carbonate, and that it consisted partially of inert substances, namely, sodium chloride and sodium carbonate, which do not prevent, destroy, repel, or mitigate insects or fungi. Adulteration of the article was alleged in the information in that it was an insecticide, and (1) that it was sold under the professed standard and quality of purified cyanide 98-99 per cent, when, as a matter of fact, its strength and purity fell below the said professed standard in that the insecticide was not purified cyanide and did not contain 98-99 per cent cyanide, but it was a mixture which contained only 74.79 per cent sodium cyanide, sodium chloride, and sodium carbonate; and (2) that other substances, to wit, sodium cyanide, sodium chloride, and sodium carbonate were substituted wholly for the article, purified cyanide. Misbranding of the article was alleged in that it was an insecticide, and (1) that the label regarding the article and the ingredients and substances contained therein was false and misleading, in that the article was not purified cyanide and did not contain 98-99 per cent of cyanide, but was a mixture composed of 74.79 per cent of sodium cyanide, sodium chloride, and sodium carbonate; and (2) that the article consisted in part of inert substances, to wit, sodium chloride and sodium carbonate, which do not prevent, destroy, repel, or mitigate insects or fungi, and neither the names nor percentage amounts of each and every one of the said inert ingredients were stated on the label thereof, nor were the correct names and percentage amounts of each and every ingredient having insecticidal and fungicidal properties and the total percentage of inert ingredients present stated on the label thereof.

The defendant demurred to the information on the ground that the information did not allege facts sufficient to constitute a violation of the Insecticide Act of 1910, in that it appeared on the face of the information that the alleged insecticide referred to in the information was shipped from the City of New York to another city in the State of New York, namely, Buffalo, and not from the State of New York to any other State or Territory or the District of Columbia.

On October 8, 1913, the cause coming on for hearing on the demurrer, the court sustained the demurrer in the decision as follows:

The relevant portion of the insecticide statute reads as follows: "The introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country, or shipment to any foreign country, of any insecticide, or Paris green, or lead arsenate, or fungicide which is adulterated or misbranded within the meaning of this act is hereby prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to any foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver, to any other person, any such article so adulterated or misbranded within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or any Territory of the United States any such adulterated or misbranded insecticide, or Paris green, or lead arsenate, or fungicide, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined." etc.

It is clear that under the statute to constitute guilt there must have been an introduction into a State, Territory, or the District of Columbia, from "any other State or Territory or the District of Columbia" of the misbranded or adulterated insecticide. The second clause of the language quoted declares it a misdemeanor for any person to "ship or deliver for shipment from any State * to any other State any such article." As I read the statute "introduction" means a bringing into another State of the prohibited article in such a way as that it may become a part of the general property within that State. Mere passing of the goods through other States en route to the State of destina

* * *

tion does not make them part of the general property of those States. United States v. Four Bottles, 90 Fed. 720.

My conclusion is that the statute was not meant to cover a shipment by a shipper who sends goods from one point to another point in the same State merely because the shipment is by a route through other States. Whether or not such a shipment is interstate commerce is not directly involved for the reason that the language of the statute does not attempt to cover a case such as we have under consideration. People v. Abramson, 208 N. Y. 138. It would also seem that the precise relationship of the carrier to such a shipment is aside from the point necessary for decision. We may assume that Congress could prohibit such a shipment as is involved herein; but it has not done so; hence the cases of Lehigh Valley v. Pennsylvania, 145 U. S. 192, and Ewing v. Leavenworth, 226 U. S. 464, and Hanley v. Kansas City Southern, 127 U. S. 617, have little direct application. The case of U. S. v. Delaware, Lackawanna & Western, 152 Fed. 270, was one where the power of Congress was involved with respect to the regulation of the conduct of railroad carriers transporting goods passing through a State en route between two points in another State.

As the indictment fails to show a shipment from one State to another, there is no offense stated. The demurrer is therefore well taken and must be sustained.

B. T. GALLOWAY, Acting Secretary of Agriculture.

WASHINGTON, D. C., January 28, 1914.

76. Misbranding of "London Purple." U. S. v. Hemingway's London Purple Co. Plea of guilty. Sentence suspended. I. & F. No. 84. Dom. No. 1269.

London Purple. Hemingway's New York, U. S. A. Poison for

*

On March 28, 1913, the United States Attorney for the Southern District of New York, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against Hemingway's London Purple Co., New York, N. Y., a corporation, alleging the shipment and delivery for shipment, on September 7, 1911, from New York, in the State of New York, to Dallas, in the State of Texas, of a quantity of a certain article called "London Purple," which was misbranded within the meaning of the Insecticide Act of 1910. The article was labeled or branded in part as follows: "Guaranteed by Hemingway's London Purple Co., Ltd., under the Insecticide Act of 1910, Serial No. 50. London Purple Co. Limited, London, England. the Potato Bug, Cotton Worm & Canker Worm. Analysis. Arsenic-Lime Compounds 70%, Dyestuffs, etc. 30%-100% Contents of combined arsenic calculated as metallic arsenic (Arsenicum (AS2) 20%. Directions. Analysis of a specimen of the article in the United States Department of Agriculture showed that it contained arsenic-lime compounds in an amount less than 70 per cent, and that it contained dyestuffs and substances other than arsenic-lime compounds in an amount greater than 30 per cent; that it contained arsenic in water-soluble forms; and that it consisted partially of inert substances, namely, water, iron oxid, magnesium oxid, organic substances, sand, and other insoluble matter, which do not prevent, destroy, repel, or mitigate insects. Misbranding of the article was alleged in the information in that it was an insecticide, and (1) that the statement on the label regarding the substances contained in the article to the effect that the article contained 70 per cent arsenic-lime compounds was false and misleading because the article contained in fact a smaller percentage of arsenic-lime compounds; and that the statement on the label regarding the substances contained in the article to the effect that the percentage of dyestuffs and substances other than arsenic-lime compounds amounted to 30 per cent was false and misleading because the article contained dyestuffs and substances other than arsenic-lime compounds in an amount greater than 30 per cent; and (2) that it contained arsenic and the amount of arsenic in water-soluble forms (expressed as per cent of metallic

arsenic) was not stated on the label; and (3) that it consisted partially of inert substances, to wit, water, iron oxid, magnesium oxid, organic substances, sand, and other insoluble matter, which do not prevent, destroy, repel, or mitigate insects, and neither the names and percentage amounts of each and every one of said inert ingredients nor the names and percentage amounts of each and every ingredient of the insecticide having insecticidal properties and the total percentage of inert ingredients present were stated on the label.

The cause coming on for trial on October 30, 1913, the defendant, Hemingway's London Purple Co., appeared and entered a plea of guilty and the court suspended sentence. B. T. GALLOWAY, Acting Secretary of Agriculture. WASHINGTON, D. C., January 28, 1914.

U. S. v. Hemingway's
Dom. No. 6660.

77. Adulteration and misbranding of Hemingway's lead arsenate. London Purple Co. Plea of guilty. Fine, $75. I. & F. No. 63. On March 28, 1913, the United States Attorney for the Southern District of New York, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against Hemingway's London Purple Co., New York, N. Y., a corporation, alleging the shipment and delivery for shipment, on January 19, 1912, from New York, in the State of New York, to Harrisonburg, in the State of Virginia, of a quantity of a certain article called "Hemingway's Pure Lead Arsenate," which was adulterated and misbranded within the meaning of the Insecticide Act of 1910. The article was labeled or branded in part as follows: "Guaranteed by Hemingway's London Purple Co., Ld., under the Insecticide Act of 1910. Serial No. 50. Hemingway's Pure Lead Arsenate. New York. London. Analysis: Arsenic oxide 15%, Lead Oxide about 32%, Water 50%, Soluble Arsenic under 1%. Poison. 25 lbs. Net. Hemingway's Lead Arsenate conforms to the provisions of the Federal law covering the standardization of insecticides.

Analysis and examination of a specimen of the article in the United States Department of Agriculture showed that it contained more than 50 per cent water, and that the package contained less than 25 pounds of the article. Adulteration of the article was alleged in the information in that it was lead arsenate, and (1) that it contained more than 50 per centum water, and the mixture resulting from the addition of the extra water was not labeled as lead arsenate and water, nor was the percentage of extra water plainly and correctly stated on the label; and (2) that a substance other than lead arsenate, to wit, water, had been mixed and packed with the article so as to reduce, lower, and injuriously affect its quality and strength. Misbranding of the article was alleged in that it was lead arsenate, and (1) that the statement on the label that the article contained 50 per cent water was false and misleading because the article in fact contained more than 50 per cent water; and (2) that the statement on the label that the package contained 25 pounds net was false and misleading because there was in fact less than 25 pounds net of lead arsenate contained therein; and (3) that the statement on the label to the effect that the article conformed to the provisions of the Federal law covering the standardization of insecticides was false and misleading because the article in fact did not conform to the provisions of the Federal law covering the standardization of insecticides.

The cause coming on for trial on October 30, 1913, the defendant, Hemingway's London Purple Co., appeared and entered a plea of guilty and the court imposed a fine of $75.

B. T. GALLOWAY, Acting Secretary of Agriculture. WASHINGTON, D. C., January 28, 1914.

78. Misbranding of " Hemingway's Pure Lead Arsenate." U. S. v. Hemingway's London Purple Co. Plea of guilty. Sentence suspended. I. & F. No. 99. Dom. No. 409.

On March 28, 1913, the United States Attorney for the Southern District of New York, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against Hemingway's London Purple Co., New York, N. Y., a corporation, alleging the shipment and delivery for shipment, on April 2, 1912, from New York, in the State of New York, to St. Joseph, in the State of Missouri, of a quantity of a certain article called "Hemingway's Pure Lead Arsenate," which was misbranded within the meaning of the Insecticide Act of 1910. The article was labeled or branded in part as follows: "Guaranteed by Hemingway's London Purple Co. Ld., under the Insecticide Act of 1910. Serial No. 50. HemingNew York. London. ** way's Pure Lead Arsenate. Analysis: Arsenic Oxide 15%, Lead Oxide about 32%, Water 50%, Soluble Arsenic under 1%. 25 lbs. Net."

*

Examination of a specimen of the article in the United States Department of Agriculture showed that the package contained less than 25 pounds of the article. Misbranding of the article was alleged in the information in that it was lead arsenate, and (1) that it was labeled so as to deceive or mislead the purchaser thereof, in this, that the label indicated that the package contained 25 pounds net of the article, whereas, in truth and in fact, the package contained a less amount, to wit, 22.02 pounds; and (2) that the article was in package form and the contents in terms of weight were not correctly stated on the label, in this, that the label indicated that the package contained 25 pounds net of the article, whereas, in truth and in fact, the package contained less than 25 pounds net and contained only 22.02 pounds net.

The cause coming on for trial on October 30, 1913, the defendant, Hemingway's London Purple Co., appeared and entered a plea of guilty and the court suspended sentence.

B. T. GALLOWAY, Acting Secretary of Agriculture.

WASHINGTON, D. C., January 28, 1914.

79. Misbranding of "Sure Kill Poison Fly Paper." U. S. v. Frank W. Briggs and William A. Briggs. Plea of guilty. Fine, $10. I. & F. No. 38. Dom. No. 5756.

On October 22, 1913, the United States Attorney for the Western District of New York, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against Frank W. Briggs and William A. Briggs, doing business under the name of F. W. Brggs & Co., Buffalo, N. Y., alleging the shipment and delivery for shipment, on April 1, 1911, from Buffalo, in the State of New York, to Indianapolis, in the State of Indiana, of a quantity of a certain article called " Sure Kill Poison Fly Paper," which was misbranded within the meaning of the Insecticide Act of 1910. The article was contained in packages each labeled and branded in part as follows: "Sure Kill Poison Fly Paper. Guaranteed by F. W. Briggs & Co., under the Insecticide Act of 1910. This package contains 64.25 grains Arsenic in solution. Guaranteed by F. W. Briggs & Co., under the Insecticide Act of 1910. Serial No. 6881."

Analysis of four packages of the article in the United States Department of Agriculture showed that the article therein contained only 26.8858, 12.1335, 39.2197, and 14.0406 grains of arsenic, respectively, all in water-soluble forms. Misbranding of the article was alleged in the information in that it was an insecticide, and the labels on each of the packages containing the same were false and misleading in that the insecticide in four packages contained, respectively, 26.8858, 12.1335, 39.2197, and 14.0406 grains of arsenic in water-soluble

forms, and not 64.25 grains arsenic in water-soluble forms as stated on the labels.

The cause coming on for trial on November 11, 1913, the defendants, Frank W. Briggs and William A. Briggs, appeared and entered a plea of guilty and the court imposed a fine of $10.

B. T. GALLOWAY, Acting Secretary of Agriculture. WASHINGTON, D. C., January 28, 1914.

80. Misbranding of "Creolium." U. S. v. The Capitol Food Co. Plea of guilty. Fine, $25 and costs. I. & F. No. 52. Dom. No. 1408.

On April 3, 1913, the United States Attorney for the Northern District of Ohio, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against The Capitol Food Co., Tiffin, Ohio, a corporation, alleging the shipment and delivery for shipment, on August 22, 1911, from Tiffin, in the State of Ohio, to Washington, in the District of Columbia, of a quantity of a certain article called “Creolium," which was misbranded within the meaning of the Insecticide Act of 1910. The article was labeled and branded as follows: "Creolium. The Modern Sanitary Fluid. Disinfectant, Deodorizer, Antiseptic, Germicide, Cleanser. Prifies The Air. Non-Poisonous to Man or Beast. Creolium is a genuine Coal Tar and Creosote Preparation: it is one of the stongest disinfectants known. One gallon mixed with 150 gallons of water makes a strong disinfectant. Guaranteed to please. * Food Co., Tiffin, Ohio."

Manufactured and guaranteed by The Capitol

Analysis of a specimen of the article in the United States Department of Agriculture showed that it consisted partially of an inert substance, namely, water, which does not prevent, destroy, repel, or mitigate insects or fungi. Misbranding of the article was alleged in the information in that it was an insecticide, and that it consisted partially of an inert substance, to wit, water, which does not prevent, destroy, repel, or mitigate insects or fungi, and the name and percentage amount of each and every ingredient of the article having insecticidal or fungicidal properties and the total percentage of inert ingredients present were stated on the label.

The cause coming on for trial on November 28, 1913, the defendant, The Capitol Food Co., appeared and entered a plea of guilty and the court imposed a fine of $25 and costs.

B. T. GALLOWAY, Acting Secretary of Agriculture. WASHINGTON, D. C., January 28, 1914.

NOTE. As respects inert ingredients, the Insecticide Act of 1910 requires that there must appear on the label either the name and percentage amount of each inert ingredient or the name and percentage amount of each active ingredient, together with the total percentage of inert ingredients.

81. Misbranding of "Talbott's Scaly Leg Remedy." U. S. v. The W. R. Talbott Chemical Co. Plea of guilty. Fine, $25 and costs. I. & F. No. 54. Dom. No. 6667.

On April 3, 1913, the United States Attorney for the Northern District of Ohio, acting upon the report of the Secretary of Agriculture, filed information in the District Court of the United States for said district against The W. R. Talbott Chemical Co., Sandusky, Ohio, a corporation, alleging the shipment, on October 23, 1911, from Sandusky, in the State of Ohio, to Washington, in the District of Columbia, of a quantity of a certain article called "Talbott's Scaly Leg Remedy," which was misbranded within the meaning of the Insecticide Act of 1910. The article was contained in packages labeled and branded as follows: 66 'Talbott's Scaly Leg Remedy 50 Cents (Representation of Fowls)