smell and look like whiskey shall be labeled imitation whiskey.

The effect of this ruling is to make the use of the word "blend" on liquor composed in part of ethyl alcohol or neutral spirits, and in part only, of whiskey, misbranding under the Act as construed by the Department of Agri

culture.

The term "compound whiskey" is not permitted by the ruling, except as applied to a mixture containing a substantial proportion of whiskey. The same ruling applies to all other compounds, whether drugs or food products, that is, no preparation can be named after an ingredient which is not present.119

63. MISBRANDING PROPRIETARY FOODS--FORMULA.

The further proviso clause of the second proviso under "food" of Section 8120 recognizes the impropriety of so construing any of the provisions of the Act as to compel the manufacturer of a food product made by a secret process or formula to disclose such process or formula, so long as such food product is in itself wholesome and is not labeled or branded in such a way as to deceive the public.

Such proprietary foods are subject to the general provisions of the Act as regards adulteration and misbranding. If upon examination or analysis of samples or specimens of such foods, they are found to contain substances prohibited under the provisions of the Act, or if they are found to be materially different in character or quality from what they are represented to be, the proprietors may be proceeded against as provided for in Sections 4121 and 5.122 It will therefore be necessary for the proprietors of such foods to disclose by a statement on the label so much of the formula as may be necessary to comply with the general requirements of the Act regarding misbranding.

It appears from paragraph (a) of Regulation 8121 that

119 F. I. D. 63, Page 126.

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121 Page 75.

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this portion of the Act is construed to empower the Secretary of Agriculture to decide to what extent the names and percentage of materials used are to be stated on the label. The basis for this regulation does not clearly appear in the Act, nor is there any basis in the Act for the requirement in paragraph (b)122 of the same regulation requiring the factories in which proprietary foods are made to be open for inspection at all reasonable times.

The Act will probably be construed by the Courts to require the proprietors or manufacturers to see to it that their foods are free from adulteration and are not misbranded, and that for the purpose of avoiding misbranding the formula, or so much thereof as may be necessary, shall be stated on the label, and that the sole duty of the Secretary of Agriculture in the matter of proprietary foods is, as in the matter of any food or drug product, to determine whether from the analysis or examination of samples or specimens it appears that the provisions of the Act have been violated.

CHAPTER VI.

THE GUARANTY.

64. EFFECT OF THE GUARANTY.

The guaranty contemplated by Section 9123 is in effect an agreement by the manufacturer, packer, wholesaler or jobber that he will hold himself responsible for the food or drug products furnished by him to dealers. Without a guaranty retail dealers are liable under the Act, even in case of goods in original unbroken packages, if such goods are adulterated or misbranded, and it is no defense under the Act to show that such goods were received from another person and were not known by the retailer to be misbranded or adulterated, unless the person from whom the goods were received assumed responsibility for the character or quality by a written guaranty duly signed by him.

If a guaranty has been filed with the Secretary of Agriculture, the package containing the goods should bear the statement "Guaranteed under the Food and Drugs Act, June 30, 1906, Serial No.--" This statement should not be qualified by any other words. Such statement appearing on a package if no guaranty has in fact been filed, is misbranding under Section 8, for which the party placing it on the package will no doubt be held responsible.

65. FORM OF GUARANTY.

The guaranty may be a general guaranty filed with the Secretary of Agriculture covering all goods manufactured or sold by the guarantor, or all goods bearing certain specified names or trademarks made and sold by him, or it may cover only a particular shipment of goods, in which case it should identify and be attached to the bill of sale, invoice.

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bill of lading, or other schedule, giving the names and guaranties of the articles intended to be covered by it.

The guaranty, if filed with the Secretary of Agriculture, should be signed by the guarantor, and, under the present requirement of the Department, should be acknowledged before a notary. In case of a guaranty given by a firm, corporation or association, the member of the firm or officer signing for the corporation should make clear the fact of his authority to sign for the firm, corporation or association. No fee is charged by the Department of Agriculture for filing guaranties and assigning serial numbers.

No particular form of guaranty is prescribed by the Act or by the Rules and Regulations. It should, however, be drawn to cover precisely what it is intended to cover and no more. Wholesalers and jobbers dealing in a wide variety of goods coming to them in original unbroken packages from a wide variety of sources should avoid so drawing their guaranty as to assume responsibility for goods of the character and quality of which they can not be absolutely sure. Care should be taken in this matter particularly with reference to imported goods.

It is probable that guarantees accepted in good faith by dealers will be held sufficient to bind the guarantors and that technical defects in the guarantees will not relieve the guarantors from responsibility.

A wholesaler or jobber who purchases food or drug products from the producer or from anyone else may safely guarantee the goods so purchased to his customers, provided he has from the producer or other person from whom he purchased the goods, a guaranty covering them. In case of such double guaranty, it would be advisable for the wholesaler or jobber before guaranteeing to his customers that such goods are not adulterated or misbranded, to see to it that the guaranty given him by the person from whom he purchased sufficiently identifies the goods to make it possible to readily trace back any of them found to be in fact adulterated or misbranded.

It will probably be found desirable to limit guarantees to goods bearing distinctive trademarks or other marks which belong to the producer or dealer giving the guarantee. Where a producer or packer puts up goods for a wholesaler, jobber or other distributor and delivers them without labels, to be subsequently labeled, he cannot under his guaranty be responsible for the correctness of such subsequently attached label. If, however, the producer or packer applies labels furnished by the purchaser, his guaranty may properly cover both the question of adulteration and the question of misbranding.

66.

GUARANTY APPLIES TO UNBROKEN PACKAGES ONLY. A guaranty will be effective to relieve the dealer from responsibility only so long as the package remains unbroken. This is clearly the case as regards sales in the States and would seem to be also true as regards sales in the District of Columbia and the Territories. The guarantor can fairly be held responsible only for goods which reach the consumer in the same condition in which they left his hands. If the package is opened by the retailer, whether re-sold or not, he thereby assumes responsibility for adulteration or misbranding whether actually known to him or not.

67. GUARANTY-Not a Government GuaranTY.

The guaranty provided for by Section 9124 is not to be understood as a guaranty by the Department of Agriculture that the goods to which it applies are not adulterated or misbranded, but as merely an assumption of responsibility by the guarantor which does not relieve him from prosecution if the goods are in fact adulterated or misbranded.

Any statement on a label or package indicating that the Government or the Department of Agriculture guarantees the contents of the package is a false or misleading statement and as such is clearly prohibited by Section 8.125 See Decision of the Secretary of Agriculture No. 40,120 October 25, 1906.