Under the Food and Drugs Act of 1906, the fact that a formula
has been made up and followed and a distinctive name therefor
adopted does not suffice to take an article from § 7, subd. 5, of
the Act. In such a case, the standard by which the combination is
to be judged is not necessarily the combination itself.
A poisonous or deleterious ingredient with the injurious effect
stated by the statute may be an added ingredient in the statutory
sense although it is covered by the formula and made a constituent
of the article sold.
In construing § 7, subd. Fifth of the Food and Drugs Act,
that the term "adulteration" is used in a special
sense, and its ordinary meaning is not controlling; that an article
may be adulterated by the adding of an injurious ingredient
including a component part of the article itself; that adulteration
must not be confused with misbranding, and provisions as to latter
do not limit the explicit provisions of § 7 of adulteration, and
that proprietary foods sold under descriptive names are within its
provisions, including those which were in the market when the Act
It would reduce the Food and Drugs Act to an absurdity to so
construe it as to regard a compound food product, the formula of
which included a poisonous or deleterious ingredient, as
adulterated within the meaning of § 7 if such ingredient were
Whether an added ingredient -- such as caffeine -- is poisonous
or deleterious held,
in this case, in view of decided
conflict of competent evidence, to be a question for the jury.
While a distinctive name may be purely arbitrary, it must be one
that distinguishes the article, and where more than one name, each
descriptive of an article, are united, it amounts to misbranding if
the article sold does not contain any of the articles generally
known individually by any of such names.
Page 241 U. S. 266
The facts, which involve the construction and application of the
adulteration and misbranding provisions of the Food and Drugs Act
of 1906, are stated in the opinion.
Page 241 U. S. 270
MR. JUSTICE HUGHES delivered the opinion of the Court.
This is a libel for condemnation under the Food and Drugs Act
(June 30, 1906, c. 3915, 34 Stat. 768), of a certain quantity of a
food product known as "Coca Cola" transported for sale from
Atlanta, Georgia, to Chattanooga, Tennessee. It was alleged that
the product was adulterated and misbranded. The allegation of
adulteration was, in substance, that the product contained an added
poisonous or added deleterious ingredient, caffeine,
Page 241 U. S. 271
which might render the product injurious to health. It was
alleged to be misbranded in that the name "Coca Cola" was a
representation of the presence of the substances coca and cola;
that the product "contained no coca and little if any cola," and
thus was an "imitation" of these substances, and was offered for
sale under their "distinctive name." We omit other charges which
the government subsequently withdrew. The claimant answered,
admitting that the product contained as one of its ingredients "a
small portion of caffeine," but denying that it was either an
"added" ingredient or a poisonous or a deleterious ingredient which
might make the product injurious. It was also denied that there
were substances known as coca and cola "under their own distinctive
names," and it was averred that the product did contain "certain
elements or substances derived from coca leaves and cola nuts." The
answer also set forth, in substance, that "Coca Cola" was the
"distinctive name" of the product under which it had been known and
sold for more than twenty years as an article of food, with other
averments negativing adulteration and misbranding under the
provisions of the act.
Jury trial was demanded, and voluminous testimony was taken. The
district judge directed a verdict for the claimant (191 F. 431),
and judgment entered accordingly was affirmed on writ of error by
the circuit court of appeals (215 F. 535). And the government now
prosecutes this writ.
First. As to "adulteration."
The claimant, in its
summary of the testimony, states that the article in question
"is a syrup manufactured by the claimant . . . and sold and used
as a base for soft drinks both at soda fountains and in bottles.
The evidence shows that the article contains sugar, water,
caffeine, glycerine, lime juice, and other flavoring matters. As
used by the consumer, about one ounce of this syrup is taken in a
glass mixed with
Page 241 U. S. 272
about seven ounces of carbonated water, so that the consumer
gets in an eight-ounce glass or bottle of the beverage, about 1.21
grains of caffeine."
It is said that, in the year 1886, a pharmacist in Atlanta
"compounded a syrup by a secret formula, which he called
Coca-Cola Syrup and Extract;'" that the claimant acquired "the
formula, name, label, and good will for the product" in 1892, and
then registered "a trademark for the syrup consisting of the name
Coca Cola," and has since manufactured and sold then syrup under
that name. The proportion of caffeine was slightly diminished in
the preparation of the article for bottling purposes. The claimant
again registered the name "Coco Cola" as a trademark in 1905,
averring that the mark had been "in actual use as a trademark of
the applicant for more than ten years next preceding the passage of
the act of February 20, 1905," and that it was believed such use
had been exclusive. It is further stated that, in manufacturing in
accordance with the formula, "certain extracts from the leaves of
the coca shrub and the nut kernels of the cola tree were used for
the purpose of obtaining a flavor," and that "the ingredient
containing these extracts," with cocaine eliminated, is designated
as "Merchandise No. 5." It appears that, in the manufacturing
process, water and sugar are boiled to make a syrup; there are four
meltings; in the second or third, the caffeine is put in; after the
meltings, the syrup is conveyed to a cooling tank and then to a
mixing tank, where the other ingredients are introduced and the
final combination is effected, and from the mixing tank the
finished product is drawn off into barrels for shipment.
The questions with respect to the charge of "adulteration" are
(1) whether the caffeine in the article was an added ingredient
within the meaning of the act (§ 7, subd. Fifth), and, if so, (2)
whether it was a poisonous or deleterious ingredient which might
render the article injurious to health. The decisive ruling in the
courts below resulted
Page 241 U. S. 273
from a negative answer to the first question. Both the district
judge and the circuit court of appeals assumed for the purpose of
the decision that, as to the second question, there was a conflict
of evidence which would require its submission to the jury. (191 F.
433; 215 F. 540.) But it was concluded, as the claimant contended,
that the caffeine -- even if it could be found by the jury to have
the alleged effect -- could not be deemed to be an "added
ingredient" for the reason that the article was a compound, known
and sold under its own distinctive name, of which the caffeine was
a usual and normal constituent. The government challenges this
ruling and the construction of the statute upon which it depends,
and the extreme importance of the question thus presented with
respect to the application of the act to articles of food sold
under tradenames is at once apparent. The government insists that
the fact that a formula has been made up and followed and a
distinctive name adopted does not suffice to take an article from
the reach of the statute; that the standard by which the
combination in such a case is to be judged is not necessarily the
combination itself; that a poisonous or deleterious ingredient with
the stated injurious effect may still be an added ingredient in the
statutory sense, although it is covered by the formula and made a
constituent of the article sold.
The term "food," as used in the statute, includes "all articles
used for food, drink, confectionery, or condiment . . . whether
simple, mixed, or compound" (§ 6). An article of "food" is to be
deemed to be "adulterated" if it contain "any added poisonous or
other added deleterious ingredient which may render such article
injurious to health." (Sec. 7, subd. Fifth [Footnote 1
]). With this
Page 241 U. S. 274
section is to be read the proviso in § 8, to the effect that "an
article of food which does not contain any added poisonous or
deleterious ingredients shall not be deemed to be adulterated or
misbranded" in the case of "mixtures or compounds which may be now
or from time to time hereafter known as articles of food, under
their own distinctive names," if the distinctive name of another
article is not used or imitated, and the name on the label or brand
is accompanied with a statement of the place of production. And § 8
concludes with a further proviso that nothing in the act shall be
"as requiring or compelling proprietors or manufacturers of
proprietary foods which
Page 241 U. S. 275
contain no unwholesome added ingredient to disclose their trade
formulas, except insofar as the provisions of this act may require
to secure freedom from adulteration or misbranding. [Footnote 2
Page 241 U. S. 276
In support of the ruling below, emphasis is placed upon the
general purpose of the act, which, it is said, was to prevent
deception, rather than to protect the public health by prohibiting
traffic in articles which might be determined to be deleterious.
But a description of the purpose of the statute would be inadequate
which failed to take account of the design to protect the public
from lurking dangers caused by the introduction of harmful
ingredients, or which assumed that this end was sought to be
achieved by simply requiring certain disclosures. The statute is
"An Act for Preventing the Manufacture, Sale, or Transportation
of Adulterated or Misbranded or Poisonous or Deleterious Foods,
Drugs, Medicines, and Liquors,"
etc. In the case of confectionery, we find that it is to be
deemed to be adulterated if it contains certain specified
substances "or other ingredient deleterious or detrimental to
health." So, under § 7, subdivision Sixth, there may be
adulteration of food in case the article consists in whole or in
"any portion of an animal unfit for food, whether manufactured
or not, or if it is the product of a diseased animal, or one that
has died otherwise than by slaughter."
In United States v. Lexington Mills Co., 232 U.
, 232 U. S. 409
it was said that
"the statute upon its face shows that the primary purpose of
Congress was to prevent injury to the public health by the sale and
Page 241 U. S. 277
in interstate commerce of misbranded and adulterated foods. The
legislation, as against misbranding, intended to make it possible
that the consumer should know that an article purchased was what it
purported to be; that it might be bought for what it really was,
and not upon misrepresentations as to character and quality. As
against adulteration, the statute was intended to protect the
public health from possible injury by adding to articles of food
consumption poisonous and deleterious substances which might render
such articles injurious to the health of consumers."
See also United States v. Antikamnia Co., 231 U.
, 231 U. S. 665
It is true that, in executing these purposes, Congress has limited
its prohibitions (Savage v. Jones, 225 U.
, 225 U. S. 529
225 U. S.
), and has specifically defined what shall constitute
adulteration or misbranding; but, in determining the scope of
specific provisions, the purpose to protect the public health, as
an important aim of the statute, must not be ignored.
Reading the provisions here in question in the light of the
context, we observe:
(a) That the term "adulteration" is used in a special sense. For
example, the product of a diseased animal may not be adulterated in
the ordinary or strict meaning of the word, but by reason of its
being that product, the article is adulterated within the meaning
of the act. The statute with respect to "adulteration" and
"misbranding" has its own glossary. We cannot, therefore, assume
that, simply because a prepared "food" has its formula and
distinctive name, it is not, as such, "adulterated." In the case of
confectionery, it is plain that the article may be "adulterated"
although it is made in strict accordance with some formula and
bears a fanciful tradename, if in fact it contains an "ingredient
deleterious or detrimental to health, or any vinous, malt, or
spirituous liquor or compound or narcotic drug." And the context
clearly indicates that,
Page 241 U. S. 278
with respect to articles of food, the ordinary meaning of
"adulteration" cannot be regarded as controlling.
(b) The provision in § 7, subdivision Fifth, assumes that the
substance which renders the article injurious, and the introduction
of which causes "adulteration," is an ingredient of the article. It
must be an "added" ingredient, but it is still an ingredient.
Component parts or constituents of the article which is the subject
of the described traffic are thus not excluded, but are included in
the definition. The article referred to in subdivision Fifth is the
article sought to be made an article of commerce -- the article
which "contains" the ingredient.
(c) "Adulteration" is not to be confused with "misbranding." The
fact that the provisions as to the latter require a statement of
certain substances if contained in an article of food, in order to
avoid "misbranding," does not limit the explicit provisions of § 7
as to adulteration. Both provisions are operative. Had it been the
intention of Congress to confine its definition of adulteration to
the introduction of the particular substances specified in the
section as to misbranding, it cannot be doubted that this would
have been stated, but Congress gave a broader description of
ingredients in defining "adulteration." It is "any" added poisonous
or "other added deleterious ingredient," provided it "may render
such article injurious to health."
(d) Proprietary foods, sold under distinctive names, are within
the purview of the provision. Not only is "food" defined as
including articles used for food or drink, "whether simple, mixed,
or compound," but the intention to include "proprietary foods" sold
under distinctive names is manifest from the provisos in § 8 which
the claimant invokes. "Mixtures or compounds" which satisfy the
first paragraph of the proviso are not only "articles of food," but
are to enjoy the stated immunity only in case they do "not contain
any added poisonous or deleterious
Page 241 U. S. 279
ingredients." By the concluding clause of § 8, it is provided
that nothing in the act shall be construed to require manufacturers
of "proprietary foods" to disclose "their trade formulas" except
insofar as the provisions of the act "may require to secure freedom
from adulteration or misbranding;" and the immunity is conditioned
upon the fact that such foods "contain no unwholesome added
ingredient." Thus, the statute contemplates that mixtures or
compounds manufactured by those having trade formulas, and bearing
distinctive names, may nevertheless contain "added ingredients"
which are poisonous or deleterious and may make the article
injurious, and, if so, the article is not taken out of the
condemnation of § 7, subdivision Fifth.
(e) Again, articles of food, including "proprietary foods" which
fall within this condemnation, are not saved because they were
already on the market when the statute was passed. The act makes no
such distinction, and it is to be observed that the proviso of § 8
explicitly refers to "mixtures or compounds which may be now or
from time to time hereafter known as articles of food." Nor does
the length of the period covered by the traffic, or its extent,
affect the question if the article is in fact adulterated within
the meaning of the act.
Having these considerations in mind, we deem it to be clear
that, whatever difficulties there may be in construing the
provision, the claimant's argument proves far too much. We are not
now dealing with the question whether the caffeine did, or might,
render the article in question injurious; that is a separate
inquiry. The fundamental contention of the claimant, as we have
seen, is that a constituent of a food product having a distinctive
name cannot be an "added" ingredient. In such case, the standard is
said to be the food product itself which the name designates. It
must be, it is urged, this "finished product" that is
"adulterated." In that view, there would
Page 241 U. S. 280
seem to be no escape from the conclusion that, however poisonous
or deleterious the introduced ingredient might be, and however
injurious its effect, if it be made a constituent of a product
having its own distinctive name, it is not within the provision. If
this were so, the statute would be reduced to an absurdity.
Manufacturers would be free, for example, to put arsenic or
strychnine or other poisonous or deleterious ingredients with an
unquestioned injurious effect into compound articles of food,
provided the compound were made according to formula and sold under
some fanciful name which would be distinctive. When challenged upon
the ground that the poison was an "added" ingredient, the answer
would be that, without it, the so-called food product would not be
the product described by the name. Further, if an article
purporting to be an ordinary food product, sold under its ordinary
name, were condemned because of some added deleterious ingredient,
it would be difficult to see why the same result could not be
attained with impunity by composing a formula and giving a
distinctive name to the article with the criticized substance as a
component part. We think that an analysis of the statute shows such
a construction of the provision to be inadmissible. Certain
incongruities may follow from any definition of the word "added,"
but we cannot conclude that it was the intention of Congress to
afford immunity by the simple choice of a formula and a name. It
does not seem to us to be a reasonable construction that, in the
case of "proprietary foods" manufactured under secret formulas,
Congress was simply concerned with additions to what such formulas
might embrace. Undoubtedly, it was not desired needlessly to
embarrass manufacturers of "proprietary foods" sold under
distinctive names, but it was not the purpose of the act to protect
articles of this sort regardless of their character. Only such food
products as contain "no unwholesome added ingredient" are within
the saving clause, and,
Page 241 U. S. 281
in using the words quoted, we are satisfied that Congress did
not make the proprietary article its own standard.
Equally extreme and inadmissible is the suggestion that, where a
"proprietary food" would not be the same without the harmful
ingredient, to eliminate the latter would constitute an
"adulteration" under § 7, subdivision Third, by the abstraction of
a "valuable constituent." In that subdivision, Congress evidently
refers to articles of food which normally are not within the
condemnation of the act. Congress certainly did not intend that a
poisonous or deleterious ingredient which made a proprietary food
an enemy to the public health should be treated as a "valuable
constituent," or to induce the continued use of such injurious
ingredients by making their elimination an adulteration, subject to
the penalties of the statute.
It is apparent, however, that Congress, in using the word
"added," had some distinction in view. In the Senate bill (for
which the measure as adopted was a substitute), there was a
separate clause relating to "liquors," providing that the article
should be deemed to be adulterated if it contained "any added
ingredient of a poisonous or deleterious character," while in the
case of food (which was defined as excluding liquors), the article
was to be deemed to be "adulterated" if it contained "any added
poisonous or other ingredient which may render such article
injurious to human health." Cong.Rec. 59th Cong., 1st Sess. Vol.
40, p. 897. In explaining the provision as to "liquors," Senator
Heyburn, the chairman of the Senate committee having the bill in
charge, stated to the Senate (id.,
"The word 'added,' after very mature consideration by your
committee, was adopted because of the fact that there is to be
found in nature's products as she produces them, poisonous
substances to be determined by analysis. Nature has so combined
them that they are not a danger or an evil -- that is, so long as
they are left in
Page 241 U. S. 282
the chemical connection in which nature has organized them, but
when they are extracted by the artificial processes of chemistry,
they become a poison. You can extract poison from grain or its
products, and when it is extracted it is a deadly poison, but if
you leave that poison as nature embodied it in the original
substances, it is not a dangerous poison or an active agency of
poison at all. So, in order to avoid the threat that those who
produce a perfectly legitimate article from a natural product might
be held liable because the product contained nature's poison, it
was thought sufficient to provide against the adding of any new
substance that was, in itself, a poison, and thus emphasizing the
evils of existing conditions in nature's product. That is the
reason the word 'added' is in the bill. Fusel oil is a poison. If
you extract it, it becomes a single active agency of destruction,
but allow it to remain in the combination where nature has placed
it, and, while it is nominally a poison, it is a harmless one, or
For the Senate bill, the House of Representatives substituted a
measure which had the particular provisions now under consideration
in substantially the same form in which they were finally enacted
into law. (Section 7, subd. Fifth; § 8, subd. Fourth, provisos.)
And the committee of the House of Representatives, in reporting
this substituted measure, said (H.R. Report, No. 2118, 59th Cong.,
1st Sess., pp. 6, 7, 11):
"The purpose of the pending measure is not to compel people to
consume particular kinds of foods. It is not to compel
manufacturers to produce particular kinds or grades of foods. One
of the principal objects of the bill is to prohibit in the
manufacture of foods intended for interstate commerce the addition
of foreign substances poisonous or deleterious to health. The bill
does not relate to any natural constituents of food products which
are placed in the foods by nature itself. It is well known that, in
many kinds of foods in their natural state, some quantity of
Page 241 U. S. 283
or deleterious ingredients exist. How far these substances may
be deleterious to health when the food articles containing them are
consumed may be a subject of dispute between the scientists, but
the bill reported does not in any way consider that question. If,
however, poisonous or deleterious substances are added by man to
the food product, then the bill declares the article to be
adulterated, and forbids interstate traffic."
This statement throws light upon the intention of Congress.
Illustrations are given to show possible incongruous results of the
test, but they do not outweigh this deliberate declaration of
purpose; nor do we find in the subsequent legislative history of
the substituted measure containing the provision any opposing
statement as to the significance of the phrase. It must also be
noted that some of the illustrations which are given lose their
force when it is remembered that the statutory ban (Section 7,
subd. Fifth) by its explicit terms only applies where the added
ingredient may render the article injurious to health. See
United States v. Lexington Mills Co., 232 U.
, 232 U. S. 409
It is urged that whatever may be said of natural food products, or
simple food products, to which some addition is made, a
"proprietary food" must necessarily be "something else than the
simple or natural article;" that it is an "artificial preparation."
It is insisted that every ingredient in such a compound cannot be
deemed to be an "added" ingredient. But this argument, and the
others that are advanced, do not compel the adoption of the
asserted alternative as to the saving efficacy of the formula. Nor
can we accept the view that the word "added" should be taken as
referring to the quantity of the ingredient used. It is added
ingredient which the statute describes, not added quantity of the
ingredient, although, of course, quantity may be highly important
in determining whether the ingredient may render the article
harmful, and experience in the use of ordinary articles of
Page 241 U. S. 284
food may be of greatest value in dealing with such questions of
Congress, we think, referred to ingredients artificially
introduced; these it described as "added." The addition might be
made to a natural food product or to a compound. If the ingredient
thus introduced was of the character and had the effect described,
it was to make no difference whether the resulting mixture or
combination was or was not called by a new name or did or did not
constitute a proprietary food. It is said that the preparation
might be "entirely new." But Congress might well suppose that
novelty would probably be sought by the use of such ingredients,
and that this would constitute a means of deception and a menace to
health from which the public should be protected. It may also have
been supposed that, ordinarily, familiar food bases would be used
for this purpose. But, however the compound purporting to be an
article of food might be made up, we think that it was the
intention of Congress that the artificial introduction of
ingredients of a poisonous or deleterious character which might
render the article injurious to health should cause the prohibition
of the statute to attach.
In the present case, the article belongs to a familiar group; it
is a syrup. It was originally called "Coco-Cola Syrup and Extract."
It is produced by melting sugar -- the analysis showing that 52.64
percent of the product is sugar and 42.63 percent is water. Into
the syrup thus formed by boiling the sugar there are introduced
coloring, flavoring, and other ingredients in order to give the
syrup a distinctive character. The caffeine, as has been said, is
introduced in the second or third "melting." We see no escape from
the conclusion that it is an "added" ingredient within the meaning
of the statute.
Upon the remaining question whether the caffeine was a poisonous
or deleterious ingredient which might render the article injurious
to health, there was a decided conflict
Page 241 U. S. 285
of competent evidence. The government's experts gave testimony
to the effect that it was, and the claimant introduced evidence to
show the contrary. It is sufficient to say that the question was
plainly one of fact which was for the consideration of the jury.
See 443 Cans of Egg Product v. United States, 226 U.
, 226 U. S.
Second. As to "misbranding."
In the second count, it
was charged that the expression "Coca Cola" represented the
presence in the product of the substances coca and cola, and that
it contained "no coca and little if any cola." So far as "cola" was
concerned, the charge was vague and indefinite, and this seems to
have been conceded by the government at the beginning of the trial.
With respect to "coca," there was evidence on the part of the
government tending to show that there was nothing in the product
obtained from the leaves of the coca plant, while on behalf of the
claimant it was testified that the material called "Merchandise No.
5" (one of the ingredients) was obtained from both coca leaves and
cola nuts. It was assumed on the motion for a peremptory
instruction that there might be a disputed question of fact as to
whether the use of the word "coca" is to be regarded "intrinsically
and originally" as stating or suggesting the presence of "some
material element or quality" derived from coca leaves, and it was
also assumed that the evidence might be deemed to be conflicting
with respect to the question whether the product actually contained
anything so derived. 191 F. 438, 439. But these issues of fact were
considered not to be material. On this branch of the case, the
claimant succeeded upon the ground that its article was within the
protection of the proviso in § 8 as one known "under its own
distinctive name." 215 F. 544.
Section 8 (ante,
p. 241 U. S.
), in its Fourth specification as to "food," provides
that the article shall be deemed to be "misbranded"
"if the package containing it or its label shall
Page 241 U. S. 286
bear any statement, design, or device regarding the ingredients
or the substances contained therein, which . . . shall be false or
misleading in any particular."
Then follows the proviso in question that an article not
containing any added poisonous or deleterious ingredients "shall
not be deemed to be . . . misbranded" in the case of
"mixtures or compounds which may be now or from time to time
hereafter known as articles of food, under their own distinctive
names, and not an imitation of or offered for sale under the
distinctive name of another article,"
if the name is accompanied with a statement of the place where
the article has been produced. [Footnote 3
A distinctive name is a name that distinguishes. It may be a
name in common use as a generic name, e.g.,
Page 241 U. S. 287
coffee, flour, etc. Where there is a trade description of this
sort by which a product of a given kind is distinctively known to
the public, it matters not that the name had originally a different
significance. Thus, soda water is a familiar trade description of
an article which now, as is well known, rarely contains soda in any
form. Such a name is not to be deemed either "misleading" or
"false," as it is in fact distinctive. But unless the name is truly
distinctive, the immunity cannot be enjoyed; it does not extend to
a case where an article is offered for sale "under the distinctive
name of another article." Thus, that which is not coffee, or is an
imitation of coffee, cannot be sold as coffee, and it would not be
protected by being called "X's Coffee." Similarly, that which is
not lemon extract could not obtain immunity by being sold under the
name of "Y's Lemon Extract." The name so used is not "distinctive,"
as it does not appropriately distinguish the product; it is an
effort to trade under the name of an article of a different sort.
So, with respect to "mixtures or compounds," we think that the term
"another article" in the proviso embraces different compounds from
the compound in question. The aim of the statute is to prevent
deception, and that which appropriately describes a different
compound cannot secure protection as a "distinctive name."
A "distinctive name" may also, of course, be purely arbitrary or
fanciful, and thus, being the trade description of the particular
thing, may satisfy the statute, provided the name has not already
been appropriated for something else so that its use would tend to
If, in the present case, the article had been named "Coca," and
it were found that the name was actually descriptive in the sense
that it fairly implied that the article was derived from the leaves
of the coca plant, it could not be said that this was "its own
distinctive name" if in fact it contained nothing so derived.
Page 241 U. S. 288
name, if thus descriptive, would import a different product from
the one to which it was actually affixed. And in the case supposed,
the name would not become the "distinctive name" of a product
without any coca ingredient unless in popular acceptation it came
to be regarded as identifying a product known to be of that
character. It would follow that the mere sale of the product under
the name "Coca," and the fact that this was used as a trade
designation of the product, would not suffice to show that it had
ceased to have its original significance if it did not appear that
it had become known to the public that the article contained
nothing derived from coca. Until such knowledge could be attributed
to the public, the name would naturally continue to be descriptive
in the original sense. Nor would it be controlling that, at the
time of the adoption of the name, the coca plant was known only to
foreigners and scientists; for if the name had appropriate
reference to that plant and to substances derived therefrom, its
use would primarily be taken in that sense by those who did know or
who took pains to inform themselves of its meaning. Mere ignorance
on the part of others as to the nature of the composition would not
change the descriptive character of the designation. The same
conclusion would be reached if the single name "Cola" had been used
as the name of the product, and it were found that in fact the name
imported that the product was obtained from the cola nut. The name
would not be the distinctive name of a product not so derived until
in usage it achieved that secondary significance.
We are thus brought to the question whether, if the names coca
and cola were respectively descriptive, as the government contends,
a combination of the two names constituted a "distinctive name"
within the protection of the proviso in case either of the
described ingredients was absent. It is said that "coca" indicates
Page 241 U. S. 289
article, and "cola" another, but that the two names together did
not constitute the distinctive name of any other substance or
combination of substances. The contention leads far. To take the
illustration suggested in argument, it would permit a manufacturer,
who could not use the name chocolate to describe that which was not
chocolate, or vanilla to describe that which was not vanilla, to
designate a mixture as "Chocolate-Vanilla," although it was
destitute of either or both, provided the combined name had not
been previously used. We think that the contention misses the point
of the proviso. A mixture or compound may have a name descriptive
of its ingredients or an arbitrary name. The latter (if not already
appropriated) being arbitrary, designates the particular product.
Names, however, which are merely descriptive of ingredients, are
not primarily distinctive names save as they appropriately describe
the compound with such ingredients. To call the compound by a name
descriptive of ingredients which are not present is not to give it
"its own distinctive name" -- which distinguishes it from other
compounds -- but to give it the name of a different compound. That,
in our judgment, is not protected by the proviso, unless the name
has achieved a secondary significance as descriptive of a product
known to be destitute of the ingredients indicated by its primary
In the present case, we are of opinion that it could not be said
as matter of law that the name was not primarily descriptive of a
compound with coca and cola ingredients, as charged. Nor is there
basis for the conclusion that the designation had attained a
secondary meaning as the name of a compound from which either coca
or cola ingredients were known to be absent; the claimant has
always insisted, and now insists, that its product contains both.
But if the name was found to be descriptive, as charged, there was
clearly a conflict of evidence with respect to the presence of any
coca ingredient. We conclude
Page 241 U. S. 290
that the court erred in directing a verdict on the second
The judgment is reversed, and the cause is remanded for further
proceedings in conformity with this opinion.
It is so ordered.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.
Section 7, with respect to "confectionery" and "food," is as
"Sec. 7. That, for the purposes of this Act, an article shall be
deemed to be adulterated:"
"* * * *"
"In the case of confectionery:"
"If it contains terra alba, barytes, talc, chrome yellow, or
other mineral substance or poisonous color or flavor, or other
ingredient deleterious or detrimental to health, or any vinous,
malt, or spirituous liquor or compound or narcotic drug."
"In the case of food:"
"First. If any substance has been mixed and packed with it so as
to reduce or lower or injuriously affect its quality or
"Second. If any substance has been substituted wholly or in part
for the article."
"Third. If any valuable constituent of the article has been
wholly or in part abstracted."
"Fourth. If it be mixed, colored, powdered, coated, or stained
in a manner whereby damage or inferiority is concealed."
"Fifth. If it contain any added poisonous or other added
deleterious ingredient which may render such article injurious to
That when in the preparation of food
products for shipment they are preserved by any external
application applied in such manner that the preservative is
necessarily removed mechanically, or by maceration in water, or
otherwise, and directions for the removal of said preservative
shall be printed on the covering or the package, the provisions of
this act shall be construed as applying only when said products are
ready for consumption."
"Sixth. If it consists in whole or in part of a filthy,
decomposed, or putrid animal or vegetable substance, or any portion
of an animal unfit for food, whether manufactured or not, or if it
is the product of a diseased animal, or one that has died otherwise
than by slaughter."
Section 8 provides:
"Sec. 8. That the term 'misbranded,' as used herein, shall apply
to all drugs, or articles of food, or articles which enter into the
composition of food, the package or label of which shall bear any
statement, design, or device regarding such article, or the
ingredients or substances contained therein which shall be false or
misleading in any particular. . . ."
"That, for the purposes of this act, an article shall also be
deemed to be misbranded:"
"* * * *"
"In the case of food:"
"First. If it be an imitation of or offered for sale under the
distinctive name of another article."
"Second. If it be labeled or branded so as to deceive or mislead
the purchaser, or purport to be a foreign product when not so, or
if the contents of the package as originally put up shall have been
removed in whole or in part and other contents shall have been
placed in such package, or if it fail to bear a statement on the
label of the quantity or proportion of any morphine, opium,
cocaine, heroin, alpha or beta eucaine, chloroform, cannabis
indica, chloral hydrate, or acetanilide, or any derivative or
preparation of any of such substances contained therein."
"Third. If in package form, and the contents are stated in terms
of weight or measure, they are not plainly and correctly stated on
the outside of the package."
"Fourth. If the package containing it or its label shall bear
any statement, design, or device regarding the ingredients or the
substances contained therein, which statement, design, or device
shall be false or misleading in any particular: Provided,
That an article of food which does not contain any added poisonous
or deleterious ingredients shall not be deemed to be adulterated or
misbranded in the following cases:"
"First. In the case of mixtures or compounds which may be now or
from time to time hereafter known as articles of food, under their
own distinctive names, and not an imitation of or offered for sale
under the distinctive name of another article, if the name be
accompanied on the same label or brand with a statement of the
place where said article has been manufactured or produced."
"Second. In the case of articles labeled, branded, or tagged so
as to plainly indicate that they are compounds, imitations, or
blends, and the word 'compound,' 'imitation,' or 'blend,' as the
case may be, is plainly stated on the package in which it is
offered for sale: Provided,
That the term 'blend,' as used
herein, shall be construed to mean a mixture of like substances,
not excluding harmless coloring or flavoring ingredients used for
the purpose of coloring and flavoring only: And provided
That nothing in this Act shall be construed as
requiring or compelling proprietors or manufacturers of proprietary
foods which contain no unwholesome added ingredient to disclose
their trade formulas, except insofar as the provisions of this act
may require to secure freedom from adulteration or
Among the departmental regulations (adopted in October, 1906,
pursuant to § 3, for the enforcement of the act) is Regulation 20
with respect to "distinctive names" under § 8, as follows:
"(a) A 'distinctive name' is a trade, arbitrary, or fancy name
which clearly distinguishes a food product, mixture, or compound
from any other food product, mixture, or compound."
"(b) A distinctive name shall not be one representing any single
constituent of a mixture or compound."
"(c) A distinctive name shall not misrepresent any property or
quality of a mixture or compound."
"(d) A distinctive name shall give no false indication of
origin, character, or place of manufacture, nor lead the purchaser
to suppose that it is any other food or drug product."
Regulation 27 is as follows:
"(a) The terms 'mixtures' and 'compounds' are interchangeable,
and indicate the results of putting together two or more food
"(b) These mixtures or compounds shall not be imitations of
other articles, whether simple, mixt, or compound, or offered for
sale under the name of other articles. They shall bear a
distinctive name and the name of the place where the mixture or
compound has been manufactured or produced."
"(c) If the name of the place be one which is found in different
states, territories, or countries, the name of the state,
territory, or country, as well as the name of the place, must be