410 ANNUAL REPORTS OF DEPARTMENT OF AGRICULTURE. 



there was testimony tending to prove, among other things, that the 

 shipment was made to fill an order solicited and taken by a traveling 

 salesman in defendant's employ. The salesman had been supplied by 

 the defendant with a sample bottle of the article which was labeled 

 simply " Special lemon." In offering the article for sale and solicit- 

 ing the order, the salesman exhibited the sample and represented 

 that the article was pure lemon oil obtained by a second pressing, and 

 that this pressing produced a good, if not the best, oil. The article 

 was not lemon oil, but an imitation thereof containing alcohol and 

 citral made from lemon leaves. Some of the elements of lemon oil 

 were present in other than the usual proportions, and others were 

 entirely lacking. The testimony respecting the salesman's represen- 

 tations was admitted by the trial court over the defendant's objec- 

 tion, and the court later denied defendant's request that the jury be 

 instructed that this testimony could not be considered but only the 

 statement appearing on the label when the bottle was shipped. In 

 that connection the court told the jury that the defendant could not 

 be held criminally responsible by reason of any representations made 

 by the salesman, unless it appeared beyond a reasonable doubt that 

 the same were made by the defendant's authority. The defendant 

 complained, on appeal, of the admission and consideration of this 

 testimony, and insisted that under the statute the question whether 

 an article is misbranded, turns entirely upon how it is labeled when it 

 is shipped, regardless of any representations made by a salesman, or 

 even the vendor, in offering it for sale. 



Upon this proposition the Supreme Court said : 



It is apparent that the statute specifies and defines at least two kinds of 

 misbranding, one where the article bears a false or misleading label and the 

 other where it is offered for sale under the distinctive name of another article. 

 The two are quite distinct, a deceptive label being an essential element of one 

 but not of the other. No doubt both involve a measure of deception but they 

 differ in respect of the mode in which it is practiced. Evidently each is in- 

 tended to cover a field of its own, for otherwise there would be no occasion for 

 specifying and defining both. That one article of food may be offered for sale 

 in the distinctive name of another and the offer accomplish its purpose without 

 the aid of a false or misleading label hardly needs statement. * * * 



It follows that the testimony respecting the representations of the defendant's 

 traveling salesman was rightly admitted in evidence and submitted to the 

 jury. It tended to prove that the order, to fill which the shipment was made, 

 was obtained by offering the article for sale, in the distinctive name of another 

 article, and therefore that the article was misbranded within the meaning of 

 the statute. To have confined the jury's attention to the label borne by the 

 article when it was shipped, as was requested by the defendant, would have 

 been to disregard the nature of the charge in the second count and the distinc- 

 tion between the two kinds of misbranding. 



In United States v. Schider (Circular No. 91. Office of the Solic- 

 itor, Notice of Judgment No. 6151), the trial court sustained the de- 

 fendant's demurrer to the indictment. On a writ of error to the 

 Supreme Court of the United States the lower court was reversed 

 and the case remanded. The indictment charged that a product 

 containing little or no grape and labeled " Compound Ess Grape " 

 was adulterated and misbranded in violation of the food and drugs 

 act. The defendant contended that the labeling of the article " Com- 

 pound " brought it within the proviso of section 8 of the act, Avhich 

 declares articles of food shall not be deemed adulterated or mis- 

 branded if they are " labeled, branded, or tagged so as to plainly 

 indicate that they are compounds, imitations, or blends, and the word 



