768 ANNUAL REPORTS OF DEPARTMENT OF AGRICULTURE. 



nized in the United States Pharmacopoeia and differed from the 

 standard of strength, quahty, and purity for jalap as determined 

 by the test laid down m the Pharmacopoeia ollicial at the time of 

 investigation, and misbranding was charged because the strength 

 of the drug differed from the strength indicated by the label. Defend- 

 ant demurred on the ground that the provisions of section 7 of the 

 act under which adulteration was alleged was unconstitutional as 

 being ex post facto and an improper delegation of legislative author- 

 ity, and that the count alleging misbranding of the drug was defect- 

 ive because it failed to state that the label was false and misleading. 

 In overruling the demurrer the court held that the word "investi- 

 gation" used in section 7 of the food and drugs act is not necessarily 

 identical in meaning with the word " examination " used elsewhere 

 in the act, and section 7, which declares a drug to be adulterated if it 

 * ' differs from the standard of strength, quality, or purity as determined 

 by the test laid down in the United States Pharmacopoeia * * * 

 official at the time of investigation," is not ex post facto legislation. 

 The amenabihty of shippers to prosecution under section 2 depends 

 on the fact existing at tne time when shipment takes place, and no 

 offense is committed in shipping a drug conforming at the time of 

 shipment to standards then in force, even though subsequently a 

 drug may be found on examination not to conform to other tests 

 which at the time of the examination have become operative as to 

 further shipments of the drug. It was further held that Congress, 

 in providing that a product shaU be deemed to be adulterated if it 

 fails to comply with the test laid down in the pharmacopoeia or 

 national formulary official at the time of investigation did not dele- 

 gate legislative power, but merely prescribed the method of ascer- 

 taining facts upon which the operation of the statute was to depend, 

 and that the words "false" and "misleading" as used in section 8 

 of the act are of the same import, and either or both may be used 

 indifferently in an information charging the misbranding under the 

 act (Circular No. 49, Office of the Solicitor). 



In the northern district of Cahfomia a domestic wine labeled 

 "Champagne," without quaUfying words, was held to be misbranded, 

 for the reason that the term when used alone is commonly under- 

 stood to describe an effervescent or sparkling wine produced in a 

 province of France, the gas therein bemg a product of natural fer- 

 mentation. It was also decided that in a criminal prosecution 

 under section 2 of the food and drugs act it is not necessary for the 

 Government to charge or prove compHance by the administrative 

 officers with the provisions of section 4 of the act, whether the hear- 

 ing therein prescribed has or has not taken place. United States v. 

 Schraubstadter & Groezinger (Notice of Judgment No. 1020). 

 This decision with respect to the effect of section 4 is contrary to 

 the decision of the circuit court for the southern district of New 

 York in United States v. Morgan (181 Fed., 587). Morgan was 

 indicted for shipping in interstate commerce misbranded spring 

 water. He was tried before a jury, which returned a verdict of 

 guilty. Thereupon defendant's counsel filed motions for a new 

 trial and in arrest of judgment on the ground, among others, that 

 the indictment failed to allege, and the Government had offered no 

 proof, that notice had been given to the defendants by agents of 

 the Department of Agriculture of the examination of samples 

 obtained of the water and an opportunity given them to be heard 



