resulting liquid, upon chemical analysis, gives results similar to those obtained from an analysis of apple cider made from unevaporated apples, except that it contains a trace of barium incident to the process of manufacture. Vinegar so made is similar in taste and in composition to the vinegar made from unevaporated apples, except that the vinegar made from evaporated apples contains a trace of barium incident to the process of manufacture. There is no claim by libellant that this trace of barium renders it deleterious or injurious to health. It was conceded that the vinegar involved in these proceedings was vinegar made from dried or evaporated apples by substantially the process above described. There is no claim by the libellant that the vinegar was inferior to that made from fresh or unevaporated apples.
Since 1906, claimant has sold throughout the United States its product manufactured from unevaporated as well as from evaporated apples as “apple cider” and “apple cider vinegar,” selling its vinegar under the brand above quoted, or under the brand “Sun Bright brand apple cider vinegar made from selected apples.” Its output of vinegar is about 100,000 barrels a year. Before and since the passage of the Food and Drugs Act, vinegar in large quantities, and to a certain extent a beverage, made from evaporated apples, were sold in various parts of the United States as “apple cider vinegar” and “apple cider,” respectively, by many manufacturers. Claimant, in manufacturing and selling such products so labeled, acted in good faith. The Department of Agriculture has never sanctioned this labeling, and its attitude with reference thereto is evidenced by the definition of “apple cider vinegar” set forth in Circulars 13, 17, 19, and 136, and Food Inspection Decision 140.1 It is stipulated that the juice of unevaporated apples when subjected to alcoholic and subsequent acetous fermentation is entitled to the name “apple cider vinegar.”
Section 6 of the act provides that:
“… The term “food,” as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound.”
Section 8 provides:
That the term “misbranded,” as used herein, shall apply to all … 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… . 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 … shall be false or misleading in any particular….
The statute is plain and direct. Its comprehensive terms condemn every statement, design, and device which may mislead or deceive. Deception may result from the use of statements not technically false or which may be literally true. The aim of the statute is to prevent that resulting from indirection and ambiguity, as well as from statements which are false. It is not difficult to choose statements, designs, and devices which will not deceive. Those which are ambiguous and liable to mislead should be read favorably to the accomplishment of the purpose of the act. The statute applies to food, and the ingredients and substances contained therein. It was enacted to enable purchasers to buy food for what it really is….
The vinegar made from dried apples was not the same as that which would have been produced from the apples without dehydration. The dehydration took from them about 80 per cent. of the water content—an amount in excess of two‐thirds of the total of their constituent elements. The substance removed was a part of their juice from which cider and vinegar would have been made if the apples had been used in their natural state. That element was not replaced. The substance extracted from dried apples is different from the pressed out juice of apples. Samples of cider fermented and unfermented made from fresh and evaporated apples, and vinegar made from both kinds of cider were submitted to and examined by the District Judge who tried the case. He found that there were slight differences in appearance and taste, but that all had the appearance and taste of cider and vinegar. While the vinegar in question made from dried apples was like or similar to that which would have been produced by the use of fresh apples, it was not the identical product. The added water, constituting an element amounting to more than one‐half of the total of all ingredients of the vinegar, never was a constituent element or part of the apples. The use of dried apples necessarily results in a different product.
If an article is not the identical thing that the brand indicates it to be, it is misbranded. The vinegar in question was not the identical thing that the statement, “Excelsior Brand Apple Cider Vinegar made from selected apples,” indicated it to be. These words are to be considered in view of the admitted facts and others of which the court may take judicial notice. The words “Excelsior Brand,” calculated to give the impression of superiority, may be put to one side at not liable to mislead. But the words, “apple cider vinegar made from selected apples” are misleading. Apple cider vinegar is made from apple cider. Cider is the expressed juice of apples and is so popularly and generally known… . It was stipulated that the juice of unevaporated apples when subjected to alcoholic and subsequent acetous fermentation is entitled to the name “apple cider vinegar.” The vinegar in question was not the same as if made from apples without dehydration. The name “apple cider vinegar” included in the brand did not represent the article to be what it really was, and, in effect, did represent it to be what it was not‐vinegar made from fresh or unevaporated apples. The words “made from selected apples” indicate that the apples used were chosen with special regard to their fitness for the purpose of making apple cider vinegar. They give no hint that the vinegar was made from dried apples, or that the larger part of the moisture content of the apples was eliminated and water substituted therefore. As used on the label, they aid the misrepresentation made by the words “apple cider vinegar.”
The misrepresentation was in respect of the vinegar itself, and did not relate to the method of production merely. When considered independently of the product, the method of manufacture is not material. The act requires no disclosure concerning it. And it makes no difference whether vinegar made from dried apples is or is not inferior to apple cider vinegar.
The label was misleading as to the vinegar, its substance and ingredients. The facts admitted sustain the charge of misbranding.
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DISCUSSION QUESTIONS
1 3.15 Puffery. In the context of false and misleading labels, what is the meaning of the word “puffery”? What is the difference between opinion, puffery, and misleading statements?
2 3.16 Misleading to whom? Whose viewpoint determines what is false and misleading? Is it a single consumer, most consumers, an average consumer, a diligently skeptical consumer, an average gullible consumer?
3 3.17 Frooty claims. At least two plaintiffs have alleged that they were duped into believing Froot Loops cereal contained real fruit. A “reasonable consumer” may be unwary or trusting, but these cases were dismissed as a matter of law because no reasonable consumer could be misled. “Froot” does not indicate real fruit ingredients. The cereal pieces are neon colored rings, which in no way resemble any fruit. Moreover, the front of the pack of cereal states the product is a “sweetened multi‐grain cereal.” See, McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007); and Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009). Similar claims have been dismissed for “Cap’n Crunch’s Crunch Berries” cereal. See, Werbel v. Pepsico, Inc., 2010 WL 2673860 (N.D. Cal. 2010).
4 3.18 Actual injury. In the Alleged Apple Cider case, would it matter that no purchasers were misled or injured? Should this matter? See, U.S. v. 88 Cases … Bireley’s Orange Beverage, 187 F2d 967 (3d Cir. 1951) (FDA’s burden to prove is the label’s “capacity to deceive”).
False or Misleading as a Matter of Law
In the 1960s, the A.