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tion in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, from any foreign country into any State, Territory or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place nonconliguous to but subject to the jurisdiction thereof, is hereby prohibited.
Note.-In the case of Adams Express Company v. Kentucky, decided by the Supreme Court of the United States on June 14th, 1915, certain intoxicating liquors were bought and paid for in Tennessee and were transported by the express company from that State into the State of Kentucky for the personal use of the consignee, without any intention on his part to dispose of them contrary to the law of the State. Kentucky had a local option law and a law which made it unlawful for any public or private carrier to bring intoxicating liquors into any county or place where the sale of intoxicating liquors had been prohibited. The Court of Appeals of Kentucky decided “that there was never even a claim of a right on the part of the Legislature to interfere with a citizen using liquor for his own comfort, provided that in so doing he committed no offence against public decency by being intoxicated.” The Supreme Court of the United States in reviewing the case pointed out that after the decision in Leisy v. Hardin, Congress passed the Wilson Act of 1890, which made intoxicating liquors transported in interstate commerce subject to the police power of the State upon their arrival in the State. The Court said that there was nothing in the Wilson Act to prevent the shipment of liquor in interstate commerce for the use of the consignee, provided he did not undertake to sell it in violation of the laws of the State. Congress thereupon undertook by the Webb Act to prohibit the introduction of liquors into the States by means of interstate commerce. The Webb Act, however, was an act “divesting intoxicating liquors of their interstate character in certain cases," and did not assume to prohibit all interstate shipments of liquor into dry territory. The plain intention of Congress was to render the prohibition of the statute operative only where the liquor was to be dealt with in violation of the local law of the State into which it is shipped. The Court therefore held that, by the provisions of the Webb Act, shipments into a State of intoxicating liquors, intended solely for the personal use of the consignee and not to be used in violation of the State laws, were not subject to the operation of a State statute, as in the Kentucky case, forbidding carriers to bring intoxicating liquors into any dry territory.
THE FOOD AND DRUGS AOT.
Act of June 30, 1906.
An Act for preventing the manufacture, sale or transportation of adulterated
or misbranded or poisonous or deleterious foods, drugs, medicines and
liquors, etc. SECTION 1. That it shall be unlawful for any person to manufacture within any Territory or the District of Columbia any article of food or drug which is adulterated or misbranded, within the meaning of this Act; and any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and for each offense shall, upon conviction thereof, be fined not to exceed five hundred dollars or shall be sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court, and for each subsequent offense and conviction thereof shall be fined not less than one thousand dollars or sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court.
Sec. 2. That the introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor: Provided, That no article shall be deemed misbranded or adulterated within the provisions of this Act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped; but if said article shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall not exempt said article from the operation of any of the other provisions of this Act.
(Sec. 3 provides that the Secretary of Treasury, Secretary of Agriculture, and Secretary of Commerce and Labor shall make regulations for carrying out the Act, and collecting and examining specimens of foods and drugs.)
SEC. 4. That the examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such Bureau, for the purpose of determining from such examinations whether such articles are adulterated or misbranded within the meaning of this Act; and if it shall appear from any such examination that any of such specimens is adulterated or misbranded within the meaning of this Act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained. Any party so notified shall be given an opportunity to be heard, under such rules and regulations as may be prescribed as aforesaid, and if it appears that any of the provisions of this Act have been violated by such party, then the Secretary of Agriculture shall at once certify the facts to the proper United States District Attorney, with a copy of the results of the analysis or the examination of such article duly authenticated by the analyst or officer 'making such examination, under the oath of such officer. After judgment of the court, notice shall be given by publication in such manner as may be prescribed by the rules and regulations aforesaid.
Sec. 7. That for the purposes of this Act an article shall be deemed to be adulterated :
In case of drugs :
First. If, when a drug is sold under or by a name recognized in the United States Pharmacopæia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopæia or National Formulary official at the time of investigation: Provided, That no drug defined in the United States Pharmacopæia or National Formulary shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopæia or National Formulary.
Second. If its strength or purity fall below the professed standard or quality under which it is sold.
In the case of confectionery:
If it contain terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health, or any vinous, malt, or spirituous liquor or compound or narcotic drug.
In the case of food :
First. If any substance has beeen mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.
Second. If any substance has been substituted wholly or in part for the article.
Third. If any valuable constituent of the article has been wholly or in part abstracted.
Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed.
Fifth. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health: Provided, That when in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise, and directions for the removal of said preservatives shall be printed on the covering or the package, the provisions of this Act shall be construed as applying only when said products are ready for consumption.
Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter.
SEC. 8. That the term “misbranded,” as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced.
Sec. 9. That no dealer shall be prosecuted under the provisions of this Act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this Act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines, and other penalties which would attach, in due course, to the dealer under the provisions of this Act.
Note.-On May 29th, 1911, the Supreme Court decided in the case of United States v. 0. A. Johnson, 221 U. S. 488, that false and misleading statements in the labels on a proprietary medicine as to its curative or remedial effects, which did not import any statement concerning the identity or ingredients of the medicine are not "misbranded" within the meaning of the Food and Drugs Act, which defined that term as applicable to all drugs or articles of food, the package or label of which shall bear any statement, design or device regarding such article, ingredients or substance contained therein, which shall be false or misleading in any particular. In that case, O. A. Johnson was indicted for delivering for shipment from Missouri to Washington, District of Columbia, packages and bottles of medicine bearing labels that stated or implied that the contents were effective in curing cancer; the District Court quashed the indictment and its action in this regard was sustained by the Supreme Court, the Court holding that the false statements meant by the Act, according to its plain language, were false statements as to what the ingredients of the drug were. As a consequence of this decision the Sherley Amendment to the Pure Food and Drugs Act was passed by Congress and approved August 3rd, 1913, which provides it is a “misbranding" in the case of drugs :
"If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or sub ances contained therein, which is false and fraudulent.”
On March 3rd, 1913, the Food and Drugs Act was further amended by what is known as the Gould or Net Weight Act which makes it a violation of the act,
"If in package form, the quantity of contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted, and tolerance and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of section three of this Act."
Note.-On February 24th, 1914, the Supreme Court decided in the case of United States v. Lexington Mill and Elevator Company, 232 U. S. 399, that Section 7 of the Food and Drugs Act, relating to adulteration of food and drugs, was not violated in the treatment of flour by the “Alsop Process," so-called, by which nitrogen peroxide gas, generated by electrcity, was mixed with atmospheric air and then brought in contact with the flour, resulting in the bleaching of the product. The government contended that it need not prove that the flour, or foodstuffs made by the use of it, would injure the health of a consumer, but only that the added substance was injurious. The company maintained that the substances introduced in the flour by the Alsop Process in the proportion of 1.8 parts per million would not prove injurious to health. The court said: “The testimony shows that the effect of the Alsop Process is to bleach or whiten the flour, and thus make it more marketable. If the testimony introduced on the part of the respondent was believed by the jury, they must necessarily have found that the added ingredient, nitrites of a poisonous character, did not have the effect to make the consumption of the flour by any possibility injurious to the health of the consumer. The statute upon its face shows that the primary purpose of Congress was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was, and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to protect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such articles injurious to the health of consumers. If this purpose has been effected by plain and unambiguous language, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms.
* Applying these well-known principles in considering this statute, we find that the fifth sub-division of $ 7 provides that food shall be deemed to be adulterated “if it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health. The instruction of the trial court permitted this statute to be read