Confectionery is therefore by statute adulterated "if it contains terra alba, barytes, talc (or) chrome yellow." This much is not open to doubt.

Next it seems to me the Court may take judicial notice of the nature of the substances declared adulterants by statute. They are all undoubtedly mineral substances;-they are not all poisonous, though all possess color. Nor can it be said that they all possess flavor in the sense of that word as applied by most people to confectionery.

66

There being no punctuation between the phrase "or other mineral substances" and the phrase "or poisonous color or flavor," the word 'other must be held to apply to "mineral substance" and "poisonous color or flavor." But the enumeration of terra alba et al gives an illustration (so to speak) of 'mineral substances" and of “poisonous color" (i. e. chrome yellow), but so far as I understand the nature of the articles enumerated it does not give an instance of a poisonous flavor as distinguished from poisonous color.

46

Let therefore the rule so insisted upon by the defendant be applied and the Act be limited to mineral substances, poisonous colors and poisonous flavors ejusdem generis with the articles enumerated;-and it must then follow that while the proscribed poisonous color or flavor must be a mineral substance, it does not follow that every mineral substance to be proscribed must possess either poisonous color or poisonous flavor.

The Act is undoubtedly obscure in connecting color and flavor with substance, for strictly speaking neither color nor flavor can have substance, nor be mineral.

I am therefore inclined to think that this statute must be construed as prohibiting the use in confectionery of all mineral substances of the same nature as those enumerated, and of those enumerated some are well known to be merely inert, possessing no poisonous qualities whatever (e. g. terra alba and talc).

The best that can be said of silver is that it is inert, and it is just as much a mineral substance as is terra alba.

With some doubt I overrule the demurrer.

May 19, 1909.

The case having come on for trial on the issues raised by the allegations in the information and the defendant's plea of not guilty, was submitted to a jury on January 13, 1910, and the jury having heard the evidence, argument of counsel, and charge of the court, returned its verdict finding the defendant guilty, and the court imposed a fine of $100, with a stay of thirty days. The defendant thereupon gave notice of its intention to appeal from the judgment.

This notice is given pursuant to section 4 of the Food and Drugs Act of June 30, 1906.

WASHINGTON, D. C., March 4, 1910.

о

JAMES WILSON, Secretary of Agriculture.

249

.15

113

I. S. Nos. 2955-a and 10968-a.

F. & D. Nos. 593 and 761.

UNIV. OF MET

Issued April 7, 1910.

United States Department of Agriculture,

OFFICE OF THE SECRETARY.

NOTICE OF JUDGMENT NO. 250, FOOD AND DRUGS ACT.

MISBRANDING OF GLUTEN FLOUR AND GLUTEN FARINA.

On or about February 14, 1908, the Acme Mills Company, of Portland, Oreg., shipped from Oregon to California a consignment of a food product labeled "Gluten Farina Gluten Farina" and on or about November 20, 1908, said company shipped from Oregon to Washington a consignment of a food product known as "Gluten Flour". Samples from these shipments were procured and analyzed by the Bureau of Chemistry, United States Department of Agriculture, and as the findings of the analysts and reports thereon indicated that the products were misbranded within the meaning of the Food and Drugs Act of June 30, 1906, the Secretary of Agriculture afforded the Acme Mills Company and the dealers from whom the samples were purchased opportunities for hearings. As it appeared after the hearings held that the said shipments were made in violation of the act, the Secretary of Agriculture reported the facts to the Attorney General with a statement of the evidence on which to base a prosecution. In due course criminal informations were filed in the District Court of the United States for the District of Oregon, charging the above shipments, and that the products were misbranded within the meaning of the act, in that they were branded in a manner calculated and intended to represent to intending purchasers that gluten was the principal ingredient and constituent thereof, whereas in truth said food products contained but a very small percentage of nitrogenous matter and did not contain sufficient nitrogenous or glutinous properties to entitle them to the name gluten and did not contain more gluten than is found in ordinary whole wheat flour.

On February 18, 1910, said defendant entered a plea of guilty to each information and the court imposed upon it in each case a fine of $25.

This notice is given pursuant to section 4 of the Food and Drugs Act of June 30, 1906.

WASHINGTON, D. C., March 8, 1910.

JAMES WILSON,
Secretary of Agriculture.

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