Cuyahoga Circuit Court.

ADULTERATION OF FOODS.

[Cuyahoga Circuit Court, January, 1896.]

ROSE V. STATE OF ОEIO.

Caldwell, Hale and Marvin, JJ.

1. "BREAKFAST COCOA" NOT A VIOLATION OF STATUTE. Under the act of March 20, 1884, as amended April 22, 1890, to provide against the adulteration of foods, "Breakfast Cocoa," in the preparation of which the manufacturer took the cocoa bean and extracted a considerable portion of the oil therefrom, and put the product thus prepared in packages, for sale, is not a violation of the prohibition therein "that an article of food shall be deemed to be adulterated if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it."

2. ABSTRACTINg a Valuable Part of the Natural Fruit.

An article of food, which is produced by abstracting from a natural fruit, a valuable part, is not a compound or mixture.

MARVIN, J.

The case of L. C. Rose, plaintiff in error, against the state of Ohio, defendant in error, involves a construction of one of the pure food statutes of the state.

In this case Rose, the plaintiff in error, was arrested upon an affidavit charging that on or about the 12th day of March, 1895, at the county of Cuyahoga, Ohio, he unlawfully offered and exposed for sale and sold an article under the name of cocoa; that it was so offered and exposed for sale and sold as an article of human food and to be used for human food; that the article so offered and exposed for sale and sold was not pure cocoa, but was an adulteration; that certain other substances were added to or mixed with the cocoa, and that there had been extracted from the cocoa a necessary constitutent thereof, to wit: a large per cent of the fat; that the article so sold was not labeled as a mixture and compound with the name and per cent of each ingredient therein, and which entered into and formed what was so exposed and offered for sale and sold.

The prosecution was under the statute passed by the general assembly of this state on the 20th of March, 1884, as amended April 22, 1890. That statute is divided into five sections, but it is only the first three sections with which we have to deal in this case. The third section has lettered subdivisions, and such subdivisions have numbered paragraphs. Omitting from each of these sections so much as is not involved in this case, we have the statute reading as follows:

Section 1. "No person shall, within this state, manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act."

Sec. 3. "An article shall be deemed to be adulterated within the meaning of this act : * * *

"(b) In the case of food: (1) If any substance or substances have been mixed with it, so as to lower or depreciate it, or injuriously affect its quality, strength or purity; (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) If any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it,"

Rose v. State of Ohio.

There is a proviso in the statute which reads: Provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles of food, or ingredients of articles, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, with the name and per cent of each ingredient therein, and are not injurious to health."

The plaintiff in error, Rose, was tried before a justice of the peace and a jury upon the charge made in the affidavit, and upon such trial was found guilty. He filed a motion for a new trial, also a motion in arrest of judgment, both of which were overruled, and judgment entered upon the verdict. A petition in error with a bill of exceptions embodying all the evidence was filed in the court of common pleas, and upon hearing there had, the judgment of the justice was affirmed, and the case comes to this court upon a petition in error to reverse the judgments of the lower courts, and the entire record, including all the evidence, is before us.

The important question here to be determined is whether the verdict of the jury was sustained by the evidence. It is clearly established by the evidence that at the time and place charged in the affidavit the plaintiff in error sold, to be consumed as human food, a package containing a manufactured product of the cocoa bean, the bean being a natural product of the tree known as the cacao tree. The product of the cocoa tree is the cocoa nut, and the product of the cacao tree is the cocoa bean. That such manufactured product contained nothing which was not a part of the cocoa bean. The charge in the affidavit, it will be observed, is that other substances were added to the cocoa to make the article sold, but the evidence of the experts introduced on the part of the state-shows that there was nothing added to the cocoa to make the article which was sold by Rose. That such manufactured product contained nothing which was not a part of the cocoa bean, but resulted from converting that bean, by removing the hulls and drying and baking, into what is known as cocoa nibs, and then abstracting therefrom a considerable part of the fat or oily matter, and then grinding the remainder into a powdered substance. There is no dispute in the evidence that this was the article sold under the name of cocoa; that such powdered substance is sold and has been known and has been sold for twenty-five years past and more under the name of "cocoa;" and that besides this article produced in the way which I have explained, there is sold and known and for a like period there has been sold and known as "cocoa" a manufactured product, which is produced by the mixing and compounding with the cocoa bean after grinding, some other harmless matter, so that the percentage of oil will be less than in the natural product, in either way; that is to say, whether manufactured as the cocoa which was sold in this case was manufactured, by abstracting the fat or the oily part of the bean, or by adding some harmless matter to the bean, to the natural product, so that the per cent of oil shall be reduced. For more than twenty-five years the evidence clearly shows that each of these has been known and generally recognized and sold as "cocoa."

There is no claim in this case that what was sold was not entirely wholesome. That is agreed upon by all the witnesses in this case who say anything upon that subject.

The evidence establishes that the package sold was put up in a tin box having imprinted in the cover in large letters the words "Walter

Cuyahoga Circuit Court.

Baker & Co.'s Breakfast Cocoa," and having a wrapper around the box on one side of which printed in large letters are the words Breakfast Cocoa," and on another side "Baker's Breakfast Cocoa" in large letters, followed by the words in smaller letters, but still in very distinct type, "From which the excess of oil has been removed," and on a third side the words in large letters "This Extract of Cocoa" and toward the bottom of the label on the same side of the box as the words last quoted these words in distinct type, "The excess of oil having been removed."

The sale was made to one Henry C. Lowrie, who asked for cocoa. The determination of the case depends upon the construction to be given to the statute under which Rose was prosecuted. It will be observed that but for the exception already read, "Provided that the provision of this act shall not apply to mixtures or compounds recognized as ordinary articles of food, or ingredients of articles, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, and are not injurious to health, with the name and per cent of each ingredient therein," the statute would absolutely prohibit both the manufacture and sale of all articles of food named in the statute; and it will be further observed that to bring an article within the exception—that is, to make it such an article as may be sold if properly labeled in pursuance of the statute-it must be a mixture or compound which may be relieved from the prohibition of the statute by having the proper label. And this brings us to a consideration of whether the article sold by this plaintiff in error is a mixture or compound within the meaning of the statute; for if it is neither the one nor the other its sale is absolutely prohibited by the statute, unless we come to the conclusion that it is not included among the prohibited articles enumerated in the statute. The sale and manufacture of articles named in the statute is absolutely prohibited in Ohio unless the thing to be sold is a mixture or compound, and is labeled as the statute requires. The noun "mixture" is defined in Webster's Dictionary as "That which is mixed or mingled; a mass or compound consisting of different ingredients blended together." The Century Dictionary defines the same noun as "That which results from mixing, a mixed mass, body or assembly; a compound or combination of different ingredients, parts or principles." The noun compound" is defined by Webster's Dictionary as "That which is compounded or formed by the union or mixture of elements, ingredients or parts." And the same word "compound" is defined in the Century Dictionary Composed of two or more elements, parts or ingredients, not simple."

as

A fair interpretation of these definitions would not seem to include within any one of them any natural product, though, considered chemically, that natural product may have various ingredients; if we are to say that every article is a mixture or compound which has, chemically considered, more than one ingredient, then we would make every fruit of the earth a compound. Certainly we should make the cocoa bean a mixture or compound. But clearly, a fair interpretation of the meaning of the words “mixture" and "compound" in the statute, is something resulting from the putting together of parts or ingredients other than as nature has put them together in the fruits of the earth. And if this interpretation be correct, then to say that the article sold by Rose is a mixture or compound, we should be driven to say that the taking of an

Rose v. State of Ohio.

ingredient from that which is not a mixture or compound, leaves a mixture or a compound remaining. It would seem a very strange thing if that from which we take something is not a mixture or a compound, that when we take something from that article, what remains is a mixture or a compound.

If what has been already said is correct, then the statute absolutely prohibits the sale of cocoa in the condition in which this was when sold by Rose, or this does not come within the articles enumerated in the statute.

The statute was clearly enacted for the purpose of relieving the public from being imposed upon by the sale of unwholesome articles of food, and from being imposed upon by the sale of such articles which, though not unwholesome, are less nutritious, palatable, or valuable than would be indicated by the names under which they are sold.

Now, reading this statute, just that part of this statute which applies to this case, we have, "No person shall, within this state, manufacture for sale, offer for sale, or sell, any article of food if any valuable or necessary constitutent or ingredient has been wholly or in part abstracted from it." Now, in subdivision (b) of sec. 3, if we substitute for the word "it," what it clearly stands for, we have "If any valuable or necessary constitutent or ingredient has been wholly or in part abstracted from such article of food." And this brings us to a consideration of what is meant by the words "article of food." We all know there are many articles of food which have been so long known as such, and by some particular name, that, though not consisting of a single natural product, and though not made up of all the ingredients or elements of any natural product, are still so recognized as articles of food that they cannot be misunderstood by intelligent people. The most familiar of these, perhaps, is bread. Another almost equally familiar in modern times, is cheese. We all know that one cheese differeth from another cheese in its nutrition and palatability; and yet it is doubtful, indeed it would seem to be more than doubtful whether, if there were no other statute on the subject, the sale of cheese made from milk from which some part of the cream had been removed would be prohibited by this statute. The legislature has wisely enacted another statute to protect the public. from having poor cheese imposed upon them when they suppose they are buying good cheese. But if the construction of the statute contended for on the part of the state in this case is the true construction, then there was no occasion at all to enact a statute, other than this, to protect the public from having skim milk cheese imposed upon them.

I suppose nobody would think of prosecuting under this statute for the sale of skim milk cheese. We have a statute which authorizes prosecution for that certainly.

Sugar is one of the commonest and best known articles of food, and is used extensively in every household. It is a manufactured product, it is a manufactured article of food, and it does not contain all the elements and ingredients of the natural product of the earth, the sugar cane. Ordinarily, if one orders from his grocer sugar, certainly if he orders coffee sugar, he will get an article of food which is white in color, and from which a valuable, nutritious and palatable ingredient has been removed, or rather he will get an article of food to produce which a valuable ingredient has been removed, from a natural product of the earth. In the process of refining sugar, to make it white, there is taken

Cuyahoga Circuit Court.

out a considerable part of its sweetness, and yet no one will claim that there does not remain a well known, a well recognized article of food, from which article of food no valuable or necessary ingredient has been removed, or to use the language of the statute, "abstracted." That which was abstracted was taken from the natural product and not from the article of food known as coffee sugar.

Flour is a well known article of food, but we all know that to produce flour of the finest quality, there has been abstracted from the wheat, which is the product of nature, a nutritious and valuable part.

The verb "abstract" is defined in the Century Dictionary as "to draw away, take away, withdraw, or remove." With that definition the removing of cream from milk would be the abstracting, from the natural product, of a valuable part of such milk. We have a statute which was passed two years after the enactment of the one under consideration, which makes it an offense to sell milk from which the cream or a part thereof. has been removed, unless by having a certain label upon the outside of each vessel, in a conspicuous place, with the words “skimmed milk." But if the contention on the part of the state as to the construction of this statute is the true one, it would seem that the statute passed in '86 as to the sale of milk from which cream had been removed, was wholly unnecessary.

To adopt the more modern method of allowing the cream to rise to the top of the milk and then by a faucet allowing the milk to drain away, would not leave the natural product with all its constituent parts, but we should have removed from it a valuable part, and yet, we should have the cream left, which is a well known article of food, the sale of which under its proper name would not be claimed to be prohibited by the statute under consideration.

If the word cocoa is the proper name, recognized by the public, and by those engaged in the purchase and sale of articles of food, of the article sold by Rose, and if that is the name by which such article was known for many years prior to the enactment of the statute under consideration, then, it would seem to follow that it was this manufactured product from which nothing should be abstracted, rather than the cocoa bean being that from which nothing may be abstracted, and still leave a saleable product.

The evidence clearly shows that the cocoa bean, in its natural state, is not sold in this country as an article of food to be consumed without manufacture, and it is further shown that the manufactured product of the cocoa bean, as sold for domestic use, and from which nothing has been removed, and to which nothing has been added, is known and recognized by dealers and the public as chocolate, and not as cocoa.

The evidence establishes, as testified to by all the experts in the case, that without the removal of a considerable part of this fat or oil the product would not remain in a powdered state-as what is sold as cocoa is always found to be at a temperature of above 70° or thereabouts, but would by the action of the heat alone, become an oily, greasy paste.

Attention has already been called to the fact that the sale of cocoa in the condition in which this was, which was sold by Rose, would be absolutely prohibited if it is among the articles of food named in the statute; and this has been done because it was urged here that a proper labeling might relieve it from that prohibition; and it was urged that such an article ought to be labeled as well as one which is produced by a compound or mixture made up of the natural cocoa bean with all its in