7163. Misbranding of tomato catsup.    U. S. v. 306 Cases of Tomato Catsup.    Tried 
to the court.    Judgment of condemnation entered;  affirmed on appeal.
(F. D. C. No. 7801.   Sample No. 77605-F.)
LIBEL FILED:    June 24, 1942, Eastern District of New York.
ALLEGED SHIPMENT: On or about November 3, 1941, by Libby, McNeill & 
Libby, San Francisco, Calif.
PRODUCT: 306 cases, each containing 6 No. 10 cans, of tomato catsup at Brook- 
lyn, N. Y.
LABEL, IN PART:   "Sanford Tomato Catsup with Preservative."
VIOLATION CHARGED: Misbranding, Section 403 (g) (1), the article purported 
to be and was represented as tomato catsup, a food for which a definition and 
standard of identity has been prescribed, but it did not conform to such defini- 
tion and standard since it contained a chemical, preservative, benzoate of soda, 
the use of which is not permitted by the definition and standard. 
DISPOSITION: January17, 1944, to March 8, 1945. Libby, McNeill & Libby 
having appeared as claimant and filed an answer denying the Misbranding of the 
product, the case came on for trial before the court without a jury. On May 
24, 1944, the court, having considered the evidence and arguments of counsel, 
handed down the following memorandum opinion:
Moscowrxz, District Judge: "Libellant prays for a decree of this Court con- 
demning approximately 306 cases of an article of food labeled in part 'Sandford 
Tomato Catsup with Preservative.' Claimant concedes that the article under 
seizure was shipped by it in interstate commerce to this district, and that it was 
seized by a Deputy United States Marshal within the jurisdiction of this Court.
"The libel charges that the seized article is misbranded within the meaning of 
the Federal Food, Drug and Cosmetic Act, 21 U. S. C. 343 (g) (1). If it is 
misbranded, it is subject to seizure and condemnation by authority of 21 U. S. C. 
334. Under the applicable section of the Act, a food shall be deemed to be mis- 
branded 'if it purports to be or is misrepresented as a food for which a definition 
and standard of identity has been prescribed . . . unless it conforms to such 
definition and standard . . .' Acting pursuant to 21 U. S. C. 341 and 371, the 
Federal Security Administrator issued an order, effective January 1, 1940, 
promulgating a definition and standard of identity for tomato catsup (4 F. R. 
3454), and subsequently refused to amend the prescribed standard, upon the 
application of claimant, so as to permit the addition of benzoate of soda as an 
optional ingredient (6 F. R. 209).
"The product under seizure conforms in all respects to the definition and 
standard promulgated by the Administrator for tomato .catsup, except that it 
contains in addition Ho of 1% of benzoate of soda. The label on the seized 
product reads: Sandford Tomato Catsup with Preservative' (all in same size 
type). 'This product does not conform to the government standard for catsup. 
Contains Mo of 1% of benzoate of soda.' Claimant contends (1) that it is not 
marketing tomato catsup, but an entirely separate and different product desig- 
nated as 'tomato catsup with preservative', for which it claims no standard has
been promulgated and which it has truthfully labeled, and (2) that the Adminis- 
trator's refusal to pemit the addition of benzoate of soda as an optional in- 
gredient had no reasonable basis in fact and that the standard fe therefore1 void.
"To give recognition to a distinction such as claimant asserts would be to 
thwart the entire purpose of the legislation herein sought to be enforced. The 
Congressional objective in authorizing the promulgation of standards for foods 
and requiring compliance therewith is stated in the statute to be to 'promote 
honesty and fair dealing in the interest of consumers'. Experience had shown 
that truthful labeling of a product was no protection to the bulk of the consum- 
ing public; if a product gave the appearance of being a certain food, the public 
assumed that it contained only those ingredients which were commonly associ- 
ated with that food and the label was never consulted. Even a reference to the 
label might not enlighten a consumer on the nature of unfamiliar ingredients 
there set forth. To remedy this general situation, Congress authorized an 
administrative officer (originally the Secretary of Agriculture, whose functions 
in this respect were subsequently transferred to the Federal Security Adminis- 
trator), either on his own initiative or upon application of interested persons,
to determine what ingredients in a particular food would promote honesty 
and fair dealing in the interest of consumers. When a standard has been 
promulgated for any food, any product which 'purports to be' or 'is mis- 
represented as' that food must conform to the standard or it is misbranded and 
subject to condemnation. That an additional ingredient not mentioned in 
the standard is non-deleterious is immaterial; the contents of the standard 
alone must be complied with. That the additional ingredient is plainly, set 
forth on the label is immaterial; the contents of the standard alone must be 
complied with. As the Court stated in the recent case of Federal Security 
Administrator v. Quaker Oats Co., 318 U. S. 218, where the addition of vitamin 
D to a product which in other respects complied with the standard for farina 
was conceded to be a non-conformity to the standard, even though vitamin 
D was a non-deleterious and even beneficial substance,
Both the text and the legislative history of the present statute plainly shows that 
its purpose was not confined to a requirement of truthful and informative labelling. 
False and misleading labeling had been prohibited by the Pure Food and Drug Act of 
1906. But it was found that such .a prohibition was inadequate to protect the con- 
sumer from "economic adulteration", by which less expensive ingredients were sub- 
stituted ... so as to make the product, although not in itself_ deleterious, inferior 
to that which the consumer expected to receive when purchasing a' product with the 
name under which it was sold. Sen. Rep. No. 493, 73d Cong., 2d Seas., p. 10; Sen. 
Rep. No. 361, 74th Cong.. 1st less., p. 10. The remedy chosen was not a requirement of 
informative labeling. Rather it was the purpose to authorize the Administrator to 
promulgate definitions and standards of identity "under which the integrity of food 
products can be effectively maintained", (H. R. Rep. 2139, 75th Cong., 3d Sess., p. 2; 
H. R. Rep. 2755, 74th Cong., 2d Jess., p. 4) and to require informative labeling only 
where no such standard had been promulgated, ... 
"In acting on his own initiative, it was evidently the Administrator's judg- 
ment that the promulgation of a standard for tomato catsup would promote 
honesty and fair dealing in the interest of consumers. After due deliberation 
being given to benzoate of soda as an ingredient, either in the standard or as 
a permitted optional, the Administrator's rejection thereof bars the inclusion 
of that chemical in any food which purports to be tomato catsup. It is not 
necessary to decide this Court's power to review the Administrator's determina- 
tion in this respect for, assuming the power, his decision is held to be correct. 
The evidence indicates that the only purpose in adding benzoate of soda is 
to effect an economy in the cost of manufacture which amounts to approxi- 
mately 25% difference in consumer price, resulting in a material economic 
advantage over competitors who achieve the same preservative quality by the 
use of a greater quantity of sugar, an approved ingredient. This economic 
adulteration is the very fraud which the statute "was designed to combat. 
Although the product under seizure is sold only in No. 10 cans (7 lbs.) to 
institutional users for cocktail sauces and cooking, the evidence indicated 
that some of it found its way to individuals via unlabeled cruets on the counters 
of luncheonettes and small restaurants. The Administrator may well have 
found that honesty and fair dealing required that patrons of these luncheonettes 
were entitled to assume that the product they were using was the same tomato 
catsup they would purchase for home consumption. Catsup sold for home 
use in small bottles did not contain benzoate of soda. This would be a reason- 
able basis for the Administrator's refusal to amend the standard.
"It requires no extensive argument to reveal the obvious fallacy of claimant's 
contention that its product is one for which no standard has been promulgated. 
If every' food for which a standard has been prescribed would become an 
entirely different food by the addition of one ingredient which apparently had 
no effect upon its taste or appearance, it would be a simple matter to completely 
evade and circumvent the purpose of food standards.
"That the product seized purports to be tomato catsup is apparent from the 
evidence. The word 'purport' is, defined in Webster's New International 
Dictionary (1940) as meaning: 'To convey, imply or profess outwardly, as one's 
(esp. a thing's) meaning, intention, or true character; to have the appearance, 
often specious appearance, of being, intending, claiming, etc., (that which is 
implied or inferred)'. Certainly the product under seizure gave the appearance 
of being tomato catsup; it. conveyed the impression, implied and professed 
outwardly, to the ordinary person that it was tomato catsup, and in fact it 
was just that. Claimant's own witness testified that it looked, smelled and 
tasted exactly like catsup and that even an expert would have difficulty in 
differentiating it from tomato catsup without analysis. Some of the invoices 
called it 'tomato catsup' or 'catchup' and made no mention of a preservative.
Most of the persons who purchased it thought of it only as catsup and were 
not aware that it contained benzoate of soda.
"The evidence clearly shows that the seized product is a food which purports 
to be tomato catsup, a food for which a definition and standard of identity has 
been promulgated, and that it does not conform to such standard in that it 
contains benzoate of soda, an ingredient not approved "by the standard. It 
is therefore misbranded within the meaning of 21 U. S. C. 343 (g) (1) and is 
herewith condemned."
On August 1, 1944, judgment of condemnation was entered. On August 31, 
1944, the claimant appealed to the United Stated Circuit Court of Appeals 
for the Second Circuit. On March 8, 1945, the following opinion was handed 
down by the circuit court, affirming the judgment of the district court:
SIMONS, Circuit Judge: "The Federal Security Administrator charged 
with enforcement of the Federal Food, Drug, and Cosmetic Act, acting under 
authority of §401 [21 U. S. C. §§343 (g), (k), 341] promulgated regulations 
establishing a definition and standard of identity for tomato catsup. The 
appellant produced and shipped in interstate commerce the condemned food 
product which concededly does not conform to the standard in that it contains 
sodium benzoate, a substance not permitted as an ingredient. The govern- 
ment's libel charged that the food was misbranded in violation of §403 (g), 
and this the appellant, as claimant, denies on the ground that the product 
was not sold as tomato catsup but as 'tomato catsup with preservative', 
the labels upon the containers specifically declaring that the product does not 
conform to government standard for catsup, and contains Ko of 1% benzoate 
of soda.
"Sections 403 (g), (k), of the Act declare when a food is deemed to be mis- 
branded, and insofar as the provisions are pertinent, they are printed in the 
margin.2 The sole contention urged upon appeal is that the seized product 
being truthfully labeled, not deceptively packaged, and sold under a name 
accurately descriptive of its composition, is not misbranded within the meaning 
of §403 (g), because of the presence in the food of the sodium benzoate. It is 
urged that the branding of a product as relating to its characteristics and 
composition, is the sole basis for determining whether it is misbranded, and that 
the section does not have the effect, nor was it intended by Congress to have 
the effect of excluding any product from interstate commerce when it is sold 
for what it is. As a supplementary proposition, it is urged that misbranding 
of the specific product seized is not to be established by designations of identical 
products applied to them not by their producer but by retail dealers to their 
customers.
"As produced and shipped by the appellant, the condemned food is packed 
in #10 cans with the described labels thereon. It is catsup as defined by the 
Administrator, to which there has been added the minute quantity of sodium 
benzoate as a chemical preservative. This preservative is harmless, is com- 
monly used in other foods, including oleomargarine, preserves, and jellies, and 
does not affect the viscosity, taste, smell,, or appearance of the catsup. It is 
explained that there is a wide variation in the degree of concentration of catsup, 
and a well-established practice in the trade to call a catsup of the higher con- 
centration 'fancy', and that of the lower concentration 'standard.' The dif- 
ference in specific gravity between the two products is due to the difference in 
the quantity of added sugar, and the amount of added sugar is determined by 
the quantity of vinegar added. Catsup is rendered virtually sterile by heat 
processing, but will spoil after opening unless it contains a preserving agent. 
Vinegar, sugar, and salt, in combination, are good preserving agents when added 
in sufficiently large quantities. The amounts required by the standard are 
relatively small because added only as seasoning ingredients, so it had been the 
practice in the industry, quite generally, up to 1940, to add sodium benzoate 
to a lower concentration so as to give it a keeping quality comparable to catsup 
¦ preserved by added sugar and vinegar.
2 "Sec. 403 : A food shall be deemed to be misbranded—¦¦
"(g) If it purports to be or is represented as a food for which a definition and standard 
of identity has been prescribed by regulations as provided by section 401, unless (1) it 
conforms to such definition and standard, and (2) its label bears the name of the food 
specified in the definiiton and standard, and insofar as may be required by such regulations, 
the common names of optional ingredients (other than spices, flavoring, and coloring) 
present in such food." 
I
"(k)    If it bears or contains any artificial flavoring, artificial coloring, or chemical  ' 
preservative, unless it bears labeling stating that fact:    *    *    *"
While fancy catsup is packed in bottles for table use, standard catsup is 
packed in #10 cans and* sold primarily to hotels, restaurants, and similar estab- 
lishments, although standard catsup, to some extent, is used as table catsup in 
low priced restaurants. Generally, however, standard catsup is used in cooking 
and in the preparation of sauces. It costs about 25% less than table catsup 
because it contains less sugar Which is a costly' ingredient, and is in response to 
a demand for a less expensive product.
"The district court found the product under seizure to conform in all respects 
to the definition and standard promulgated by the Administrator, except for the 
addition of the small quantity of benzoate of soda, but held that it purported 
to be catsup, and so, since it did not conform to the standard, was misbranded. 
Decision therefore turns upon the meaning of the word 'purport' as used in 
§403 (g). The appellant contends that the label is controlling, that its product 
does not thereby purport to be catsup, even though it conforms-in all respects 
to the standard, except for the added ingredient. It is a specific article, namely, 
tomato catsup with preservative, and since its label truthfully so indicates, there 
is no misbranding. The label may be disregarded only if it is assumed that 
§403 (g) expresses an intent on the part of the Congress to outlaw the manu- 
facture of foods not conforming to applicable standards which, but for the 
standard, would be sold under the same common and usual name.
"It is impossible for us, in the light of controlling authority, to accept the 
contention. The condemned food is tomato catsup, and purports to be tomato 
catsup.8 If producers of food products may, by adding to the common name of 
any such product mere words of qualification or description, escape the regula- 
tion of the Administrator, then the fixing of a standard for commonly known 
foods becomes utterly futile as an instrument for the protection of the consum- 
ing public. Here is no artibrary or fanciful name, neither 'representative or 
misrepresentative' of a common food product, as in Judge Geiger's unreported 
case of U. S. v. 24Y& Gallons of Smack (E. D. Wis. 1926)4. Such designations 
invite inquiry as to what the food really is. The present product is intended to 
satisfy the demand and supply the market for—catsup. Emphasis is laid on its 
conforming to standard except for the preservative. The argument defeats 
itself, for if it is an article of food, distinguished from the standard by the 
qualification, then other ingredients may be added or defined ingredients or 
processes omitted without conflicting with the regulation, if containers are 
truthfully labeled.
"In Security Administrator v. Quaker Oats Co., 318 U. S., 218, it was said that 
the statutory purpose to fix a definition of identity of an article of food sold 
under its common or usual name, would be defeated if producers were free to 
add ingredients, however wholesome, which are not within the definition, and 
so it was not an unreasonable choice of standards for the Administrator to 
adopt one which defined the familiar farina of commerce without permitting 
vitamin enrichment, and at the same time a standard for 'enriched' farina 
which permitted a restoration of vitamins removed from whole wheat by mill- 
ing. The respondent in that case had marketed 'Quaker Farina Wheat Cereal, 
Enriched with. Vitamin D'. Since this did not conform either to the standard 
adopted for farina, or to the standard adopted for enriched farina, it was held 
to be misbranded, although the label there as truthfully described the product 
as does the present label. The district judge was unable to distinguish the 
present case from the Quaker Oats case, and neither can we.
"In reviewing the text and legislative history of the present statute, Mr. 
Justice Stone, in the Quaker Oats case, pointed out that its purpose was not 
confined to a requirement of truthful and informative labeling. False and mis- 
leading labeling had already been prohibited by the 1906 Act. The remedy 
chosen was not a requirement of informative labeling, rather, it was the purpose 
to authorize the Administrator to promulgate definitions and standards of 
identity under which the integrity of food products could be effectively main- 
tained, a;nd to require informative labeling only where no such standard had 
been promulgated; where the food did not purport to comply with the stand- 
ard; or where the regulations permitted optional ingredients, or required their 
mention on the label, and that the provision for such standards of identity 
reflect a recognition by Congress of the inability of consumers to determine, 
solely on the basis of informative labeling, the relative merits of a yarity of
3 The Canners' League of America, of which the appellant is a member, vainly sought an 
amendment to the standard fpr catsup. No standard was sought for catsup with preserva- 
tive, nor was review had of the Administrator/s rejection of the amendment.
* Notice of judgment under Food and Drugs Act (1906) No. 14,416 (White and Gates, 
Decisions, p. 1181).
products superficially resembling each other. The court was unable to say that 
such standard of identity, designed to eliminate a source of confusion to pur- 
chasers, will not promote honesty and fair dealing within the meaning of the 
statute.
"Neither the decision nor its rationalization in the Quaker Oats case, can be 
escaped by a product that looks, tastes, and smells like catsup, which caters 
to the market for catsup, which dealers bought, sold, ordered, and invoiced as 
catsup, without reference to the preservative, and which substituted for catsup 
on the tables of low priced restaurants. The observation in the opinion that 
it was the purpose of the Congress to require informative labeling, 'where the 
food did not purport to comply with a standard' is not to be lifted out of its 
context, given a meaning repugnant to the decision, so as to limit 'purport' to 
what is disclosed by the label and to that alone.
"The contention that Congress did not intend to, and may not prohibit 
shipment of non-deleterious substances, is fully answered both in the Quaker 
Oats case and J. S. v. Carolene Products Co., 304 U. S. 144, where the regula- 
tion is in the interest of consumers. Libby, McNeill & Libby v. U. S., 210 
Fed. 148 (C. ,C. A. 4). While the recent case in the Sixth Circuit, U. S. v. 
2 Bags more or less of Poppy Seeds, 147 Fed. 2nd 123, decided January 31, 
1945, involved a libel under the adulteration section of the Act, § 402 (b) (3) 
and (4), it was there held that the appropriate inquiry is whether the ultimate 
purchaser will be misled. The contention of the-appellant that transactions 
subsequent to the interstate movement of a food have no bearing upon whether 
the regulation or standard is avoided, and which is supported only by reference 
to the Poppy Seed case in the district court, 54 Fed. Supp. 706, now reversed, 
must be rejected. Nolan v. Morgan, 69 Fed. (2d) 471 (C. C. A. 7) and U. S. 
v. Nesbitt Fruit Products Inc., 96 Fed. (2d) 972 (C. C. A. 5), did not involve 
standards of identity, and both cases were decided prior to the Quaker Oats 
case. The argument that an affirmance of the decision below will prevent 
the development of new foods and "lay a dead hand on progress" is one that 
may more appropriately be addressed to the Administrator or to Congress 
than to the courts.
"The order of condemnation is affirmed."