F. & D. No. 655.
I. S. No. 8090-a.	
Issued June 4, 1910.
United States Department of Agriculture,
OFFICE OF THE SECRETARY.
NOTICE OF JUDGMENT NO. 32!6, FOOD AND DRUGS ACT.
ADULTERATION AND MISBRANDING OF "CELERY COLA."?
(SOFT DRINK CONTAINING COCAIN AND CAFFEIN.)
On or about October 6, 1908, J. C. Mayfield, J. G. Bradley, J. F.?
Hawkins, and J. W. Altman, trading as the Birmingham Celery Cola?
Company, Birmingham, Ala., shipped from the State of Alabama to?
the State of Louisiana a consignment of a food product labeled?
"Celery Cola." Samples from this shipment were procured and?
analyzed by the Bureau of Chemistry, United States Department of?
Agriculture, and as it appeared from the findings of the analyst and?
report thereon that the product was adulterated and misbranded?
within the meaning of the Food and Drugs Act of June 30, 1906, the?
Secretary of Agriculture afforded the above named defendants,?
together with the dealer from whom the samples were procured,?
opportunities for hearings. As it appeared after hearings held that?
the said shipment was made in violation of the act, the Secretary of?
Agriculture reported the facts to the Attorney General, with a state??
ment of the evidence upon which to base a prosecution. In due?
course a criminal information was filed in the District Court of the?
United States for the Northern District of Alabama, charging the?
above shipment and alleging that the product was adulterated, in that?
it contained added poisonous and deleterious ingredients which might?
render the article injurious to health, namely, caffein, cocain, and?
cocain derivatives; and was misbranded, in that it contained cocain?
and that the quantity or proportion of such cocain contained therein?
was not declared upon the label.
As no service of process was had on J. C. Mayfield, the case against?
him was not prosecuted. To the information the defendants J. G.?
Bradley, J. F. Hawkins, and J. W. Altman entered pleas of not?
guilty, and, in due course, the case coming on for trial and a jury
43530?No. 32G?10
having been demanded by the defendants, the court, after hearing?
testimony submitted and arguments of counsel, submitted the case to?
the jury under the following instructions:
THE UNITRD STATES V. J. G. BRADLEY, J. F. HAWKINS, AND J. W. AMMAN.?
(District Court, N. D. Alabama, D. S.    March 11, 1910.)
GRUBB, District Judge, (Charging the jury): Gentlemen of the jury, the defendants?
in this case are charged with having violated certain provisions of what is known as?
the Food and Drugs Act, an Act passed by Congress in 1906, the purpose of which?
was to protect consumers against impure and adulterated foods and drugs and also?
against the use of foods or drugs which do not show what they contain by the brands?
on the package. Congress did not have any power to make this law concerning matters?
relating to commerce entirely within one State, but only as to commerce between?
one State and another State. The States themselves have the exclusive power to?
regulate their own internal commerce. So the prohibition of this act is directed?
only against the introduction into interstate commerce of any article of food or drink,?
or of any drug, either adulterated or misbranded. These two acts, adulteration and?
misbranding, are made offenses when they occur in an article which is introduced?
into interstate commerce. Now you will see that the first proposition in this case?
will be whether or not this shipment was one of an interstate character. This prop??
osition is simplified for your consideration, however, by the admission that this par??
ticular jug, which is made the subject of this prosecution, was shipped from Bir??
mingham, Alabama, to New Orleans, Louisiana. Therefore it is conceded that it?
was introduced into interstate commerce by someone.
Now, as I say, the prohibition is against the introduction into interstate commerce?
of any article of food which is either misbranded or adulterated. I charge you that?
the shipment in this case was a food product within the meaning of the Act of?
Congress.
In order to make out a case under the first count of the information, which?
charges misbranding, three things would be necessary for you to believe from the?
evidence, and beyond a reasonable doubt. The first is, that there was in the ship??
ment some constituent which should have been, and was not, shown by the brand.?
The Act itself defines what constitutes misbranding in some respects. If the article?
shipped contains cocaine and that fact is not indicated by the brand, then the failure?
to so indicate its presence by the brand is defined to be misbranding. In order to?
convict on this count, you would have to find that there was cocaine in the jug?
which went to New Orleans, and that there was nothing on the jug which indicated?
that it contained cocaine, and that the defendants or some one or more of them?
were responsible for the introduction of that jug into i .terstate commerce. These?
three things you would have to be convinced of beyond a reasonable doubt to con??
vict under the first count of this information.
Now as to the presence of cocaine in this liquid there seems to be little dispute.?
The Government experts testified that it was there, and there is no contradiction of?
this fact by the defendants. Therefore, if the testimony of the Government experts?
convinces you beyond a reasonable doubt of the presence of cocaine in this liquid??
and you have no right to reject their testimony capriciously and without good?
cause?this fact is sufficiently established. It is conceded that this jug had no?
brand upon it indicating the presence of cocaine in the liquid in the jug.
Then, the next proposition for you to consider is whether or not these defendants?
were responsible for the introduction of this shipment into interstate commerce. It?
is admitted that this jug was introduced into interstate commerce by some one. The?
evidence shows that the order on which the jug was shipped was received by the
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Birmingham Celery Cola Company, and by it filled by shipping the jug from Bir??
mingham to New Orleans. Clearly the Birmingham Celery Cola Company primarily?
introduced this shipment into interstate commerce. The corporation, however, is?
not informed against in this prosecution. A corporation acts only by agents. The?
law is, that if any agent does an illegal act on behalf of his principal, he makes not?
only the principal liable for his act, but himself as well. An agent cannot shift the?
responsibility for wrong-doing altogether from his own shoulders onto those of his?
principal. If the act was illegal, the manager who filled the order and shipped the?
stuff would be responsible, even though his responsibility was shared by his princi??
pal. The manager is not informed against in this prosecution, however. The men?
who are informed against are stockholders and officers of the company. So far as the?
mere fact of their being officers and stockholders in the corporation is concerned, I?
charge you that it does not make them responsible in this prosecution; but their?
responsibility depends altogether upon whether or not they conferred on the mana??
ger the authority to ship Celery Cola from one State into another; and whether the?
shipment upon which this prosecution is based was made by the manager pursuant?
to the authority so conferred.
The question for you to inquire into is whether or not the defendants are shown?
by the evidence, to your satisfaction, to have given the manager the authority to do?
what he did in shipping this Celery Cola out of Birmingham to New Orleans. If,?
from the evidence, you are satisfied beyond a reasonable doubt that this authority?
was conferred upon him by the defendants, then they would be just as responsible as?
the manager or the Birmingham Celery Cola Company. The evidence tends to show?
that Celery Cola had been shipped during the time from January first, 1908, until the?
date of the shipment on which was based this prosecution, which was some time in?
October of that year. It also tends to show that, when this company began to get?
into financial difficulty, the defendants secured the manager to take charge of the?
plant, operate it and sell its product. That much is conceded by both sides. There?
is also evidence tending to show that they told the manager expressly to sell the?
Celery Cola on hand. And I take it that the operation of the plant and the conduct?
of the business would imply the authority in the manager to sell its product of what??
soever kind. I think that it is to be fairly inferred that the authority conferred on?
the manager by the defendants was that he carry on the business and dispose of the?
product as it had been done according to the previous course of business. If the?
authority of the manager, so conferred, was not expressly restricted to sales made?
in Alabama, and according to the previous course of business sales had been made?
to other states, a fair inference would be that the manager was authorized by?
defendants to conduct an interstate traffic in Celery Cola. So, if the previous course?
of business had been to sell without branding the packages as containing cocaine, a?
fair inference would be that the manager was authorized by these defendants to?
conduct the business without such branding. The fact that the defendants in all?
their testimony denied knowledge that Celery Cola contained cocaine is evidence?
that the previous course of business of the company had been to sell it without?
branding it as containing cocaine. If general authority was conferred on the manager?
by the defendants to sell Celery Cola, when he took charge, it would not be neces??
sary that express authority be given him to fill each order. Until the authority?
was revoked, it would cover all shipments without renewal on the occasion of each?
shipment.
The Celery Cola extract was manufactured in St. Louis and shipped by the manu??
facturers to the company of which defendants were officers at Birmingham. The?
extract was shipped in barrels, each barrel stamped with the guaranty, signed by?
the manufacturer, that the extract was neither misbranded nor adulterated within?
the meaning of the Food and Drug Act. The Birmingham company mixed the?
extract with a boiling syrup, composed of sugar and water, in the proportion of one?
part of the extract to ten parts of the syrup, and it was the syrup, so compounded,
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that was shipped by the Birmingham company in the conduct of its business. The?
defendants testified that they had no knowledge, during the time the Birmingham?
company handled the extract, that it contained either cocaine or caffein, in any?
quantities, and rely on the ninth section of the Act, which excuses the dealer, who?
buys the article from a manufacturer with the guaranty from him that the article is?
neither misbranded nor adulterated within the meaning of the Food and Drug Act.?
Proof of the absence of knowledge on the dealer's part that the article is obnoxious?
to some of the provisions of the Act is only a defense when the article is purchased?
from a manufacturer, and a guaranty taken from the manufacturer that it complies?
with the requirements of the Act. The second section of the Act prohibits the intro??
duction into interstate commerce of any article of food, or drugs, which is adulterated?
or misbranded. The ninth section provides that no dealer shall be prosecuted under?
the provisions of the Act when he can establish a guaranty, signed by the manufac??
turer from whom he purchased such articles, to the effect that the same article is not?
adulterated or misbranded within the meaning of the Act; in which case, the manu??
facturer shall be amenable to the prosecutions, fines, and other penalties, which?
would otherwise attach to the dealer. The purpose of Congress was to place liability?
for the violation of the law upon' some one in each instance. Primarily the liability?
is on the dealer who introduces the article into interstate commerce. The liability?
can be shifted from the dealer only by imposing the same liability upon the manu??
facturer. This can be done only by virtue of the manufacturer's guaranty to the?
dealer. If, for any reason, the guaranty is insufficient to impose liability upon the?
manufacturer, it remains where it primarily rested, upon the dealer. To have the?
effect of releasing the dealer from liability for the violation of the Act complained?
of in this prosecution, the guaranty must be of a character to impose liability for?
the same violation upon the manufacturer, if he were substituted for these defend??
ants in this case; otherwise, both parties would escape liability, and the purpose?
expressed by Congress be defeated. The Act says that the manufacturer who signs?
the guaranty shall be subject to the same prosecution and penalties as the dealer.?
If a conviction could not be sustained against the manufacturer upon its guaranty, if?
substituted for the defendants in this case, then the taking of the guaranty by defend??
ants would be no defense to their violation of the law in reference to the shipment?
in question, though they had no knowledge that it was adulterated or misbranded.?
In order for the manufacturer's guaranty to be effective to impose any liability upon?
him for any violation of law as to the article, which is the basis of this prosecution,?
the guaranty must relate to the identical article introduced into interstate commerce?
by the defendants as dealers. Otherwise the answer of the manufacturer to the?
prosecution would be that he had never guaranteed the article shipped by the dealer,?
and the answer would be complete. Change of the original package might not con??
stitute a change of identity. In this case there was more. The manufacturer fur??
nished the dealer with the extract, and the dealer shipped the syrup. Commer??
cially, if not chemically, the two were different. The extract was a mere constituent?
of the syrup, and not the syrup itself. The manufacturer did not guarantee the article?
shipped by the dealer and on which this prosecution is based; could not be con??
victed for the violation of the Act, charged against the defendants in relation to it,?
by reason of the guaranty, and for that reason the taking of the guaranty was not a?
protection to the defendants. When they changed the identity of the extract, they?
elected to abandon the protection of the manufacturer's guaranty and were responsi??
ble for the character of the new article, the syrup, made and shipped by them, or?
under their authority. Neither the defendants' want of knowledge of the presence?
of cocaine in the extract, nor the guaranty taken by them from the manufacturer, would?
excuse their failure to properly brand the jug, under this count of the information.?
The second count of the information charges the defendants with having intro??
duced into interstate commerce an article containing a deleterious ingredient, inju??
rious to health, viz., cocaine; and the third count relies in the same way upon an?
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article alleged to contain caffein. These counts are based upon adulteration, the?
statutory definition of which is, the adding to a food product of a deleterious ingre??
dient, injurious to health. The same principles as to the responsibility of these?
defendants for the acts of their manager, and with reference to the effect of the guar??
anty taken by them from the manufacturer, stated as relating to the first count,?
apply as well to the second and third counts. In order to convict on these counts,?
the jury must find further from the evidence, with the degree of certainty required?
in criminal cases, in the first place, that the Celery Cola shipped to New Orleans?
contained cocaine or caffein, under the respective counts, and then that either or?
both was deleterious and injurious to health. The presence of each of these sub??
stances in appreciable quantities in the jug of Celery Cola in question is testified to?
by the Government chemists, and is not disputed by any evidence offered by the?
defendants. You are the exclusive judges of the credibility of witnesses, but it?
would not be proper for you to capriciously reject testimony which is uncontradicted?
in the case.
If you determine the presence of either or both of these substances in the ship??
ment in question, it would then become your duty to determine from the evidence?
whether either or both, as used in Celery Cola, were injurious to health. As Celery?
Cola is intended for a beverage and not a drug, you would have the right in deter??
mining this question to consider the injury from the probable frequent and repeated?
use of the article as a beverage, rather than its rare and occasional use as a drug.?
You have heard the evidence of the Government witnesses, who are physicians, as?
to their opinion concerning the injurious qualities of both of these substances in the?
quantities found in Celery Cola, when used as frequently as beverages are likely to?
be used. The defendants introduced no evidence to contradict that offered by the?
Government. You are also the exclusive judges of its credibility, but should not,?
without good reason, disregard evidence not contradicted.
It is your duty to take the law of the case from the court, as it has been given to "?
you in this charge. Though your opinion might be that the law imposes a hardship?
upon these defendants in holding them responsible for the contents of an extract of?
which they were ignorant, and which they had purchased with a guaranty from the?
manufacturer; this opinion, if you entertain it, should not operate to prevent a con??
viction in this case, if you are satisfied beyond a reasonable doubt of the facts neces??
sary to constitute the offense, as I have defined it.
 If not so satisfied, it would be?
your duty to acquit the defendants, and the importance of the enforcement of the?
law should have no weight as against such a conclusion. The enforcement of no law?
is of sufficient importance to justify a conviction, except upon such evidence.
If you are satisfied to the degree required that the defendants are guilty of mis??
branding the jug of Celery Cola, exhibited to you, it would be your duty to find?
them guilty under the first count of the information. If you are satisfied that they?
are guilty of adulterating it with cocaine or caffein, then it would be your duty to?
find them guilty under the second or third counts, respectively, or both. If you are?
not so satisfied of their guilt in misbranding or adulterating the Celery Cola, which?
is the basis of the prosecution, then you should acquit them.
On March 11, 1910, the jury returned a verdict of guilty as to J. F.?
Hawkins and J. W. Altman and a verdict of not guity as to J. Gr.?
Bradley, and on April 7, 1910, the court imposed a tine of $25 on each?
of the defendants found guilty.
This notice is given pursuant to section 4 of the Food and Drugs?
Act of June 30, 1906.
WASHINGTON, D. C, May 12, 1910.
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JAMES WILSON,?
Secretary of Agriculture.