The Food and Drugs Act June 30, 1906. CHAPTER I. THE GENERAL PURPOSE AND SCOPE OF THE ACT. I. THE PURPOSE OF THE ACT. The purpose of the Act is indicated in the title,1 to prevent so far as within the constitutional power of the Federal Government to do so, the manufacture, sale or transportation of food or drugs which are either so adulterated as to be below the standard of quality expected by the purchaser, or are so poisonous or deleterious in themselves or by reason of the addition to them of poisonous or deleterious coloring or preservatives as to be injurious to health, or which are misbranded or labeled in such a way as to deceive the public as to their character, quality, locality of origin, or manufacture. The Act has been quite generally regarded as an Act passed in response to the demand of the public for protection from the deception practiced upon consumers by manufacturers of and dealers in foods and drugs. There is some ground for this view; and perhaps it was necessary, in order to secure the passage of the Act, that this idea should have been made more prominent than the facts really warranted and that the comparatively isolated instances of seriously harmful adulteration or misbranding so dwelt upon that 1Page 73. adulteration should be made to appear a general practice. As a matter of fact legislation along the lines of this Act and directed to the same purpose has long been desired by the large majority of manufacturers of and dealers in foods. and drugs as a measure of protection against the unfair competition of a small minority who for the sake of temporary gain have been willing to put upon the market foods and drugs which could be sold at a larger profit than the standard goods made and sold by the majority. Up to the present time no prosecutions have been brought under the Act, but the knowledge that the Act is upon the Statute Books, and that the necessary machinery for its enforcement is already provided for, and that it will be enforced, deliberately perhaps, and with all proper consideration for business interests, but without hesitation or doubt wherever necessary, has already very largely checked the serious adulterations and misbrandings of both foods and drugs. 2. SCOPE OF THE ACT-MANUFACTURE. The first section of the Act2 makes it unlawful to manufacture any article of food or drug which is adulterated or misbranded, within the meaning of the Act, within the District of Columbia or any Territory, the term Territory including, as provided in Section 123 the insular possession of the United States, and the Section provides for the punishment of any one violating this provision of the Act. Being expressly limited to the District of Columbia and the Territories this section of the Act does not apply to the manufacture of any article of food or drug in any State, whether adulterated or misbranded or not. This limitation is in recognition of the fact that Congress is not given by the Constitution the power to regulate manufacturing carried on within a State, and in so far as the manufacture of any article, such for instance as distilled and fermented liquors, oleomargarine, renovated butter and filled cheese, Commerce Within a State. 3 is regulated by Congress, such regulation is incidental to the raising of revenue, or to the exercise of some other power of Congress. But under the Constitution Congress may exercise exclusive legislation in all cases over the District of Columbia, and also has full power as regards the Territories. This section of the Act became effective January 1, 1907. 3. SCOPE OF THE ACT-COMMERCE WITHIN A STATE. Section 2 is so drawn as to limit the application of the Act, so far as concerns the dealing in adulterated or misbranded foods or drugs within any State, to the strict line of interstate or foreign commerce. It is the introduction into any State from any other part of the United States or from any foreign country, of adulterated or misbranded food or drugs, which is prohibited. The offenses punishable under the provisions of this Section are: the shipment or delivery for shipment to any point outside the State, either within the United States or in a foreign country, of adulterated or misbranded food or drugs; and the receiving from outside the limits of the State and delivering to any other person in original unbroken packages of any adulterated or misbranded food or drugs so received. It seems clear that the delivery to another person by a dealer in any State of adulterated or misbranded foods or drugs, whether in original unbroken packages or not, which were received by him from a wholesaler or manufacturer's agent in the same State would not render the dealer liable. The wholesaler or manufacturer's agent would be liable in such case for his delivery of the goods to the dealer, provided he received the goods from outside the State. If, however, the dealer receives the goods directly from outside the State and delivers such goods in original unbroken packages to any other person, he would be liable to the penalties provided in this Section. 'Page 73. 4. SCOPE OF THE ACT-ORIGINAL PACKAGE. So far as concerns the application of the Act to dealers in any State it is clear that it is essential, in order to constitute an offense under the Act, that the adulterated or misbranded food or drug must have been delivered to another person in the original unbroken package in which it was received from outside the limits of the State. The question of what constitutes an original unbroken package, is an important one. Under Regulation 2,5 original unbroken package is so defined as to include both the wholesale and the retail package. Apparently this is intended to include, for instance, in canned goods, each individual can as well as also the case or box containing, ordinarily, two dozen cans. There is no doubt that a single can, bottle or other package shipped separately, whether the package is suitable for the retail trade or not, constitutes an original package. Schallenberger vs. Pennsylvania, 171 U. S., 1. In re Beine, 42 Fed. Rep., 545. In re Harmon, 43 Fed. Rep., 372. Guckenheimer vs. Sellers, 81 Fed. Rep., 997. There is no doubt also that an original package within the law of interstate commerce is the package delivered to the carrier at the initial point of shipment, in the exact condition in which it was shipped. In the case of liquors in bottles, if a number are fastened together, and marked or are packed in a box, barrel, crate or other receptacle, such bundle, box, barrel, crate or receptacle constitutes the original package. Guckenheimer vs. Sellers, 81 Fed. Rep., 997. If, as indicated in Regulation 25, each unopened can or bottle taken from a case or box introduced into a State as a single package, is to be considered an original package, its sale or delivery to another person must be subject to the Page 83. control of Congress to the exclusion of the State in which the sale or delivery takes place and such sale or delivery of unopened cans or bottles so introduced into a State and being adulterated or misbranded, could not be made the basis of prosecution under the food or drug laws of the State. A package cannot be an original package for one purpose and not for another. If a bottle of whiskey introduced into a State as one of a number contained in a case or box, or a package of oleomargarine, renovated butter or filled cheese so introduced into a State, is an original package for the purpose of the Foods and Drugs Act, it is also an original package which as such may be sold within a State without regard to the requirements or prohibition of the laws of the State, except so far as Congress by Act of August 8, 1890, applying to liquor, and by Act of May 9, 1902, applying to oleomargarine, butterine, imitation, process, renovated, or adulterated butter, or imitation cheese, etc., has provided that original packages shall not be exempt from the operation and effect of State laws. It seems quite impossible to harmonize the evident meaning of Regulation 2 as to what constitutes an original package with the definition of original package as fixed by the decisions of the courts, and it would seem to be a necessary conclusion that the scope of this Act extends only to the sale or delivery within a State of adulterated or misbranded food or drugs in the unbroken original cases or boxes in which they passed from outside the State into it. The provisions of the Act do not apply to foods or drugs whether in original packages or not which are manufactured within a State and sold or delivered to another person within that State. 5. SCOPE OF THE ACT-INSPECTION OF MATERIALS. Regulation 16o, which provides that the Secretary of Agriculture may make inspections, as often as he may deem necessary, to determine whether any filthy, decomposed or "Page 90. |