11450.?Misbranding and alleged adulteration of pie filling.    U. S. v. Sherer-
Gillett Co., a Corporation. Tried to the court and a jury. Ver??
dict of guilty on the misbranding charge. Fine, $200 and costs.?
Adulteration charge dismissed. (F. & D. No. 12314. I. S. Nos. 5280-r.?
5281-r.)
On November 30, 1920, the United States attorney for the Northern District?
of Illinois, acting upon a report by the Secretary of Agriculture, filed in the?
District Court of the United States for said district an information against the
K.J. 11401-11450.] SERVICE AND REGULATORY ANNOUNCEMENTS.	241
Sherer-Gillett Co., a corporation, Chicago, 111., alleging shipment by said com??
pany, in violation of the Food and Drugs Act, on or about February 21, 1919,?
from the State of Illinois into the State of Wyoming, of quantities of lemon pie?
filling and orange pie filling which were misbranded and alleged to have been?
adulterated. The articles were labeled in part: " Magic Brand Trade Mark?
High Quality Lemon" (or "Orange") "Pie Filling * * * Manufactured?
by Sherer-Gillett Co. Chicago.
Analyses of samples of the articles by the Bureau of Chemistry of this de??
partment showed that they consisted of cornstarch, flavored with a small?
amount of orange or a small amount of lemon oil, as the case might be, and con??
tained tartaric acid.
Adulteration of the articles was alleged in the information for the reason?
that certain substances, to wit, cornstarch and tartaric acid, flavored with?
lemon oil or with orange oil, as the case might be, had been mixed and packed?
therewith so as to lower and reduce and injuriously affect their quality and?
strength and had been substituted in part for lemon pie filling or orange pie?
filling, as the case might be, which the said articles purported to be.
Misbranding was alleged for the reason that the statements, to wit, " Lemon?
Pie Filling," " contains in a concentrated form the same ingredients used by the?
housewife in making Lemon Pie," and " Orange Pie Filling," " contains in a?
concentrated form the same ingredients used by the housewife in making Orange?
Pie," borne on the packages containing the respective articles, regarding the?
said articles and the ingredients and substances contained therein, were false?
and misleading in that the said statements represented that the articles were?
lemon pie filling which contained in a concentrated form the same ingredients?
used by the housewife in making lemon pie, or orange pie filling which con??
tained in a concentrated form the same ingredients used by the housewife in?
making orange pie, as the case might be, and for the further reason that the?
articles were labeled as aforesaid so as to deceive and mislead the purchaser?
into the belief that they were lemon pie filling which contained in a concen??
trated form the same ingredients used by the housewife in making lemon pie,?
or orange pie filling which contained in a concentrated form the same in??
gredients used by the housewife in making, orange pie, as the case might be,?
whereas, in truth and in fact, they were not but were mixtures composed in?
part of cornstarch and tartaric acid, flavored with lemon oil or orange oil, as?
the case might be.
On April 9, 1923, the case came on for trial before the court and a jury.?
After the submission of evidence and arguments by counsel the court delivered?
the following instructions to the jury (Cliffe, J.) :
" Gentlemen of the jury, this is an action brought in which the United States?
Government is the plaintiff and the Gillett Company here is the defendant, and?
it is brought under the so-called law known as the Food and Drug [Drugs] Act?
of June 30, 1909. This is an act for preventing the manufacture, sale or trans??
portation of adulterated or misbranded food products, medicines or liquors and?
for regulating the traffic therein and for other purposes. It is a law of commerce.?
" The present prosecution is based on an information which is filed in this?
court, and this information contains four counts, setting up the offense charged.?
But I instruct you that you are to disregard counts one and three and are only?
to consider counts two and four, and counts two and four relate to what is?
known and designated in the law as misbranding, and it is covered under section?
eight of the law that I have referred to. I read to you section eight which?
refers to misbranding particularly to that term ' misbranding' of section eight?
of this law. The term 'misbranding' as used herein, as used in this law, shall?
apply to all drugs or articles of food or articles which enter into the compo??
sition of food, the package or label of which shall bear any statement, design,?
or device regarding such articles or the ingredients or the substance contained?
therein which shall be false or misleading in any particular, and to any food?
or drug product which is falsely branded. An article shall also be deemed to be?
misbranded in case of food if it is labeled or branded so as to deceive or mis??
lead the purchaser.
" There are several questions that enter into the consideration of this case,?
and one of which is the question of interstate commerce, that is, that the prod??
uct in question was shipped from one State to another, and counsel have en??
tered into a stipulation or an agreement, which has been offered in evidence,?
which admits certain facts in the case. It is agreed by the respective counsel?
that these witnesses if placed upon the witness stand would testify to the facts?
hereinafter set forth; and that this be given the same weight by the court and
242	
BUREAU  OF  CHEMISTRY.	
[Supplement 159,
jury herein as if such witnesses were placed on the witness stand and testified?
to such facts in open court; and that the facts hereinafter set forth shall by?
the court and jury and parties hereto be taken to be true and correct; that?
the Sherer-Gillett Company, a corporation, having a place of business in the?
city of Chicago, on the 21st day of February in 1919, did knowingly ship and?
deliver to be shipped by way of the Union Pacific Railroad, being a common?
carrier, from the city of Chicago to Rawlins, Wyoming, assigned to J. A. Hobbs,?
an article of food in a package designated and labeled as follows, which you?
have the samples before you, ' Magic Brand Trade .Mark Lemon Pie Filling?
Absolutely Pure and of Good Keeping Qualities * * * contains in concen??
trated form the same ingredients used by the housewife in making a Lemon?
Pie Manufactured By Sherer-Gillett Co. Chicago, Illinois.' The stipulation?
admits that they did ship and deliver for shipment this article of food in?
package form as designated, labeled and branded. And it is before you with??
out rereading the label in regard to orange pie filling; and that it also admits?
that this product was received at Rawlins, Wyoming, by J. A. Hobbs on or?
about the 6th day of March, 1919, in the due course of business; and then it?
also admits that on the 27th day of May, 1919, C. Stanley Greenbaum, a duly?
and lawfully appointed inspector of the Bureau of Chemistry of the United?
States Department of Agriculture, purchased from Mr. Hobbs, which he had?
a right to do, samples of the food aforesaid, and immediately after purchas??
ing, the same was duly sealed and designated with numbers, that have been?
adduced in evidence here, and delivered by him to the department of chemistry?
of the said department for analysis, concerning which said witness testified?
and shall be taken and considered by the court and jury and the parties hereto?
to be the analysis made by the bureau. The stipulation is signed by both?
parties and is admitted in evidence.
"As to counts two and four, count two charges that on the 21st day of February,?
1919, in violation of the act of Congress, June SO, 1909, known as the Food and?
Drug [Drugs] Act, this defendant did unlawfully ship and deliver for ship??
ment by way of the Union Pacific Railroad Company, a common carrier, to its?
assignee in Rawlins, State of Wyoming, a number of packages, each package?
containing an article designed and intended to be used as an article of food,?
which said packages were labeled, marked, and branded as already described;?
that the said articles of food when shipped and delivered for shipment as afore??
said was [were] misbranded in that the statement was made as to the lemon?
pie filling that it ' contains in a concentrated form the same ingredients used by?
the housewife in making lemon pie; ' that the branding on the packages con??
taining the articles, regarding the articles and the ingredients, were false and?
misleading, and that they represented that the article called lemon pie filling?
did contain in a concentrated form the same ingredients used by the house??
wife in making lemon pie, whereas, in truth and in fact, said article was not?
lemon pie filling which contained in concentrated form, etc., and the same?
allegation is made as to orange pie filling.
" Now in this information, as I said to you, you are to consider counts two?
and four. I instruct you that the information in this case preferring this?
charge against the defendant is no evidence whatever of the guilt of the?
defendant. It is simply an accusation or charge and no juror should suffer?
himself to be influenced in the slightest degree by the fact that this information?
has been returned against the defendant.
" The court instructs you if you find from the evidence beyond a reasonable?
doubt that the label is false and misleading in any particular you should find?
the defendant guilty. It is not necessary for the Government to prove nor for?
you to find that the label is false or misleading as a whole, it is sufficient for?
you to find from the evidence that the label is false or misleading in any?
particular.
" You are further instructed that if you find the label is false or misleading?
in any particular that it is immaterial whether these false statements are?
placed there consciously or unconsciously, if you find from the evidence that it?
is there, your verdict should be guilty.
" It is the duty of the jury to receive the law as it is given them by the?
court. It is the exclusive province of the court to determine what the law is,?
and the jury have no right to hold the law to be otherwise in any particular?
than is given to them by the court.
" The court instructs you as a matter of law that in considering the case you?
are not bound to go outside of the evidence to hunt up doubts nor must you?
entertain a conjectural doubt.   The doubt must arise from an impartial in-
N. J. 11401-11450.] SERVICE AND REGULATORY ANNOUNCEMENTS.	243
vestigation of all the evidence in the case and unless it is such that were Ihe?
same experience had in the graver transactions of life it would cause a reason??
able and prudent man to hesitate and pause, it is sufficient for you to return a?
verdict of not guilty.
" The court instructs the jury that the fact that certain bakers used certain?
materials in making up lemon pie and orange, does not oblige others to use the?
same or similar ingredients. The defendant had the right to use any harmless?
ingredients it desired in making up the orange or lemon pie in question pro??
viding in so doing it did not label the product so as to deceive or mislead the?
purchaser."
The jury then retired and after due deliberation returned a verdict of guilty?
on the misbranding charges. The defendant thereupon filed a motion for a new?
trial, and on April 28, 1923, the motion for a new trial was withdrawn, and the?
court imposed a fine of $200 and costs.
0. F. MARVIN, Acting Secretary of Agriculture,
S. R. A.—Chem. Suppl. 160.