11709. Adulteration and misbranding? of butter. U. S. v. IS Tubs of Bat- 
ter. Consent decree of condemnation and forfeiture. Product 
released under bond. (F. & D. No. 17641. I. S. No. 4307-v. S. No. 
C-4063.)
On July 11, 1923, 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 a libel praying the seizure 
and condemnation of 13 tubs of butter, remaining unsold in the original tubs 
at Chicago, Ill., alleging that the article had been shipped by the Cuba City 
Creamery Co., Cuba, Wis., July 5, 1923, and transported from the State of 
Wisconsin into the State of Illinois, and charging adulteration and misbranding 
in violation of the Food and Drugs Act.
Adulteration of the article was alleged in the libel for the reason that a 
substance deficient in milk fat and high in moisture had been mixed and 
packed therewith so as to reduce and lower and injuriously affect its quality 
and strength and had been substituted in whole or in part for the said article. 
Adulteration was alleged for the further reason that a valuable constituent of 
the article, to wit, butterfat, had been in part abstracted therefrom.
Misbranding was alleged for the reason that the article was food in package 
form, and the quantity of the contents was not plainly and conspicuously 
marked on the outside of the package.
On July 14, 1923, the H. C. Christians Co., Chicago, Ill., claimant, having 
admitted the allegations of the libel and consented to the entry of a decree, 
judgment of condemnation and forfeiture was entered, and it was ordered by 
the court that the product be released to the said claimant upon payment of the 
costs of the proceedings and the execution of a bond in the sum of $1,000, in 
conformity with section 10 of the act, conditioned in part that it be reprocessed 
under the supervision of this department and that the tubs be marked with 
the net contents thereof.
HOWARD M. GOEE, Acting Secretary of Agriculture.
On August 3, 1923, the case having come before the Circuit Court of Appeals 
for the Eighth Circuit on a writ of error, the judgment of the district court 
was affirmed as will more fully and at large appear from the following opinion 
of the court (Stone and Kenyon, C. J., and Trieber, D. J.) (Stone, C. J.) :
" From a conviction for adulteration and misbranding of ' Red Color,' a 
coloring powder used in food preparations, this writ of error is sued out.
" The adulteration, causing misbranding, consisted of excessive quantities of 
sodium chloride, sodium sulphate, and some other substances which reduced the 
quality and strength of the powder.
"The errors here urged are: (1) Insufficiency of evidence; (2) five rulings 
upon evidence; and (3) improper comment by the court.
" We have carefully examined the evidence and entertain no doubt of its 
sufficiency to sustain the verdict and conviction.
"The first and second objections to the rulings on evidence are to the ad- 
mission of certain testimony of the witness Jablonski. He was a fully 
qualified chemical expert who had specialized in coloring substances and com- 
pounds. He had chemically examined the precise cans of powder upon which 
the information was based. The substance of the criticised testimony was 
that the presence of the named substances in the quantity, or proportion, found 
by him in the powder would have the effect of lowering and lessening the quality 
and strength of the powder as a coloring substance. There was testimony in the 
record of the proportion of these substances present in properly prepared com- 
mercial powders. We think the witness was qualified to and properly did 
testify to the effect of such presence, in the quantities found, upon the powder.
" The third challenge as to rulings on evidence is to the exclusion of certain 
testimony of witness Kendall on cross-examination. The substance of these 
questions was whether it was customary to dilute a certain substance when 
using it in the manufacture of food colors. This was properly excluded for 
two reasons: The standard set by the statute is not what is customarily done 
by manufacturers but what is properly done by them ; and this error was 
clearly invited by an earlier objection by this plaintiff in error, which was 
sustained, to the same character of evidence when offered by the Government. 
Error can not be inserted in a trial by thus alternately blowing hot and cold.
" The fourth objection is to the exclusion of certain testimony of witness 
Heath who was a manufacturer of such colors. The question was: ' What 
per cent of colors sold for food contain ten to fifty per cent of salt?' This 
was objected to and properly excluded as immaterial.
" The fifth objection is to exclusion of certain testimony of witness Wood, a 
manufacturer and jobber in colors. He was asked whether he had ever had 
any complaints from his customers concerning a certain coloring powder 
sold by his company.   This evidence was clearly immaterial.
" The comment by the court, which is claimed to be objectionable, is not set 
out in the assignment of errors and only a portion thereof can be at all 
identified, even in the brief. This portion was not objected to nor any 
exception thereto preserved.
" The judgment is affirmed."
HOWARD M. GOBE, Acting Secretary of Agriculture.