412 ANNUAL REPORTS OF DEPARTMENT OF AGRICULTURE. 



The case of United States v. Johnson et al. (Notice of Judgment 

 No. 6982), involved a charge of adulteration and misbranding of an 

 article shipped in interstate commerce which was labeled " Maple 

 etta syrup," with the word " Maple " in large letters, the word 

 " Etta " in smaller letters underneath it and to the right, without 

 any hyphen, and the word " Syrup " in a little larger letters than the 

 word " Maple." Below that were the words in much smaller type, 

 " Produced by the blending of refined sugar syrup, cane, and maple 

 etta syrup," with the design of maple leaves or something in the 

 nature of maple leaves around the word " Maple," The court in- 

 structed the jury that the question for their determination was 

 whether the label, taken as a whole, as it was upon the can and 

 offered to the purchaser for sale, was reasonably calculated to deceive 

 and mislead the average purchaser into the belief that he was getting 

 maple sirup ; that it was not a question as to whether any purchaser 

 had been actually deceived or not ; that the Government did not have 

 to show that ; that it was not a question as to what a very careful man 

 would do about it or would think about it, or what a very careless 

 man would think about it ; that they were to take into consideration 

 all of the circumstances bearing on that question, the label itself, the 

 placing of the letters, the size of the letters, and determine what 

 would be the natural effect of that label on the ordinary average 

 person. 



United States v. Bethesda Mineral Spring Co. (Notice of Judg- 

 ment No. 5906), involved the shipment of water for which certain 

 therapeutic claims were made and which the evidence showed was 

 radioactive in an infinitesimal degree. Upon the question as to the 

 relevancy of evidence respecting the radioactivity of the product, 

 the court held that the question of its radioactivity was not relevant 

 to the issues in the absence of testimony by the defendant showing the 

 effect that the infinitesimal quantity present would have on the dis- 

 eases enumerated on the label. 



The article was labeled " Bethesda : For all kindney diseases, 

 Bright's disease, diabetes, torpid liver, dyspepsia, insomnia, calculi, 

 or nervous prostration." 



The court charged the jury that they were to test what the label 

 meant by taking the language of it and importing to that language 

 the meaning of the words, singly and together, that would be con- 

 veyed to them as ordinary men; not as men skilled in medical, 

 chemical, or pharmaceutical science, capable of making nice dis- 

 tinctions or nice discriminations, but rather the meaning that would 

 come to them as ordinary men unskilled, but seeking, it is assumed, 

 some sort of remedy or remedial help for the afflictions that flesh is 

 heir to; that they should examine the language in the light of the 

 purpose of the food and drugs act, which is to protect human kind 

 against the consequences of human weaknesses or human frailty, of 

 human credulity or the disposition to believe, or of human gullibility ; 

 that tliey should handle it in the light of the disposition of the ordi- 

 nary human kind to wish to believa in the potency of remedial agents 

 to relieve them from ills from which they are actually or conceivably 

 suffering. 



The court further instructed the jury that if they found it to be a 

 fact that the former label used the word "cure," that they would 



