17351. Alleged adulteration and Misbranding of Bred Spred. V. S. v. 49% 
Cases of Bred Spred. Hearing on claim, answer, and motion to 
dismiss. Libel ordered dismissed and goods returned to claim- 
ant.    (F. & D. No. 21324.    I. S. Nos. 12287-x, 12288-x.    S. No. C-5242.)
On August 12, 1926, the United States attorney for the Eastern District of 
Michigan, acting upon a report by the Secretary of Agriculture, filed in the 
District Court of the United States for said district a libel praying seizure and 
condemnation of 49% cases, each containing a number of jars of Bred Spred, 
remaining unsold in the original unbroken packages at Detroit, Mich., alleging 
that the article had been shipped by the Glaser Orandell Co., from Chicago, Ill., 
August 9, 1926, to Detroit, Mich., that said shipment was interstate, and that 
the article was adulterated and misbranded in violation of the food and drugs 
1 act.    On November 17, 1926, the said libel was amended.
The amended libel alleged, that the article was adulterated in that a sub- 
stance, pectin, had been mixed and packed with the said article so as to reduce, 
lower, or injuriously affect its quality or strength; in that a substance, pectin, 
had been substituted wholly or in part for the article; and in that it had been 
mixed in a manner whereby inferiority was concealed.
Misbranding was alleged for the reason that the article was an imitation of 
jam; for the further reason that it was offered for sale under the distinctive 
name of another article,? for the further reason that the retail packages con- 
taining the article bore labels upon which the statement, " Bred Spred Straw- 
berry [or "Raspberry"] Flavor," appeared, which statement was false and 
misleading and deceived and misled the purchaser, in that it represented the 
product to be a pure jam, whereas it was not, but was a compound of pectin, 
fruit, and sugar; and for the further reason that there appeared on said labels 
pictorial designs or devices of fruit which deceived and misled the purchaser 
into the belief that the article was strawberry or raspberry jam, whereas it was 
not. Misbranding was alleged for the further reason that the said retail 
package inclosing the product, the metal cap and the manner in which said 
cap was sealed on the package, together with the label bearing statements, 
designs, and devices with respect to the contents of the said package, viz, 
"Bred Spred, Glaser Crandell Co., 1925 Net Weight 14% ounces, Strawberry 
[or "Raspberry"] Flavor, Glaser Crandell Co., Chicago," and the pictorial 
design of fruit were misleading.
On November 20, 1926, John E. Wallace and Neil E. Wallace, copartners, 
trading as John E. Wallace & Son, Detroit, Mich., entered an appearance a- 
owners and claimants of the property, and filed an answer denying that the 
product was adulterated and/or misbranded as charged in the amended libel 
and praying that the said libel be dismissed.
The case came on for hearing on the amended libel, claim and answer on 
January 6, 1927. Evidence was submitted by the Government and the case 
was argued by counsel for the Government and claimants. On motion made 
by claimant that the libel be dismissed, the court delivered the following oral 
decision (Simons, J.) :
'? I confess I have been looking at the language of this section 8 here off . 
and on for the last day and a half, and I have not at times been clear as to ( 
just what it did mean-whether it meant under the first paragraph ' If it be an 
imitation of another article' or whether it meant, ' If it be an imitation of 
another article under a distinctive name.' It would seem to me that, depend- 
ing somewhat on the attitude of mind you brought to an interpretation of that 
first clause, you could read it either way.
" Reading it, however, in connection with the proviso, it might seem as 
though the Congress intended that articles that were not labeled with the 
distinctive name of some other article would come within the exception or 
the proviso. Now, that is undoubtedly the conclusion that Justice Hughes 
came to in Savage v. Jones, and while, of course, this case was not a case 
involving directly the pure food and drug law, it was a case in which there 
was considered the constitutionality of a local statute of the State of Indiana, 
the question there being raised as to whether the State statute invaded the 
field already occupied by the Federal food and drug law; and in order to 
determine whether it did invade that field it became necessary for Justice 
Hughes, speaking for the court, to map out or chart the field over which 
Congress took jurisdiction .in so far as interstate commerce was concerned, 
by this particular section 8 of the Federal statute on behalf of the court. So 
it is rather more than dictum. Wasn't it necessary to decision that he lay 
out, define, the limits of the field in which Congress undertook to legislate with 
respect to interstate commerce, in order to determine whether or not the 
State statute of Indiana, which was in question, invaded that field? Because 
the Supreme Court has held that where Congress has taken jurisdiction over 
commerce that is interstate, so far as it has undertaken to regulate that com- 
merce, its authority is exclusive.    That is true.
"And so, whatever Justice Hughes had to say on behalf of the court with 
legard to the interpretation of this section 8 was not dictum, but was neces- 
sary for the decision of the case of Savage v. Jones.
" It  seems to me that this court  is  bound  to  follow  the  interpretation 
put upon the section by the Supreme Court of the United States, and even if. 
it be conceded that the interpretation is dictum it is dictum that is certainly  ( 
highly persuasive as to the real meaning of Congress in the language contained ?> 
in section 8 of the food and drug law.
" Perhaps, in view of what I have said, it would be unnecessary to spend 
the time to fornuilate a more formal opinion. The libel and amended libel 
will be dismissed, the petition of the claimant for the return of the seized 
property will be granted-the prayer of the petitioner granted. You may take 
your exceptions."
Counsel for the Government excepted to the ruling. The court on the same 
date entered a decree dismissing the libel and amended the libel and ordered 
that the United States marshal deliver the product to the Glaser-Crandell Co., 
Chicago, Ill., described in the decree as claimant.
On February 9, 1927, the assistant United States attorney filed an assign- 
ment of error and petition for writ of error to the Circuit Court of Appeals 
for the Sixth Circuit, which petition was allowed by the court. It appearing 
that the goods had been released under the order of January 6, 1927, the 
appeal was dismissed on April 14, 1927, on motion of the assistant United 
State  attorney.
ARTHUR M. HYDE, Secretary of Agriculture.