14416. Alleged misbranding of Smack. TJ. S. v. 24% Gallons of Smack. 
Tried to the court. Judgment for claimant. (F. & D. No. 18820. 
I. S. No. 17752-v.    S. No. C-4430.)
On December 4, 1924, the United States attorney for the Eastern District of 
Wisconsin, acting upon a report by the Secretary of Agriculture, filed in 
the District Court of the United States for said district a libel and on 
October 28, 1925, a stipulation amending said libel, praying seizure and con- 
demnation of 24% gallons of Smack, remaining in the original unbroken 
packages at Milwaukee, Wis., alleging that the article had been shipped by the 
Smack Co., from Chicago, Ill., June 9, 1924, and transported from the State 
of Illinois into the State of Wisconsin, and charging misbranding in violation 
of.the food and drugs act. The article was labeled in part: " Smack *" * * 
Flavor Manufactured By The Smack Company-Chicago, Ill."
It was alleged in the libel that the article was misbranded, in that the 
analysis showed it to be an artificially colored and artificially flavored sirup, 
in imitation of another article, to wit, a genuine grape product,   i ;:       - r
On January 21, 1926, the Smack Co., Chicago, Ill., having appeared as- 
claimant for the property, the case came on for trial before the court, and 
judgment dismissing the libel was entered as will more fully appear from the 
following opinion (Geiger, D. J.) :
" The Government seized an interstate shipment of ' Smack,' a product 
with respect to which this preliminary statement may be made. ' It is manu- 
factured synthetic concentrate, which the Government says is, and is intended 
to be, a base for a beverage imitative of grape juice. Some time prior to the 
institution of this proceeding, the product had received attention from the 
Government because it was shipped under labels bearing the name ' Grape 
Smack' associated on the label with a picture of a cluster of grapes. At that 
time the product was similarly advertised in trade journals. After the con- 
demnation of that label by the enforcement officials in a proceeding in court, 
the manufacturer, the claimant here or its predecessor, ceased that practice, 
and the article is now advertised, labeled and shipped as ' Smack.'
" Upon the present hearing the Government offered proof of the foregoing- 
which offer was received subject to later consideration of competency or the 
like-and also introduced proof tending toshowthe following: 
"That an analysis of the product in question discloses the presence of cer-~ 
tain ingredients or constituents, among them water, sugar, tartaric acid, ash, 
vanillin, and others said to contribute severally to physical properties, flavor, 
color or the like. The Government witness, upon his direct examination, also 
testified to the presence of approximately 5 per cent of grape juice; but, I 
believe, upon his cross-examination failed to sustain that position when he 
admitted that his conclusion was based wholly upon finding in the product 
certain ingredients also present in natural grape juice, such as tartaric acid 
and ash. This infirmity of his testimony seemed to me to be conclusive against 
the Government when claimant denied the introduction of natural grape juice, 
but asserted that the ingredients testified to by the Government witness arose 
not upon the introduction of natural grape juice, but through synthetic intro- 
duction as a part of the formula for the entire synthetic product. The Govern- 
ment witness likewise testified that the beverage prepared from this base 
resembled grape juice in its fluid consistency, color, and taste-indicating the 
particular synthetic elements capable of producing color and taste, respectively.
" It was, and it must be conceded that the term ' Smack' is arbitrary and 
not at all representative of any known product, its consistency, ingredients 
its food or other qualities, place of manufacture, or the like. It is distinctive 
within all the positive and negative tests recognized in the administration of 
the food law, and in its consideration by the courts. U. S. v. Coca Cola Co. 241 
U. S., 265, p. 286.
" The name, so the lexicons tell us, has as its synonyms taste, savor, flavor, 
tang, tincture; also touch, tinge, dash, spice, infusion, sprinkling, little, small 
quantity.
" Therefore, the name at most would indicate that the product contained a 
' smack' of something. This thought, however, need not be pursued because 
the Government does not contend that the name or the label, as now constituted, 
is misrepresentative in having a tendency to deceive or to inculcate the belief 
that any particular known article of food is comprehended. Nor in the proofs 
adduced is there any basis to find that the product, since the condemnation 
of the?former label, has been sold or offered for sale as ' any other food prod- 
uct, mixture, or compound.' In other words, the case is not within the doc- 
trine of ' Weeks vs. U. S., 245 U. S. 618.' Therefore, the Government's case, in 
its most favorable light, is reduced to this: May an article put out, offered, or 
shipped, under a name arbitrary, not in the slightest degree representative 
or misrepresentative, be excluded from interstate commerce because in its 
color, aroma, taste, and fluid consistency, it or the product developed from it, 
may prove, is, or may be designed to be, imitative of other known products. 
Clearly, if the Government's position can be maintained, then the name or 
branding can be eliminated from consideration in every instance where syn- 
thetic products having truly arbitrary, nonrepresentative names, may be the 
subject of shipment. Nonbranding may become misbranding. This strikes me 
as being true both of food and drugs. The susceptibility of being found to 
have color, taste, or consistencies like that or those of known food products 
would not only bar arbitrarily distinctive names as affording protection, but 
would require, if the articles are to be shipped at all, a statement not only 
accurately designating the product imitated, but also assurances possibly of the 
perfection and either the singleness or the scope of imitation. If a synthetic 
product could disputably be urged to have the flavor, or a smack of more than 
one known product, fairness to the law should require statement of the justifi- 
ably possible range of imitation. The thought was suggested upon the trial of 
this case when, after hearing the Government's proof, claimant's representative, 
during recess, purchased several bottles of different kinds of grape juice on 
sale at drug stores, and in court pointed out a range of colors and other attri- 
butes upon comparison with each other and with ' Smack' as developed from 
claimant's concentrate.
"It is well known, for example, that different varieties of the same fruit 
have different flavors, consistencies, and other properties or attributes, either 
in their natural state or upon being subjected to varying processes in prepara- 
tion for consumption. It is likewise well known that as between different 
varieties of fruits, flavors, colors and the like seem to appear in common. 
It is difficult at times to distinguish jellies. Juices expressed from grapes 
vary as widely and as fundamentally in the attributes of color, taste, and 
aroma as the grapes themselves; and, as is well known, some of them in 
their natural state approach very closely to and are quite"indistinguishable" 
from the natural juices of other fruits. As above indicated, if a distinctive 
name given to a wholly synthetic product- must still have added to it some 
statement or legend because of the susceptibility of its being mistaken for 
some natural product, the query arises respecting the reduction of this legal 
obligation to concrete terms. Counsel for the Government insisted in argu- 
ment that claimant here would not be satisfying the law if in addition to the 
word ' Smack,' it added 'A Wholly Synthetic Beverage," and it seemed to 
think that the law would be satisfied if the product were marked ' Imita- 
tion.' Manifestly, this could serve no purpose unless a further statement 
indicating the subject of imitation were added. And if such statement were 
added, the producer and seller would still be obliged at his peril, against his 
will, and perhaps, contrary to the fact, to represent what might be said to be 
the genuineness and the perfection or the scope of his imitation.
9572-26- 2
BUBEAU  OP  CHEMISTSY '   [ Supplement 219
"In the Coca Cola case supra, the court clearly points out the considera- 
tions involved in determining distinctiveness of name, saying: 
^.  ;
"'Thus, soda water is a familiar trade description of an article which now, 
as is well known, rarely contains soda in any form. Such a name is not to be 
deemed either misleading or false, as it is 'in fact distinctive. But unless the 
name is truly distinctive, the immunity cannot be enjoyed; but it does not ex- 
tend to a case where an article is offered for sale " under the distinctive name 
of another article." Thus, that which is not coffee, or is an imitation of coffee, 
cannot be sold as coffee; and it would not be protected by being called " X's 
Coffee." Similarly, that which is not lemon extract could not obtain immunity 
by being sold under the name of " Y's Lemon Extract." The name so used is 
not " distinctive" as it does not properly distinguish the product; it is an 
effort to trade under the name of an- article of a different sort. So, with respect 
to mixtures or compounds, we think that the term " another article" in the 
proviso embraces a different compound from the compound in question. The 
aim of the statute is to prevent deception, and that which appropriately de- 
- scribes a different compound cannot secure protection as a " distinctive name."
" 'A "distinctive name" may also of course be purely arbitrary or fanciful 
and thus, being the trade description of the particular thing1, may satisfy the 
statute, provided the name has not aiready been appropriated for something 
else so that its use would tend to deceive.'
" Therefore the clause of the statute: ' If it be an imitation of or offered 
for sale under the distinctive name of another article' seems to me to deal 
first with imitations, that is ,things patterned after, or a copy of, or made in 
simulation of another article and, as such, offered or put out as the genuine; 
second, articles, whatever they may be, whether imitation or not, which are 
put out under the distinctive name of another article. The statute condemns 
the use of means which being used arouse the belief that one thing is really 
another.
"It is my judgment: that the limitations of the statute are such that the 
case before us is not comprehended; and this view necessarily excludes"from 
the case the testimony dealing with the former practices of the claimant.
"A decree dismissing the libel may be entered." 
'      '-
W. M. JARDINE, Secretary of Agriculture.