the tap.
Section 342 (b), Title 21 U.S.C.A., provides that — "A food shall be deemed to be adulterated * * * (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight * * * or make it appear better or of greater value than it is."
A simple and direct application of the plain wording of the statute would seem to compel a conclusion that if the condemned articles purported to be standardized jams and preserves and were represented as such to the retail trade, that they were adulterated within the meaning of the last above quoted statute.
Having therefore concluded that the condemned foods were in fact "represented" as strawberry jam, peach jam and apricot jam, there remains but one issue for determination by the court, apart from the affirmative defense which will be later considered, that is, whether the condemned foods "purport" to be strawberry jam, peach jam and apricot jam, within the meaning of Section 343 (g)(1) of Title 21 U.S.C.A.
Both the legislative history and judicial interpretations of the Federal Food, Drug and Cosmetic Act disclose that the primary purpose and aim of Congress in enacting this important piece of legislation was not the protection of the merchants and traders, but rather the protection of the consuming public.
The House Committee on Interstate and Foreign Commerce, in reporting on S. 5, a precursor to the bill which was enacted into law, summed up the purpose of the proposed law in the following manner:
"This act seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30, 1906, as amended 21 U.S.C.A. § 1 et seq..
"While the old law has been of incalculable benefit to the American consumers, it contains serious loopholes and is not sufficiently broad in its scope to meet the requirements of consumer protection under modern conditions." H. Rep. No. 2139, 75th Cong. 3d Sess. p. 1.
The Supreme Court in speaking of the purpose of the Act state: U. S. v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L.Ed. 48. See U. S. v. Antikamnia Chemical Co., 231 U.S. 654, 665, 34 S.Ct. 222, 58 L.Ed. 419; U. S. v. Two Bags, Each Containing 110 Pounds, Poppy Seeds, 6 Cir., 147 F.2d 123.
To correctly interpret Section 343 (g), Title 21 U.S.C.A., with reference to whether an article of food in fact purports to be or is represented as a standardized article to the ultimate...
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