United States v. Sixty Barrels of Wine

• Decision Date: 16 September 1915
• Docket Number: 4146.
• Citation: 225 F. 846
• Parties: UNITED STATES v. SIXTY BARRELS OF WINE.
• Court: U.S. District Court — Western District of Missouri

225 F. 846

UNITED STATES v. SIXTY BARRELS OF WINE.

No. 4146.

United States District Court, W.D. Missouri.

September 16, 1915

Francis M. Wilson, U.S. Atty., of Kansas City, Mo.

Thomas E. Lannen, of Chicago, Ill., and Scarritt, Scarritt, Jones &amp Miller, of Kansas City, Mo., for claimant.

VAN VALKENBURGH, District Judge.

Succinctly stated, the libel of the government charges that the wine in question was misbranded, in that the brands and labels on the barrels represented and stated the contents thereof to be 'Ohio Claret Wine,' when, in truth and in fact, it was not Ohio Claret Wine, but was a pomace wine, either in whole or in part, by substitution or otherwise. The defense is that the wine is Ohio Claret Wine, and denies that said barrels contained pomace wine, or that pomace wine has been substituted, in whole or in part, for claret wine in said barrels, or any of them. Claimant further asserts that said wine was made from red grapes, that a sugar solution was added, and also a small amount of artificial coloring, all in conformity to Food Inspection Decision 120 of the United States Department of Agriculture. Both the government and the claimant rely upon said Decision 120 in connection with the general provisions of the act in support of their variant contentions.

A great amount of testimony, expert and otherwise, was taken at the hearing. The issue framed is, however, not a complex one. It is incumbent upon the government to establish, by a fair preponderance of the evidence, to the satisfaction of the court: First, that the content of the barrels libeled was not Ohio Claret Wine, within the purview of the law, and of the definition established by the Food Department, and accepted and invoked by the claimant; second, that the content of said barrels was a pomace wine outright, or that a pomace wine had been substituted, in whole or in part, for Ohio Claret Wine. It will be readily seen, therefore, that the determination of the controversy must depend upon what the court finds the article to be, and it is to the solution of this disputed question that the evidence is directed. It follows that it is necessary, first, to determine what a legitimate claret wine must be; second, what the content of these barrels has been shown to be. Great prolixity of statement on the part of witnesses, and the technical character of the expert chemical testimony introduced, renders impracticable an extended analysis, in this memorandum, of the evidence produced at the trial. It will be sufficient if the court adverts with sufficient exactness to the essentials disclosed which control the conclusions reached.

Decision No. 120, above referred to, permits the addition of a sugar solution to grape must before fermentation. If the resulting product by complete fermentation of the must under proper cellar treatment does not contain less than 5 parts per 1,000 acid and not more than 13 per cent. of alcohol after complete fermentation, that product may be labeled 'Ohio Wine,' qualified by the name of the particular kind or type to which it belongs. Respecting pomace wine said Decision No. 120 has this to say:

'The product made in Ohio and Missouri by the addition of water and sugar to the pomace of grapes from which the juice has been partially expressed, and by fermenting the mixture until a fermented beverage is produced, may be labeled as 'Ohio Pomace Wine' or 'Missouri Pomace Wine' as the case may be. If a sugar solution be added to such products for the purpose of sweetening after fermentation they should be characterized as 'Sweet Pomace Wines.' The addition to such products of any artificial coloring matter or sweetening or preservative other than sugar must be declared plainly on the label to render such products free from exception under the Food and Drugs Act.'

We have, then, comprehended within the same decision the definition of Ohio Claret Wine and of Ohio Pomace Wine, which must govern this discussion, and to which, in fact, both parties appeal for justification. It will be noted that the permission to add artificial coloring matter is necessarily confined, by construction and context, to pomace wine. It appears, in view of the earlier clauses of the decision, to wit:

'It has been decided after a careful review that the previous announcement is correct, and that the term 'wine' without further characterization must be restricted to products made from untreated must without other addition or abstraction than that which may occur in the usual cellar treatment for clarifying and aging,'

-- that, with the exception of the addition of the sugar solution thereafter expressly permitted, all other additions and abstractions are excluded. Claret wine made from the entire content of the grape is conceived to require no addition of artificial coloring. Pomace wine made from the impoverished content remaining after the partial expression of the juice requires such coloring matter is restricted. No offense such the use of harmless coloring matter is restricted. No offense is charged because of the addition of the coloring matter, if the product should be held to be a claret wine; but this state of the law is pertinent as bearing upon the identity of this product. It is a matter to be considered by the court whether parties familiar with the law would be presumed to add coloring matter to a product from which, by the terms of the act, it is, at least inferentially, excluded, and whether they would not, in like manner, be presumed to add coloring to a product for which it is expressly permitted.

A pomace wine, then, under this act and within the designated territory, is any product made by the addition of water and sugar to the pomace of grapes from which the juice has theretofore been partially expressed and by fermenting the mixture until a fermented beverage is produced. Under this definition it is immaterial to what extent the juice has been partially expressed-- whether to a limited degree or almost entirely. The resulting product, made in other respects, as it is contended and admitted that this article was made, would be a pomace wine, and if such a situation is established by the evidence, then the charge in the libel is sustained, as also if a product thus falling within the definition of pomace wine has been added to or substituted for an unimpeachable Ohio Claret Wine.

It is necessary, as well as desirable, then, at the outset, to determine, if possible, some characteristic of Ohio Claret Wine which stamps and identifies it as the legitimate product, and the absence of which condemns the product as spurious in the eye of the law. The government, in this case, takes the positive ground that that essential characteristic is total tartaric acid, whether free or in the form of cream of tartar, or both; that in the finished wine, made in accordance with law, that constituent must not fall below a minimum fixed as 2 per mile. If it is found in appreciably less quantity than that, its absence indicates that a part of the total grape content has been withdrawn. In other words, that the product has been made from a pomace of grapes from which the juice containing the missing percentage of this characteristic acid has been partially expressed. This contention is, of course, combatted by the claimant.

The so-called wine under discussion was made by the claimant company at Sandusky, Ohio, from red grapes alleged to have been of Concord and Ives varieties in about equal proportions. These grapes were said to be not quite up to the standard, in that they were a little light in color, with a few berries, on some of the bunches, evidencing a slight effect of hail. They were, however, of fair quality and were up to the standard in that particular district for that year. They were delivered at the winery in the early part of October, 1912, and were treated and are alleged to have been made into wine that fall. About one year thereafter, to wit October 13, 1913, claimant shipped 60 barrels of this product to Antonio Basile & Co., Italian wine merchants, located in the north part of Kansas City, Mo. It was sold for 32 cents per gallon, being 5 or 5 1/2 cents less than the average price of Ohio Claret Wine at that time, and 4 cents more than the average price of pomace wine. This shipment was received in Kansas City 10 days thereafter, and, before storage by the purchaser, a food and drug inspector drew from one of the barrels four full quart bottles. These bottles were securely corked and the seal of the Bureau of Chemistry placed thereon. An analysis was made of two parts of this sample by Mr. Engel, a chemist of the Bureau of Chemistry, on the 23d day of November, 1913. This analysis...