25537. Misbranding of preserves.     U. S. v. Goodwin Preserving- Co., Inc.    Tried 
to the courts  judgment of guilty.     Fine, $200 and costs.     (F. & D. no.
32109.    Sample nos. 15490-A, 15491-A, 15493-A, 15494-A.)
This case was based on an interstate shipment of preserves which were short 
of the weight declared on the label.
On June 12, 1934, the United States attorney for the Western District of 
Kentucky, acting upon a report by the Secretary of Agriculture, filed in the 
district court an information against the Goodwin Preserving Co., Inc., alleg- 
ing shipment by said company in violation of the Food and Drugs Act, as 
amended, on or about February 10, 1933, from the State of Kentucky into 
the State of Indiana of quantities of preserves which were misbranded. The 
article was labeled in part: "Perry's Verified Food Products, Contents 15 oz. 
Apricot [etc.] Preserves Distributed by J. C. Perry & Company, Indianapolis, 
Ind."
On September 7, 1934, the defendant having filed a motion to dismiss the 
information, the court made the following ruling:
DAWSON, JudgevJThis case came on to be heard on the defendant's motion to 
- "^isniisstnis cause on the grounds that the "Bill of Complaint"  (Information) 
does not constitute a cause of action against the defendant and is wholly 
Insufficient at law.
Said Motion was argued by counsel for the defendant who contended that no 
cause of action is stated because the Food & Drugs Act is unconstitutional.
The Court treats the Motion to Dismiss as a ,General Demurrer to the In- 
formation, and after considering same, being advised,
It is Ordered by the Court that said Demurrer insofar as it attacks the 
constitutionality or validity of the Act of Congress of June 80, 1906, known as 
the Food & Drugs Act, be and it is hereby overruled.
It is Further Ordered by the Court that the demurrer be and it is hereby sus- 
tained in this: that the Information is not sufficient by reason of the fact 
that it fails to show that the alleged discrepancies between the actual weight 
and the branded weight were in excess of the tolerance and variation author- 
ized by the Rules and Regulations of the Department of Agriculture.
The plaintiff is permitted to amend the Information in this respect 
'       The United States, by counsel, excepts to the foregoing ruling Insofar as 
ltsustains the Demurrer in part as aforesaid.
Off September 7, 1934, the information was amended.
It was charged in the information, as amended, that the article was mis- 
branded in that the statement "Contents 15 Oz.", borne on the label, was 
false and misleading, and in that it was labeled so as to deceive and mislead; 
the purchaser, since the jars contained less than 15 ounces of the article.
Misbranding was alleged for the further reason that the article was food in 
package form and the quantity of the contents was not plainly and conspicu- 
ously marked on the outside of the package, and the discrepancies between 
the actual weight and the branded weight of the contents of the jars exceeded 
the tolerance provided under Regulation 26 of the United States Department of 
Agriculture.
On September 25, 1935, the case was tried to the court and judgment of 
guilty was entered, a fine of $200 was imposed, and costs were assessed 
against the defendant,
W. R. GBEGG, Acting Secretary of Agriculture.