4034= (Supplement to Notice of Judgment 3375). Misbranding and alleged adulteration of?
macaroons. U.S. v. JT. B. Washburn & Co. Decision of the Circuit Court of Appeals?
for the First Circuit affirming the judgment of conviction of the lower court upon a?
charge of misbranding macaroons and reversing the judgment of conviction upon?
the charge of adulteration of macaroons.   (P. & P. No. 2247.   I. S. No. 1928-e.)
On March 19, 1915, P. B. Washburn & Co., defendant corporation, which had been?
convicted on January 10, 1913, in the District Court of the United States for the Dis??
trict of Massachusetts in a case involving the interstate shipment of a quantity of?
misbranded macaroons, which were also alleged to have been adulterated, was ordered?
by the court to pay a fine of $100 upon the verdict of guilty returned by the trial jury.?
On the same date (March 19, 1915) the defendant's bill of exceptions, theretofore filed,?
was allowed by the court; the petition for writ of error was also filed and allowed by?
the court, as was the assignment of errors. It was also ordered that the said writ of?
error operate as a stay of proceedings under the sentence of the lower court and that?
the execution thereof be superseded pending said writ of error.?
, On July 16,1915, the case having come on for hearing in the Circuit Court of Appeals?
for the First Circuit before Putman, Bingham, and Aldrich, J J., the judgment of?
conviction in the lower court in so far as relates to the charge of misbranding of the?
macaroons was affirmed, and the judgment of conviction in the lower court upon the?
charge of adulteration was reversed, as will more fully appear from the following?
decision by the said circuit court of appeals (Bingham, J.):
This is an information brought by the United States under sections 2, 7, and 8 of?
the Food and Drugs Act of January 30, 1906 (34 Stat at Large, p. 768, c. 3915). It?
contains two counts. In the first count the Government charges that, on August 1,?
1910, the respondent, at Brockton, in the district of Massachusetts, unlawfully and?
knowingly shipped and delivered to a carrier for shipment and carriage from said?
Brockton to Greensburg, in the State of Pennsylvania, certain food called "maca??
roons,
" which food was adulterated within the meaning of the act of Congress approved?
June 30, 1906, "in that a substance, to wit, glucose, had been mixed and packed with?
said food so as to reduce and lower and injuriously affect its quality or strength." In?
the second count it was chargedthat the food shipped as aforesaid was misbranded?
within the meaning of the act, "in that the label on said food and its containers, and?
the package containing the same, did bear a certain statement regarding said food?
which was false and misleading in certain particulars; that is to say, the statement,?
in substance and effect, following: 'Macaroons,' whereas in truth and in fact said?
food was not macaroons."
There was a trial by jury, and a verdict of guilty was rendered on each count. The?
case is now here on the respondent's bill of exceptions, and the errors assigned are to?
the refusal of the court to direct, verdicts for the respondent at the close of all the?
evidence, to its refusal to give certain requested instructions, and to the admission of?
certain evidence.
The provisions of the statute relied upon to sustain the first count read as follows:?
"    "SEC. 7. That for the purposes of this act an article shall be deemed to be adulter??
ated:   * ..*   *
"In the case of food:?
?   "First, if any substance has been mixed and packed with it so as to reduce or lower?
or injuriously affect its quality or strength."
It was stipulated between the parties, and the stipulation was put in evidence, that?
the food in question was shipped by the respondent in interstate commerce, as set?
forth in the information, that it contained 29.44 per cent of commercial glucose and?
that the package containing the food was labeled as the information alleged. There?
was also evidence that the food contained 42.76 per cent of cane sugar.
At the trial the principal question in diapute was as to what the article of food?
known as a "macaroon" consisted. There was evidence tending to show that it?
consisted (1) of ground almonds, sugar, and the white of eggs; (2) of coconut, sugar,?
and the white of eggs; and (3) of coconut, sugar, the white of eggs, and glucose. On?
the count for adulteration one of the Government's positions was that a macaroon was?
an almond cake, but whether it was a cake of almond or coconut it was adulterated if?
glucose was added. The respondent's position was that a macaroon was a cake made?
of coconut, sugar, the white of eggs, and glucose, and it requested the court to charge?
the jury, in substance, that if they found a cake so made was a macaroon they should?
acquit the defendant of the charge of adulteration. The court refused to give this?
instruction, and charged the jury that the question for them to consider on this count
N.J. 4001-4050.]   SERVICE  AND REGULAT'OEY ANNOUNCEMENTS.	41
was "whether the cakes which the respondent admitted having shipped in interstate?
commerce were adulterated, in that glucose had been mixed and packed with them?
so as to reduce or lower or injuriously affect their quality or strength, and that in con??
sidering'that question they need not determine whether the cakes shipped by the?
defendant were properly called "macaroons" or not^ but should consider that they?
were macaroons notwithstanding they had coconut in them. It thus appears that?
the court in its charge did not permit the jury to determine, on the first count, of?
what the article of food known as a macaroon consisted, but charged them, as a matter?
of law, that it consisted of coconut, sugar, and the white of eggs, and that they might?
find the product adulterated if the glucose, which the respondent admitted it put?
into its cakes, reduced or lowered or injuriously affected their quality or strength.?
The respondent, in view of the evidence, was entitled to have the jury, before reach??
ing a conclusion upon the question of adulteration, determine what a macaroon was.?
Indeed, it was essential, in view of the theory on which this branch of the case was?
tried, for them to do so in order to reach a correct result. If the jury found that it?
consisted of ground almonds, sugar, and the white of eggs, the respondent was entitled?
to be discharged, for there was no evidence that it shipped in interstate commerce maca??
roons made of almonds to which glucose was added. Then, again, if the jury found that?
a macaroon consisted of coconut, sugar, the white of eggs, and glucose, the respondent?
was entitled to be discharged, for the evidence disclosed that the article which it?
shipped in interstate commerce was so composed. There was only one contingency?
presented by the evidence and the allegations of this count on which the respondent?
could be found guilty, and that was in case the jury found that a macaroon consisted?
of coconut, sugar, and the white of eggs, and that the respondent, by adding glucose,?
thereby reduced or lowered or injuriously affected its quality or strength. This?
requested instruction should have been given, and the refusal to do so was error.
As to whether the food product of the respondent was adulterated by the addition?
of glucose?it being assumed that the article known as a "macaroon" was made of?
ground coconut, etc., without glucose?the evidence tended to show that commercial?
glucose or corn sirup was a corn product chemically produced; that it was a white,?
sweet sirup and in no way injurious to health; was about three-fifths as sweet as cane?
sugar, and contained greater food properties than cane sugar; that it was a viscid or?
sticky substance, and gave to the macaroon and caused it to retain a chewy quality;?
that a macaroon containing glucose was less pleasing to the taste, but whether this?
was due to a difference in the degree of sweetness between it and cane sugar, or because?
of the character of the taste, the evidence did not disclose. The only evidence on this?
point was that some of the witnesses said that they did not like a macaroon made with?
ghicose as well as they did one made with cane sugar.
The respondent requested the court to charge the jury that the law fixed no standard?
for sweetness in a macaroon, and also that they were not to consider, in determining?
the innocence or guilt of the respondent on the question of adulteration, the sweet??
ness of corn sirup as compared with the sweetness of cane sugar. It ia true that the?
law fixes no standard for sweetness of a macaroon; it is also true that the evidence dis??
closed that the degree of sweetness in a macaroon, whether made of coconut or?
almond, varies with different makers; that they use a greater or less amount of sweet??
ening as their fancy dictates. The court declined to charge the jury, as requested,?
in these respects, and simply told them that there was no dispute as to glucose not being?
as sweet as sugar; that it was only three-fifths as eweet as sugar, and that, while the de??
fendant's evidence was that this loss in sweetness was compensated for by other ad??
vantages in
 the use of glucose so that, on the whole, the cakes were not reduced or?
lowered or injuriously affected in quality or strength by its addition, that was for the?
jury to determine. From this it appears that the court told the jury they might find?
that a macaroon made of coconut in which glucose was used was adulterated, because?
glucose was less eweet than cane sugar, unless they found that other advantages?
derived from the use of glucose so made up for the loss of sweetness as, on the whole,?
not to reduce or lower or injuriously affect its quality or strength. As the law fixed?
no standard of sweetness for macaroons, the respondent was entitled to have the?
jury so instructed, and, as the evidence was such as not to warrant the jury in find??
ing that there was, in fact, any standard of sweetness for_ a macaroon, they could?
not consider the question of the degree of sweetness in arriving at a verdict on the?
question of adulteration; and, if the evidence would warrant no other conclusion?
than that of a difference in the degree of sweetness, then a verdict should have been?
directed for the respondent on this count. If, however, in view of the fact that the?
jury were permitted, in the course of the trial, to eat macaroons made according to?
the formula of the respondent, and macaroons made with sugar without glucose,?
it can be said that they had evidence before them as to the character of the taste?
of macaroons produced with sugar as compared with those made of sugar and glucose,
4:2	
BUREAU  OF  CHEMISTRY.	
{Supplement 11.
and that, because of this difference, macaroons made with sugar and glucose were?
less palatable than those made with cane sugar alone, then there may have been?
some evidence on which to submit the question to the jury. But this view of the?
evidence was not presented to the jury by the charge, and the .verdict was based?
apparently upon the evidence showing a difference in the degree of sweetness. For?
these reasons we are of the opinion that the verdict on this count must be set aside.
Furthermore, it seems to us that the trial on the first count proceeded upon a wrong?
theory, and that the allegations and proofs offered would not warrant a conviction?
for adulteration within the meaning of the act. The evidence discloses that a maca??
roon is a mixed food' composed of certain ingredients; that the name by which it is?
known is-distinctive; and that the added ingredient (glucose) which the respondent?
used in its cakes was not poisonous or deleterious to health. It is provided in sec??
tion 8, subdivision 4 (1), that a mixture known by a distinctive name shall not be?
regarded as adulterated if it does not contain any added poisonous or deleterious?
ingredient. The added ingredient here in question was neither poisonous nor?
deleterious, and, as the mixture or compound was known by a distinctive name,?
it was not adulterated within the meaning of the act. United States v. Forty Barrels?
of Coca Cola, 215 Fed. Hep., 535; id., 191 Fed. Rep., 431.
Upon the second count the contention of the Government was (1) that a macaroon?
as commonly understood, was made of ground almonds, sugar, and the white of eggs,?
and if an article made of ground coconut was labeled a.nd shipped as a "macaroon "?
it was misbranded; and (2) that whether, on the evidence, a macaroon should be?
found to consist of ground almonds or coconut, sugar, and the white of eggs, as those?
branded and shipped by the respondent, also contained glucose, they were not?
macaroons and were misbranded.
As there was evidence on this count from which the jury cotild have found that a?
macaroon
, as commonly understood, was made of ground almonds, sugar, and the?
white of eggs, and that those shipped by the respondent contained coconut, but were?
branded/'Macaroons," the Government was entitled to go to the jury on this count?
as to this* matter.
There was also evidence on this count, from which the jury could have found that?
a macaroon, as commonly understood, was made of ground coconut, sugar., and the?
white of eggs, and that those shipped by the respondent in interstate commerce were?
thus made Up, except that glucose was added; and the question is suggested whether?
the jury would be warranted in finding that, by the addition of glucose, the articles?
ceased to be macaroons, so that the respondent misbranded them by labeling them?
'' Macaroons." In the first count the court charged the jury that a cake made of coco??
nut, sugar, and the white of eggs was a macaroon fortbe purpose of adulteration, and?
that if they found those shipped by the respondent in interstate commerce contained?
glucose they might find that they were adulterated if their quality or strength was?
thereby lowered. The respondent urges that this produces this dilemma: That a?
cake made of coconut, sugar, and the white of eggs is a macaroon which may be adul??
terated by the addition of glucose, and also that it may be found not to be a macaroon,?
for the purpose of misbranding, if glucose is added. But, in view of the conclusions?
reachea with reference to the first count, we find it unnecessary to consider this?
contention. If the jury found that a macaroon consisted of coconut, sugar, and the?
white of eggs, then, inasmuch as those shipped by the respondent contained glucose?
and were branded
 "Macaroons," they were misbranded within the meaning of?
section 8, subdivisions 1 and 4 (1), for they were "an imitation of or offered for sale?
Under the distinctive name of another article " and were labeled so as to deceive and?
mislead the purchaser.    United States v. Forty Barrels of Coca Cola, BUpra.
We do not find it necessary to consider the question of evidence to which exception?
was taken, as it relates solely to the first count.
The decree, so far as it relates to the count for misbranding, is affirmed, but eo far?
as it concerns the count for adulteration it is reversed, the verdict is set aside, and the?
case is remanded to the district court for further proceedings not inconsistent with?
this opinion..
CARL VROQMAN, Acting Secretary of Agriculture,
WASHINGTON, D. CL, November 4, 1915.
N.J. 4001-4050.]   SERVICE   AND REGULATORY  ANNOUNCEMENTS.	43