UNITED STATES v. FIVE CASES OF HURDLE BRAND  HOLLAND GIN

(Supreme Court, District of Columbia, Dec. 1, 1913)

N.J. No. 3397; 41 Washington Law Reporter, 783

Libel under section 10 of the Food and Drugs Act. Hearing on libel and answer. Libel dismissed.

Gould, 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.

Section 8 of the Food and Drugs Act provides as follows:

SEC. 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.

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.

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,

550 DECISIONS OF COURTS-FEDERAL FOOD' AND DRUGS ACT

On 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 follows:

(b) 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.

(c) 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.

(d) 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 article.

Two questions are thus presented for decision:

First. Has the word " Holland ", by reason of long usage, come to represent a generic term as applied to gin?

Second. Does the label fairly state the State or Territory where the article in question is manufactured?

If 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.

First. 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.

It 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.

The 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.

The 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 ", says:

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 English.

In 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:

There 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.).

The testimony on behalf of the libelant fully recognized the distinctive character of Holland gin.

It 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.

Second. 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."

The 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."

There 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.

On the whole case the order will be that the libel be dismissed. The findings of fact will be made in accordance with this opinion.