The motive and policy of the law which lies behind legislation of this general kind is highly promotive of public good. The evils sought to be removed and prevented spring out of conditions requiring tactful, and even delicate, treatment. Such laws, if arbitrarily enforced, may easily take the form of an unwise dictatorial interference with the pursuits of others. There is a natural temptation to overdo by trenching upon the domain which properly belongs to the ethics of the medical profession. There is danger, also, that the public will come to rely upon the protection promised by such laws, and therefore relax individual watchfulness. Such laws, therefore, should be administered in such a way as that honest and wellintentioned business may not be hampered, but the detection of frauds and cheats will be made sure, and their conviction and punishment rendered certain. The temptation even to those who cannot fairly be termed unscrupulous is to yield to the suggestions of greed and come as close to the forbidden line as they safely can. The only sure course in the administration of laws of this kind is to leave the determination of guilt or innocence in a given case to the sound judgment of a jury, supervised by the wisest scrutiny which the trial judge can give to make sure that no one is convicted without guilt. As has already been stated, this case discloses acts that are not far over the line of what the defendant might lawfully have done. The jury found, however, that it has transgressed that line, and we are not able to convict the jury of having misjudged the real facts in the case. The motion in arrest of judgment, and that for a new trial, are therefore both denied. WEEKS v. UNITED STATES (Circuit Court of Appeals, Second Circuit, May 13, 1915) 224 Fed. 64; N.J. No. 4047 In error to the District Court for the Southern District of New York. Judgment affirmed in part, reversed in part.87 Before LACOMBE, WARD, and ROGERS, Circuit Judges. LACOMBE, Circuit Judge. This cause comes here upon writ of error to review a judgment convicting plaintiff in error, who was defendant below, of violation of the Food and Drugs Act of June 30, 1906. There were three informations, and two counts under each. The first information dealt with an article of food called "Fruit Wild Cherry Compound." The first count on this information was quashed before trial. The second count charged shipment of such an article, which was misbranded, because it was labeled "Fruit Wild Cherry Compound ", whereas it consisted chiefly of imitation wild cherry essence artificially colored. The second information, in its first count, charged the shipping of the article which "was adulterated in that it was artificially colored with a coal-tar dye in such manner as to simulate a fruit wild cherry Affirming in part, reversing in part, United States v. Weeks, p. 519, ante. Affirmed, Weeks v. United States, p. 867, post. and in a manner whereby its inferiority was concealed." The second count charged the selling and offering for sale of the article under the distinctive name of another article. The article and the label in all these counts were the same. The third information in its fruit [first] count charged the shipment of an article of food labeled "Special Lemon. Lemon Terpene and Citral." This label was charged to be false and misleading because the statement in it would indicate that the article was a product derived from lemon, whereas it was in fact not a product derived from lemon, but was a mixture containing alcohol and citral derived from lemon grass and was an imitation of lemon oil. The second count charged the offering of such article for sale under the distinctive name of another article to wit, a product derived from lemon. 66 Defendant was convicted under all five counts. The case calls for the construction of sections 7 and 8 of the Pure Food and Drugs Act. Prior sections forbid in general terms the manufacture and shipment in interstate commerce of any article of food or drugs which is adulterated or misbranded. Those two sections (7 and 8) undertake to define the words "adulterated" and "" misbranded as used in the statute. Had they been phrased in general terms it might not be difficult to construe and apply them to the concrete facts of each case as they are developed on a trial. But the draftsman apparently thought that the more words he used the more plainly would he express the meaning intended. Not unnaturally an opposite result has been accomplished. The sections are most difficult of construction; possibly the phrasing of some of their provisions may operate to defeat the object probably intended. But we can not rewrite the sections; if amendment be needed to make the act effective that will be a matter for the consideration of Congress. Considering now the charges as to the "Fruit Wild Cherry Compound", the labeling of which it is contended violates the provisions of section 8, subhead "In the case of food." The label indicates, we should suppose, to any intelligent mind that the article is a compound into which "Fruit Wild Cherry" has entered at least in sufficient quantity fairly to warrant the use of these quoted words. The testimony of defendant's own witness shows that the article contains absolutely no " Fruit Wild Cherry." It is therefore clearly within section 8, "Food" subdivision, paragraph second, because it is "so labeled as to mislead the purchaser ", and also within paragraph fourth, because its label bears "a statement regarding the ingredients or the substances contained therein, which statement [is] false or misleading in [the particular] that the compound contains Fruit Wild Cherry." If this were all, one might leave the subject. with a conviction that the statute, in its application to this case, had accomplished its apparent object. But the act contains an important proviso, apparently tacked on to the bill to protect various combinations on the market at the time. In order to appreciate the full force of this proviso, which concludes section 8, it is here quoted: 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 the following cases: First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced. Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word "compound," "imitation," or "blend," as the case may be, is plainly stated on the package in which it is offered for sale: Provided, That the term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only: And provided further, That nothing in this act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding. Now there is not a scintilla of evidence in the case to show that defendant's article contains "any added poisonous or deleterious ingredients"; therefore it is covered by the proviso (second clause), because it is "labeled to plainly indicate that it is a compound ", and the word "compound" is plainly stated on the package. In consequence it cannot, under the proviso, "be deemed to be misbranded." In the second information the charge is brought under section 7 of the act, which enumerates the conditions which will constitute adulteration of an article for the purposes of the act. The charge is that "Fruit Wild Cherry Compound" was adulterated, in that it was "artificially colored with a coal-tar dye in such a manner as to simulate a true fruit wild cherry and in a manner whereby its inferiority was concealed." Section 7 contains this clause: Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. The shipment is the same as that covered by the first information. The label is the same "Fruit Wild Cherry Compound." Manifestly the label does not state that the article is "Fruit Wild Cherry", but only that it is a compound which contains fruit wild cherry. Defendant's witness, who was familiar with the manufacture of the compound, testified that they soak wild cherry bark in water, filter the infusion, dilute it with alcohol, add benzaldehyde or oil of bitter almonds, fruit juice of raspberries, and some extract of orris and oil of rose. No fruit wild cherry enters into the compound. There was testimony from which the jury might find that the compound also contained a coal-tar color known as amaranth; that genuine fruit wild cherry has a red color; that the compound described by defendant containing fluid extract of wild cherry bark would not have this color; and that the amaranth gave to the mixture the genuine color of wild cherry juice. The testimony seems to indicate that the bark infusion of wild cherry is inferior to the fruit juice, and we should be inclined to sustain the verdict were it not for the proviso as to "compounds " above quoted. That proviso is found at the close of section 8, which section undertakes exhaustively to define "misbranding." Under ordinary rules of construction the operation of the proviso might be restricted to the section in which it appears, and it might be held not to qualify section 7, which defines "adulterations." But the draftsman of the act has been careful not thus to restrict it, because the proviso begins: 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 the following cases. Then follows the enumeration above set forth. The article in question is an article of food, and the information does not charge, nor does the testimony show, that there have been added to the compound "poisonous or deleterious ingredients." The proviso therefore requires a reversal of the conviction under this count. The second information deals with a different article, labeled "Special Lemon. Lemon Terpene and Citral." The first count charged that the article was misbranded; that the label was misleading, in that the statement would indicate that the article was a product derived from lemon, whereas the product was not a product derived from lemon, but was a mixture containing alcohol and citral derived from lemon grass and an imitation of lemon oil. The article seems not to be covered by the proviso, because the word compound" is not "plainly stated on the package in which it is offered for sale." The question is: Was the label false and misleading? It obviously indicated that the so-called "Special Lemon" was a compound of which lemon terpene and citral were components. The words "Special Lemon" do not, of course, import that the article was "lemon," a word which in ordinary speech denotes the fruit of a well-known citrus tree. There is no testimony that this word, standing by itself, has any distinctive trade meaning; there are lemon oils, lemon extracts, lemon juice, lemon essence, etc. The use of the words "special lemon " does not import any representation that the article is a variety of lemon oil. The testimony shows that lemon terpenes are the oily part-the hydrocarbon oils of the lemon, of the lemon peels; they are a by-product from the manufacture of lemon flavor. Citral is derived from lemon grass, a grass that grows in the East Indies. Where we have a label which indicates that the contents of the package consists of a compound of lemon terpene and citral, which compound the manufacturer designates as "Special Lemon," and the contents agree with the designation, we do not see how it can be held that there has been a misbranding within the meaning of the act. The second count charges that the same article was offered for sale as a product derived from lemon. A witness called by the Government, who was engaged in the manufacture of crackers at Atlanta, Ga., testified that he was visited there by a salesman of defendant; that the salesman showed him a sample in a bottle and told him it was pure lemon oil, which he was able to sell at a low price because it was "second pressing." The witness ordered some of it, which was sent to him by defendant. The salesman, called by defendant, denied the making of any statements as to the article being lemon oil. Upon this conflict of evidence the finding of the jury that the representations were made is controlling here, and it must be held that there was a misbranding under the statute, because section 8 defines misbranding as, inter alia, "offering an article for sale" under the distinctive name of another article, even though no label describing it as such other article be actually affixed to it. Since intent is not an element of the offense, defendant must be held liable for the act of his sales agent, although he had told him not to misdescribe the article. The judgment under this count is affirmed. WEEKS v. UNITED STATES (Circuit Court of Appeals, Second Circuit, May 13, 1915) 224 Fed. 69; N.J. No. 4055 In error to the District Court for the Southern District of New York. Judgment affirmed.88 Before LACOMBE, WARD, and ROGERS, Circuit Judges. LACOMBE, Circuit Judge. A much simpler case is here presented than that considered in action No. 1, opinion in which is filed herewith. There is but one information in a single count. Concededly defendant shipped an article of food labeled "Grain Alcohol Varnish "; it was shellac dissolved in alcohol and was used for a glazing on cheap candies. Shellac is a resinous material derived from a secretion caused by an insect biting the bark of certain trees in India and southern Asia. This resinous material is separated from the twigs and other refuse material by being warmed in bags. Arsenic is added to it for the purpose of brightening its natural orange color, making it, in the opinion of the trade, more desirable. All shellac imported into this country during the year in question contains this added article, defendant so concedes. The shellac is dissolved in alcohol to produce the varnish; no arsenic is added here. The act provides (sec. 7) that an article of food is adulterated if it "contain any added poisonous or other added deleterious ingredients, which may render such article injurious to health." The amount of this arsenic which could possibly be consumed by a person eating the candy glazed with the varnish would be minute. The only question is: Was there sufficient arsenic in the varnish to make it an article which "may be injurious to health?" Upon this point there was conflicting testimony. In accordance with the holding of the Supreme Court in United States v. Lexington Mill Co., 232 U.S. 399, the question whether the added ingredient would "reasonably have a tendency to injure health" was left to the jury. We see no reason to disturb their finding; it makes no difference whether the arsenic was added to the shellac or to the varnish, nor whether it was added by the defendant or by some one else. He testified with commendable frankness that he understood at the time that one "could not buy shellac commercially, I mean outside of a laboratory, that was arsenic free." He supposed undoubtedly that the amount consumed with varnished candy would be too minute to injure any one. Of course he could sell this varnish, with its added arsenic for use in the arts, but he admitted, with entire frankness, that he sold it to be used in glazing confectionery. We regret to have to sustain a conviction, where the defendant has been |