15830. Adulteration and misbranding of peach fountain fruit  and pineapple
fountain  fruit.   U.  S.  v.  23  Cases   *    *    *    (and  4  other  seizure 
actions).   Tried to the court.   Verdict for Government.   Decree of 
condemnation.    (F. D. C. Nos. 22292, 22302, 22303, 22317, 22918.    Sample 
Nos. 43178-H, 43196-H, 69701-H, 69702-H, 90735-H.) 
LIBELS FILED:    Between the approximate dates of February 18 and April 10,
1947, Western District of Virginia, Northern District of Illinois, and Eastern
District of Tennessee.
ALLEGED SHIPMENT: Four lots of fountain fruits were shipped on or about 
November 7, 11, 12, and 20, 1946, by Southland Preserving Co., Inc., from 
Chattanooga, Tenn., and 1 other lot was returned to the company in a ship- 
ment made from Washington, D. C, on or about January 31, 1947.
PRODUCT: 471 cases, each containing 24 14-ounee jars, of fountain fruit at 
Radford and Roanoke, Va.f Chicago, Ill., and Chattanooga, Tenn.
LABEL IN PART: (Jars) "Southland Peach Fountain Fruit (Delicious as a 
Spread) Contains: Peach, Grain Syrup, Sugar, Citric Acid, Vegetable Gums, 
and %) of 1% Sodium Benzoate," "Tara [or "Southland"] Pineapple Foun- 
tain Fruit Contains: Pineapple, Sugar, Honey, Grain Syrup, Citric Acid, 
Vegetable Gums, and %o of 1% Sodium Benzoate," and "Tara * * * Pine- 
apple Fountain Fruit Contains: Pineapple, Pear, Peaches, Sugar, Grain 
Syrup, Citric Acid, Vegetable Gums and %o pf-1% sodium benzoate."
NATURE OF CHARGE: Peach fountain fruit. Adulteration, Section 402 (b) (2), 
a substance consisting primarily of a mixture of peaches and sugar, or sugars, 
and having a soluble-solids content of less than 65 percent, had been substi- 
tuted for peach preserves. Misbranding, Section.403 (g) (1),, the article 
purported to be peach preserves, and it failed to conform to the definition 
and standard of identity for peach preserves since the soluble-solids content
of the article was less than 65 percent, the minimum permitted by the 
standard.
Pineapple fountain fruit. Adulteration, Section 402 (b) (2), a product of 
less than 68 percent soluble-solids content, two of the three lots consisting 
primarily of a mixture of pineapple and sugar or sugars and the third lot 
consisting primarily of a mixture of pineapple with pear, peaches, sugar, or 
sugars, had been substituted for pineapple preserves. Misbranding, Section 
403 (g) (1), all lots of the article purported to be pineapple preserves, and 
they failed to conform to the definition and standard of identity for pine- 
apple preserves since the soluble-solids content of the article was less than 
68 percent, the minimum permitted by the definition and standard. Further 
misbranding Section 403 (a), the name "Pineapple Fountain Fruit" borne on 
the label of the article was false and misleading as applied to the portion of 
the article which contained pear and peaches in addition to pineapple. 
DISPOSITION : Upon petition of the Southland Preserving Co., Inc., claimant, 
an order was entered directing the consolidation of the various libel actions 
for trial in the Eastern District of Tennessee. A motion was made thereafter 
on behalf of the Government to vacate the order of consolidation, and after 
consideration of the briefs of the parties, the court handed down the following 
decision in denial of such motion:
DABE, District Judge: "Heretofore an order was entered consolidating this 
case with four other like cases pending in other jurisdictions under authority 
of a provision of the Federal Food, Drug and Cosmetic Act as codified at 21 
U. S. C. A. sec. 334 (b).
"The plaintiff has a motion to set aside this order upon the ground that in 
the several cases the issues are not the same.
"I am not sure what requirement would be upon a court to ascertain whether 
the issues were the same. In view of the statements made by the claimant in 
its brief, I feel that I am not concerned about this question.
"The following statements are made in the claimant's brief :
It is true that some of the suits involve Pineapple Fountain Fruit and some of them 
involve Peach Fountain Fruit; however, the claimant has admitted in the answer filed 
and will admit in all of the other cases that it has not made either peach or pineapple 
preserves so far as the property attached is concerned, but that it has made either 
Peach or Pineapple Fountain Fruit, for which no definition or standard of identity has 
been prescribed by the regulations.
*****
As has already been said, however, the only issue in this case, as we see it, is does the 
Government have the right to condemn and forfeit Fountain Fruit because it does not 
comply with the regulations as to preserves.    .    .    .
"I understand these statements to be an admission to the effect that if the 
claimant's products are preserves, then all the elements necessary for the 
seizure and confiscation are made out. That is, the claimant does not make 
the defense that the products meet the requirements as preserves. The claim- 
ant contends that the products are not preserves but a 'Fountain Fruit.'
"The Plaintiff asks for seizure and forfeiture upon the ground that the 
products are misbranded preserves.
"The issue then is whether the products are preserves or some other form of 
fruit food.
"As preserves are made from all kinds of fruits, the use of different fruits 
would not affect the question of whether a commodity is preserves. Whether 
the products meet the standards of the regulations concerning preserves will 
not be for consideration. The claimant says that the products are not pre- 
serves at all, but something else not covered in the regulations. Therefore, 
actually the issues in all the proceedings are the same and become one issue 
upon iconsolidation.
"With the understanding that the issue is so confined in each of the pro- 
ceedings, the motion to vacate the order of consolidation is overruled. Proce- 
dure will go forward under the order consolidating the cases."
The case came on for trial before the court without a jury on June 30, 1948, 
and at its conclusion the matter was taken under advisement by the court. 
On September 10, 1948, the following opinion was handed down by the court:
DAEB, District Judge: "The suit seeks to condemn articles of food, under the 
provisions of 21 U. S. C. sec. 342 (b) (2) and 21 U. S. C. sec. 343 (g), upon the 
claim of adulteration and misbranding. The claimant made answer and 
denied these contentions.
"The products seized were small fourteen-ounce jars, which claimant sold 
to wholesale groceries and retail stores, and bore different labels as follows: 
'Southland Peach Fountain Fruit (Delicious as a Spread)' and Vara Fruit of 
the Good Earth Pineapple Fountain Fruit.'
"The parties have agreed that the products were introduced in commerce 
and that they did not come up to the required standard of preserves. There- 
fore, the single question for determination is whether the products purport to 
be, or are represented as, the standardized articles, peach and pineapple pre- 
serves, within the meaning of 21 U. S. C. sec. 343 (g).
"An examination of the jars shows that the labels contain the name of the 
fruit or trade name in large letters and the words 'Fountain Fruit' are in 
small letters. The term 'fountain fruit' does not have a recognized meaning 
as a food product. A product of this character has not been submitted to the 
trade in containers similar to the ones claimant used. So-called fountain fruit 
appears to have been generally put upon the market for family use in small 
containers of about six ounces and plainly labeled by such words as 'Topping,' 
Sundaettes,' etc., or this type product has been sold in large containers of a 
quart or more to confectioners and soda fountains for use in their business. 
The size jar used by the claimant is comparable to that ordinarily used for 
preserves and jams.
"The proof reflects that the merchants bought these products with the idea 
that they were preserves, that they were mixed upon the shelves of the retail 
stores with real preserves, jams and jellies. So the libelant claims that this 
conduct amounted to a purporting of furnishing the products to the public 
as preserves. The claimant says that the products were plainly labeled 
'fountain fruit' and that there was no deception or imposition.
"There are some cases defining the Congressional meaning of the word 
'purport' as used in this statute. United States v. 306 Cases * * * Tomato 
Catsup, 55 F. Supp. 725; lAoTty, McNeill v. United States, 148 F. 2d 71.
"Also, the statute may be violated without any wrongful intent. United 
States v. 11% Dozen Packages, etc., 40 F. Supp. 208.
"Considering this construction of the word 'purport' and in view of all the 
testimony and considering that I have viewed the labels themselves together 
with the pictures of the products in stores, I am of the opinion that these 
products did purport to be preserves.
"It must be remembered that the products were on sale during the time 
when there was a scarcity of sugar and the buying public was anxious to obtain 
sweets for family use. I have the impression that under all these conditions a 
housewife or other purchaser would buy these products thinking they were 
preserves, particularly when it is further considered that this type of food had 
never been on the market for table use as a spread or as a substitute for 
preserves.
"This was, indeed, a new venture in trying out a table food, and had the 
claimant plainly labeled the food by true description, the label being in bold 
type, recommending it for use in place of preserves, jam or jelly, there could 
have been no objection.
"For the reasons stated, however, I feel it my duty to sustain the proceedings 
for condemnation.
"The claimant, so the proof discloses, ceased the manufacture of the products 
at the time these proceedings were begun and, as I understand, has no plans 
or desire to manufacture the products in the future.
"In view of this and of the whole ease, I direct that the claimant be granted 
the privilege, upon making proper bond, of taking over the condemned products, 
the same to be used and disposed of under the supervision of the Food and 
Drug Administration. If claimant elects not to retake the property, applica- 
tion will be made for disposition thereof in some other manner."
On October 27, 1949, the following supplemental opinion was rendered by 
the court:
DABB, District Judge: "On September 10,1948, a memorandum for the judg- 
ment was announced and filed, but no judgment has been entered pursuant 
thereto. The delay has been eaused by a desire of the plaintiff to make appli- 
cation for a change in a certain portion of the original memorandum for the 
judgment, which portion was obiter dicta and is as follows:
This was, indeed, a new venture in trying out a table food, and had the claimant plainly 
labeled the food by true description, the label being in bold type, recommending it for 
use in place of preserves, jam, or jelly, there could have been no objection.
"Upon consideration the Court feels that this statement might be misleading 
and the further consideration that this announcement had no merit insofar as 
the decision of the controversy is concerned, the same is deleted and taken from 
the original memorandum for the judgment and will not be considered a part 
thereof."
In accordance with the foregoing opinions, findings, of fact and conclusions 
of law were filed on November 10, 1949. On December 20, 1949, judgment of 
condemnation was entered and the court ordered that the products be delivered 
to the Salvation Army for its use and not for sale.