W.B. Wood Mfg. Co. v. United States

• Decision Date: 02 January 1923
• Docket Number: 3105.
• Citation: 286 F. 84
• Parties: W. B. WOOD MFG. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

286 F. 84

W. B. WOOD MFG. CO. v. UNITED STATES.

No. 3105.

United States Court of Appeals, Seventh Circuit.

January 2, 1923

June C Smith, of Centralia, Ill., and Taylor R. Young, of St. Louis Mo., for plaintiff in error.

Fred D Silloway, of Washington, D.C., amicus curiae.

Before BAKER, ALSCHULER, and EVAN A. EVANS, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

Judgment was rendered in the District Court in favor of defendant in error, libelant, confiscating certain coloring material, a product of coal tar oil, after plaintiff in error had intervened and a trial on the merits had occurred. The issues were very much narrowed by the answer, which admitted the manufacture and shipment of the objectionable material. Plaintiff in error denied that the coloring material was adulterated, denied adding poisonous or other deleterious ingredients injurious to health, and denied any misbranding of the commodity. The controverted issues were resolved in favor of the government by the trial judge, who found:

'First. That the can of coal tar color libeled in this case passed in interstate commerce and remained within the jurisdiction of this court unsold and in the original and unbroken package.

'Second. That sodium chloride and sodium sulphate had been mixed and packed with the coloring matter in said can, so as to lower and reduce and injuriously affect its quality and strength.

'Third. That sodium chloride and sodium sulphate had been substituted wholly or in part for quality color which the label on the can purported the article to be.

'Fourth. That the can of coal tar color libeled contained an added poisonous or deleterious ingredient, to wit, arsenic, which may render said article injurious to health.

'Fifth. That the statement borne on the label of the can, to wit, 'Warranted comply with all requirements, quality color,' is false and misleading, and labeled so as to deceive and mislead the purchaser.'

The coloring is manufactured for bakers, ice cream manufacturers, and soft drink producers, and the government chemist found it to consist of--

Sodium chloride . . . 39.14%

Sodium sulphate . . . 3.61%

Tartrazine . . . 30.00%

Orange II . . . 16.00%

Arsenic . . . 20 parts per million.

Balance-- moisture and heavy metals.

There are two kinds of color used in food-- cochineal, which is rarely used and not here involved, and analine color, which is the result of chemical combination produced by the mixture of two coal tar derivatives. In its preparation it is necessary to use sulphanilic acid, which contains more or less arsenic trioxide.

The judgment is predicated on (a) the presence of arsenic, (b) too much salt, and (c) false labeling.

Concerning the presence of the arsenic in the product, plaintiff in error contends that, unless the manufacturer adds the ingredient, arsenic, he is not liable under Food and Drug Act, Sec. 7, subd. 5 (Comp. St. Sec. 8723), which provides the test:

'If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health.'

Because of the word 'added,' it is urged that the finding should be in favor of plaintiff in error, for at no time was arsenic added to the coloring. It is further contended that the analysis fails to show arsenic in sufficient amount to render such article injurious to health.

It is established by the evidence that the arsenic in the coloring matter is traced to the sulphanilic acid, which was added to the coal tar derivative, and without this acid there would be no arsenic, or at least none in objectionable quantities. We therefore reject this first contention, for in the manufacture of this food product the manufacturer introduced the sulphanilic acid. In other words, the acid containing the arsenic was added to the coal tar product, and therefore arsenic was 'added.'

We are not satisfied, however, that arsenic in such quantity as to be injurious to health was present. The government recognizes the impossibility of eliminating arsenic entirely. In fact, the testimony shows that the elimination of arsenic would be at most but a matter of degree. The government certifies color when arsenic is present, and when only sightly less than that found in the confiscated product.

The evidence in the case does not present a disputed issue of fact, but rather a difference between chemists over the meaning of the words 'deleterious ingredient, injurious to health.' In recognizing that a small quantity of arsenic is not injurious to health, the government acknowledges that this term is a relative one. Arsenic is found in infinitesimal quantities in so many articles of food that it has been said that the air we breathe, the water we drink, the smoke and dust we inhale, and all the foods we consume contain arsenic. If the term be an absolute one, then they would all be condemned. The quantity of arsenic found in this coloring material is so infinitesimal that, when diluted as it is ordinarily used, it would take years to produce 'a dose' such as is ordinarily prescribed by physicians-- one-thirtieth of a grain. In other words, one would be required to drink 150,000 bottles of soda before he would have consumed a quantity of arsenic sufficient to equal the 'dose.'

It may be true that by further process the amount of this drug can be reduced, but complete elimination is impossible. The Congress has not assumed to define with absolute particularity what is or what is not injurious, and we cannot accept the testimony of the one...