STATES v. FIVE CASES OF HURDLE BRAND HOLLAND
Court, District of Columbia, Dec. 1, 1913)
No. 3397; 41 Washington Law Reporter, 783
under section 10 of the Food and Drugs Act. Hearing on libel and answer. Libel
Judge. The questions involved in this case are raised by a libel filed by the
United States under the act of Congress of June 30, 1906, commonly known as the
Food and Drugs AA, in which it is sought to condemn five cases, containing
twelve bottles each of a liquid called gin, on the ground that the same are
misbranded. The misbranding is charged to consist in labeling the liquid in such
manner as to deceive a purchaser into the belief that it is a foreign product
distilled in Holland, in the Kingdom of the Netherlands, whereas it was, in
fact, distilled at Warehouse Point, in the State of Connecticut. The claimants
are A. E. Beitzel, in whose possession the gin was found, and the Baird Daniels
Company, which distilled it. The label, a facsimile of which contains the
alleged misbranding, appears in the libel.
8 of the Food and Drugs Act provides as follows:
S. 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 of 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.
the case of food:
If it be an imitation of or offered for sale under the distinctive name of
If It be labeled or branded so as to deceive or mislead the purchaser, or
purport to be a foreign product when not so.
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,
DECISIONS OF COURTS-FEDERAL FOOD' AND DRUGS ACT
January 31, 19081 the department promulgated what is designated as regulation
19, which deals with the questions raised by the instant case. It reads as
The use of a geographical Dame shall not be permitted in connection with a food
or drug product not manufactured or produced in that place when such name
indicates that the article was manufactured or produced in that place.
The use of a geographical name in connection with a food or drug product will
not be deemed a misbranding when by reason of long usage it has come to
represent a generic term and is used to indicate a style, type, or brand; but in
911 such cases the State or Territory where any such article is manufactured or
produced shall be stated upon the principal label.
A foreign name which is recognized as distinctive of a product of a foreign
country shall not be used upon an article of domestic origin except as an
indication of the type or style of quality or manufacture, and then only when so
qualified that it can not be offered for sale under the name of a foreign
questions are thus presented for decision:
Has the word " Holland ", by reason of long usage, come to represent a
generic term as applied to gin?
Does the label fairly state the State or Territory where the article in question
the word " Holland ", a geographical name, when used in connection
with gin has acquired a generic meaning as indicating a particular style, type,
or brand of gin, and if the place of manufacture is fairly stated upon the
label, the claimant, the Baird Daniels Company, would appear to have complied
with the law. Probably the larger question, suggested by the terms of the
statute itself, is also involved, viz., whether the label is such as to deceive
or mislead a purchaser or purports to be upon a foreign product when not so.
For, as Attorney General Wickersham once said, one of the main purposes of the
Pure Food Law is to prevent deception being practiced on the public.
The testimony for both the libelant and claimant leaves no room for doubt that
Holland gin is essentially a distinct type or kind of gin, differing from either
a dry gin or a sloe gin. The experts, having practical knowledge of the methods
used in producing each kind, state that the Holland gin is an alcoholic beverage
made from small grains, specifically rye, barley, and barley malt, and that , in
the distilling, the essential oils of the grain are retained and the fusel oils
eliminated, thus giving the liquor its peculiar flavor and rendering it a
"Holland" gin , with or without the addition of juniper berries. In a
dry gin, on the other band, the essential oils are entirely eliminated and the
pure neutral spirit is distilled from a variety of flavoring materials, one of
which is usually juniper berries. The evidence clearly establishes the distinct
characters and qualities of the two kinds of gin, the first known as Holland gin
and the second as English or dry gin.
may be observed, although not especially significant, that while Holland gin
received its name from the fact that it was distilled in Holland, the evidence
shows that the elements are not grown or produced in Holland. The grain is
obtained by Holland distillers from Russia, Austria, and the United States, and
the juniper berries from Italy or Germany.
evidence also establishes the f act that gin, having the genuine characteristics
of Holland gin, has been manufactured in this country for at least 18 years.
standard dictionaries and encyclopedias, to which it is permitted to resort as
authoritative sources for information in such cases (United States v. Como Feed,
188 Fed. 453), make clear the distinctive character of Holland gin. The Century
Dictionary and Cyclopedia, volume 3, page 2516, under the word " gin
Abbreviation of Geneva, or rather of the older form genever * * * see geneva
juniper. An aromatic spirit prepared from rye or other grain and flavored with
juniper berries. The two important varieties of gin are Dutch gin, also called
Holland and Schiedam, and English gin, known often by the name " Old
Tom." Holland gin is almost free from sweetness and is generally purer than
the eleventh edition of the Encyclopedia Brittanica, Vol. 12, p. 26, after
defining the word " gin " as " an aromatized or compounded
potable spirit, the characteristic flavor of which is derived from the juniper
berry," and stating that the word is an abbreviation of geneva, both being
primarily derived from the French genievre (juniper),says:
are two distinct types of gin, namely, the Dutch geneva or Holland anti British
gin. Each of these types exists in the shape of numerous subvarieties, Broadly
speaking, British gin is prepared with a highly rectified spirit, whereas in the
manufacture of Dutch gin a preliminary rectification is not an integral part of
the process. The old-fashioned Hollands is prepared much after the following
fashion: The mash, consisting of about one-third of malted barley or here and
two-thirds rye meal, is prepared and infused at somewhat high temperature. After
cooling the whole is set to ferment with a small quantity of yeast. After two or
three days the attenuation is complete, and the wash so obtained is distilled,
and the resulting distillate (the low wines) is redistilled, with the addition
of the flavoring matter (juniper berries, etc.) and a little salt. Originally
the juniper berries were ground with the malt, but this practice no longer
obtains, but some distillers, it is believed, still mix the juniper berries with
the wort and subject the whole to fermentation. When the redistillation ever
juniper is repeated the product is termed double (geneva, etc.).
testimony on behalf of the libelant fully recognized the distinctive character
of Holland gin.
is considered, therefore, that the term " Holland " in connection with
the word gin is a geographical name which has become generic by reason of
language, and represents a style, type, or brand.
The second question above suggested is answered by the label itself. In letters
sufficiently large and plain to repel any suggestion that they are deceptive in
fact or in intent it is stated:
Distilled by Baird Daniels Co., Warehouse Point, Conn."
conclusion, therefore, is that the claimant has complied with the statute and
regulations in respect to branding its product.
It was contended on behalf of the libelant that, admitting that Holland " as applied to a gin has come to be a generic term, and admitting further that the label fairly states the place where the article is manufactured, yet the claimant should qualify his label by adding the word " Domestic " type, style, or process, in juxtaposition to the words " Holland Gin." Two answers to this contention -suggest themselves: First, If " Holland " has become generic, and if the gin distilled by the claimant contains exactly the same ingredients and is made by the same process, and is, in essence, the same identical thing as gin distilled in Holland then it is " Holland " gin and not Holland " type " ' " Style ", or " process." In other words, it is entitled to be called what it is. Second. On the broader question as to whether the label as used is liable to deceive a purchaser into believing he is buying an imported article, it is rather difficult to understand how a customer who would fail to observe the words " Distilled by Baird Daniels Co., Warehouse Point, Conn." plainly printed on the label, would be more liable to notice the word " style " ' or " type ", or other similar word, used in connection with the words Holland gin."
is also a charge of misbrading in the marking of the wooden crates or cases in
which the bottles were transported, the words " Warehouse Point,
Conn." being omitted. This is stated by the claimant to be an oversight.
which will be remedied. The consumer, however, does not see the crates and is
not, therefore, liable to be deceived by words or the omission of words thereon.
the whole case the order will be that the libel be dismissed. The findings of
fact will be made in accordance with this opinion.