0202. Alleged  adulteration  anil  Misbranding of  macaroni.     XT.   S.     *      *     *
v. Albert  C.  RrnHim,  Jr.   (A.  C. Krumm  &   Son).     Demurrer  to 'the
information sustained.     (P. & D. No. 12334.     I. S. No. 15497-r.)
On February 28, 1920, the United States attorney for the Eastern District 
of Pennsylvania, acting upon a report by the Secretary of Agriculture, filed 
in the District Court of the.United States for said district an information 
against Albert C. Krumm, Jr., trading as A. C. Krumm & Son, Philadelphia, 
Pa., alleging shipment by said defendant, in violation of the Food and Drugs 
Act, on or about May 25, 1919, from the State of Pennsylvania into the State 
of Maryland, of a quantity of an article known as "Krumm's Continental 
Brand Macaroni," which was alleged to be adulterated and misbranded.
Adulteration of the article was alleged in the information for the reason 
that a substance, to wit, a product prepared from flour, had been substituted 
in whole or in part for macaroni, to wit, a product prepared from semolina, 
which the article purported to be.
Misbranding was alleged for the reason that the statement, to wit, " Maca- 
roni," borne on the packages containing the article, regarding the- article and 
the ingredients and substances contained therein, was false and misleading in 
that it represented that the said article was macaroni, to wit, a product made 
from semolina, whereas, in truth and in fact, the said article was not maca- 
roni, to wit, a product made from semolina, but was a product made from flour.
On July 2, 1920, a demurrer to the information was filed by the defendant, 
and on February 9, 1921, the case having come on for final disposition, the de- 
murrer to the information was sustained, as will more fully appear from the 
following decision of the court (Thompson, D. J.) :
The United States attorney filed an information against the defendant charg- 
ing violation of the Food and Drugs Act in shipping and delivering from Phila- 
delphia, Pa., to Baltimore, Md., a number of packages, each containing an article 
of food labeled, marked, and branded as " Krumm's Macaroni." The first count 
charged that the article of food was adulterated " in that a substance, to wit, a 
product prepared from flour, had been substituted in whole or in part for maca- 
roni, to wit, a product prepared from semolina, which the article purported to 
be." The second count charged that the article of food was misbranded in that 
the word " macaroni " " was false and misleading in this, that it represented 
that said article was macaroni, to wit, a product made from semolina, whereas, 
in truth and in fact, said article was not macaroni, to. wit, a product made from 
semolina, but was a product made from flour." .
The defendant demurs upon the ground that the information does not set out 
any offense against the United States; that it is not averred that the packages 
were original unbroken packages; that it is not averred that semolina is not 
flour or a product made from flour; that it is not averred that macaroni is a 
product wholly prepared from semolina; that the definition of the word 
" macaroni " as given in the information is not in consonance with its meaning 
as accepted by the general public, and that it is not set forth that the article 
of food contained in the packages was dangerous to the health or welfare of 
the people or intended to deceive the purchaser.
The first ground of demurrer may be dismissed for the reason that while the 
Food and Drugs Act prohibits shipping or delivering for shipment in interstate 
or foreign commerce any articles of food which is adulterated or misbranded, it 
does not restrict the offense of shipping or delivering for shipment to articles 
in original unbroken packages, the restriction to original unbroken packages 
applying only to those who receive in interstate commerce and, having received, 
deliver in original unbroken packages any adulterated or misbranded articles.
As to the averments in relation to the substance contained in the packages, I 
think they are lacking in that particularity in both counts which should be 
observed to inform the defendant with certainty of the charge he is to meet 
at the trial. The offense under the first count, adulteration, arises in the case 
of food, " if any substance has been substituted wholly or in part for the article," 
and the offense of misbranding arises " if the packages containing it or its label 
shall bear any statement, design, or device regarding the ingredients or sub- 
stance contained therein, which statement, design, or device shall be false or 
misleading in any particular." According to the Century Dictionary, macaroni 
is a paste or dough prepared originally and chiefly in Italy from the glutinous 
granular flour of a hard variety of wheat. According to the Standard Diction- 
ary, it is an Italian paste made into slender tubes from the flour of hard gluti- 
nous wheat mixed with water. Semolina is defined to be the hard grains re- 
tained in the bolting machine after the fine flour has passed through.
If the article in question, as averred in the first count, was prepared from 
flour, or, as averred in the second count, was made from flour, it was apparently 
macaroni. But if it is intended to charge that macaroni is not made from the 
whole of the flour which comes from the mill,, but in order to be macaroni must 
be made from the large, hard grains retained in the bolting machine after the 
fine flour had passed through, the counts are lacking in averments that semolina 
is not a part of the substance known as flour. Flour may be fine or coarse, 
it may be made from the whole grains of the wheat, as, " whole-wheat flour," or 
it may be the fine-bolted flour. If it is meant by the indictment to charge that 
in order for a substance to be macaroni, it must be made wholly from semolina 
and not contain any of the fine flour which leaves a residuum of semolina, the 
information should plainly so state.    It is of vast importance to the public
that foodstuffs shall be what they purport to be through the labels, marks, and 
brands upon the packages. It is a matter of common knowledge that in the 
line wheat flour of commerce much of the nutritive property of the grain is 
absent which remains in " whole-wheat flour." A purchaser of an article 
labeled " whole-wheat flour " is entitled to receive what he is led to believe he 
is purchasing from what appears upon the label. Similarly, one who is pur- 
chasing an article labeled " macaroni " is entitled to receive the article con- 
taining nutritive ingredients which genuine macaroni is known to contain. 
Otherwise the party substituting some other substance for the proper ingredients 
or designating it by names which falsely represent the contents or mislead the 
public is liable.to the penalties of the act. If, however, one is charged under 
the act with adulteration and misbranding, he must be informed with sufficient 
particularity and certainty of the charge against him to enable him to prepare 
his defense. This particularity and certainty are obviously lacking in the 
information filed.
It may be that in the course of manufacture, trade, and public use the same 
" macaroni" has come to mean an article made from flour without regard to its 
containing semolina alone, and it may be that the word as accepted by the gen- 
eral public is not consonant with what was intended to be set out in the infor- 
mation. These, however, are trial questions. As to the remaining ground of 
demurrer, it is not necessary under the Pure Food and Drugs Act that an 
article in order to be unlawfully adulterated or misbranded must be dangerous 
to the health of the people.
Demurrer sustained.
E. D. BALL, Acting Secretary of Agriculture.