1 



THE SOLICITOR. 801 



the bottles did not contain maple sirup nor a blend of maple sirup, 

 but did contain a mixture or compound composed laro^ely of refined 

 cane sugar flavored with extract of maple wood. The claimant 

 demurred to the libel and, after hearing, the demurrer was sustained. 

 In its opinion the court held that the labels conveyed the impression 

 that the product was a blended sirup, and further, tliat the sirup was 

 in fact a blend and within the exception provided b}' the fourth para- 

 graph of section 8 of the act in the case of blends. This exception 

 provides that articles of food will not be deemed to be misbranded if 

 al)( led or branded so as to indicate that they are blends, and the 

 word "blend" is plainly stated on the label. The term "blend" is 

 defined to mean a mixture of like substances, not excluding harmless 

 color or flavor used for the purposes of coloring and flavoring only, 

 and the court said that the manufacturers in the present case had pro- 

 duced the ver}' blend contemplated by the exception by adding to 

 cane sugar the flavoring extract of maple wood, and added that the 

 labels in question were not misleading, because the word "blend" in 

 itself indicates a mixture or an imitation. 



This Department is unable to accept the view that cane sugar 

 flavored with extract of maple wood is a "blend" within the meaning 

 of the food and drugs act, and on receipt of notice of the decision in 

 this case desired to have it reviewed on appeal. It developed, how- 

 ever, that the sirup had been released to the claimants and as the 

 res had passed out of the jurisdiction of the court, an appeal was 

 deemed by the Attorney-General to be inadvisable. It is regrettable 

 that the opinion could not be reviewed, since the Department is strongly 

 inclined to think that it does not state the law. This is so because 

 the product was not entitled to the name "blended maple syrup," 

 since it did not contain any maple sirup; also because, under the 

 statute, the question of whether an clement of a mixture is a "like" 

 substance with a flavoring material can not be considered in deter- 

 mining whether the mixture is a blend, and, further, because even if 

 there were any degree of likeness betweecL the cane-sugar sirup and 

 the extract of maple wood, and this likeness could be considered, it 

 is not properly described or characterized by the words "maple 

 syrup." 



The question has been raised in several jurisdictions whether it is 

 necessar}', before filing of a libel in rem for condemnation and for- 

 feiture under section 10 of the act, that there should be a preliminary 

 examination of an alleged adulterated or misbranded product by the 

 Department of Agriculture and a hearing before the Secretary of 

 Agriculture, provided for bv section 4 of the act. In United States 

 v.Tifty Barrels of AMiiskvtl65 Fed., 966; Notice of Judgment No. 

 68) the court held that the provision of section 4 of the act relates 

 only to proceedings under section 2, and that neither a preliminary 

 examination of the product nor a hearing before the Secretary of 

 Agriculture is required before the filing of a libel for condemnation and 

 forfeiture. To the same efl'ect are the decisions in United States v. 

 Sixty-five Casks of Liquid Extract (1 70 Fed. 449 ; Notice of Judgment 

 No. 284) ; United States v. Oue Hundred Cases of Tepee Apples et al., 

 supra; United States v. Three Hundred Cases of ^laplcine, supra; 

 United States v. Thirty-six Cases of Metabolized Cod Liver Oil (Notice 

 of Judgment No. 303). 



73477°— AGB 1910 51 



