United States v. 88 CASES, MORE OF LESS, ETC.

• Decision Date: 23 March 1951
• Docket Number: No. 10170.,10170.
• Parties: UNITED STATES v. 88 CASES, MORE OR LESS, CONTAINING BIRELEY'S ORANGE BEVERAGE.
• Court: U.S. Court of Appeals — Third Circuit

187 F.2d 967 (1951)

UNITED STATES

v.

88 CASES, MORE OR LESS, CONTAINING BIRELEY'S ORANGE BEVERAGE.

No. 10170.

United States Court of Appeals Third Circuit.

Argued December 19, 1950.

Decided March 23, 1951.

As Amended May 3, 1951.

Rehearing Denied May 28, 1951.

COPYRIGHT MATERIAL OMITTED

Henry S. Drinker, Philadelphia, Pa. (Hayward H. Coburn, Philadelphia, Pa., Lester E. Waterbury, Arthur D. Wingebach, and Stanley Thea, all of New York City, Joseph J. Summerill, Jr., Sidney P. McCord, Jr., Camden, N. J., on the brief), for appellant.

Grover C. Richman, Jr., Camden, N. J. (Alfred E. Modarelli, U. S. Atty., Newark, N. J., Edward E. Turkel, Washington, D. C., Edward K. Edelshein, Attorneys, Federal Security Agency, on the brief), for appellee.

Before MARIS, McLAUGHLIN, and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

Pursuant to its libel charging economic adulteration of certain food within the meaning of Section 402(b) (4) of the Federal Food, Drug and Cosmetic Act,¹ the United States seized for condemnation 88 cases of an article of food labeled "Bireley's Orange Beverage".² The charges thus asserted were tried to a jury in the District Court for the District of New Jersey with a resultant finding of adulteration and a decree of condemnation. This appeal by General Foods Corporation, the owner of the food, followed.

Section 402(b) (4) declares that: "A food shall be deemed to be adulterated * * (b) * * * (4) if any substance has been added thereto or mixed or packed therewith 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."

In this case the United States charged and undertook to prove that the "food" in question — Bireley's Orange Beverage — was "adulterated" within the meaning of the statute in that "substances" — particularly, yellow coal tar dyes, sugar, lactic acid, and orange oil — had been "added thereto or mixed therewith * * * so as to make it appear better or of greater value than it is."³ The appellant, General Foods Corporation, raised questions concerning the meaning and application of the statute, the sufficiency of proof, the correctness of the trial charge, and the admissibility of certain evidence.

Preliminarily, we consider an argument that the types of processing and manufacture covered by Section 402(b) (4) should be limited by a strict grammatical application of the words of the statute. Such an approach suggests that the noun "food" used in the introductory line of the section, and the articles and adverbs referring back to it be applied precisely and consistently to denote either an adulterated end product or an unadulterated original food. Further, it is argued that the statutory description of adulteration in terms of substances "mixed with" or "added to" a "food" limits the application of the section to situations in which the process of manufacture has been the modification of a basic identifiable and unadulterated article of food through the introduction of some additive.

We reject this restrictive analysis. In Section 402(b) (4) we think Congress has employed a very brief text, informally phrased in non-technical language, to cover generally a very considerable and diverse, but not precisely delimited, field of processing and fabrication. We view the language of the section as a comprehensive, if not always grammatically precise and consistent, description applicable to the manufacture and processing of foods generally, whether a recognized food is altered or sundry ingredients are combined or compounded to make what is essentially a new article of manufacture. Moreover, we think this broad coverage of diverse procedures is sufficiently clear for common understanding and practical application.

Such broad and non-technical construction of the language in question is supported by the only two cases which have come to our attention where Courts of Appeals have had to consider the scope of the section. In United States v. Two Bags Poppy Seeds, 6 Cir., 1945, 147 F.2d 123, the product seized was white poppy seeds which had been artificially colored with charcoal. The result was that they looked like naturally dark poppy seeds. The market for the naturally dark seeds was substantially better than that for white seeds. The court held that the product, artifically colored white seeds, was adulterated under 402(b) (4) because it appeared to be the naturally dark seeds although in fact it was not. "Food" in the introductory line of the section under this construction thus meant the artificial product. The Court in effect held that the processed article, artificially colored white poppy seeds, is an adulterated product because it is made by mixing with white poppy seeds (the base food) an additional product, charcoal, to cause the white poppy seeds to appear to be naturally dark poppy seeds, and thus better or of greater value than they, the white poppy seeds, in fact are. Under no technically grammatical reading of Section 402 (b) (4) could this result have been reached. Yet, under no circumstances could it be considered an unfair, improper, or surprising conclusion as to the meaning of the section in relation to the facts of the case.

A substantially similar problem was presented in United States v. 36 Drums of Pop'n Oil, 5 Cir., 1947, 164 F.2d 250. There, mineral oil artificially colored yellow to resemble butter, and used in popping corn in theatre machines, was held to be an adulterated product. The sense of the statute in relation to this process was clear. The grammar of its application was not treated as important.

In the context of the present case, it is our conclusion that the language of Section 402(b) (4) covers a situation in which the challenged process of manufacture was the inclusion of one or more designated ingredients among the primary integral components of a distinct fabricated article. It is not important whether the final product has been achieved by a direct dilution of orange juice or, as here, by a more complex process of fabrication.

More difficult questions arise in construing and applying the requirement of the statute that admixture shall have made the food "appear better than it is". To whom must the food appear better than it is? And how is it to be determined whether the food "appears better than it is"?

With reference to the first question, the trial judge charged the jury as follows: "Your function in this case is to determine whether any part of the public, the vast multitude which includes the ignorant, the unthinking and the credulous, and those who do not stop to analyze in making a purchase would be so misled." We have found nothing else in the charge which modifies the impression created by this statement. The jury was told that deceptive appearance to "any part" of the public sufficed and the significance of "any part" was emphasized and underlined by the accompanying reference to "the ignorant, the unthinking and the credulous". This was error.

The correct standard was the reaction of the ordinary consumer under such circumstances as attended retail distribution of this product. When a statute leaves such a matter as this without specification, the normal inference is that the legislature contemplated the reaction of the ordinary person who is neither savant nor dolt, who lacks special competency with reference to the matter at hand but has and exercises a normal measure of the layman's common sense and judgment. What constitutes the norm of common sense and judgment is peculiarly the province of the jury to decide by relating common experience in the conduct and reaction of people to the circumstances at hand and by weighing such evidence as may be offered of the actual reactions of numbers of ordinary people in similar circumstances. Congress has indicated no extraordinary standard in this section under consideration and we find no basis for imposing one.

In Section 403(f) of the Act which deals with misbranded food, it is expressly stated that the branding must be such as is "likely to be read and understood by the ordinary individual under customary conditions of purchase and use". It would be unreasonable to conclude that an abnormal and more burdensome standard results from the fact that Congress did not deem it necessary to specify a test in Section 402 (b) (4). We think that essentially the same standard should be applied to the determination of consumer reaction under both sections.

This formulation also disposes of an issue that has arisen whether such matters as bottling, labeling and retail price, as well as the taste and physical appearance of the food, constitute appearance under the statute. In our view, all customary circumstances of retail acquisition and consumption are relevant. Thus, the bottling and labeling of the libeled article are properly considered unless it is shown that some considerable part of the retail trade acquires the beverage without such packaging. Compare United States v. 62 Cases, More or Less, Containing Six Jars of Jam, 10 Cir., 1950, 183 F.2d 1014; certiorari granted, 1950, 340 U.S. 890, 71 S.Ct. 207. Of course, consumer habits in observing or not observing details of packaging are relevant and may be weighed by a jury in determining the effect of container markings upon the consumer.

We next consider what is meant by a description of food as appearing "better than it is" and what criteria are applicable to the determination of such apparent superiority over actual quality. It is not disputed that Bireley's orange drink is in a category of non-carbonated orange flavored soft drinks which has enjoyed a considerable public acceptance and for which there exists a substantial market. Several states have recognized this by establishing standards of quality and identity for such orange drink. This type of beverage has no great nutritive value but it is not deleterious.

The parties agree that Bireley's...