Where appellant, as complainant below, attacked as
unconstitutional a state statute under which the sale of his
product was interfered with by the state officer enforcing the
statute, and a general demurrer for want of equity is sustained,
this Court has jurisdiction of the appeal; nor will the appeal be
dismissed because the bill, in one of its allegations, asserted
that complainant's product was not one of those specified in the
act, if, as in this case, the bill also alleged that the proper
state officer had construed the statute as applicable thereto.
Sales made in one state to be delivered free on board at a point
therein, to be delivered to consumers in another state in the
original unbroken packages, freight to be paid by purchaser,
constitutes interstate commerce.
Page 225 U. S. 502
Commerce among the states is not a technical legal conception,
but a practical one drawn from the course of business. Protection
accorded to interstate commerce by the federal Constitution extends
to the sale by the receiver of the goods in the original
packages.
An attack by state authorities upon purchasers of goods
manufactured in and shipped from another state inflicts injury upon
the manufacturer by reducing the interstate sales, and if this
result can only be prevented by complying with illegal demands,
under an unconstitutional state statute, equity will grant
relief.
Regulating the sale of food for domestic animals is properly
within the scope of the state police power, and the vendors of such
food are not deprived of their property without due process of law
by a regulation requiring disclosure of ingredients and minimum
percentage of fat and proteins, disclosure of the formula for
combination not being required, and so
held as to the
statute of Indiana of 1907.
Quaere whether a state can require disclosure of
formulas for trade secret for mixture of a harmless article whose
value depends upon the mixture.
While the state cannot, under cover of exerting its police
power, directly regulate or burden interstate commerce, a police
regulation which has real relation to the proper protection of the
people, and is reasonable in its terms, and does not conflict with
any valid act of Congress, is not unconstitutional because it may
incidentally affect interstate commerce.
Where a state police statute involving inspection of goods is
enforced by the affixing of stamps, it will not be held
unconstitutional as a revenue measure in disguise if the bill does
not allege any facts to show that the charge for stamps is
unreasonable and the total sale is so much in excess of the cost of
inspection as to impute bad faith.
One whose sales are so large as to require stamps far in excess
of the minimum amount to be issued is not prejudiced by the
requirement to purchase such minimum amount of stamps.
No state statute which even affects incidentally interstate
commerce is valid if it is repugnant to the Federal Food and Drugs
Act of June 30, 1906, the object of which is to prevent
adulteration and misbranding and keep adulterated and misbranded
articles out of interstate commerce.
Where an act of Congress relating to a subject on which the
state may act also, limits its prohibitions, it leaves the subject
open to state regulation as to the prohibitions which are
unenumerated.
In determining whether a federal act overrides a state law,
the
Page 225 U. S. 503
entire scheme must be considered, and that which needs must be
implied has no less force than that which is expressed.
The intent of Congress to supersede the exercise by the states
of their police power will not be inferred unless the Act of
Congress, fairly interpreted, is in actual conflict with the law of
the state.
The statute of Indiana regulating the sale, and requiring
formula of ingredients of, concentrated commercial food for stock
is a proper and reasonable exercise of legislative police authority
for the protection of the people of the state. The act is not
unconstitutional as depriving a vendor of such food who lives in
another state and ships it therefrom to Indiana either as a
regulation of, or burden upon, interstate commerce, as depriving
any vendor thereof of his property without due process of law, or
as a revenue measure beyond the power of the state, nor does the
requirement for publishing the ingredients conflict in any manner
with the Food and Drugs Act of 1906.
Although the Food and Drugs Act prohibits misbranding, it does
not require publication of ingredients, and in that respect the
field is left open for state legislation.
This is an appeal from a decree of the circuit court sustaining
a demurrer to the bill for want of equity. The suit was brought by
Marion W. Savage, a citizen of Minnesota, to restrain the
defendant, the state chemist of Indiana, from taking proceedings to
enforce an act of the general assembly of that state (Acts 1907,
chapter 206) as applied to the sales of the complainant's product,
a preparation for domestic animals known as "International Stock
Food." The act is set forth in the margin. [
Footnote 1]
Page 225 U. S. 504
The bill alleges that the complainant has for many years been
engaged in Minnesota in the manufacture of medicinal
Page 225 U. S. 505
preparations, one of which is called "International Stock Food,"
and is sold in every state in the Union as
Page 225 U. S. 506
well as in many foreign countries; that he has invested large
amounts of money in building up a lucrative trade
Page 225 U. S. 507
in Indiana among the retail druggists, many hundreds of whom
were "buying, carrying in stock, and retailing to
Page 225 U. S. 508
the public" the complainant's preparations; that the
complainant's gross annual sales in Indiana amount to many
thousands of dollars; that the "International Stock Food" possesses
effective curative properties for various diseases of domestic
animals, and is composed of medicinal roots, herbs, seeds, and
barks, combined by a secret formula of great value, and that the
disclosure to his competitors of the proportion of the ingredients
and the manner of combination would seriously injure his business;
that the commercial designation "International Stock Food" is not
used by the complainant as descriptive of feed of any kind, and is
not so understood by retail druggists and purchasers, but is well
known to the public as a tradename of a medicine for domestic
animals, protected under trademarks
Page 225 U. S. 509
in the United States; that, on investigations made by the United
States Internal Revenue Department, it was determined that the
preparation was not feeding stuff nor a condimental stock food, but
was a proprietary or patent medicine within the meaning of the
revenue laws of 1863 and 1898, and that subsequent to the enactment
by Congress of the food and drugs Act of 1906 (June 30, 1906, 34
Stat. 768, c. 3915), the administrative officers of the United
States government duly determined that it was a medicine, and not a
food, within the meaning of that act.
The bill then avers the passage of the act above mentioned by
the legislature of Indiana, and sets forth the provisions of §§ 1,
2, 8, 9, and 11. It is alleged that the defendant, the state
chemist of Indiana, is asserting that the complainant's manufacture
is one of the concentrated commercial feeding stuffs covered by the
act, and that it is the duty of the complainant to comply with its
provisions with reference to its sale in Indiana,
"and has stated and declared to your orator, and now threatens
that, unless your orator has attached in a conspicuous place on the
outside of each package of your orator's said medicinal preparation
offered for sale within the State of Indiana, a printed statement,
clear and truthful, certifying, among other things, the name of the
manufacturer and shipper, the place of manufacture, the place of
business, and chemical analysis, stating the percentage of crude
protein, crude fat, and crude fiber contained in said preparation,
and have all its constituents determined by the methods adopted by
the session of official agricultural chemists, and shall also state
upon said package the names of each ingredient of which said
preparation is composed, he will cause the arrest and prosecution
of every person dealing or trading in the medicinal preparation of
your orator within the State of Indiana."
That the defendant has sent, or caused to be sent, broadcast
Page 225 U. S. 510
throughout the State of Indiana to dealers and others who are
customers, directly or indirectly, of complainant, many thousand
circular letters warning them against the sale of said preparation,
and threatening that prosecution will be instituted against all
persons engaged in the sale thereof unless and until the
complainant shall have complied with the provisions of said
act.
It is also alleged that the sales made by the complainant
"in the State of Indiana are made at the City of Minneapolis,
State of Minnesota, to be delivered free on board of cars at
Minneapolis, Minnesota, and delivered to purchasers and consumers
within the State of Indiana in the original unbroken packages,
freight being paid thereon by the consumers and purchasers."
That, unless restrained, the defendant will continue to annoy
and intimidate the numerous persons engaged in selling the
preparation in Indiana by threats of criminal prosecution, and will
report to the various prosecuting attorneys of the state the sales
that may come to his notice, and instigate prosecutions of the
sellers as violators of the statute, thereby obstructing the
complainant in the conduct of his business in the State of Indiana
and interfering with his property rights, to his irreparable
injury, for which there is no adequate legal remedy. That many
hundreds of persons engaged in selling the preparation have already
discontinued their purchases and sales because of the fear of
criminal prosecution induced by the defendant's threats, and that
large numbers of those who are still handling it will be induced by
such threats to discontinue its sale.
The bill further avers that the complainant's preparation is not
in any sense either concentrated commercial feeding stuff, or
condimental stock feed, or a patent proprietary stock feed within
the proper construction of the act of Indiana, and is not
advertised as possessing nutritive properties or used except as
medicine; that the complainant does not "claim that said medicinal
preparation contains
Page 225 U. S. 511
any crude protein or crude fat;" that it does not contain, nor
is it claimed on behalf of the defendant that it contains, any
ingredient that is deleterious or injurious to animal life or
health; that it is prescribed and administered in small doses as
medicine, and
"that the only nutritive substance or ingredients . . . are
employed as diluents in so small an amount as to produce no feeding
effect whatever, but for the sole purpose of rendering medicinal
bitter roots, herbs, barks, and seeds more acceptable to the animal
stomach;"
that directions for use accompany each package, and in every
case there is a statement plainly showing that the preparation is
to be used to cure disease, and not in place of or as a substitute
for any grain or feed. That nevertheless, the defendant, who, in
his official capacity, is charged by law with the enforcement of
the statute, has construed it to apply to complainant's
product.
That, under § 3 of the statute of Indiana, the state chemist is
to register the facts set forth in the certificate required by § 1
as a permanent record, and to furnish stamps or labels, showing
such registration, to manufacturers or agents desiring to sell the
concentrated commercial feeding stuff so registered in amounts not
less than the value of five dollars or multiples of five dollars
for any one such product; that, by § 5, the state chemist is to
receive one dollar for each one hundred stamps, and that the
proceeds thus derived are to be paid into the treasury of the
Indiana Agricultural Experiment Station, to be expended in carrying
out the provisions of the statute and for any other expenses of
such station, as authorized by law.
That the statute, and particularly §§ 1, 2, 7, 8, and 9, are
repugnant to the Fourteenth Amendment of the Constitution of the
United States in that they require manufacturers of proprietary
stock feed and condimental feeds, arbitrarily, without
compensation, and without due process
Page 225 U. S. 512
of law, whether such preparation contain any poisonous or
deleterious element or ingredient, to disclose the formulae by
which they are compounded, and the ingredients and proportions
thereof, which embody valuable trade secrets, and that, if the act
is enforced against the complainant, he will be deprived of his
property contrary to the said Amendment.
That the statute also violates § 8 of Article I of the
Constitution of the United States as an unreasonable interference
with interstate commerce in which the complainant is engaged.
That further, the statute is invalid under § 19 of Article IV of
the Constitution of the State of Indiana in that the title does not
express the requirement that manufacturers or dealers shall
disclose the formulae by which their products are manufactured, or
the ingredients or proportions.
That, for many years, the complainant's preparation has been
offered for sale in packages of different sizes, holding
respectively 24 ounces, 3 pounds, 6 pounds, and 25 pounds; that,
under the terms of the statute, the complainant would be required
to pay the same amount of tax for a package of 24 ounces that other
commodities and manufacturers thereof pay for a package of one
hundred pounds, and that this discrimination is unreasonable and
unconstitutional.
That the enforcement of the requirement as to the affixing of
stamps and payment therefor is a tax upon the complainant's
property and business, and is not a license fee determined by any
reasonable requirement, or for the purpose of carrying out the
inspection required, but, on the contrary, under the guise of a
police regulation, constitutes a measure for raising revenue for
the general work and expense of the Indiana Agricultural Experiment
Station. That the act is contrary to § 10 of article 1 of the
Constitution of the United States, that no state shall, without the
consent of Congress, lay any imposts or duties on imports
Page 225 U. S. 513
except what may be absolutely necessary for executing its
inspection law.
The bill prays that the defendant may be enjoined from taking
any action against the complainant, interfering with his right to
vend and convey his preparations in the State of Indiana, from
instituting any proceedings to punish him for failure to comply
with the defendant's demands, from giving out orally or in writing
to the various prosecuting officers of the state, or to any other
agents thereof charged with the enforcement of its law, or to the
public, any threats of prosecution, or information upon which
prosecutions are requested or may be based, and from otherwise
seeking to prevent the conduct of the complainant's business in the
state, or to discredit the reputation of his remedy.
The defendant demurred to the bill upon the ground that it was
wholly without equity, and that the court was without jurisdiction.
Upon the former ground, the bill was dismissed.
Page 225 U. S. 519
MR. JUSTICE HUGHES, after making the above statement, delivered
the opinion of the Court.
The principal contention in support of this appeal is that the
statute of Indiana (Acts 1907, chapter 206), the provisions of
which have been set forth, is an unconstitutional interference with
the complainant's right to engage in interstate commerce.
A preliminary question arises with respect to the jurisdiction
of this Court, by reason of the allegation of the bill that the
complainant's product is not a "concentrated commercial feeding
stuff" within the true meaning of the act, and that, so
interpreted, the statute would not apply. But it was also alleged
that the state chemist, who was authorized to enforce the statute,
had construed it to be applicable to the commodity which is
commercially known as "International Stock Food," and, thus charged
by the officer with the duty of obedience, the complainant in his
bill challenged the constitutionality of the legislation. The
grounds for the attack were not found in the conclusions reached by
the officer as to the nature of the article, in administering an
act otherwise conceded to be valid (
Arbuckle v. Blackburn,
191 U. S. 405,
191 U. S.
414), but in the provisions of the statute itself, as
applied to the articles within its purview while in the course of
interstate commerce. A general demurrer, for want of equity, was
sustained, and in view of the substantial character of the
contention, the case must be regarded as one in which the law of a
state is claimed to be in contravention of the Constitution of the
United States. Act of March 3, 1891, c. 517, § 5;
Penn. Mutual
Life Insurance Co. v. Austin, 168 U.
S. 685,
168 U. S. 694;
Loeb v. Columbia Township, 179 U.
S. 472,
179 U. S. 478;
Lampasas v. Bell, 180 U. S. 276,
180 U. S.
282.
It is said that the complainant is not entitled to invoke the
constitutional protection, in that he fails to show injury.
Page 225 U. S. 520
Southern Railway Co. v. King, 217 U.
S. 524,
217 U. S. 534.
The argument rests upon the averment in the bill that his sales
were made at Minneapolis, the goods "to be delivered free on board
of cars" at that point,
"and delivered to purchasers and consumers within the State of
Indiana in the original unbroken packages, freight being paid
thereon by the consumers and purchasers."
In answer, it must again be said that "commerce among the states
is not a technical legal conception, but a practical one, drawn
from the course of business."
Swift & Co. v. United
States, 196 U. S. 375,
196 U. S. 398;
Rearick v. Pennsylvania, 203 U. S. 507,
203 U. S. 512.
It clearly appears from the bill that the complainant was engaged
in dealing with purchasers in another state. His product
manufactured in Minnesota was, in pursuance of his contracts of
sale, to be delivered to carriers for transportation to the
purchasers in Indiana. This was interstate commerce, in the freedom
of which from any unconstitutional burden the complainant had a
direct interest. The protection accorded to this commerce by the
federal Constitution extended to the sale by the receiver of the
goods in the original packages.
Leisy v. Hardin,
135 U. S. 100;
In re Rahrer, 140 U. S. 545,
140 U. S.
559-560;
Plumley v. Massachusetts, 155 U.
S. 461,
155 U. S. 473;
Vance v. Vandercook Co., 170 U. S. 438,
170 U. S.
444-445;
Schollenberger v. Pennsylvania,
171 U. S. 1,
171 U. S. 22-25;
Heyman v. Southern Railway Co., 203 U.
S. 270,
203 U. S. 276.
An attack upon this right of the importing purchasers to sell in
the original packages bought from the complainant not only would be
to their prejudice, but inevitably would inflict injury upon the
complainant by reducing his interstate sales -- a result to be
avoided only through his compliance with the act by filing the
statement and affixing to his goods the labels it required.
According to the bill, the state chemist had threatened the
complainant that, in default of such compliance, he would cause the
arrest and prosecution of every person dealing in the
Page 225 U. S. 521
article within the state, and had distributed broadcast
throughout the state warning circulars. If the statute of Indiana,
as applied to sales by importing purchasers in the original
packages, constitutes an unwarrantable interference with interstate
commerce in the complainant's product, he had standing to complain,
and was entitled to relief against enforcement by the defendant of
the illegal demands.
Scott v. Donald, 165 U.
S. 107,
165 U. S. 112;
Ex Parte Young, 209 U. S. 125,
209 U. S.
159-160;
Ludwig v. Western Union Telegraph Co.,
216 U. S. 146;
Hopkins v. Clemson College, 221 U.
S. 636,
221 U. S.
643-645;
Philadelphia Co. v. Stimson,
223 U. S. 605,
223 U. S.
620-621.
We are thus brought to the examination of the statute. The
question of its constitutional validity may be considered in two
aspects: (1) independently of the operation and effect of the Act
of Congress of June 30, 1906, c. 3915, 34 Stat. 768, known as "The
Food and Drugs Act," and (2) in the light of this federal
enactment.
First. The statute relates to the sale of various sorts
of food for domestic animals, embraced in the term "Concentrated
commercial feeding stuff," as defined in the act. It requires the
filing of a statement and a sworn certificate, the affixing of a
label bearing certain information, and a stamp.
By § 1 it is provided, in substance, that before any such
feeding stuff is sold or offered for sale in Indiana, the "the
manufacturer, importer, dealer, agent, or person" selling or
offering it, shall file with the state chemist a statement that he
desires to sell the feeding stuff, and also a sworn certificate,
for registration, stating (a) the name of the manufacturer, (b) the
location of the principal office of the manufacturer, (c) the name,
brand, or trademark under which the article will be sold, (d) the
ingredients from which it is compounded, and (e) the minimum
percentage of crude fat and crude protein, allowing one percent of
nitrogen to equal six and twenty-five hundredths
Page 225 U. S. 522
per cent of protein, and the maximum percentage of crude fiber
which the manufacturer or person offering the article for sale
guarantees it to contain, these constituents to be determined by
the methods recommended by the association of official agricultural
chemists of the United States. The state chemist is to register the
facts set forth in the certificate in a permanent record (§ 3).
Section 2 provides that there shall be affixed to every package
or sample of the article a tag or label which shall be accepted as
a guaranty of the manufacturer, importer, dealer, or agent, and
shall have plainly printed thereon (a) the number of net pounds of
feeding stuff in the package, (b) the name, brand, or trademark
under which it is sold, (c) the name of the manufacturer, (d) the
location of the principal office of the manufacturer, and (e) the
guaranteed analysis, stating the minimum percentage of crude fat
and crude protein, determined as described in § 1, and the
ingredients from which the article is compounded.
A stamp purchased from the state chemist, showing that the
article has been registered and that the inspection tax has been
paid, is to be affixed for each one hundred pounds or fraction
thereof, special provision being made for the delivery of an
equivalent number of stamps on sale in bulk. By an amendment of
1909, stamps are to issued by the state chemist to cover
twenty-five, fifty, and one hundred pounds (Acts 1909, chapter 46,
p. 106). He is not required to sell stamps in less amount than to
the value of five dollars, or multiples thereof, for any one
feeding stuff, or to register any certificate unless accompanied by
an order and fees for stamps to the amount of five dollars, or some
multiple of that sum (§ 3). Sworn statements are to be filed
annually of the number of net pounds of each brand of feeding stuff
sold or offered for sale in the state (§ 4).
The price of the stamps under the original act was
Page 225 U. S. 523
one dollar per hundred; but by the amendment of 1909
(
supra) the charge was made eighty cents per hundred, for
stamps to cover one hundred pounds, and forty cents and twenty
cents respectively for stamps to cover fifty and twenty-five
pounds. The fees received are to be paid into the treasury of the
Indiana Agricultural Experiment Station, and expended
"in meeting all necessary expenses in carrying out the
provisions of this act, including the employment of inspectors,
chemists, expenses in procuring samples, printing bulletins giving
the results of the work of feeding-stuff inspection, as provided
for by this act, and for any other expenses of said Indiana
Agricultural Experiment Station, as authorized by law."
A classified report of the receipts and expenditures is to be
made to the governor of the state annually (§ 5).
Anyone selling, or offering for sale any feeding stuff which has
not been registered and labeled and stamped as required by the act,
or which is found by an analysis made by the state chemist, or
under his direction, to contain "a smaller percentage of crude fat
or crude protein than the minimum guaranty," or is "labeled with a
false or inaccurate guaranty," and anyone who adulterates any
feeding stuff "with foreign mineral matter or other foreign
substance, such as rice hulls, chaff, mill sweepings," etc., "or
other materials of less or of little or no feeding value without
plainly stating on the label hereinbefore described, the kind and
amount of such mixture," or who adulterates with any substances
injurious to the health of domestic animals, or alters the state
chemist's stamp, or uses it a second time, or fails to make the
sworn statement as to annual sales as required, is guilty of a
misdemeanor and is subject to fine (§ 6).
The state chemist and his deputies are empowered to procure from
any lot or package of the described feeding stuffs offered for sale
or found in Indiana a quantity not exceeding two pounds, to be
drawn during reasonable
Page 225 U. S. 524
business hours, or in the presence of the owner or his
representatives (§ 7), and it is made a misdemeanor to interfere
with such inspection and sampling (§ 8). He is also authorized to
prescribe and enforce regulations as he may deem necessary to carry
the act into effect, and he may refuse
"the registration of any feeding stuff under a name which would
be misleading as to the materials of which it is made, or when the
percentage of crude fiber is above or the percentage of crude fat
or crude protein below the standards adopted for concentrated
commercial feeding stuffs."
The evident purpose of the statute is to prevent fraud and
imposition in the sale of food for domestic animals -- a matter of
great importance to the people of the state. Its requirements were
directed to that end, and they were not unreasonable. It was not
aimed at interstate commerce, but, without discrimination, sought
to promote fair dealing in the described articles of food. The
practice of selling feeding stuffs under general descriptions gave
opportunity for abuses which the Legislature of Indiana determined
to correct, and, to safeguard against deception, it required a
disclosure of the ingredients contained in the composition. The
bill complains of the injury to manufacturers if they are forced to
reveal their secret formulas and processes. We need not here
express an opinion upon this question, in the breadth suggested, as
the statute does not compel a disclosure of formulas or manner of
combination. It does demand a statement of the ingredients, and
also of the minimum percentage of crude fat and crude protein, and
of the maximum percentage of crude fiber -- a requirement of
obvious propriety in connection with substances purveyed as feeding
stuffs.
The state cannot, under cover of exerting its police powers,
undertake what amounts essentially to a regulation of interstate
commerce, or impose a direct burden upon that commerce.
Hannibal & St. J. R. Co.
v. Husen, 95 U.S.
Page 225 U. S. 525
465,
95 U. S. 474;
Walling v. Michigan, 116 U. S. 446;
Bowman v. Chicago &c. Ry. Co., 125 U.
S. 465;
Leisy v. Hardin, 135 U.
S. 100;
Minnesota v. Barber, 136 U.
S. 313;
Brimmer v. Rebman, 138 U. S.
78;
Scott v. Donald, 165 U. S.
58;
Schollenberger v. Pennsylvania,
171 U. S. 1,
171 U. S. 13;
Houston & Texas Central R. Co. v. Mayes, 201 U.
S. 321;
Atlantic Coast Line v. Wharton,
207 U. S. 328;
Adams Express Co. v. Kentucky, 214 U.
S. 218. But when the local police regulation has real
relation to the suitable protection of the people of the state, and
is reasonable in its requirements, it is not invalid because it may
incidentally affect interstate commerce, provided it does not
conflict with legislation enacted by Congress pursuant to its
constitutional authority.
Plumley v. Massachusetts,
155 U. S. 461;
Hennington v. Georgia, 163 U. S. 299,
163 U. S. 317;
N.Y., N.H. & H. R. Co. v. New York, 165 U.
S. 628;
Chicago, M. & St.P. Ry. Co. v.
Solan, 169 U. S. 133;
Missouri, Kansas & Texas Ry. Co. v. Haber,
169 U. S. 613;
Patapsco Guano Co. v. North Carolina, 171 U.
S. 345;
Reid v. Colorado, 187 U.
S. 137;
Pennsylvania R. Co. v. Hughes,
191 U. S. 477;
Crossman v. Lurman, 192 U. S. 189;
McLean v. Denver & Rio Grande R. Co., 203 U. S.
38,
203 U. S. 50;
Asbell v. Kansas, 209 U. S. 251,
209 U. S.
254-256;
Chicago, R.I. & P. Ry. Co. v.
Arkansas, 219 U. S. 453.
In
Plumley v. Massachusetts, a law of that commonwealth
was sustained which had been passed "to prevent deception in the
manufacture and sale of imitation butter." The article for the sale
of which the plaintiff in error was convicted in the state court
had been received by him from the manufacturers in Illinois, as
their agent, and had been sold in Massachusetts in the original
package. The Court said (
supra, pp.
155 U. S. 468,
155 U. S.
472), referring to the purpose and effect of the
statute:
"He is only forbidden to practice in such matters a fraud upon
the general public. The statute seeks to suppress false pretenses
and to promote fair dealing in the sale of an article of food.
It
Page 225 U. S. 526
compels the sale of oleomargarin for what it really is by
preventing its sale for what it is not. Can it be that the
Constitution of the United States secures to anyone the privilege
of manufacturing and selling an article of food in such manner as
to induce the mass of people to believe that they are buying
something which, in fact is wholly different from that which is
offered for sale? Does the freedom of commerce among the states
demand a recognition of the right to practice a deception upon the
public in the sale of any articles, even those that may have become
the subject of trade in different parts of the country? . . . Such
legislation may indeed indirectly or incidentally affect trade in
such products transported from one state to another state. But that
circumstance does not show that laws of the character alluded to
are inconsistent with the power of Congress to regulate commerce
among the [several] states."
In
Patapsco Guano Co. v. North Carolina, supra, the
Court had before it a statute of North Carolina relating to
fertilizing materials. It provided:
"Every bag, barrel, or other package of such fertilizers or
fertilizing materials as above designated offered for sale in this
state shall have thereon plainly printed a label or stamp, a copy
of which shall be filed with the Commissioner of Agriculture,
together with a true and faithful sample of the fertilizer or
fertilizing material which it is proposed to sell, . . . and the
said label or stamp shall truly set forth the name, location, and
trademark of the manufacturer; also the chemical composition of the
contents of such package, and the real percentage of any of the
following ingredients asserted to be present: to-wit, soluble and
precipitated phosphoric acid, which shall not be less than eight
percent; soluble potassa, which shall not be less than one percent;
ammonia, which shall not be less than two percent, or its
equivalent in nitrogen; together with the date of its analyzation,
and that the requirements of the law have
Page 225 U. S. 527
been complied with, and any such fertilizer as shall be
ascertained by analysis not to contain the ingredients and
percentage set forth as above provided shall be liable to seizure
and condemnation."
A charge of twenty-five cents per ton on such materials was laid
for the purpose of defraying the expenses connected with the
inspection, and the department of agriculture was authorized to
establish an experiment station and to employ an analyst whose duty
it was to analyze such fertilizers and products as might be
required by the department and to aid so far as practicable in
suppressing fraud in their sale.
The court upheld the statute, saying (
supra, p.
171 U. S.
357):
"Whenever inspection laws act on the subject before it becomes
an article of commerce, they are confessedly valid, and also when,
although operating on articles brought from one state into another,
they provide for inspection in the exercise of that power of
self-protection commonly called the police power."
After referring to the decision in
Plumley v.
Massachusetts, 155 U. S. 461, the
Court, continued (pp.
171 U. S. 358,
361):
"Where the subject is of wide importance to the community, the
consequences of fraudulent practices generally injurious, and the
suppression of such frauds matter of public concern, it is within
the protective power of the state to intervene. Laws providing for
the inspection and grading of flour, the inspection and regulation
of weights and measures, the weighing of coal on public scales, and
the like, are all competent exercises of that power, and it is not
perceived why the prevention of deception in the adulteration of
fertilizers does not fall within its scope. . . . The Act of
January 21, 1891, must be regarded, then, as an act providing for
the inspection of fertilizers and fertilizing materials in order to
prevent the practice of imposition on the people of the state, and
the charge of twenty-five cents per ton as intended merely to
defray the cost of such inspection. It being competent for the
state to pass laws of this character, does the requirement
Page 225 U. S. 528
of inspection and payment of its cost bring the act into
collision with the commercial power vested in Congress? Clearly
this cannot be so as to foreign commerce, for clause two of section
ten of article one expressly recognizes the validity of state
inspection laws and allows the collection of the amounts necessary
for their execution, and we think the same principle must apply to
interstate commerce. In any view, the effect on that commerce is
indirect and incidental, and 'the Constitution of the United States
does not secure to anyone the privilege of defrauding the
public.'"
It cannot be doubted that, within the principle of these
decisions, and of the others above cited, the State of Indiana --
assuming for the present that there was no conflict with federal
legislation -- was entitled, in the exercise of its police power,
to require the disclosure of the ingredients contained in the
feeding stuffs offered for sale in the state, and to provide for
their inspection and analysis. The provisions for the filing of a
certificate, for registration and for labels were merely incidental
to these requirements, and were appropriate means for accomplishing
the legitimate purpose of the act. It is said that the statute
permits the state, through its officials, to set up arbitrary
standards governing conditions of manufacture. But it does not
appear that any arbitrary standard has been set up, or that there
has been any attempt to enforce one against the complainant.
See Western Union Telegraph Co. v. Richmond, 224 U.
S. 160,
224 U. S. 168.
The complainant has declined to file the statement and to affix the
labels containing the disclosure of ingredients for which the
statute provides, and instead he resorts to this suit.
The contention is made that the statute is a disguised revenue
measure, but, on a review of its provisions, we find no warrant for
such a characterization of it. The bill sets forth no facts
whatever to show that the charge for stamps is unreasonable in its
relation to the costs of inspection,
Page 225 U. S. 529
and certainly it cannot be said that aught appears "to justify
the imputation of bad faith and change the character of the act."
Patapsco Guano Co. v. Board of Agriculture, supra; McLean v.
Denver & Rio Grande R. Co., supra; Red "C" Oil Co. v. North
Carolina, 222 U. S. 380,
222 U. S. 393.
With respect to the requirement of an advance payment for stamps,
to the value of five dollars, to accompany the certificate, we need
not say more than that the complainant is plainly not prejudiced in
view of the alleged extent of his sales.
Second. The question remains whether the statute of
Indiana is in conflict with the Act of Congress known as the Food
and Drugs Acts of June 30, 1906. For the former, so far as it
affects interstate commerce even indirectly and incidentally, can
have no validity if repugnant to the federal regulation.
Reid
v. Colorado, 187 U. S. 137,
187 U. S.
146-147;
Asbell v. Kansas, 209 U.
S. 251,
209 U. S.
256-257;
Northern Pacific Ry. Co. v.
Washington, 222 U. S. 370,
222 U. S. 378;
Southern Ry. Co. v. Reid, 222 U.
S. 424,
222 U. S.
436.
The object of the Food and Drugs Act is to prevent adulteration
and misbranding, as therein defined. It prohibits the introduction
into any state from any other state "of any article of food or
drugs which is adulterated or misbranded, within the meaning of
this act." The purpose is to keep such articles
"out of the channels of interstate commerce, or, if they enter
such commerce, to condemn them while being transported or when they
have reached their destinations, provided they remain unloaded,
unsold, or in original unbroken packages."
Hipolite Egg Co. v. United States, 220 U. S.
45,
220 U. S. 54. To
determine the scope of the act with respect to feeding stuffs, we
must examine its definitions of the adulteration and misbranding of
food, the term "food" including "all articles used for food, drink,
confectionary, or condiment by man or other animals, whether
simple, mixed, or compound"
Page 225 U. S. 530
(§ 6). These definitions are found in §§ 7 and 8, which are set
forth in the margin. [
Footnote
2]
Page 225 U. S. 531
It will be observed that, in its enumeration of the acts which
constitute a violation of the statute, Congress has not included
the failure to disclose the ingredients of the article, save in
specific instances where, for example, morphine, opium, cocaine or
other substances particularly mentioned are present. It is provided
that the article "for the purposes of this Act" shall be deemed to
be misbranded if the package or label bear any statement,
Page 225 U. S. 532
design, or device regarding it or the ingredients or substances
it contains which shall be false or misleading (§ 8). But this does
not cover the entire ground. It is one thing to made a false or
misleading statement regarding the article or its ingredients, and
it may be quite another to give no information as to what the
ingredients are. As is well known, products may be sold, and in
case of so-called proprietary articles frequently are sold, under
tradenames which do not reveal the ingredients of the composition,
and the proprietors refrain from revealing them. Moreover, in
defining what shall be adulteration or misbranding for the purposes
of the federal act, it is provided that mixtures or compounds known
as articles of food under their own distinctive names, not taking
or imitating the distinctive name of another article, which do not
contain "any added poisonous or deleterious ingredients" shall not
be deemed to be adulterated or misbranded if the name be
accompanied on the same label or brand with a statement of the
place of manufacture (§ 8).
Congress has thus limited the scope of its prohibitions. It has
not included that at which the Indiana statute aims. Can it be said
that Congress, nevertheless, has denied to the state, with respect
to the feeding stuffs coming from another state and sold in the
original packages, the power the state otherwise would have to
prevent imposition upon the public by making a reasonable and
nondiscriminatory provision for the disclosure of ingredients, and
for inspection and analysis? If there be such denial, it is not to
be found in any express declaration to that effect. Undoubtedly
Congress, by virtue of its paramount authority over interstate
commerce, might have said that such goods should be free from the
incidental effect of a state law enacted for these purposes. But it
did not so declare. There is a proviso in the section defining
misbranding for the purposes of the act, that "nothing in this act
shall be construed" as requiring manufacturers of
Page 225 U. S. 533
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
misbranding" (§ 8). We have already noted the limitations of the
provisions referred to. And it is clear that this proviso merely
relates to the interpretation of the requirements of the act, and
does not enlarge its purview or establish a rule as to matters
which lie outside its prohibitions.
Is, then, a denial to the state of the exercise of its power for
the purposes in question necessarily implied in the federal
statute? For when the question is whether a federal act overrides a
state law, the entire scheme of the statute must, of course, be
considered, and that which needs must be implied is of no less
force than that which is expressed. If the purpose of the act
cannot otherwise be accomplished -- if its operation within its
chosen field else must be frustrated and its provisions be refused
their natural effect -- the state law must yield to the regulation
of Congress within the sphere of its delegated power.
Texas
& Pacific Ry. Co. v. Albilene Cotton Oil Co., 204 U.
S. 426;
Northern Pacific Ry. Co. v. Washington,
supra; Southern R. Co. v. Reid, supra.
But the intent to supersede the exercise by the state of its
police power as to matters not covered by the federal legislation
is not to be inferred from the mere fact the Congress has seen fit
to circumscribe its regulation and to occupy a limited field. In
other words, such intent is not to be implied unless the act of
Congress, fairly interpreted, is in actual conflict with the law of
the state. This principle has had abundant illustration.
Chicago &c. Ry. Co. v. Solan, 169 U.
S. 133;
Missouri, Kansas & Texas Ry. Co. v.
Haber, 169 U. S. 613;
Reid v. Colorado, 187 U. S. 137;
Pennsylvania R. Co. v. Hughes, 191 U.
S. 477;
Crossman v. Lurman, 192 U.
S. 189;
Asbell v. Kansas, 209 U.
S. 251;
Northern Pacific Ry. Co. v.
Washington, 222
Page 225 U. S. 534
U.S. 370,
222 U. S. 379;
Southern Ry. Co. v. Reid, 222 U.
S. 424,
222 U. S.
442.
In
Missouri, Kansas & Texas Ry. Co. v. Haber,
169 U. S. 613, the
Supreme Court of Kansas had affirmed a judgment against the railway
company for damages caused by its having brought into the state
certain cattle alleged to have been affected with Texas fever,
which was communicated to the cattle of the plaintiff. The recovery
was based upon a statute of Kansas which made actionable the
driving or transporting into the State of cattle which were liable
to communicate the fever. It was contended that the Act of Congress
of May 29, 1884, c. 60 (23 Stat. 31), known as the Animal Industry
Act, together with the Act of March 3, 1891, c. 544 (26 Stat.
1044), appropriating money to carry out its provisions, and § 5258
of the Revised Statutes, covered substantially the whole subject of
the transportation from one state to another state of livestock
capable of imparting contagious disease, and therefore that the
State of Kansas had no authority to deal in any form with that
subject. The Act of 1884 provided for the establishment of a Bureau
of Animal Industry, for the appointment of a staff to investigate
the condition of domestic animals, and for report upon the means to
be adopted to guard against the spread of disease. Regulations were
to be prepared by the Commissioner of Agriculture and certified to
the executive authority of each state and territory. Special
investigation was to be made for the protection of foreign
commerce, and the Secretary of the Treasury was to establish such
regulations as might be required concerning exportation. It was
provided that no railroad company within the United States, nor the
owners or masters of any vessel, should receive for transportation,
or transport, from one state to another, any livestock affected
with any communicable disease, nor should anyone deliver for such
transportation, or drive on foot or transport in private conveyance
from
Page 225 U. S. 535
one state to another, any livestock knowing them to be so
affected. It was made the duty of the commissioner of agriculture
to notify the proper officials or agents of transportation
companies doing business in any infected locality of the existence
of contagion, and the operators of railroads, or the owners or
custodians of livestock within such infected district, who should
knowingly violate the provisions of the act, were to be guilty of a
misdemeanor punishable by fine or imprisonment.
The Court held that this federal legislation did not override
the statute of the state; that the latter created a civil liability
as to which the Animal Industry Act of Congress had not made
provision. The Court said (
supra, pp.
169 U. S.
623-624):
"May not these statutory provisions stand without obstructing or
embarrassing the execution of the Act of Congress? This question
must, of course, be determined with reference to the settled rule
that a statute enacted in execution of a reserved power of the
state is not to be regarded as inconsistent with an act of Congress
passed in the execution of a clear power under the Constitution,
unless the repugnance or conflict is so direct and positive that
the two acts cannot be reconciled or stand together.
Sinnot
v. Davenport, 22 How. 227,
63 U. S.
243. . . . Whether a corporation transporting, or the
person causing to be transported, from one state to another, cattle
of the class specified in the Kansas statute should be liable in a
civil action for any damages sustained by the owners of domestic
cattle by reason of the introduction into their state of such
diseased cattle is a subject about which the animal industry act
did not make any provision. That act does not declare that the
regulations established by the Department of Agriculture should
have the effect to exempt from civil liability one who, but for
such regulations, would have been liable either under the general
principles of law under some state enactment for damages
arising
Page 225 U. S. 536
out of the introduction into that state of cattle so affected.
And, as will be seen from the regulations prescribed by the
Secretary of Agriculture, that officer did not assume to give
protection to anyone against such liability."
In
Reid v. Colorado, supra, the question arose under a
statute of Colorado which had been passed to prevent the
introduction into the state of diseased animals. The statute made
it a misdemeanor for anyone to bring into the state between April 1
and November 1 any cattle or horses from a state, territory, or
county south of the 36th parallel of north latitude unless they had
been held at some place north of that parallel at least ninety days
prior to importation, or unless the owner or person in charge
should procure from the state veterinary sanitary board a
certificate or bill of health to the effect that the cattle or
horses were free from all infectious or contagious diseases and had
not been exposed thereto at any time within the preceding ninety
days. The expense of any inspection in connection therewith was to
be paid by the owner.
The plaintiff in error had been convicted of bringing cattle
into the state in violation of the statute. There was no proof in
the case that the particular cattle had any infectious or
contagious disease, but it did appear that they were brought from
Texas, south of the 36th parallel, without being held or inspected
as the statute required. Its provisions were ignored altogether as
invalid legislation. When the plaintiff in error refused assent to
the state inspection, he showed to the authorities a certificate
signed by an assistant inspector of the federal Bureau of Animal
Industry who certified that he had carefully inspected the cattle
in Texas and found them free from communicable disease. It was
insisted that the statute of Colorado was in conflict with the
Animal Industry Act of Congress, but the Court sustained the state
law for the
Page 225 U. S. 537
reason that, although the two statutes related to the same
general subject, they did not cover the same ground, and were not
inconsistent with each other.
The Court thus emphasized the general principle involved
(
supra, p.
187 U. S.
148):
"It should never be held that Congress intends to supersede or
by its legislation suspend the exercise of the police powers of the
states, even when it may do so, unless its purpose to affect that
result is clearly manifested. This Court has said -- and the
principle had been often reaffirmed -- that,"
"in the application of this principle of supremacy of an act of
Congress in a case where the state law is but the exercise of a
reserved power, the repugnance or conflict should be direct and
positive, so that the two acts could not be reconciled or
consistently stand together."
And, in the course of its review of the subjects embraced in the
federal legislation, the Court said (pp.
187 U. S.
149-150):
"Still another subject covered by the act is the driving on foot
or transporting from one state or territory into another state or
territory, or from any state into the District of Columbia, or from
the District into any state, of any livestock known to be affected
with any contagious, infectious, or communicable disease. But this
provision does not cover the entire subject of the transporting or
shipping of diseased livestock from one state to another. The owner
of such stock, when bringing them into another state, may not know
them to be diseased; but they may, in fact be diseased, or the
circumstances may be such as fairly to authorize the state into
which they are about to be brought to take such precautionary
measures as will reasonably guard its own domestic animals against
danger from contagious, infectious, or communicable diseases. The
act of Congress left the state free to cover that field by such
regulations as it deemed appropriate, and which only incidentally
affected the freedom of interstate commerce. Congress went no
farther than to make it an
Page 225 U. S. 538
offense against the United States for anyone knowingly to take
or send from one state or territory to another state or territory,
or into the District of Columbia, or from the District into any
state, livestock affected with infectious or communicable disease.
The Animal Industry Act did not make it an offense against the
United States to send from one state into another livestock which
the shipper did not know were diseased. The offense charged upon
the defendant in the state court was not the introduction into
Colorado of cattle that he knew to be diseased. He was charged with
having brought his cattle into Colorado from certain counties in
Texas, south of the 36th parallel of north latitude, without said
cattle's having been held at some place north of said parallel of
latitude for at least the time required prior to their being
brought into Colorado, and without having procured from the state
veterinary sanitary board a certificate or bill of health to the
effect that his cattle -- in fact -- were free from all infectious
or contagious diseases, and had not been exposed at any time within
ninety days prior thereto to any such diseases, but had declined to
procure such certificate or have the inspection required by the
statute. His knowledge as to the actual condition of the cattle was
of no consequence under the state enactment or under the charge
made."
"Our conclusion is that the statute of Colorado, as here
involved, does not cover the same ground as the Act of Congress,
and therefore is not inconsistent with that act, and its
constitutionality is not to be questioned unless it be in violation
of the Constitution of the United States, independently of any
legislation by Congress."
In
Asbell v. Kansas, 209 U. S. 251, the
plaintiff in error had been convicted under a statute of the State
of Kansas which made it a misdemeanor to transport cattle into the
state from any point south of the south line of the state, except
for immediate slaughter, without having first
Page 225 U. S. 539
caused them to be inspected and passed as healthy by the proper
state officials or by the Bureau of Animal Industry of the Interior
Department of the United States. The Court held that the statute
was a valid exercise of the power of the state unless it were in
conflict with the act of Congress. It appeared that, since the
decision in
Reid v. Colorado, 187 U.
S. 137, Congress had provided that, where an inspector
of the Bureau of Animal Industry had issued a certificate that he
had inspected livestock and found them free from communicable
disease, they should be transported into any state or territory
without further inspection or the exaction of fees of any kind,
except such as might be required by the Secretary of Agriculture.
But as the law of Kansas recognized the federal certificate, a
conflict with the Act of Congress was avoided, and hence the
conviction under the state law was sustained.
Applying these established principles to the present case, no
ground appears for denying validity to the statute of Indiana. That
state has determined that it is necessary, in order to secure
proper protection from deception, that purchasers of the described
feeding stuffs should be suitably informed of what they are buying,
and has made reasonable provision for disclosure of ingredients by
certificate and label, and for inspection and analysis. The
requirements the enforcement of which the bill seeks to enjoin are
not in any way in conflict with the provisions of the federal act.
They may be sustained without impairing in the slightest degree its
operation and effect. There is no question here of conflicting
standards, or of opposition of state to federal authority. It
follows that the complainant's bill in this aspect of the case was
without equity.
Other objections urged by the bill to the validity of the
statute, save so far as they may be deemed to involve the questions
that have already been considered, have not been pressed in
argument, and need not be discussed.
Page 225 U. S. 540
Recurring to the contention that the product of the complainant
is not within the statute, it is evident that, assuming the
validity of the enactment, the complainant showed no ground for
resorting to equity, as the nature of the composition must be
determined according to the fact, in the course of due proceedings
for that purpose.
The demurrer was properly sustained.
Affirmed.
[
Footnote 1]
Acts 1907, Chapter 206, page 354, Indiana.
"An Act to Provide for the Inspection and Analysis of, and to
Regulate the Sale of, Concentrated Commercial Feeding Stuff in the
Indiana; to Prohibit the Sale of Fraudulent or Adulterated
Concentrated Commercial Feeding Stuffs; to Define the Term
'Concentrated Commercial Feeding Stuffs;' to Provide for Guaranties
of the Ingredients of Concentrated Commercial Feeding Stuffs; for
the Affixing of Labels and Stamps to the Packages Thereof, as
Evidence of the Guaranty and Inspection Thereof; to Provide for the
Collection of an Inspection Fee from the Manufacturers of or
Dealers in Concentrated Commercial Feeding Stuffs; to Fix Penalties
for the Violation of the Provisions of This Act, and to Authorize
the Expenditure of the Funds Derived from the Inspection Fees."
"Section 1.
Be it enacted by the General Assembly of the
State of Indiana that, before any concentrated commercial
feeding stuff is sold, offered or exposed for sale in Indiana, the
manufacturer, importer, dealer, agent, or person who causes it to
be sold or offered for sale, by sample or otherwise, within this
state, shall file with the state chemist of Indiana at the Indiana
Agricultural Experiment Station, Purdue University, a statement
that he desires to offer such concentrated commercial feeding stuff
for sale in this state, and also a certificate, the execution of
which shall be sworn to before a notary public or other proper
official, for registration, stating the name of the manufacturer,
the location of the principal office of the manufacturer, the name,
brand, or trademark under which the concentrated commercial feeding
stuff will be sold, the ingredients from which the concentrated
commercial feeding stuff is compounded, and the minimum percentage
of crude fat or crude protein, allowing one percent of nitrogen to
equal six and twenty-five hundreths percent of protein, and the
maximum percentage of crude fiber which the manufacturer or person
offering the concentrated commercial feeding stuff for sale
guarantees it to contain; these constituents to be determined by
the methods recommended by the Association of Official Agricultural
Chemists of the United States."
"SEC. 2. Any person, company, corporation, or agent that shall
sell or offer, or expose for sale, any concentrated commercial
feeding stuff in this state, shall affix, or cause to be affixed,
to every package or sample of such concentrated commercial feeding
stuff, in a conspicuous place on the outside thereof, a tag or
label which shall be accepted as a guaranty of the manufacturer,
importer, dealer, or agent, and which shall have plainly printed
thereon in the English language, the number of net pounds of
concentrated commercial feeding stuff in the package, the name,
brand, or trademark under which the concentrated commercial feeding
stuff is sold, the name of the manufacturer, the location of the
principal office of the manufacturer, and the guaranteed analysis,
stating the minimum percentage of crude fat and crude protein,
determined as described in section 1, and the ingredients from
which the concentrated commercial feeding stuff is compounded. For
each one hundred pounds, or fraction thereof, the person, company,
corporation, or agent, shall also affix a stamp purchased from the
state chemist, showing that the concentrated commercial feeding
stuff has been registered as required by section 1 of this act, and
that the inspection tax has been paid. When concentrated commercial
feeding stuff is sold in bulk a tag, as hereinbefore described, and
a state chemist stamp, shall be delivered to the consumer with each
one hundred pounds, or fraction thereof: Provided, That for wheat
bran a special stamp covering fifty pounds shall be issued on
request, and one such stamp, attached to the tag hereinbefore
mentioned, shall be delivered to the purchaser with each fifty
pounds or fraction thereof."
"SEC. 3. The state chemist shall register the facts set forth in
the certificate required by section 1 of this act in a permanent
record, and shall furnish stamps or labels showing the registration
of such certificate to manufacturers or agents desiring to sell the
concentrated commercial feeding stuff so registered at such times
and in such numbers as the manufacturers or agents may desire:
Provided, That the state chemist shall not be required to
sell stamps or labels in less amount than to the value of five
dollars ($5) or multiples of five dollars for any one concentrated
commercial feeding stuff:
Provided further, That the state
chemist shall not be required to register any certificate unless
accompanied by an order and fees for stamps or labels to the value
of five dollars ($5) or some multiple of five dollars:
Provided
further, That such stamps or labels shall be printed in such
form as the state chemist may prescribe:
Provided further,
That such stamps or labels shall be good until used."
"SEC. 4. On or before January 31st of each year, each and every
manufacturer, importer, dealer, agent, or person, who causes any
concentrated commercial feeding stuff to be sold or offered or
exposed for sale in the State of Indiana shall file with the state
chemist of Indiana a sworn statement, giving the number of net
pounds of each brand of concentrated commercial feeding stuff he
has sold or caused to be offered for sale in the state for the
previous year, ending December 31st:
Provided, That when
the manufacturer, jobber, or importer of any concentrated
commercial feeding stuff shall have filed the statement aforesaid,
any person acting as agent for said manufacturer, importer, or
jobber shall not be required to file such statement."
"SEC. 5. For the expense incurred in registering, inspecting,
and analyzing concentrated commercial feeding stuffs, the state
chemist shall receive for stamps or labels furnished one dollar per
hundred:
Provided, That for wheat bran, a special stamp as
required by section 2 of this act shall be furnished at fifty cents
per hundred. The money for said stamps, or labels, shall be
forwarded to the said state chemist, who shall pay all such fees
received by him to the director of the Indiana Agricultural
Experiment Station, Purdue University, by whom they shall be paid
into the treasury of said Indiana Agricultural Experiment Station,
the board of control of which shall expend the same, on proper
vouchers to be filed with the auditor of state in meeting all
necessary expenses in carrying out the provisions of this act,
including the employment of inspectors, chemists, expenses in
procuring samples, printing bulletins giving results of the work of
feeding-stuff inspection, as provided for by this act, and for any
other expenses of said Indiana Agricultural Experiment Station as
authorized by law. The director of said experiment station shall
make to the governor, on or before February 15th of each year, a
classified report showing the total receipts and expenditures of
all fees received under the provisions of this act."
"SEC. 6. Any person, company, corporation, or agent that shall
offer for sale, sell, or expose for sale any package or sample, or
any quantity of any concentrated commercial feeding stuff which has
not been registered with the state chemist as required by section 1
of this act, or which does not have affixed to it the tag and stamp
required by section 2 of this act, or which is found by an analysis
made by or under the direction of the state chemist to contain a
smaller percentage of crude fat or crude protein than the minimum
guaranty, or which shall be labeled with a false or inaccurate
guaranty, or who shall adulterate any concentrated commercial
feeding stuff with foreign mineral matter or other foreign
substance, such as rice hulls, chaff, mill sweepings, peanut
shells, corn bran, corncorb meal, oat hulls, oat clippings, or
other materials of less or of little or no feeding value, without
plainly stating on the label hereinbefore described, the kind and
amount of such mixture, or who shall adulterate with any substance
injurious to the health of domestic animals, or who shall alter the
stamp, tag, or label of the state chemist, or shall use the name
and title of the state chemist on a stamp, tag, or label not
furnished by the state chemist, or shall use the stamp, tag, or
label of the state chemist the second time, or shall refuse or fail
to make the sworn statement required by section 4 of this act,
shall be deemed guilty of a misdemeanor, and on conviction thereof
shall be fined in the sum of fifty dolalrs for the first offense,
and in the sum of one hundred dollars for each subsequent offense.
In all litigation arising from the purchase or sale of any
concentrated commercial feeding stuff in which the composition of
the same may be involved a certified copy of the official analysis,
signed by the state chemist, shall be accepted as
prima
facie evidence of the composition of such concentrated
commercial feeding stuff:
Provided, That nothing in this
act shall be construed to restrict or prohibit the sale of
concentrated commercial feeding stuff in bulk to each other by
importers, manufacturers, or manipulators who mix concentrated
commercial feeding stuff for sale, or as preventing the free,
unrestricted shipment of these articles in bulk to manufacturers or
manipulators who mix concentrated commercial feeding stuff for
sale, or to prevent the state chemist, or the Indiana Agricultural
Experiment Station, or any person or persons deputized by said
state chemist, making experiments with concentrated commercial
feeding stuffs for the advancement of the science of
agriculture."
"SEC. 7. The state chemist or any person by him deputized is
hereby empowered to procure from any lot, parcel, or package of any
concentrated commercial feeding stuff offered for sale or found in
Indiana a quantity of concentrated commercial feeding stuff not to
exceed two pounds:
Provided, That such sample shall be
drawn during reasonable business hours, or in the presence of the
owner of the concentrated commercial feeding stuff, or of some
person claiming to represent the owner."
"SEC. 8. Any person who shall prevent or strive to prevent the
state chemist, or any person deputized by the state chemist, from
inspecting and obtaining samples of concentrated commercial feeding
stuff, as provided in this act, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined in the sum
of fifty dollars for the first offense, and in the sum of one
hundred dollars for each subsequent offense."
"SEC. 9. The state chemist is hereby empowered to prescribe and
enforce such rules and regulations relating to concentrated
commercial feeding stuff as he may deem necessary to carry into
effect the full intent and meaning of this act, and to refuse the
registration of any feeding stuff under a name which would be
misleading as to the materials of which it is made, or when the
percentage of crude fiber is above or the percentage of crude fat
or crude protein below the standards adopted for concentrated
commercial feeding stuffs. The state chemist is further empowered
to refuse to issue stamps or labels to any manufacturer, importer,
dealer, agent, or person who shall sell or offer or expose for sale
any concentrated commercial feeding stuff in this state, and refuse
to submit the sworn statement required by § 4 of this act."
"SEC. 10. It shall be the duty of every prosecuting attorney to
whom the state chemist shall report any violation of this act to
cause proceedings to be commenced against the person or persons so
violating the act, and the same prosecuted in the manner required
by law."
"SEC. 11. The term 'concentrated commercial feeding stuff,' as
used in this act, shall include linseed meals, cocoanut meals,
gluten feeds, gluten meals, germ feeds, corn feeds, maize feeds,
dairy feeds, starch feeds, sugar feeds, dried brewers' grains, malt
sprouts, dried distillers' grains, dried beet refuse, hominy feeds,
cerealine feeds, rice meals, rice bran, rice polish, peanut meals,
oat feeds, corn and oat feeds, corn bran, wheat bran, wheat
middlings, wheat shorts and other mill byproducts not excluded in
this section, ground beef or fish scraps, dried blood, blood meals,
bone meals, tankage, meat meals, slaughterhouse waste products,
mixed feeds, clover meals, alfalfa meals, and feeds, peavine meal,
cotton seed meal, velvet bean meal, sucrine, mixed feeds, and mixed
meals made from seeds or grains, and all materials of similar
nature used for food for domestic animals, condimental feeds,
poultry feeds, stock feeds, patented proprietary or trade and
market stock and poultry feeds; but it shall not include straw,
whole seeds, unmixed meals made directly from the entire grains of
wheat, rye, barley, oats, Indian corn, buckwheat, and broom corn,
nor wheat flours or other flours."
"SEC. 12. All laws and parts of laws in conflict with this act
are hereby repealed."
[
Footnote 2]
"SEC. 7. That, for the purposes of this act, an article shall be
deemed to be adulterated. . . ."
"In 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
strength."
"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
health:
Provided, 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 such 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 or 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."
"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, 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 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 eucane, chloroform, cannabis indica,
chloral hydrate, or acetanilid, 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
further, 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
misbranding."