
    The People of the State of New York, Appellant, v. James Butler, Incorporated, Respondent.
    Second Department,
    October 8, 1909.
    Foods — false labels — violation of sections 164 and 165, Agricultural Law.
    It is a violation of sections 164 and 165 of the Agricultural Law prohibiting the sale of adulterated or misbranded foods to sell a bottled liquid labeled on the front in large t3rpe “ Peerless Extract of Vanilla," when as a matter of fact the contents is made up of a compound of vanilline, cumerin, spirits, sugar, coloring and water, as appears by a formula printed in small type upon a strip of paper pasted on the back of the bottle. Such label is false and misleading in that a purchaser would be led to think that he was buying real extract of vanilla rather than a compound.
    As vanilla extract is not a compound hut an article having its own distinctive name, such labeling does not come within the first exception to section 165 of the Agricultural Law providing that an article of food not containing poisonous or deleterious ingredients, shall not he deemed misbranded if it consists of a mixture or compound known under a distinctive name.
    Neither does such label come within the second exception to said section providing that an article of food not deleterious shall not he deemed misbranded if it shall be labeled so as to show that it is a mixture and the constituents thereof.
    The statute was intended to prevent the selling of a ¿ounterfeit as a genuine article, even though it does not contain poisonous or deleterious ingredients. The offense of using a false label in such manner as to arrest the eye is not cured by adding a true label placed where it is likely to escape notice.
    Hirschberg, P. J., dissented.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered on the 14th day of January, 1909, dismissing the complaint.
    
      
      Taylor More, for the appellant.
    
      John H. Rogan, for the respondent.
   Miller, J.:

This suit is brought to recover a penalty for a violation of sections 164 and 165 of the Agricultural Law (Laws of 1893, chap. 338, added by Laws of 1903, chap. 524, and § 165, amd. by Laws of 1905, chap. 100). The facts are practically undisputed. On the 7th of June, 1907, the defendant sold to an agent of the Department of Agriculture a liquid in a bottle upon which was a label, reading as follows : “ Peerless Extract of Yanilla For Flavoring Ice Cream, Syrups, Jellies, Custards, Pies, Puddings, &c. Put up by James Butler, 406 Greenwich St. Hew York.” The words “ Peerless Extract of Yanilla” are in large, full-face type. The background of the label is gilt and white. On the reverse side of the bottle is pasted a small white strip of paper upon which is printed in small type the following: “ Formula Yanilline Cumerin Spirits Sugar Coloring Water.” The article sold was not vanilla, it was in fact a compound composed of the ingredients given in said formula.

Sections 164 and 165 of .the Agricultural Law, so far as material, are as follows:

“ § 164. Prohibition as to adulteration or misbranded food.— Ho person or persons, firm, association or corporation shall within this State manufacture, produce, sell, offer or expose for sale any article of food ivhich is adulterated or misbranded within the meaning of this act. * * *
“ § 165. Definition of adulterated or misbranded food.— * * * An article of food shall be deemed to be misbranded :
“ First. If it be an imitation of or offered for sale under the distinctive name of another article. * * *
“ Third. If the package containing it or its label shall bear any statement regarding the ingredients or the substances contained therein, which statement shall be false or misleading in any particular, * * * : Provided, That an article of food which does not contain any added' poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases:
“ First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not included in definition first of misbranded articles of food in this section.
“ Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are mixtures, compounds, combinations, imitations or blends: Provided, That the same shall be labeled, branded, or tagged so as to show the character and constituents thereof.”

There can be no doubt that the label is false and misleading, and that the article in question was offered for sale under the distinctive name of another article. Vanilla is an extract of the vanilla bean. A purchaser would think from the label that he was getting that article, not a compound of vanilline, cumerin, spirits, sugar, coloring and water. A case then of misbranding was established unless the case falls within one of the two exceptions. It does not home within the first because plainly the article was not a mixture or compound, known under its own distinctive name and not included under definition first of misbranded articles of food. The defendant contends that this particular article had its own distinctive name, i. e., “Peerless Extract of Vanilla,” but it could not escape the charge of misbranding by selecting for a spurious article the name of the'genuine article. The case would plainly be included in definition first of misbranded articles.

The case does not come within the second exception because the article was not labeled, branded or tagged so as plainly to indicate that it was a mixture, compound, combination, imitation or blend. The label which was obviously designed to attract notice plainly indicated that the article was an extract, not a compound. A purchaser might be undeceived if he chanced to notice the formula on the reverse side of the bottle. Doubtless, the compound of vanilline, cumerin, spirits, sugar, coloring and water can be prepared much more cheaply than the genuine vanilla extract. Plainly, the statute was intended to prevent the selling of counterfeit for the genuine article, even though the counterfeit does not contain poisonous or deleterious ingredients; and, where a false label is put on one side of an article in such manner as to arrest the eye, the offense is not cured by a trac label put where it is likely to escape notice. This conclusion is supported by the decision and the reasoning of the court in the case of People v. Luke (122 App. Div. 64). The respondent calls our attention to the case of People v. Berghoff (47 Misc. Rep. 1; affd., 112 App. Div. 772). As shown by the opinion of Mr. Justice Chester, that was not a case of misbranding, and the label used was only important as bearing on the question whether the article, a compound of honey and glucose, was manufactured for sale, sold and exposed for sale for pure honey.” That question was held to be a question of fact for the jury.

The judgment should be reversed.

Gaynor, Burr and Rich, JJ., concurred ; Hirschberg, P. J., dissented on the ground that a penal statute is to be strictly construed, and the one in question does not make it an offense to disclose the constituents of a product in smaller type than is used in naming it.

Judgment of the Municipal Court reversed-and new trial ordered, costs to abide the event.  