26101. Alleged Misbranding of salad oil.     U. S. v. 52 Gallon Cans and 142 Gallon
Cans of Salad Oil.    Exceptions sustained and libels dismissed.    (P. & D.
nos. 34459, 34565.    Sample nos. 21215-B, 21261-B.)
These cases involved a product which was sold as salad oil. Examination 
showed that it consisted of sunflower oil or an oil similar to sunflower oil, with 
some cottonseed oil present in one lot.
On or about December 6 and December 18, 1934, the United States attorney 
for the District of Connecticut, acting upon reports by the Secretary of Agri- 
culture, filed in the district court libels praying seizure and condemnation of 
52 gallon cans of salad oil at Hartford, Conn., and 142 gallon cans of salad 
oil at New Haven, Conn., alleging that the article had been shipped in inter- 
state commerce in part on or about November 13, 1934, by A. Krasne, from 
New York, N. Y., and in part on or about November 22, 1934, by the Agash 
Refining Corporation, from Brooklyn, N. Y., and charging misbranding in viola- 
tion of the Food and Drugs Act. The charges against the product appear in the 
opinion.
The Agash Refining Corporation intervened and filed exceptions to the libels. 
On April 10, 1935, the court handed down the following memorandum decision 
sustaining the exceptions:,
THOMAs^Disfri^Judfifei^The Agash Refining Corporation of Brooklyn, New 
York, is the refiner Thacker of the products involved in these proceedings, 
and by order of Court dated January 8th, 1935, was given leave to intervene.
Exceptions to the libels were filed on January 15, 1935, whereupon the libelant 
filed motions to dismiss the exceptions which are identical in both cases. As 
they were argued and briefed together they may be disposed of in a single 
memorandum.
In the first case, No. 3608, the libel charges that the intervener's "Italian 
Cook Brand" container violates the Act of Congress approved June 30, 1906, 
commonly known as the Food and Drugs Act, U. S. C. A. Title 21, Section 1, 
particularly Section 8, general paragraph and paragraph second, in the case of 
food, U. S. C. A. Title 21, Sections 9 and 10, in that the statements and colors 
on the label are misleading and tend to deceive and mislead purchasers 
because they create the impression that the product is Italian olive oil, whereas 
it is not; in that the statement on the label, "Pure Vegetable Salad Oil", is mis- 
leading and tends to deceive the purchaser because this term may include 
olive oil; and in that it purports to be a foreign product when in fact it is not.
The libel in the second case, No. 3619, charges that the intervenor's Messina 
Brand product violates the same statute in that the statements on the label 
are misleading and tend to deceive and mislead the purchaser because they 
create the impression that the product is Italian Olive Oil when in fact it is 
not; and in that it purports to be a foreign product, which it is not.
At oral argument the intervener presented, and by agreement of counsel 
there was admitted in evidence a can in each case bearing its respective label, 
which was offered for consideration by the Court.
The exceptions in each case attack the libels for failure to accurately 
describe the packages, and assert that the libels are insufficient in law because 
an examination of the container establishes, as a matter of law, that the 
package shows nothing which is either misleading or deceptive. The intervenor 
argues that all that appears on the container should be considered in reaching 
a conclusion and that a conclusion should not be based upon such excerpts 
from the container as have been recited in the libel. This argument is sound 
because it is only when taken as a whole—it is only when all that appears upon 
all sides of the container is considered that any safe or fair conclusion can be 
reached.
The claim made by the libelant that either one or both of these containers 
suggest a foreign origin is a far cry from the fact. With reference to this, 
Section 9 of the Statute provides that the term "misbranded" shall apply "to 
any food or drug product which is falsely branded as to the State, Territory, 
or country in which it is manufactured or produced." It seems quite clear 
to me, after an examination of all the labels, that none of them fall within the 
condemnation of the statute. The Italian Cook Brand label is entirely English, 
except for one side panel upon which there is a statement as to the uses for 
the oil which is printed in Italian which is no more than a translation of 
the English upon the other side panel, both of which carry prominently the 
words, "Agash Refining Corp., Bush Terminal, Brooklyn, New Tork." There 
is nothing else upon the label having reference to place or origin. The ap- 
pearance on the fruit and back panels of the can of three colored diagonal 
Stripes of red, white, and green, as a background for the printed matter, lends 
no support to libelant's contention that because there are three vertical stripes 
of red, white, and green in the National Flag of Italy one must conclude that 
the oil within the container is a product of Italy. Looking at the container 
it is incredible that anyone of fair intelligence could be deceived into thinking 
that the product inside of it was manufactured or produced in Italy. On the 
contrary, it must appear to that same person of fair intelligence that the 
Agash Refining Corporation of Brooklyn, New Tork is its producer, and that 
it is a domestic article.
The Messina Brand Label. Nothing about this container suggests a foreign 
product. Both the fruit and back panels show clearly and distinctly the words 
"Made in U. S. A."
There only remains for decision the question of whether either label tends to 
create a belief in the mind of a purchaser that the product contained in the 
cans is olive oil. The printed legend describes the contents as "Pure Vegetable 
Salad Oil." That pure vegetable salad oil has been recognized by the Federal 
Specifications Board seems clear. In its pamphlet issued September 16, 1930, 
the Federal specification for "Oil; Vegetable, Salad", specifies two types, to 
wit, type A which is "any edible vegetable Oil, excepting olive oil", and type B 
which is "any designated type of edible vegetable oil, excepting olive oil." It 
seems clear that the test requirements as above set forth are such as to show 
that olive oil could not qualify under the description of "vegetable salad oil"
by reason of the obvious characteristics of olive oil. The second edition of 
Webster's New International Dictionary, published in 1934, defines "salad oil" 
as "an oil for salad dressing, specifically in trade any edible oil other than 
olive oil, as cottonseed, corn, or peanut oil." Adopting the principle that courts 
may judicially notice much which they cannot be required to notice it may be 
observed that in advertising these oils tradesmen invariably describe "olive 
oil" as "olive oil" and all other oils as "salad oils." Furthermore, while tech- 
nically olive oil may be classed as a vegetable oil by way of distinguishing it 
from animal or mineral oils, by common understanding as well as by dictionary 
definition, olive oil is a fruit oil since the olive is defined as a fruit of the 
olive tree and olive oil as "oil expressed from
" the ripe fruit of the olive"; 
whereas the other oils commonly known as "salad oils" are strictly vegetable 
oils, as the word "vegetable" is commonly understood.
There is nothing in the case of U. S. v. 95 Barrels of Vinegar, (265 U. S. 438) 
which lends support to the contention of the Government in this case. There 
it was found as a fact that the product labeled "Apple Cider Vinegar made 
from selected apples" was not in fact apple cider vinegar as that term was 
generally understood.
In the case at bar the intervener's product is concededly vegetable salad oil 
and in my opinion does not even tend to mislead or deceive "the purchaser", 
who, in the case of a sale at retail, would be one of the general public not 
necessarily informed as to the trade meaning of words, into believing that the 
product is, as a matter of fact, olive oil. Regardless of what the understanding 
may have been many years ago when about the only salad oil commonly known 
was olive oil, to-day with great advances made over the old days the words 
"salad oil" and "olive oil" are everywhere recognized as being distinctly differ- 
ent products. To-day it can hardly be claimed that there is confusion even, 
much less deceit, in the use of the words "salad oil" and "olive oil." They are 
recognized as two separate articles. The words on the can "Pure Vegetable 
Salad Oil" cannot possibly be understood to mean olive oil or lead one to believe 
that he is purchasing olive oil.
While it is true that the only evidence we have here is the pleadings, includin- 
g the exceptions which stand admitted on the motion to dismiss, together 
with the cans with the labels upon them, I am of the opinion that the appli- 
cation of the doctrine of judicial notice, referred to supra, is ample justification 
for the conclusions herein reached. Amplification of the doctrine may be 
found in Wigmore on Evidence, 2nd Ed Vol. 5, sec. 2583. Hence I hold that the 
instant case does not fall within the cases cited and relied upon by the libelant 
of which Von Bremen et al. v. United) States (192 Fed. 904) is an example. 
In that case, and others of similar import, the prosecutions were by the United 
States on criminal information. Here we have proceedings in rem by way of 
libel for condemnation where the goods have been seized and are now in the 
custody of the Marshal.
It follows, therefore, that the motions to dismiss are both denied, the excep- 
tions in both cases are sustained, the attachments vacated, and the property 
seized by the Marshal should be returned.
Submit decree accordingly properly consented to as to form.
On April 23, 1935, judgments were entered sustaining intervener's exceptions 
and ordering that the libels be dismissed and the product returned.
W. R GKEGG, Acting Secretary of Agriculture.