6811. Adulteration and misbranding of flour. U. S. v. 650 Bags of Flour. Tried to the court. ' Judgment for the Government. Decree of condemnation entered and product ordered released under bond. (F. D. C. No. 9777. Sample No. 37659-F.) LIBEL FILED: April 9, 1943, Eastern District of Michigan. ALLEGED SHIPMENT: On or about February 26, 1943, by the Wolf Milling Co., Ellinwood, Kans. PRODUCT: 650 98-pound bags of flour at Detroit, Mich. LABEL IN PART: '(Tag) "A Baking Specialty W M C No. 1 Unbleached Hard Wheat Flour containing unbleached hard wheat flour artificially aged with oxides of nitrogen, commercial vegetable lecithin, soya bean flour, monocalcium phosphate, and salt (Natl)." VIOLATIONS CHARGED: Adulteration, Section 402 (b) (2); misbranding, Section 403 (g) (1). The details of the adulteration and misbranding charges are set forth below in the findings of fact and conclusions of law. DISPOSITION: On or about April 4, 1944. The, Wolf Milling Co., claimant, having denied that the product was adulterated or misbranded, and a jury hav- ing been waived, the case came on for trial. On April 10, 1944, the court, having considered the evidence and arguments of counsel, handed down the following , findings of fact and conclusions of law: _ ( ARTHUR F. LEDERLE, District Judge: ' * See also Nos. 6859-6862, 6991. '1. The Government in this action seized from the premises and possession of the Hall Baking Company, 6165 Fourth Avenue, Detroit, Michigan, several hundred bags of an article labeled as follows: (Front) '9&lbs. A Baking Spent cialty-WMC-No. 1 Unbleached Hard Wheat Flour containing unbleached hard wheat flour artificially aged with oxides of nitrogen, commercial vegetable lecithin, soya bean flour, monocalcium phosphate, and salt (Nat). THE WOLF MILLING COMPANY Ellinwood, Kansas [Reverse side] A Baking Specialty RECOMMENDED USE We recommend using WMC as a baking specialty to be added to your favorite brand of flour to suit your formula in all your baked sweet goods. THE WOLF MILLING COMPANY Ellinwood, Kansas.' * * * "This seizure was made in accordance with the provisions of Section 304 of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. 334. The Claimant, Wolf Milling Company, of Ellinwood, Kansas, filed a claim, amended claim and answer to this libel action. It is conceded that the Claimant manufactured and shipped the goods seized, and that the goods moved in interstate commerce prior to such seizure and are subject to the provisions of this Act, as a food defined by the Act, 21 U. S. C. A. 321 (f). "2. The Government in its libel charged: "(a) That the article is adulterated in violation of 21 U. S. C. A. 342 (b) (2) in that artificially colored flour has been substituted wholly or in part for wheat flour, which article it is represented to be. "(b) That the article is misbranded in violation of 21 U. S. C. A. 343 (g) (1) in that it purports to be and is represented as wheat flour, food for which a definition and standard of identity have been prescribed by regulations pro- mulgated pursuant to 21 U. S. C. A. 341, and it fails to conform to such defini- tion and standard because it contains ingredients not permitted or recognized in such definition and standard, namely, yellow nitric acid-treated flour, and lecithin, soya bean flour, monocalcium phosphate and salt. "(c) That the article is misbranded in violation of 21 U. S. C. A. 343 (k) in that it contains artificial coloring by reason of having been mixed with flour that has been colored yellow by treating with nitric acid and fails to bear label- ing stating that fact. During the course of the trial, the Government with- drew the charge of violation of Section 343 (k) of the Act. "3. It is conceded that the major portion of the contents of the bags was unbleached hard wheat flour, the balance of the mixture being made up as follows: approximately 2% of unbleached flour processed with nitric acid in accordance with the teachings of U. S. Letters Patent 2,223,387, issued Decem- ber 3, 1940, and a small amount of soy bean flour, monocalcium phosphate, and sodium chloride. "4. There is no evidence that the Claimant attempted to deceive anyone in connection with the adoption of this label, or that anyone was deceived by the label. Consequently, I find that Claimant acted in good faith. "5. Notwithstanding the fact that there was no intention of deception in evolved, the product contained in the bags seized was misbranded, contrary to the provisions of Section 403 (g) (1) of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. 343 (g) (1), in that the product purported to be, and was represented to be, a food (flour) for which a definition and standard of identity had been prescribed by regulation as provided by Section 401 of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. 341 (according to the regulations issued by the Federal Security Administrator, printed in the Federal, Register for May 27, 1941, Page 2574 et seq.; Section 15.000, Volume 6, No. 103, Federal Register), and such product did not conform to the definition and standard of identity for flour because it contains ingredients not recognized nor permitted by the regulation, namely nitric acid treated flour, lecithin, soy bean flour, monocalcium-phosphate and salt.' CONCLUSIONS OF LAW "1. This court has jurisdiction of this libel and condemnation action by virtue of the finding in this District of allegedly misbranded food which had been transported in interstate commerce. 21 U. S. C. A. 334 (a). "2. The Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. 301, et seq., is constitutional. Federal Security Adm. v. Quaker Oats Co., 1943, 318 U. S. 218. "3. The seized goods having been shipped in interstate commerce contrary ¦* "4. In view of the fact that the Claimant proceeded in good faith, although contrary to the provisions of said Act, the decrees sustaining the libel shall authorize Claimant to repossess the seized goods in accordance with the pro- visions of Section 304 (d) of the Act, 21 U. S. C. A. 334 (d)." On April 10, 1944, a judgment of condemnation was entered and the product was ordered released under bond to be disposed of in compliance with the law, under the supervision of the Food and Drug Administration. The product was mixed with fish meal, for use as stock feed.