OFFICE GF THE SOLICITOR. 706 



manufacturer refused to delete certain diseases from the new label 

 which were declared objectionable by the former verdict for the Gov- 

 ernment. The element of fraud was established b}^ reason of the 

 apjiarent persistence of the manufacturer after the former verdict, 

 iand the jury returned a verdict for the Government. Steps have 

 been taken by the defendant corporation to have the case reviewed 

 bv the Circuit Court of Appeals. 



'The case of United States i'. Sherer-Gillett Co., F. and D. No. 12314, 

 N. J. No. 11450, was a criminal action charging adulteration and mis- 

 branding of "Lemon Pie Filling'' and ''Orange Pie Filling" prepared 

 and sold by the defendant and was tried to a jury. Adulteration was 

 alleged for the reason that cornstarch and tartaric acid, flavored with 

 lemon or orange oil had been mixed and packed with and substituted 

 in part for pie filling. The misbranding charge was predicated on the 

 statements "Orange Pie Filling,'' "Lemon Pie Filling," and "Con- 

 tains in concentrated form the same ingredients used by the housewife 

 in making Lemon (or Orange) Pie." The adulteration charge was 

 dismissed at the trial of the case, and the jury returned a verdict of 

 guilty as to the misbranding charge. 



The case of The Newton Tea & Spice Co. v. United States, F. and D. 

 No. 11048, was based on a criminal action (275 Fed. Rep. 394), in 

 which a verdict of guilty was found in the district court on an in- 

 formation charging that the label of a powder sold as "Eggno" and 

 composed of commercial egg albumen and egg yolk, evaporated skim 

 milk, tapioca starch, powdered sugar, vegetable gum, salt, and arti- 

 ficial coal-tar color contained certain false and misleading. statements. 

 The statements complained of were : " To be used in place of eggs in 

 baking and cooking," "An excellent substitute for eggs," "To be used 

 for baking and cooking purposes," "Eggno contains the constituents 

 that cause fresh eggs to fill such an important place," and "One even 

 teaspoonful is to be used in place of each egg called for in recipes," etc. 

 The Circuit Court of Appeals for the Sixth Circuit, in affirming the 

 judgment of the lower court, sustained the lower court in overruling 

 a motion by the defendant to direct a verdict, based on the contention 

 that, as a matter of law, the comparative nutritive values of Eggno 

 and eggs should not be taken into account. The lower court's action 

 in allowing the jury to find as facts whether the statements on the 

 label were equivalent to an assertion that one teaspoonful of Eggno 

 was equal to an egg in a recipe; whether Eggno contained the con- 

 stituents which cause fresh eggs to fill such an important place in the 

 kitchen; and whether Eggno was a substitute for eggs, was affirmed. 

 The court also held that there was no merit in the contention of 

 plaintiff in error that the statement on the label that Eggno is an 

 excellent substitute for eggs and is to be used for baking and cooking 

 purposes, is merely one of opinion, since those statements passed be- 

 yond mere commendation and were statements of fact, and therefore 

 did not fall within the rule announced in the case of United States v. 

 Johnson (221 U. S. 488, 489). 



