13711. Alleged adulteration and misbranding of butter.     U.- S. v. Swift *
Co.     Demurrer  to  the   information  sustained.     (P.  &  D.  No.   17247.
I. S. Nos. 14426-t, 14437-t.)
On May 16, 1923, the United States attorney for the District of Oregon, 
acting upon a report by the Secretary of Agriculture, filed in the District Court 
of the United States for said district an information against Swift & Co., a 
corporation, trading at Portland, Oreg., alleging shipment by said defendant, in 
violation of the food and drugs act, in two consignments, namely, on or about 
March 11 and April 15, 1922, respectively, from the State of Oregon into the 
State of California, of quantities of butter which was alleged to be adulterated 
and misbranded. The article was labeled in part: " Reworked Butter Swift & 
Co. San Francisco."
Examination by the Bureau of Chemistry of this department of samples 
from each shipment showed 76.44 per cent and 78 per cent, respectively, of 
milk fat.
Adulteration of the article was alleged in the information for the reason 
that a product deficient in milk fat had been substituted in whole or in part 
for butter, which the article purported to be. 
Misbranding was alleged for the reason that the statement, to wit, " Butter," 
borne on the boxes containing the article, was false and misleading, in that the 
said statement represented that the article consisted wholly of butter, and for 
the further reason that it was labeled as aforesaid so as to deceive and mislead 
the purchaser into the belief that it consisted wholly of butter, whereas it did 
not so consist but did consist of a product deficient in milk fat. Misbranding 
was alleged for the further reason that the article was an imitation of and was 
offered for sale and sold under the distinctive name of another article, to wit, 
butter.
On March 25, 1925, the defendant company having demurred to the informa- 
tion on the ground that it did not set forth facts constituting a violation of 
the law, the demurrer was argued before the court by counsel for the Govern- 
ment and the defendant company, and was sustained, as will more fully and at 
large appear from the following opinion of the court (Bean, D. J.) :
"This is a proceeding against the defendant for an alleged violation of the 
pure food and drugs act by shipping reworked butter from Portland to San 
Francisco, consigned to themselves. It is charged that the butter is adulter- 
ated, in that a product deficient in milk fat bad been substituted in whole or in 
part, and that it is misbranded for the same reason. It is branded reworked 
butter, but it is charged that it was adulterated because it is deficient in milk 
fat. There is no allegation in the bill as to the proportion of milk fat, or that 
it was the result of the introduction of any foreign substance.
" The pure food law does not define butter. It does define adulterating and 
misbranding. The adulteration of an article is where another substance has 
been mixed or packed with it so as to reduce or lower or injuriously affect its 
quality, or a foreign substance has been substituted in whole or in part, or a 
valuable constituent has been wholly or partially abstracted, or it has been 
mixed with coloring matter whereby damage or impurity has been concealed, 
or where it contains poisons or other deleterious ingredients, or consists wholly 
or in part of filthy, decomposed, or putrid animal or vegetable matter.
" There is no allegation in the bill that this butter comes within any of the 
definitions. The pure food law defines misbranding as follows: 'If it be an 
imitation offered for sale under the distinctive name of another article, or 
if it shall be labeled or branded so as to deceive the purchaser, or if the con- 
tents are not plainly and conspicuously marked or pictured, or if the label 
shall bear any statement or device regarding the ingredients or substance 
thereof, which statement or device shall be false or misleading.'
"The oleomargarine act defines butter as a food product usually known as 
butter and which is made exclusively from milk or cream, or both, with or with- 
out common salt, and with or without the addition of coloring matter. And 
that same act defines adulterated butter as a grade of butter produced by mix- 
ing or reworking butter, and where any substance is introduced for the pur- 
pose or with the effect of deodorizing or removing the rancidity, or if any sub- 
stance foreign to butter has been introduced with the intent to cheapen the 
cost, or with intent to cause the absorption of an abnormal quantity of water, 
milk, or cream.
" It is not alleged in this bill that the butter in question comes within the 
definition of adulterated butter under the oleomargarine act. I presume the 
bill was filed in view of a rule or regulation of the department, in force at 
that time or which had been formulated prior to the time of the shipment, pre- 
scribing the standard for butter, in which it is stated that it shall contain at 
least 82.5 per cent of milk fat. But it was held in Lynch v. Tilden Products 
Co. recently that the department has no authority under the law to make such 
regulation or rule. Subsequent to the shipment in question Congress passed 
an act prescribing the amount of milk fat, but that was not in force at the 
time the shipment in question was made.
" The demurrer will be sustained."
The defendant was thereupon discharged.
R. W. DUNLAP, Acting Secretary of Agriculture.