The Food and Drugs Act of June 30, 1906, c. 3915, § 8, 34 Stat.
768, specifies and defines at least two kinds of "misbranding" --
one where the article bears a false or misleading label and the
other where it is offered for sale under the distinctive name of
In either case, it is not the misbranding that is made unlawful,
but the shipment or delivery for shipment from one state to another
of the misbranded article.
That this is a legitimate exertion of the power of Congress to
regulate interstate commerce is settled by previous decisions.
It is also settled that the negotiation of sales of goods which
Page 245 U. S. 619
another state, for the purpose of introducing them into the
state in which the negotiation is made, is interstate commerce.
Upon a charge of misbranding by offering for sale under the
distinctive name of another article, held
that the trial
court properly received evidence that the shipment was made to fill
an order obtained by the defendant's agent by so misrepresenting
the article, and properly declined to confine the jury's attention
to the label borne by the article when it was shipped.
Whether the court below was correct in viewing intent as not an
element in such a case and so in holding that sanction by defendant
of his agent's misrepresentations was immaterial, this Court need
not determine, since the trial court instructed the jury that such
authority must appear beyond reasonable doubt, and, as the record
neither shows that defendant objected to this mode of submitting
the question nor purports to contain all the evidence, the verdict
of guilty must be taken a determining conclusively that he
sanctioned the representations.
224 F. 64 affirmed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a prosecution under the Act of June 30, 1906, c. 3915,
34 Stat. 768, upon a charge of shipping an article of food in
interstate commerce in circumstances making the shipment a
violation of the act. The information contained two counts, both
charging that the article was misbranded -- one because it bore a
false and misleading label and the other because it was offered for
sale as lemon oil when in truth it was an imitation thereof
containing alcohol and citral derived from lemon grass. In the
district court, there was a conviction upon both counts, and the
circuit court of appeals reversed the conviction as
Page 245 U. S. 620
to the first count and affirmed it as to the second. 224 F. 64.
The judgment upon the latter is all that is brought here for
The defendant was engaged in making and selling various articles
of food used by bakers, confectioners, and ice cream makers,
including the article with which this prosecution is concerned. On
the occasion in question, he shipped from one state to another a
quantity of this article labeled "Special Lemon. Lemon Terpene and
Citral." The printed record, although not purporting to contain all
the evidence, shows that there was testimony tending to prove the
following facts, among others: the shipment was made to fill an
order solicited and taken by a traveling salesman in the
defendant's employ. The salesman had been supplied by the defendant
with a sample bottle of the article which was labeled simply
"Special Lemon." In offering the article for sale and soliciting
the order, the salesman exhibited the sample and represented that
the article was pure lemon oil obtained by a second pressing, and
that this pressing produced a good, if not the best, oil. In truth,
the article was not lemon oil, but an imitation thereof containing
alcohol and citral made from lemon grass. Some of the elements of
lemon oil were present in other than the usual proportions, and
others were entirely wanting.
The testimony respecting the salesman's representations was
admitted over the defendant's objection, and later the court denied
a request on the part of the defendant that the jury be instructed
that this testimony could not be considered, but only the statement
appearing on the label when the article was shipped. In that
connection, the court told the jury that the defendant could not be
held responsible criminally by reason of any representations made
by the salesman unless it appeared beyond a reasonable doubt that
the same were made by the defendant's authority.
Page 245 U. S. 621
The defendant, who is the petitioner here, complains of the
admission and consideration of this testimony, and insists that,
under the statute, the question whether an article is misbranded
turns entirely upon how it is labeled when it is shipped,
regardless of any representations made by a salesman, or even the
vendor, in offering it for sale.
The statute, in its second section, makes it unlawful to ship or
deliver for shipment from one state to another "any article of food
or drugs which is adulterated or misbranded, within the meaning of
this act." In its eighth section, it declares:
"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, and to any food or drug product which
is falsely branded as to the state, territory, or country in which
it is manufactured or produced."
"That, for the purposes of this Act, an article shall also be
deemed to be misbranded:"
"In the case of drugs:"
"* * * *"
"In the case of food:"
"First. If it be an imitation of or offered for sale under the
distinctive name of another article."
This section contains other provisions relating to misbranding,
but they are not material here, and need not be set forth or
It is apparent that the statute specifies and defines at least
two kinds of misbranding -- one where the article bears a false or
misleading label, and the other where it is offered for sale under
the distinctive name of another article. The two are quite
distinct, a deceptive label being an essential element of one, but
not of the other. No
Page 245 U. S. 622
doubt both involve a measure of deception, but they differ in
respect of the mode in which it is practiced. Evidently each is
intended to cover a field of its own, for otherwise there would be
no occasion for specifying and defining both. That one article of
food may be offered for sale in the distinctive name of another,
and the offer accomplish its purpose, without the aid of a false or
misleading label hardly needs statement.
The statute does not attempt to make either kind of misbranding
unlawful in itself, but does, as before indicated, make it unlawful
to ship or deliver for shipment from one state to another an
article of food which is misbranded in either way. That this is a
legitimate exertion of the power of Congress to regulate interstate
commerce is settled by our decisions. Hipolite Egg Co. v.
United States, 220 U. S. 45
McDermott v. Wisconsin, 228 U. S. 115
228 U. S. 128
Seven Cases of Eckman's Alterative v. United States,
239 U. S. 510
239 U. S. 514
It also is settled by our decisions that
"the negotiation of sales of goods which are in another state,
for the purpose of introducing them into the state in which the
negotiation is made, is interstate commerce."
Robbins v. Shelby Taxing District, 120 U.
, 120 U. S. 497
Crenshaw v. Arkansas, 227 U. S. 389
227 U. S.
It follows that the testimony respecting the representations of
the defendant's traveling salesman was rightly admitted in evidence
and submitted to the jury. It tended to prove that the order to
fill which the shipment was made was obtained by offering the
article for sale in the distinctive name of another article, and
therefore that the article was misbranded within the meaning of the
statute. To have confined the jury's attention to the label borne
by the article when it was shipped, as was requested by the
defendant, would have been to disregard the nature of the charge in
the second count and the distinction between the two kinds of
In the circuit court of appeals, the view was expressed
Page 245 U. S. 623
that intent was not an element of the offense charged in the
second count, and therefore that it was immaterial whether the
representations of the salesman had the sanction of the defendant.
Complaint is now made of this. But the question is not in the case,
the view expressed by the circuit court of appeals not being
essential to an affirmance of the judgment. The district court had
expressly instructed the jury that to hold the defendant
responsible criminally by reason of such representations, it must
appear, and appear beyond a reasonable doubt, that they were made
by his authority. The record before us does not show that the
defendant objected to the submission of this question to the jury
in this way; neither does it purport to contain all the evidence.
The verdict therefore must be taken as conclusively determining
that the representations were made with the defendant's