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Imported Foods and Drugs.

IF

ment in the Act referred to that color shall be mentioned on the label. It is understood that the present Act will not be construed as preventing the importation or sale in original packages of teas, whether colored or not, which are not inferior to the standards established as provided for in the Act of March 2, 1897. Colored teas, if repacked within the United States and sold in interstate commerce, would seem to be subject to the provisions of the present Act as regards the use of colors, but unless coloring matter is added by the party repacking teas within the United States, the matter is not likely to be made the subject of inquiry by the Department of Agriculture.

14. SCOPE OF THE ACT-IMPORTED FOODS AND DRUGSREGULATIONS.

The form of the declaration to be signed by the shipper and attached to the invoice of food or drug products is prescribed by Regulation 33.16 Information as to other matters affecting importation of foods and drugs is given in Regulations 34 to 38.17

15. SCOPE OF THE ACT-SEIZURE IN TRANSIT.

Section 1018 of the Act is intended to provide for the seizure of any article of food, drug or liquor which is adulterated or misbranded, while in process of transportation from one State, Territory, District or insular possession to another. The intent of this Section is clear, but it is not clear how or under what circumstances the seizure may be effected. It would seem that the seizure provided for by this Section could be made only after and as a result of an analysis or examination of a sample or specimen by the Bureau of Chemistry of the Department of Agriculture, or under its direction and supervision, on which analysis the article of food, drug or liquor has been held to be adulterated or misbranded. There is nothing in the Act which would warrant the bringing of process of libel for condemnation of

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any article of food, drug or liquor by any district attorney except upon a prima facie showing that the provisions of the Act had been violated, and no provision is made for any showing that the provisions of the Act have been violated except the showing provided for in Section 41o based upon analysis or examination of a sample or specimen. It is hardly likely that any seizure in transit under Section 10 will be made until further legislation on the matter is had.

16. EFFECT OF THE ACT.

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It is probable that so far as concerns production and consumption within the States, the Act will not be effective to suppress the adulteration or misbranding of food and drug products until supplemented by State legislation. Many of the States have already adopted laws equally as stringent as this Act, some even more stringent, as to what shall be deemed adulteration or misbranding. Nearly all of the States which have not already adopted such laws are likely to do so in the near future. There is a strong movement in favor of the general adoption by the States of uniform food and drug laws on the lines of this Act, and it is probable that this movement will be successful.

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CHAPTER II.

PROCEDURE UNDER THE ACT.

17. COLLECTION OF SAMPLES.

The Act does not prescribe in what manner specimens or samples of foods and drugs shall be collected, leaving this to be provided for by the Rules and Regulations made by the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor.20 It should be noticed that the Act does not provide for the opening of packages for the purpose of taking samples, though as above pointed out in respect to imported foods and drugs11 the Secretary of the Treasury may open packages for this purpose. There seems to be no way under the Act by which specimens or samples may be collected except by purchase and Regulation 322 indicates no way except by purchase.

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The Act does not contain any provision by which a dealer can be compelled to furnish specimens or samples to an agent of the Department of Agriculture, even upon tender of the price.

As regards the manner of collecting samples, Regulation 3,22 being made under the authority of the Act, has the force and effect of law and its provisions must be strictly complied with by the collector, if proceedings under the Act are to be brought upon a specimen or sample collected by him. Of the three parts into which the sample is to be divided, or of the three packages purchased, one must be delivered to the party from whom purchased or to the guarantor. This delivery of the one part or package is evidently for the purpose of notice to the party from whom purchased or the guarantor that proceedings against him under the Act are contemplated. It is not required that

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the delivery of the one part or package to the party from whom purchased or to the guarantor should be made immediately upon the purchase. Evidently it cannot be delivered to a guarantor in another State or at a distance without considerable delay. It is probable, though not clear from the Regulation, that the one part or package in case of foods or drugs guaranteed under Section 9,23 should be delivered to the guarantor rather than to the party from whom purchased, as the retailer can hardly be considered as an agent of the guarantor for the purpose of accepting the implied notice of contemplated proceedings. If not delivered to the guarantor, the guarantor should be notified of the collection of the sample and to whom the part or package was delivered. It should perhaps be noted that any one who, pretending to be an agent of the Department of Agriculture, demands samples without offering payment therefor is an impostor and should be treated as such.

The Act contemplates, so far as concerns foods and drugs offered for sale in any State other than that in which they were manufactured or produced, that the sample shall be an unbroken package, or at least be taken from a package which is unbroken prior to the taking of the sample. No prosecution under the Act can be based on a sample taken from a broken package, and it is open to doubt whether a prosecution under the Act of a guarantor under Section 9 can be based on a sample taken from a package broken by the retailer even for the purpose of furnishing a sample. If an original unbroken package is taken as a sample and subsequently opened by an authorized agent of the Department of Agriculture, prosecution of a guarantor may no doubt be based on such sample.

In the District of Columbia and in the territories samples may be taken either from broken or unbroken packages. But for the purpose of prosecution of a guarantor under Section 9,24, it would seem to be necessary that the sample should be from an original unbroken package.

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Analysis or Examination.

18. COLLECTION OF SAMPLES-SUGGESTIONS.

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The fact that samples are collected should be taken as notice that the food or drug of which the sample is taken is suspected by the Department of Agriculture of being adulterated or misbranded, and whether the manufacturer or the dealer who is responsible for the character and branding of such foods or drugs knows such suspicion to be well founded or not, immediate steps should be taken to prepare such defense as can be made. If the food or drug in question is not known or believed to be adulterated or misbranded within the definitions of these terms accepted by the Department of Agriculture, the part or package delivered to the party from whom purchased, or to the guarantor, by the collector, should be at once subjected to examination by a competent chemist if the character of such food or drug is in question, and whether the question is one of adulteration or misbranding, the matter should be submitted to competent legal counsel.

19. ANALYSIS OR EXAMINATION:

The method of analysis is clearly explained in Regulation 425, and the course of proceedings after the completion of analysis or examination of samples is clearly set forth in Regulation 5.2

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There is no authority under the Act for any publication of the notice to the party from whom a sample was obtained that the examination or analysis shows the provisions. of the Act have been violated.

The notice, according to the wording of Section 4,27 is to be given to the party from whom the sample was obtained. In Regulation 520 this is construed to mean notice. to the party who is responsible for the adulteration or misbranding, that is, in case of foods or drugs guaranteed as provided for in Section 9,28 to the guarantor rather than to the retailer from whom the sample was actually purchased.

25 Page 84.

25 Page 85.

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28 Page 80.

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