9478.  Misbranding of   hog   feed.     V.   S.     *      *      *     v.   426   Bags   of     *      *      * 
Economy " Special " Hog Feed     *     *      *.     Default decree condemn- 
ing  the  product  as  misbranded  and  permitting  its   release   under 
bond.     (F. & D. No. 13712.     I. S. No. 11555-t.     S. No. C-2512.) 
On November 3, 1920, the United States attorney for the Western District of 
Michigan filed in the District Court of the United States for said district a 
libel for the seizure and condemnation of 426 bags of Economy " Special" hog 
feed, remaining unsold in the original unbroken packages at Augusta, Mich., 
alleging that the article had been shipped on or about September 2, 1920, and 
transported from the State of Indiana into the State of Michigan, and charging 
misbranding in violation of the Food and Drugs Act.
Misbranding of the article was alleged in substance in the libel for the rea- 
son that the label on the packages containing the said article bore certain 
statements regarding the ingredients and substances contained therein, as fol-
lows, " Economy ' Special' Hog Feed 100 lbs. Net Weight Guaranteed Analysis 
Protein, 12J per cent Fat, 06 per cent Carbohydrates, 56 per cent Fibre, not 
over 13 per cent Contents: Old Process Linseed Oil Meal, Rice Bran, Winter 
Wheat Bran, Winter Wheat Middlings, Digester Tankage, Oat Shorts, Oat 
Middlings, Oat Hulls, Cotton Seed Meal and Hominy. Manufactured By has. 
F. Bartlett Co. Grand Rapids, Mich.," which statements were false and mis- 
leading, and the said article was labeled so as to deceive and mislead the pur- 
chaser, in that it contained more than 13 per cent of fiber, to wit, 23 per cent 
thereof, and less than 6 per cent of fat, to wit, 2.4 per cent less of fat, and 
the said article was deficient in protein to the amount of 2.5 per cent.
On May 6, 1921, the Charles F. Bartlett Co., Grand Rapids, Mich., having 
entered an appearance as claimant for the property and having filed an 
answer in which it was contended that the product was not subject to seizure 
because the purpose of the transportation thereof was not for sale, upon 
motion of the United States attorney it was ordered by the court that the said 
answer be stricken from the records, and a formal decree of condemnation 
was entered, as will more fully appear from the following opinion of the court 
(Sessions, D. J.) :
This is a proceeding under section 10 of the Food and Drugs Act of 1906 
to condemn 426 bags of feed owned by claimant and, under its direction, 
shipped and transported in interstate commerce from Milford, Ind., to Augusta, 
Mich. At the time of the shipment and transportation and of the seizure the 
feed was misbranded in that the labels upon the bags contained false and 
misleading statements as to percentages of its ingredients. Claimant faintly 
urges that such false statements in the labels did not constitute misbranding 
within the meaning of the act of Congress; but this insistence is so plainly 
without foundation as not to require discussion. Claimant was the original 
manufacturer of the feed in question and had sold and shipped it to one of 
its customers at Milford, Ind. Upon being notified that the feed did not con- 
tain the percentages of ingredients stated and set forth in the labels, claimant 
instructed and directed its customer to reship the feed to Augusta, Mich., in 
order that it might be remanufactured, or remixed, and thus made to conform 
to the statements in the labels. The shipment and transportation of the 
feed from Indiana to Michigan was not for sale. At the time the libel in 
this case was filed and the seizure made, the transportation of the feed :cn 
interstate commerce had been completed, but the feed still remained in the 
possession of claimant and in the original unbroken packages.
The principal contention of claimant is that the feed in question is not sub- 
ject to seizure and forfeiture because the purpose of the transportation 
thereof from Indiana to Michigan was not for sale. The question thus pre- 
sented was settled adversely to claimant by the Supreme Court in the case 
of Hipolite Egg Co. v. United States, 220 U. S., 45, and is not now an open one. 
In that case the decisions of the lower courts, upon which claimant relies, 
were mentioned and briefly discussed, but not approved; indeed, the result 
reached was a distinct disapproval. The prohibition of the statute is directed 
against the transportation in interstate commerce of misbranded and adulterated 
articles of food alike. Some of the later cases directly in point are the follow- 
ing: United States v. 12 Crates of Frozen Eggs, 208 Fed. Rep., 950; 215 Fed. 
Rep., 584 and 585; Philadelphia Pickling Co. v. United States, 202 Fed. Rep., 
150; United States v. 9 Barrels of Butter, 241 Fed. Rep., 499; United States v. 
2 Barrels of Desiccated Eggs, 125 Fed. Rep., 302; United States v. 300 Cans 
of Frozen Eggs, 189 Fed. Rep., 351; Weigle v. Curtice Bros. Co., 248 U. S., 
285-287; Weeks v. United States, 245 U. S., 618-622. Since the Hipolite case, 
above cited, there have been no decisions to the contrary.
The motion to strike claimant's answer from the files and for a decree of 
condemnation will be granted.
On the same date it was ordered by the court that upon payment of the costs 
of the proceedings and the execution of a bond in the sum of $1,000, in con- 
formity with section 10 of the act, the product might be released to the said 
claimant. 
C. W. PUGSLEY,
Acting Secretary of Agriculture.