I. S. Nos. 2939-a and 2940-a.	
Issued April 7, 1910.
F. & D. Nos. 458 and 459.
United States Department of Agriculture,
OFFICE  OF THE  SECRETARY.
NOTICE OF JUDGMENT NO. 249, FOOD AND DRUGS ACT.
ADULTERATION OF CONFECTIONERY?SILVER DRAGEES.
On or about March 19, 1908, the French Silver Dragee Company,?
of New York, N. Y., shipped from New York to California two con??
signments of confectionery labeled " Silver Dragees." Samples from?
these shipments were procured and analyzed by the Bureau of Chem??
istry, United States Department of Agriculture, and as the findings?
of the analyst and the report thereon indicated that the products?
were adulterated within the meaning of the Food and Drugs Act of?
June 30, 1906, the Secretary of Agriculture afforded the French?
Silver Dragee Company, New York, N. Y., and the dealers from?
whom the samples were purchased, opportunities for hearings. As?
it appeared after hearings held that the said shipments were made?
in violation of the act, the Secretary of Agriculture reported the facts?
to the Attorney-General, with a statement of the evidence on which to?
base prosecutions.
In due course a criminal information was filed in the Circuit?
Court of the United States for the Southern District of New York?
in substance and in form as follows:
CIHCXJIT COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT?
OF NEW YORK, IN THE SECOND CIRCUIT.
At a Stated Term of the Circuit Court of the United States of America for?
the Southern District of New York, in the Second Circuit, begun and held in?
the City of New York, within and for the District and Circuit aforesaid, on?
the second Wednesday of January, in the year of our Lord one thousand nine
hundred and nine, and continued by adjournment to and including the?day
of March, in the year of our Lord one thousand nine hundred and nine.
32699?10
Now comes Henry L. Stimson, United States Attorney for the Southern Dis??
trict of New York, who prosecutes herein on behalf of the United States, and?
for the United States respectfully informs the said United States Circuit Court?
for the Southern District of New York that French Silver Dragee Co., late of?
the City and County of New York, heretofore, to wit, on the nineteenth day of?
March, nineteen hundred and eight, at. the Southern District of New York, and?
within the jurisdiction of this Court, unlawfully did ship and deliver for ship??
ment from the City of New York, State of New York, to the City of San Fran??
cisco, State of California, an article of confectionery which at the time and?
place of said shipment customarily was used and was intended to be used for?
food by man, and which then and there contained a certain mineral substance,?
to wit, metallic silver; against the peace of the United States and their dignity,?
and contrary to the form of the statute of the United States in such case made?
and provided.
SECOND   COUNT.
And said Henry L. Stimson, prosecuting as aforesaid for the United States,?
further informs said Court that French Silver Dragee Co., heretofore, to wit,?
on the nineteenth day of March, nineteen hundred and eight at the Southern?
District of New York, and within the jurisdiction of this Court, unlawfully did?
ship and deliver for shipment from the City of New York, State of New York,?
to the City of San Francisco, State of California, a certain article of con??
fectionery described as Boules, which said article was customarily used and?
was intended to be used for food by man, and which said article of confection??
ery was adulterated in that it contained a certain mineral substance, to wit,?
metallic silver; against the peace of the United States and their dignity, and?
contrary to the form of the statute of the United States in such case made?
and provided.
HKNKY L. STIMSON,
U. 8. Attorney.
To this information the defendant, the French Silver Dragee Com??
pany, filed its demurrer, and on May 19, 1909, the demurrer came on?
duly for argument, and was argued, and the court having taken the?
matter under advisement, overruled the demurrer and filed its opin??
ion therein as follows:
UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK.
UNITED STATES OP AMERICA       1
vs.?
FRENCH SILVER DRAGEE COMPANY. J
ON DEMURRER TO INFORMATION.
The brevity of this memorandum does not indicate that in my opinion the?
question raised by this demurrer is trivial.
On the contrary it is extremely important and presents (I think) a question?
of first impression under the Pure Food Law which will ultimately require?
either amendment of the Act or decision of the highest Court.
I incline to the following view:
What is or is not an adulteration in commercial or scientific parlance is?
wholly unimportant, because Sec. 7 of the Act defines adulteration, and whether?
such definition squares with the views of the trade or of scientists is no con??
cern of the Courts.?
249
Confectionery is therefore by statute adulterated " if it contains terra alba,?
barytes, talc (or) chrome yellow."   This much is not open to doubt.
Next it seems to me the Court may take judicial notice of the nature of the?
substances declared adulterants by statute. They are all undoubtedly mineral?
substances;?they are not all poisonous, though all possess color. Nor can it?
be said that they all possess flavor in the sense of that word as applied by most?
people to confectionery.
There being no punctuation between the phrase " or other mineral sub??
stances " and the phrase " or poisonous color or flavor," the word " other"?
must be held to apply to " mineral substance " and " poisonous color or flavor."?
But the enumeration of terra alba et al gives an illustration (so to speak) of?
mineral substances" and of "poisonous color" (i. e. chrome yellow), but so?
far as I understand the nature of the articles enumerated it does not give an?
instance of a poisonous flavor as distinguished from poisonous color.
Let therefore the rule so insisted upon by the defendant be applied and the?
Act be limited to mineral substances, poisonous colors and poisonous flavors?
ejusdem generis with the articles enumerated;?and it must then follow that?
while the proscribed poisonous color or flavor must be a mineral substance, it?
does not follow that every mineral substance to be proscribed must possess?
either poisonous color or poisonous flavor.
The Act is undoubtedly obscure in connecting color and flavor with substance,?
for strictly speaking neither color nor flavor can have substance, nor be?
mineral.
I am therefore inclined to think that this statute must be construed as pro??
hibiting the use in confectionery of all mineral substances of the same nature?
as those enumerated, and of those enumerated some are well known to be?
merely inert, possessing no poisonous qualities whatever (e. g. terra alba and?
talc).
The best that can be said of silver is that it is inert, and it is just as much a?
mineral substance as is terra alba.
With some doubt I overrule the demurrer.
May 19, 1909.
The case having come on for trial on the issues raised by the alle??
gations in the information and the defendant's plea of not guilty,?
was submitted to a jury on January 13, 1910, and the jury having?
heard the evidence, argument of counsel, and charge of the court,?
returned its verdict finding the defendant guilty, and the court im??
posed a fine of $100, with a stay of thirty days. The defendant there??
upon gave notice of its intention to appeal from the judgment.
This notice is given pursuant to section 4 of the Food and Drugs?
Act of June 30, 1906.
JAMES WILSON,?
Secretary of Agriculture.
WASHINGTON, D. C, March ,?, 1910.
249