United States v. Newton Tea & Spice Co.
| Decision Date | 21 January 1920 |
| Docket Number | 1736. |
| Parties | UNITED STATES v. NEWTON TEA & SPICE CO. |
| Court | U.S. District Court — Southern District of Ohio |
James R. Clark, U.S. Atty., and Allen C. Roudebush, Asst. U.S Atty., both of Cincinnati, Ohio.
McCauley & Simmonds, of Cincinnati, Ohio, for defendant.
On motion to quash the information. The defendant, upon the filing of the information, voluntarily appeared thereto, and moved to quash the same, upon the grounds First, that the information is indefinite and does not apprise the defendant of the facts constituting the alleged crime with such certainty and particularity as to enable the defendant to know what it has to meet; second, the information attempts to charge the defendant with the commission of a crime by way of argument and conclusion; and third, the court has no jurisdiction.
First. The information is brought under the Food and Drugs Act of Congress, June 30, 1906 (34 Stat.at Large, 768 (Comp. St. Secs. 8717-8728)), and charges the defendant with shipping in interstate commerce 50 cases of an article designed for food, known as 'Newton's Eggno,' which the information alleges was labeled to read:
'An excellent substitute for eggs * * * to be used for baking and cooking purposes * * * an article of real merit and far superior to the usual egg substitutes on the market, * * * composed of pure materials * * * one even teaspoonful to be used in place of each egg called for in recipes requiring eggs'
-- with directions for using and place of manufacture. A poster and circular are alleged to have been inclosed within the package, making like representations; but the contents of these, even if false, cannot be considered as violations of the act. United States v. American Druggists Syndicate (C.C.) 186 F. 387. The information further alleges that the aforesaid statements of the label were false and misleading, in that they represented to the purchasers that the article was a substitute for eggs, and could be used in place of eggs for cooking and baking, whereas, in truth, said article was not then and there a substitute for eggs, nor could the same be used in place of eggs for baking and cooking. The defendant contends that the information is deficient, in that it does not set forth why, or in what manner, the article cannot be used as a substitute for eggs in baking and cooking. The statements of the label above set forth were evidently designed to lead the ordinary housewife to believe that the contents of the package could be used in substitution for eggs in the ordinary preparation of food. The information expressly negatives the usefulness of the article for that purpose. It would seem, therefore, to be entirely sufficient to draw the issue upon that question, and, therefore, the motion in this respect is not well taken. This disposes of the first and second grounds assigned.
Third. Defendant contends that the court has no jurisdiction over the subject-matter, for the reason that the information does not state an offense within the terms of the act. In support of this contention it is argued that the article comes within the proviso of the fourth subsection of section 8 of the act by which it is provided that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in case, first, of mixtures or compounds which may now, or from time to time hereafter, be known as articles of food under their own distinctive names, and not in imitation of, or offered for sale under, the distinctive name of another article if the name be accompanied on the label or brand with a statement of the place where said article has been manufactured or produced; and, second, in the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends. Even though we assume it to be the duty of the pleader under this act to negative the terms of the proviso, or assume that the article in question is shown by the...
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