
    No. 656
    DOUGLAS PACKING CO v. U. S.
    U. S. Appeals, 6th Circuit
    No. 3833.
    Decided April 3, 1923
    Rehearing Denied June 29, 1923
    195. FOOD LAWS.
    Not misbranded if identical thing named. Burden of proving (172) misbranding is on government. Vinegar manufactured from evaporated apples to which water is restored before pressing held not misbranding as apple cider vinegar.
   DONAHUE, C. J.:

Epitomized Opinion

U. S. filed a libel in District Court, Cleveland, f^^ seizure and condemnation of 95 barrels of allegHH apple vinegar labeled “Excelsior Brand Apple CidSF'í Vinegar, Made from Selected Apples,” charging this i vinegar is adulterated and misbranded in violation of Food and Drug Act of June 30, 1906. Douglas Packing Co., manufacturer and owner of this vinegar intervened, denied that it was adulterated or misbranded and asked restitution. Written waiver of trial by jury was filed and the case was submitted to the court upon an agreed statement of facts. The trial court found that vinegar was not adulterated, but was misbranded and ordered its condemnation and forfeiture. Claimant brings error. Agreed statement of facts disclosed that Douglas Packing Co. is engaged in the manufacture of apple cider and apple cider vinegar, that during the apple season — Sept; 25 to Dec. 15 — sound, mature, unevaporated apples are used by it in the manufacture of its products. For balance of year evaporated apples of like quality are used. Result of evaporation process is removal of 80 per cent of water contained in natural fruit.

It is admitted if any other constituents are r^_ moved by evaporation, amount thereof is so neglifÉMJ ble .that science of chemistry is unable to determiné the fact. When evaporated apples are used sub- . stantially same amount of pure water is added to evaporated apples as was removed. In evaporating process, small quantities of sulphur fumes are used to prevent rot, fermentation and decomposition. This is wholly removed by addition of barium carbonate. The cider obtained when analyzed is the same as that made from unevaporated apples, excepting a trace of barium, and this barium does not render the product injurious or deleterious to health. The Food and Drug Act provides an article is adulterated if any substance has been mixed or packed with it so as to injuriously affect its quality or strength and is misbranded if it be labeled or branded so as to deceive or mislead the purchaser, or if it is offered for sale under the distinctive name of another article. The Circuit Court of Appeals in reversing the judgment of the District court held:

1. The trace of barium does not constitute adulteration under the Food and Drug Act, either of Ohio or U. S.

Attorneys — L. C. Spieth (White, Cannon and Spieth on brief), for Douglas Packing Co.; E. S. Wertz and G. J. Pilliod, for U. S.; Judson Harmon and G. Hoadly, amici curise.

2. Conservation of our food products is second in importance only to demand for pure and unadulterated food. An efficient and harmless method of preserving' fruit is in the direct interest of the public. (If method has accomplished that object without change of product it should be encouraged rather than condemned. The purpose of the Food and Drug Act is to prevent injury to public health by the sale and transportation in interstate commerce of misbranded and adulterated foood; 232 U. S. 399, and the burden is upon- the government to prove this violation. This eider is not misbranded within the meaning of the Food and Drug Act.

3. The lower court based its opinion in part upon judicial knowledge that nothing is apple cider unless it is pressed from fresh. apples. This was an inference' wholly inconsistent with the facts < here conceded. '  