CHAPTER V.

MISBRANDING.

36. MISBRANDING IN GENERAL.

The provisions contained in Section 859 are the most important provisions of the Act. The Act prohibits adulteration and defines in Section 7 what shall be deemed adulteration, but there is nothing in Section 760 or in any Section of the Act which requires either foods or drugs to conform to any standard of strength, quality or purity, provided the food or drugs are sold or offered for sale for what they really are, and provided, of course, that they are not of a character which renders them unfit for use.

The main purpose of the Act is not necessarily to secure uniformity in food or drug products or to prevent the sale of substandard or even inferior foods or drugs, but to prevent the passing off upon the public of substandard or inferior foods or drugs labeled or branded or otherwise represented to be of standard quality, strength or purity.

Perhaps the best test of "misbranding" so far at least as concerns foods and drugs not subject to specific provisions of the Act, is the test prescribed in the Trademark Act of February 20, 1905, for determining the registrability of a trademark. In order to be registrable, a trademark must not so closely resemble a trademark owned or in use by another and applied to merchandise of the same descriptive properties "as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers."

Foods or drugs which bear a label or brand which correctly states the contents of the package in such a way as not "to be likely to cause confusion or mistake in the mind.

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of the public or to deceive purchasers" cannot be held to be misbranded.

37. MISBRANDING-FALSE TRADE DESCRIPTION.

The first paragraph of Section 861 appears to prohibit, in connection with foods or drugs, the use of what is termed in the British Merchandise Marks Act of 1887, a "false trade description." In view of the fact that in general purpose and to a considerable extent in language, the present Act is closely analogous to the Merchandise Marks Act, it is not unlikely that the numerous decisions of the English courts on the Merchandise Marks Act, while in no sense controlling, will be entitled to considerable weight in the construction and application of the present Act by the United States courts.

Under the Merchandise Marks Act, 1887, every person is subject to the provisions of the Act who

(d) applies any false trade description to goods,

and the Act defines "trade description" as follows:

The expression "trade description" means any description, statement, or other indication, direct or indirect.

(a) as to the number, gauge, or weight of any goods, or

(b) as to the place or country in which any goods were made or produced, or

(c) as to the mode of manufacturing or producing any goods, or

(d) as to the material of which any goods are composed, or

(e) as to any goods being the subject of an existing patent privilege or copyright,

and the use of any figure, word, or mark which, according to the custom of the trade is commonly taken to be an indication of any of the above. matters, shall be deemed to be a trade description

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within the meaning of the Act. The expression "False Trade Description" means a trade description which is false in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, where that alteration. makes the description false in a material respect, and the fact that a trade description is a trademark, or part of a trademark, shall not prevent such trade description being a false description within the meaning of this Act.

The provisions of this Act respecting the application of a false description to goods shall extend to the application to goods of any such figures, words, or marks, or arrangement or combination thereof, whether including a trademark or not, as are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are.

The Merchandise Marks Act provides that its provisions respecting "false trade description" shall extend to the application to goods, of a false name or initials, which it defines as meaning

(c) are either those of a fictitious person or of some person not bona fide carrying on business in connection with such goods.

It seems to be clear that the first paragraph of Section 8 of the present Act is intended to prohibit the use of the "false trade description" and false name or initials of the merchandise, and is perhaps capable of being construed to also prohibit statements, designs or devices which would not be within these terms of the British Act.

It should be noted that, while the Merchandise Marks Act provides that it shall be a sufficient defense if the defendant

Prior U. S. Statutes.

39

charged with applying a false trade description to goods shows

(b) that he took reasonable precautions against committing the offense charged, and

(c) that he had at the time of the commission of the alleged offense, no reason to suspect the genuineness of the trademark or trade description.

The present Act does not distinguish between wilful misbranding and unintentional misbranding. If the label or brand on the sample or specimen collected as provided for is false or misleading in any particular, the person responsible for such misbranding is liable under the Act without regard to the question of intent.

38. MISBRANDING PRIOR U. S. STATUTES.

The Act of August 14, 1876, makes the counterfeiting of a registered trademark and the selling or offering for sale of goods hearing a fraudulent trademark an offense punishable by fine or imprisonment. The Act then in force. providing for the registration of trademarks was, in 1879, held unconstitutional by the Supreme Court, because it was not limited to trademarks used in interstate or foreign commerce, and it has been generally considered that the Act of August 14, 1876, became obsolete and is now without force or effect. While Trademark Registration Acts were subsequently adopted, in 1881 and in 1905, there has been up to the present time no re-enactment of a law providing for the punishment of counterfeiting trademarks. The Act of July 1, 1902, prohibits, under penalty, the introduction into any State, or Territory, or the District of Columbia, from any other State, Territory, or the District of Columbia, of any dairy or food products falsely labeled or branded as to the State or Territory in which they are made, produced or grown. The marking or branding of oleomargarine, butterine, renovated butter, filled cheese, mixed flour and in certain respects of distilled and fermented liquors are regu

lated by Statute, and the misbranding of imported foods or drugs is prohibited by Statute. But the present Act is the first Act of general application to all food and drug products, whatever their origin, which prohibits misbranding.

39. MISBRANDING FALSE OR MISLEADING STATEMENTDESIGN OR DEVICE.

The first paragraph of Section 8,62 applying generally to both food and drug products, prohibits the use on the package or label of anything whatever which is calculated to deceive or mislead a possible purchaser as to the character or quality of the article to which it is applied, or as to the source from which it is derived. A purchaser may be mislead by pictorial matter as much as by direct statement in words, and may be as much deceived by omission to state facts of which he should be informed as by absolutely false statements. Food products which are prepared according to usual and generally understood processes and in which only the ordinary preservatives such as sugar, vinegar, salt, spices, or wood smoke are used need no statement to explain what they are nor is any explanation needed when food products contain only the color natural to them. But in the case of food products in which preservatives not commonly used and with which the general purchaser is not likely to be familiar, are used, or in which artificial colors are used, the purchaser has a right to know what preservatives or colors are used, and omission of such statement as to preservatives or colors as may be necessary to enable him to correctly inform himself as to the character and quality of the article offered him, is calculated to deceive and should not be permitted, and is not intended to be permitted by Section 862 of the Act. By necessary implication the first paragraph of this Section warrants the requirement that artificial color or preservatives other than those usually employed shall be stated on the label and wherever material to a proper understanding of the character and quality of

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