
    Ginger Ale.
    
      Carbonated beverages — Ginger ale — Registration of — Act of May 14,1925.
    
    Ginger ale may be lawfully registered under the Act of May 14, 1925 (Act No. 399), without reference to the ingredients which it contains, if the Secretary of Agriculture is satisfied that it does not contain any added poisonous or deleterious substances; the Act of May 14, 1925, does not repeal the Act of March 11, 1909, P. Tj. 15.
    Department of Justice. Opinion to Hon. F. P. Willets, Secretary of Agriculture.
    July 8, 1925.
   Schnader, Special Dep. Att’y-Gen.,

We have your request for an opinion with respect to the construction to be placed upon sections 5 and 22 of Act No. 399 of the 1925 Session, approved May 14, 1925, when read in conjunction with section 4 of the Act of March 11,1909, P. L. 15, in so far as these statutory provisions affect the sale of ginger ale in Pennsylvania.

Section 5 of the Act of May 14, 1925, provides: “No carbonated beverages or still drinks shall be made except from syrup containing pure cane or beet sugar and pure flavoring materials, with or without added fruit acids, and with or without added color. Such carbonated beverages or still drinks shall contain not less than 8 per centum sugar by weight. . . . Carbonated beverages or still drinks not in compliance with this section shall be deemed adulterated.”

Section 22 of the Act of May 14, 1925, provides: “This act does not repeal or in any wise affect . . . any of the provisions of the Act approved the 11th day of March, 1909 (P. L. 15), entitled ‘An act relating to non-alcoholic drinks. . .

Section 4 of the Act of March 11, 1909, P. L. 15, contains the following proviso: “. . . Provided, that any non-alcoholic drink which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded under the following conditions: ‘A. In the case of mixtures or compounds which may be now, or from time to time hereafter, known as non-alcoholic beverages under their own distinctive names, and not an imitation of, or offered for sale under the name of, another article.’ ”

We understand that your inquiry arises under the following facts: The manufacturer of a nationally known brand of ginger ale has demanded registration, under the Act of May 14, 1925, of the ginger ale manufactured by it, notwithstanding the fact that such ginger ale contains less than 8 per centum sugar by weight. Since the passage of the Act of March 11, 1909, ginger ale has become recognized as the distinctive name of an article of non-alcoholic beverage. It is defined for the purposes of the enforcement of the Federal food and drug laws in Food Inspection Decision of the United States Department of Agriculture, No. 185, issued Dec. 18, 1922, as follows: “Ginger ale is the carbonated beverage prepared from ginger ale flavor, sugar (sucrose) syrup, harmless organic acid, potable water and caramel color.”

We understand that your department concedes that at the present time ginger ale is known as a non-alcoholic beverage under its own distinctive name, thus concurring in the recognition which has been given to ginger ale by the United States Department of Agriculture.

Except for the clear expression of legislative intent in section 22 of the Act of May 14, 1925, that the Act of 1925 does not repeal or in any wise affect any of the provisions of the Act of March 11, 1909, P. L. 15, there would be no question but that, in order to be deemed unadulterated under the Act of 1925, it would be necessary for ginger ale to contain at least 8 per centum sugar by weight; and your department could not lawfully register a beverage under the provisions of section 3 of the Act of 1925, knowing that the beverage for which registration was demanded was an adulterated beverage.

When the Act of 1909 was enacted, ginger ale was apparently not regarded as a non-alcoholic drink known under its own distinctive name, for, in section 2, ginger ale was specifically mentioned as one of the articles to be comprehended within the term “non-alcoholic drink,” as used in that act; but in section 4 of the Act of 1909 the legislature not only provided that a mixture or compound which in 1909 was known as a non-alcoholic beverage under its own distinctive name should not be deemed adulterated if it contained no added poisonous or deleterious ingredients, but it also provided that any mixture or compound which might in the future become known as a non-alcoholic beverage under its own distinctive name should be deemed non-adulterated unless it contained added poisonous or deleterious ingredients.

Accordingly, the legislature evidenced its definite intention to exempt from the provisions of law specifying the ingredients to be or not to be contained in non-alcoholic beverages any mixtures or compounds which might at any time in the future attain recognition as non-alcoholic beverages under their own distinctive names, provided only, that such beverages contain no added poisonous or deleterious substances.

In view of the fact that section 22 of the Act of 1925 provides that the Act of 1925 shall in no wise affect any of the provisions of the Act of 1909, section 4 of the Act of 1909 must be read and interpreted as if the Act of 1925 had never been enacted.

Under section 4 of the Act of 1909, a non-alcoholic beverage, if it is a mixture or compound known as a non-alcoholic beverage under its own distinctive name, can be deemed adulterated only if it contains added poisonous or deleterious ingredients.

As your department recognizes ginger ale as a mixture or compound known as a non-alcoholic beverage under its own distinctive name, we are clearly of the opinion that section 5 of the Act of 1925 has no application to the manufacture of this article.

You are advised that you may lawfully register ginger ale under the Act of May 14,1925, without any reference to the ingredients which it contains if you are satisfied that it does not contain any added poisonous or deleterious substances.

From C. P. Addams, Harrisburg, Pa.  