4597. Adulteration and. misbranding of tomato puree. ' U. S. * * * ? v??
1,000 Cases of Canned Tomato Puree. Tried to the court and &?
jury.     Verdict  favoralble   to  the   Government   as  to   1   can   and  in
favor o? claimant as to 45 cans,     Iiioel dismissed as to 47,04S cans
of the article.     (F. & D. No. 6912.    I. S. No. 2210-1.    S, No. E-414.)
On October 11, 1915, the United States attorney for the Southern District of?
New York, acting upon a report by the Secretary of Agriculture, filed in the?
District Court of the United States for said district a libel for the seizure and?
condemnation of 1,000 cases, each containing 4 dozen cans, of tomato purge,?
remaining unsold in the original unbroken packages at New York, N. Y., alleg??
ing that the article had been shipped, on or about September 28, 1915, and?
transported from the State of New Jersey into the State of New York, and?
charging adulteration and misbranding in violation of the Food and Drugs Act.?
The cases were labeled: " 4 Doz., Contents 10 oz. net, No. 1 tin, Ceres Brand?
Tomato Puree, Francis H. Leggett and Co., Distributors, New York." The?
retail packages were labeled: " Ceres Brand, Contents 10 avoir, oz. Tomato?
Puree, Francis H. Legget and Company, New York City, Distributors, Reg.?
U. S. Pat. Off."
Adulteration of the article was alleged in the libel for the reason that it?
consisted in particular [part] of a filthy, putrid, or decomposed vegetable sub??
stance, to wit, decayed tomato, contrary to the provisions of section 7, subdivi??
sion 6 under food, of the Food and Drugs Act.
Misbranding was alleged for the reason that the article was contained in?
cans with labels which bore a picture of a whole ripe tomato and contained no?
statement that the product was manufactured from peelings, cores, and trim??
mings, contrary to the provisions of section 8, first general paragraph, and?
paragraph second under food, of the said Food and Drugs Act.
On December 23, 1915, the case came on for hearing before the court and a?
jury, the trial continuing with adjournments until December 29, on which date,?
at the conclusion of the Government's case, the Court, Hand, J., dismissed the?
libel as to all of the cans except 46, which had been opened and analysed by the?
Government's analysts. This action was taken upon motion of counsel of Francis?
H. Leggett & Co., New York, N. Y., claimant, and, in granting the motion, the?
court said: "I will grant that motion upon the ground that it appears from?
the evidence that there was a variation in the contents and amount of mold in?
the different cans, and that it does not sufficiently appear from any testimony?
offered as to the manufacture of this product and the introduction and filling?
of the cans which have not been examined, that they contain, filthy, putrid, or?
decomposed vegetable substance, to wit, decayed matter." After the completion?
of the introduction of evidence and arguments by counsel, the following charge?
was delivered to the jury by the court:   (Hand, J.)
Gentlemen of the jury: this action is brought under what is known as the?
Fure Food Law to condemn 46 cans of tomato puree, which are all that are in??
volved before you now, on the ground that those cans are adulterated, and the?
statute makes a statement in regard to adulteration which I will read to you:
" That for the purposes of this Act an article shall be deemed to be adulter??
ated in the case of food if it consists in whole or in part of a filthy, decomposed,?
or putrid animal or vegetable substance, or any portion of an animal unfit for?
food, whether manufactured or not."
For the purposes of this case before you the definition of the statute might?
be read as follows:
"That for the purposes of this Act an article shall be deemed to.be adulter??
ated in the case of food if it consists in whole or in part of a filthy or decom??
posed animal or vegetable substance."
136	,	
BUEEAU   OP ? CHEMISTRY.?"?[Supplement 22.
So that the question which first arises here is whether this article, this to??
mato puree can be considered filthy or decomposed. If it is filthy or decomposed?
it is subject to seizure and condemnation under the provisions of the statute.?
There is no doubt in my mind, and I do not believe that either counsel would?
contest the proposition that the words " filthy " and " decomposed " are not to?
be used or considered by you in a purely technical and scientific sense. They?
are to be used in a practical common sense way, and are to relate to a sub??
stantial presence of filth or decomposition. Some of the dictionaries give defi??
nitions of these words. E'or instance, in the Standard Dictionary, filthy is de??
fined as of the nature of or containing filth; dirty; nasty. Filth: anything that?
spoils or makes foul; that which is filthy or dirty; also, the state or quality?
of being foul; nastiness; dirt.
I think the question for you to determine here, gentlemen, is, whether upon all?
the facts appearing in this case there was such a substantial presence of mold in?
this tomato puree that you regard it as filthy in a natural, practical sense.
Now, to come down to decomposition or decomposed. Some of these experts?
have given you, among other things, a very technical definition of decomposed,?
the scientific definition, which relates to structural changes, that is to say,?
changes in its composition, the breaking down of a complicated system of cells,?
for instance, into a lower and simpler system of cells. That I take it is not the?
meaning of decomposed, or decomposition referred to in the statute. Decom??
posed as given in some of the dictionaries is decayed, rotten, and that is the?
definition that I shall give to you, and I shall leave to you the question of?
whether or not upon all the facts appearing in this case you find that there was?
a substantial degree of decomposition in whole or in part in these 46 cans or?
any of them, To the extent that you find that there was, you shall condemn?
the 46 cans or any part of them in which you find such a degree of decomposi??
tion exists.
Now, 1 will 'say a word in regard to the testimony of these experts. You?
have probably heard so much about it that you remember very distinctly?
Doctor Howard's test, his method of examining tomato purge at any rate,, and?
I presume other things. In order to find the presence of molds, as I understand?
it, two drops are extracted and under a microscope these drops are divided into?
25 fields, and then the person making the examination determines whether or?
not if each field, of the 25 in each drop, that is to say whether in all the 50?
fields there are any molds present. If he finds mold in 50 of the fields, he would?
say that there were a hundred per cent and if he finds molds in 25 of the fields?
he would say 50 per cent. It is argued that that does not show the percentage?
of molds at all; it simply shows if there was a hundred per cent according to?
Doctor Howard's test, that there may be some molds, no matter how little; no?
matter how extremely little, in each field of the drop, and it is claimed that by?
a further churning process, or stirring process, or some dividing process of these?
molds, you could get a more even distribution than the ordinary stirring under?
Doctor Howard's test, and you could determine the real percentage of the?
mold in the mixture, which undoubtedly Doctor Howard's test does not attempt?
absolutely to do. So that on the side of the defendant it is claimed that Doctor?
Howard's test is too uncertain. He says admittedly some of these tests show only?
60 per cent and others show 100 per cent, and it is impossible to get the mixture?
sufficiently stirred and the molds sufficiently separated so that you can tell how?
substantial the presence through the mixture or even in any one drop, is of?
the mold. On the other hand, I think, all of the experts would have to admit?
that this test of Doctor Howard's is some evidence. It is certainly evidence?
of the presence of mold.   It shows that there are some molds.   '
N. J. 4551-4600.]     SERVICE  AND  REGULATORY  ANNOUNCEMENTS.	137
Now, taking into consideration, gentlemen, these arguments and counter?
arguments, for you are made by the law the sole judges of the facts, and if I?
have intimated anything in regard to the facts you are at liberty to disregard?
it, you are only to take the law from the Court. Taking all these arguments?
and counter arguments, I say, into consideration, you are to determine whether?
upon the whole case there was a sufficient presence of these molds in these cans?
of tomato puree to render the product filthy or decomposed. If you find that?
there was such a substantial presence of these molds as to render the product?
filthy or decomposed, you must find a verdict for the Government. If you?
find to the contrary you must find a verdict for the defendant.
The defendant has asked me to charge that the jury will remember that?
the testimony of the Government experts as to the percentage of the fields in?
which they found mold, are statements of facts, but that the inference that?
they draw from these facts are opinions which they can accept or reject. I so?
charge. In other words, the statements of the experts as to this Howard method?
merely state the method in which they determine the percentage of fields which?
contain molds. They do not purport to state a definite percentage of molds in?
the tomato puree. I leave to you the inference that is to be drawn as to the?
degree of mold that was in this tomato puree from the fact that in these various?
specimens taken by the Government there was an average of from 60 to 100?
per cent of some kind of mold found in the various drops. I also remind you?
of the fact, gentlemen, that the defendant did not examine the cans examined?
by the Government, but examined other cans which for reasons it is unneces??
sary to discuss before you, in my judgment, are not under consideration in this?
case. I charge you that the Government must establish its case by the pre??
ponderance of evidence and if you are in doubt on the whole case as to whether?
the Government has made a case or not, you must find for the defendant.
I refuse the first two of the requests which I have not charged, which have?
been submitted by counsel, as follows:
(1)?The Government must not only establish its case by the weight of?
evidence, but, this being a case involving the forfeiture of property, the evidence?
must be of a clear and convincing character.
(2)?If they find products not unwholesomely decomposed, they must find for?
the claimant.
The jury thereupon retired, and after due deliberation returned into court?
with its verdict in favor of the Government for the condemnation of one can?
of the article, and in favor of the claimant as to the remaining 45 cans.
Thereafter, on April 4, 1916, a formal decree of condemnation and forfeiture?
was entered as to the one can aforesaid, and it was ordered by the court that?
the costs of the proceedings should be paid by the claimant aforesaid and by?
the Morris Canning Co., a corporation organized under the laws of the State?
of New Jersey, the stipulators for the costs herein, and it was further ordered?
that the 47.042 cans not the subject of the litigation, comprising the remainder?
of the consignment that had been seized, should be delivered to said claimant?
without further costs.
GAEL VBOOMAN, Acting Secretary of Agriculture.
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BUREAU  OF  CHEMISTRY.
[Supplement22.