OFFICE OF THE SOLICITOR, 703 



itself or its use in association with the shape of the bottle or the 

 manner in which the article is put up is such as to mislead the public 

 into thinking that the article is something else than it is. The Circuit 

 Court of Appeals for the Third Circuit affirmed the verdict for the 

 Government in the lower court, holding that evidence as to resem- 

 blance between the bottles and labels of ''Sparkling White SeaF'^and 

 those used for champagne sold under the same name raised a question 

 of fact for the jury. 



In the case of United States v. Ninety-five Barrels, More or Less, 

 Alleged Apple Cider Vinegar, F. and D. No. 12068, the Circuit Court 

 of Appeals for the Sixth Circuit reversed the judgment of the District 

 Court for the Northern District of Ohio, which held that vinegar de- 

 rived from evaporated apple products is misbranded if labeled "Apple 

 Cider Vineo;ar." The Government moved for a rehearing in the case, 

 but its motion was denied. Thereupon the department recommended 

 to the Attorney General that application be made to the Supreme 

 Court for a writ of certiorari to review the decision of the appellate 

 court. The Attorney General has concurred in the department's 

 recommendation, and proceedings looking to a review of the case will 

 be instituted when the Supreme Court convenes for its October term. 



The case of United States v. Two Hundred Cases, More or Less, of 

 Canned Salmon (289 Fed. Rep. 157) was a seizure action in the district 

 court for the condemnation of canned salmon on the ground that the 

 product was misbranded and adulterated. The court entered a de- 

 cree condemning the product on the misbranding count, since the 

 label bore the statements "select" and "fresh fish," when the pack 

 was shown to be of inferior quality and not fresh, as that term is 

 understood by the trade. The court also held that the word "arti- 

 cle," as used in the act, applies to the food itself, and not to the case 

 or package in and by means of which the shipment is effected, and 

 that it was not necessary for the Government to prove that the 

 product was unfit for food or deleterious if eaten. 



The case of United States v. 154 Sacks of Oats (283 Fed. Rep. 985) 

 was a seizure proceeding against a quantity of oats, and the court 

 in deciding the issues in favor of the Government on an agreed state- 

 ment of fact held that where oats shipped in interstate commerce 

 contained 23 per cent of foreign material, a percentage of which was 

 commercial wild oats which had been intentionally added, they were 

 subject to forfeiture under the food and drugs act. 



The case of United States v. Loft (Inc.), F. and D. No. 15995, 

 was a criminal proceeding under the net weight amendment to the 

 food and drugs act. The information filed therein charged that the 

 statement, "This package Weighs One Pound. This Specified 

 Weight Includes the Container, 2 oz.," appearing on the label was 

 not a plain and conspicuous marking of the quantity of the contents. 

 The defendant corporation demurred to the information, and the 

 court sustained the demurrer on the ground that the branding was a 

 substantial compliance with the law, although it did require a problem 

 in subtraction to ascertain the contents of the package, the problem 

 being of such a simple nature that it could be performed by any 

 person who could read. 



The case of United States ik 11 Packages B. and M. External 

 Remedy, F. and D. No. 11492, was a seizure proceeding against a 

 proprietory medicine recommended as an external remedy for 



