Thursday, June 15, 2006
U.S. Government Alleged Base for Nesbitt’s Orange Adulterated
By ROGER M. GRACE
Acting pursuant to the Pure Food and Drug Act of 1906, federal authorities in 1937 seized two shipments of a Nesbitt orange product from Los Angeles to New Orleans. A complaint was filed—captioned U.S. v. Four Hundred Ninety-Two Cases, More or Less of Orange Juice Each Case Containing Two One-Gallon Jugs—seeking an order of forfeiture of the supposed contraband.
The government contended that the product, labelled “Nesbitt’s California Orange Juice Sweetened,” was “adulterated,” in violation of the act.
The supposed adulterant which drew major attention was sugar. Yes, sugar.
Note was also made of the presence of coal tar—not because it was deemed harmful but because it rendered the color more intense.
The product was comprised, the government showed, of about 45 percent sugar. Fifteen percent would have been all right, it said (relying on no particular rule or regulation), but 45 percent was too much.
The manufacturer, Nesbitt Fruit Products, Inc., as intervenor, did not deny the high sugar content but responded, in essence: “So what?” Under industry usage, it maintained, a “sweetened orange juice” was defined as a product containing 45-50 percent sugar (and if there were 65 per cent sugar content or more, the substance was orange syrup).
U.S. District Judge Wayne G. Borah of Louisiana noted in his Sept. 13, 1937 opinion:
“This product is sold to drug stores, soda fountains, and soft drink vendors, and by means of a dispenser is used by such persons in the preparation of an orange beverage, which in turn is sold to the consumer. There are numerous other brands of sweetened orange juices like claimant’s product that have since the year 1927 been sold for use in the preparation of a beverage, and which contain in excess of 45 per cent. of sugar.”
The label, he pointed out, instructed that the content be mixed with five parts water.
“The name ‘Nesbitt’s California Orange Juice Sweetened,’ when taken together with the other statements appearing upon said label, including the directions for use of said product in the preparation of a beverage, do not deceive or tend to deceive or mislead a purchaser desiring an orange juice for consumption without dilution.”
As to the presence of coal tar, Borah noted that such was a U.S. certified food coloring.
The trial judge was affirmed the following year by a three-judge panel of the Fifth U.S. Circuit Court of Appeals. Writing for the majority, Judge Samuel Hale Sibley said, with respect to the coal tar:
“The coloring matter, called sunset yellow, is approved by the Food & Drugs Administration as proper for use in foods. The color of the product is far deeper than that of orange juice, and looking at it one would know that it was not mere orange juice. But when diluted in the customer’s presence by the retailer, it becomes of about the color of orange juice.”
A different result was reached in a New York trial court in 1938. A man who served a drink comprised of Nesbitt’s California Orange Juice Sweetened mixed with carbonated water was adjudged in violation of the state version of the Pure Food and Drug Act. The opinion of the magistrate recited:
“A person long identified with the Nesbitt Company in California, which distributes large quantities of this product in many states throughout this country, testified upon the trial: ‘The sunset yellow in that product is made that color in order that it would look like the outside of an orange. The juice of the orange and the outside of an orange are entirely different. The soft drink trade is used to thinking in their own mind of a product as the outside of the fruit. That is the accepted practice in the soft drink trade. We feel we never misrepresented because a man goes to a soda fountain to get a soft appetizing drink, and he sees the soda water mixed with it, and he lays down his nickel, and when he goes out he feels that he had what he asked for.’ ”
Rejecting the contention that there was no deception, the New York magistrate wrote:
“An ‘orange’ drink such as offered for sale by the defendant in the instant case not alone is watered to the extent of five parts water to one part orange concentrate, but the latter is fairly well saturated with a coal tar derivative to such an extent that the liquid finally offered the customer for consumption presents an appearance and attendant taste sensation which are deceptive and a disguise for those nutritive and valuable properties which the public has a right to believe are contained in an orange drink.”
Sunset Yellow— dubbed “Yellow 6” by the Food and Drug Administration—is still permitted in the U.S. as a coloring agent, though it’s been been banned in Norway and Austria.
Copyright 2006, Metropolitan News Company
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