that the only food or drug that can be made the basis for proceedings under the Act, is the finished product and unless the specimen or sample collected as provided in Regulation 3 is shown on analysis to contain an adulterant or other prohibited substance it cannot be held to be adulterated.

It is not to be understood that these paragraphs or anything in the Act prohibits the addition of water or other proper diluent wherever necessary to reduce an article which is above standard strength to standard strength as, for instance, the addition of water to whiskey which is above proof for the purpose of reducing it to proof as expressly permitted under the Act of March 3, 1897.

29. ADULTERATION-FOODS-ABSTRACTION OF VALUABLE

CONSTITUENT.

Under the third paragraph12 under "food" in Section 7, a food product from which a valuable constituent has been wholly or in part abstracted is to be deemed adulterated.

Regulation 26,43 regarding the sale of waste material, though not designated as bearing upon this paragraph of Section 7, should evidently be read in connection with it. This paragraph seems capable of being read to prohibit the sale of skimmed milk or cheese made from skimmed milk. It is clear from Regulation 26, as well as from the general tenor of Section 8,** that nothing in the Act will be construed to prohibit the sale of skimmed milk or any other article from which any valuable constituent has been abstracted provided the skimmed milk or other article is sold or offered for sale for what it is and not as containing all of the constituents originally contained.

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The Act does not contemplate or intend to prohibit the sale as food of anything which is wholesome, provided it is not sold under any misrepresentation.

Concealment of Damage or Inferiority.

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30. ADULTERATION, FOODS-CONCEALMENT OF DAMAGE OR INFERIORITY.

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Under the fourth paragraph under "food" in Section 7, any article of food which is damaged or inferior which has been so treated by mixing, coloring, powdering, coating or staining as to conceal the damage or inferiority, is to be demed adulterated.

(a) Mixed. The term "mixed" appears to refer to the mixing of different substances to form what are referred to in Section 8 as mixtures, compounds or blends. The mixing of substances, one of which is damaged or inferior, in such a manner or in such proportions as to conceal such damage or inferiority is clearly prohibited.

(b) Colored. The use of coloring matter, whether in itself harmless or not, is prohibited by the paragraph if its effect is to conceal damage or inferiority. The use of coloring matter in food products is not prohibited provided the coloring matter is harmless and is not used to conceal inferiority. The coloring of butter is expressly permitted by the Act of August 2, 1886, and the coloring of cheese is permitted by the Act of June 6, 1896, neither of which Acts are repealed by the present Act.

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Harmless vegetable colors may be used for coloring foods and certain of the coal tar or analine colors may be used under the conditions and restrictions prescribed by the Secretary of Agriculture." But neither harmless vegetable colors nor permissible analine colors may be used if their use makes a damaged article appear to be sound or makes an article of inferior quality or character appear to be free from damage or of standard quality or character. The coloring of milk to make it appear richer than it is would be adulteration under this paragraph.

(c). Powdered. Under Regulation 1247 (b) and (c), any article of food which is reduced to a powder to con

ceal damage or inferiority in character or quality, will be deemed to be adulterated. Also any article of food to the exterior of which any powdered substance is applied with the effect of concealing damage or inferiority in character or quality will be deemed to be adulterated.

(d.) Coated. Under Regulation 1248 (d), any article of food to the exterior of which is applied a coating of any substance with the result of concealing damage or inferiority will be deemed to be adulterated.

(e). Stained. Under Regulation 1249 (e), any article of food which is exteriorly colored or tinted by the application of any substance with the result of concealing damage or inferiority will be deemed to be adulterated.

This paragraph is clearly so worded that its violation may be determined by examination or analysis of the finished product. The result rather than the intent is the thing to be consitlered under this paragraph, and the same is true of all of the provisions regarding both adulteration and misbranding. It is the finished product, whether food or drug, and the finished product only, upon which proceedings under the Act can be based.

31. ADULTERATION-FOODS-COLORS AND PRESERVATIVES:

Paragraph five under "food" of Section 750 provides that any article of food to which any poisonous or deleterious ingredient which may render it injurious to health has been added, shall be deemed to be adulterated. An exception is made with regard to preservatives applied to the exterior of an article of food in such a way that they do not penetrate the interior or any portion of the interior and must be removed either mechanically or by maceration in water or otherwise before the article to which they are applied can be used as food.

This paragraph applies only to poisonous or deleterious ingredients which are added to the food product. Any in

Colors and Preservatives.

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gredient, whether poisonous or deleterious or not, which is naturally present in fruit or other food material does not render a food product adulterated. The distinction is a necessary one, otherwise the use of certain fruits, for instance peaches or cranberries, would be prohibited by the Act, since the acids which these and some other fruits contain naturally, would be poisonous or deleterious if used in concentrated form, though in the minute quantities in which they are present in the fruit, they are not harmful to persons in normal health if harmful at all.

This paragraph clearly prohibits the use in food products of colors or preservatives which are poisonous or deleterious, and permits the use of only those colors or preservatives which are harmless. The paragraph does not make any exception as to colors or preservatives which are harmless if used in certain proportions, but are poisonous or deleterious if used in greater proportion, unless this is implied by the words "which may render such article injurious to health."

The Act does not expressly prescribe what colors or preservatives shall be deemed to be poisonous or deleterious, nor does it expressly authorize anyone to determine what colors or preservatives shall be deemed to be poisonous or deleterious. The Act does provide in Section 351 that the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor shall make rules and regulations for carrying out the provisions of the Act, and acting under this provision the Secretaries have, by Regulation 15,52 delegated to the Secretary of Agriculture the duty of determining the wholesomeness of colors, preservatives and other substances which are added to foods, with the proviso that the findings of the Secretary of Agriculture when approved by the Secretary of the Treasury and the Secretary of Commerce and Labor shall become a part of the Regulations. Any determination by the Secretary of

Agriculture of the wholesomeness of colors, preservatives and other substances which are added to foods, whether approved by the Secretary of the Treasury and the Secretary of Commerce and Labor or not, while no doubt entitled to great weight, is not binding upon the courts. Manufacturers of food products who use only the colors or preservatives which are approved by the Secretary of Agriculture, will avoid any risk of prosecution under the Act. Those who choose to use colors or preservatives not authorized by the Secretary of Agriculture take the chances of prosecution, but if able to show to the satisfaction of the court that the colors or preservatives are not in fact poisonous or deleterious, will not be held guilty of violation of the provisions of the Act so far as their use of such colors or preservatives is concerned.

In Regulation 39 of the Regulations governing the Meat Inspection of the U. S. Department of Agriculture, the preservatives permitted to be used in meats or meat products are "common salt, sugar, wood smoke, vinegar, pure spices, and, pending further inquiry, saltpeter." No colors may be used in meats or meat food products except such as may be approved by the Secretary of Agriculture.

Under the present Act the preservatives authorized to be used in meats and meat food products will be permitted to be used in food products, and certain other preservatives will be permitted under prescribed conditions and in prescribed quantities or proportion.

It is probable that benzoate of soda will be permitted to be used for a limited term of years in quantities not exceeding 1/10 of 1 per cent in catsup and perhaps a few other foods, and that the use of sulphurous acid for bleaching purposes in the manufacture of syrup and dried fruits will also be permitted, provided the sulphurous acid remaining in the syrup or the dried fruits does not exceed a prescribed percentage.

It is probable that a few of the analine colors claimed to be harmless will be permitted to be used for at least a lim