Opinion letter to Herbert R. Domke , M.D.

;". OFFICES Ol~ 'li'UE .JOHN C. DANFORTH 1:\.TTO~NEY GJENJTIRAJL @F ]'J!JI§§@UJRJI: ATTORNEY GENERAL JEli"'.J!<~EJRBOX CITY February 23, 1973 OPINION LETTER NO. 12 Herbert R. Domke, M.D. Director, Division of Health Broadway State Office Building Jefferson City, Missouri 65101 Dear Dr. Domke: This letter is in response to your request for an opinion which asks: "Does a label bearing the Federally registered trade mark 'NO-CAL' and a statement containing the actual caloric content per ounce when used on a bottle of a beverage containing as many as 4, 8 or 12 calories per 16 ounce bottle vio- late provisions of the Non-Alcoholic Drink Law (Sections 196.125- 196.145 RSI1o)?" The statutes to which you refer include a definition of "non- alcoholic drink" as follows: 111J.lhat the- term 'nonalcoholic drink', as used herein, shall include carbonated beverages of all flavors, sarsaparilla, ginger ale, soda water of all flavors, lemonade, orangeade,· root beer, grape juice, and all other non- intoxicating drinks. 11 Section 196.125, RSMo The ingredient list on the label of the NO-CAL beverage indicates that it is a carbonated-flavored beverage; furthermore, the absence of an alcoholic content percentage brings the NO-CAL beverage with- in tbe scope of that part of the definition referring to "all other nonintoxicating drinks. 11 Herbert R. Domke, M.D. Another section provides that nonalcoholic drinks shall not be misbranded and reads as follows: "That it shall be unlawful for any person, firm or coroorate body, by himself, herself, itself or themselves, or by his, her, its or their agents, servants or employees, to manu- facture, sell, offer for sale, expose for sale, or have in possession with intent to sell, any article of nonalcoholic drink which is adul- terated or misbranded, within the meaning of sections 196.125 to 196.145." Section 196.130, RSMo Nonalcoholic drinks are deemed misbranded under the following conditions: "That, for the purpose of sections 196.125 to 196.145, a nonalcoholic drink shall be deemed to be misbranded: * * * (2) If it is labeled or branded or tagged so as to deceive or mislead the purchaser; * * * (5) If the bottle or receptacle containing it, or its label, shall bear any statement, design or device, regarding the ingredients or the substance contained therein, which statement, design or device shall be false or misleading in any particular; provided, that any nonalcoholic drink which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adul- terated or misbranded under the following conditions: (a) In the case of mixtures or comoounds which may be now, or from time to time here- after, known as nonalcoholic beverages under their own distinctive names, and not an imi- tation of, or offered for sale under, the name of another article; ... 11 Section 196.140(2) and (5), RSMo · -2- Herbert R. Domke, M.D. It appears that your inquiry concerns the question whether the name "NO-CAL" constitutes a "label, brand or tag that deceives or mis- leads the purch::tser,n within the scope of subsection 2 of Section 196.140 above. An alternative consideration involves whether the NO-CAL beverage bears a'' .•. statement, design or device, regard- ing the in~redients or the substance contained therein, which state- ment, design or device shall be false or misleading in any particu- lar; .•• " as provided in subsection 5 of Section 196.140. And finally, consideration must be given to the proviso of subsection 5 that those nonalcoholic drinks not containing added poisonous or deleterious substances shall not be deemed misbranded in the case of mixtures or compounds that are known under their own ''distinc- t! ve names. 11 Relying on the list of ingredients displayed on the NO-CAL label, the beverage does not apDear to contain 11 poisonous· or deleterious" additives, and therefore the proviso of subsection 5 may apply. Whether "NO-CAL," therefore, constitutes a "distinc- tive name" within the meaning of said proviso may be determinative of whether a manufacturer or vendor of that product is liable for violation of the law under Section 196.145. We also note that the provisions relating to nonalcoholic drinks (Sections 196.125 through 196.145, RSMo) are not the exclusive sec- tions pertaining to misbrandin~ of food under Missouri law. Section 196.010, RSMo, defines terms for the purposes of the Food and Drug Law, Sections 196.010 to 196.120, RSMo. Among these definitions is the term "food 11 which is defined as follows: "The term 'food' means art1cles used for food or drink for man or other animals, chewing gum, and articles used for components of any such art1cle;" Section 196.010(7), RSf,1o A nonalcohol1c drink is included in this definition. State v. Li.ef, 154 S.\!J. 1133, 1134 (Mo. 1913). Food is deemed to be misbranded under the following circum- stances: "If its labeling is false or misleading in any particular;" Section 196.075(1), RSMo It is helpful to consider the case law interpreting the provlslons 6f the original Federal Food and Drug Act, since the Missouri Food and Drug Law is similar in purpose and often identical in its pro- vis1ons. For instance, under Section 8 of the 1906 Federal P~re Food Act, the term "misbranded" is defined as fol1ows: "That the term 'misbranded,' as used herein, shall apply to all drugs, or articles of food, -3- Herbert R. Domke, M.D. or articles which enter into the composition of food, the oackage or label of which shall bear any statement, design, or device regard- ing such article, or the ingredients or sub- stances contained therein which shall be false or misleading in any particular, ... " 34 Statutes at Large 768, Chapter 3915, Sec- tion 8 Clearly, the 1906 Pure Food Act was the source of our misbranding law; because of that d~rivation, cases interpreting the Federal statute are valuable in applying the Missouri statute. An early statement by the United States Supreme Court concern- ing the purposes of the Federal Act was as follows: "The statute upon its face shows, that the primary purpose of Congress was to prevent injury to the public health by the sale and transportation in interstate commerce of mis- branded and adulterated foods. The legisla- tion, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresenta- tions as to character and quality .•.. " United States v. Lexin~ton Mill & Elevator Company, 232 U.S. 399, 409, 58 L.Ed. 658, 662 TI9llf) A later federal court spoke thusly as to the meaning of the misbranding provisions of the Federal Act: " .•. The [Federal Food, Drug and Cosmetic] Act was not designed to protect the critical consumer; rather its purpose is--'to protect the public, the vast multitude which includes the ignorant, the unthinking, and the credu- lous who, when making a purchase, do not stop to analyze.' ." United States v. 30 Cases, etc., 93 F.Supp. 764, 769 (D.C. la. 1950) In determining whether an article is misbranded under Section 196.140, RSMo, we must consider first if "it is labeled, branded, or tagged so as to deceive or mislead the purchaser. 11 In atternpt- ing to identify what standard to apply in order to determine whether a product deceives or misleads, the court in United States v. 88 Cases, etc., 187 F.2d 967, 971 (3rd Cir. 1951) stated as follows: -4- Herbert R. Domke, M.D. "The correct standard was the reaction of the ordinary consumer under such circumstances as attended retail distribution of this product. When a statute leaves such a matter as this without specification, the normal inference is-that the legislature contemnlated there- action of the ordinary person who is neither savant nor dolt, who lacks special competency with reference to the matter at hand but has and exercises a normal measure of the layman's common sense and judgment .••• " It must be conceded that the Federal and Missouri statutes pro- vide little flexibility in interpreting "misbranding" by requiring only that the label be 11 false or misleading in any oarticular 11 (em- phasis ours). Section 196.140(5), RSMo, 21 U.S.C.A., Section 334. In attempting to permit some flexibility in the interpretation of this provision, the court in United States v. Article of Food Con- sisting of 432 Cartons, 292 F~Supp. 839, 841 (D.C. N.Y. 1968) stated: "The issue of whether a label is false or misleading may not be resolved by fragmen- tizing it, or isolating statements claimed to be false from the label in its entirety, since such statements may not be deemed misleading when read in the light of the label as a whole. II However, the court commented that even when the ~ctual ingredients of a product are listed on the label, they may nonetheless be mis- leading since ''a true statement will not necessarily cure or neu- tralize a false one contained in the label. 11 Id. at 841. Addressing a situation much like the present one, a federal judge expressed the following views on the relationship of mis- leading large print on a food label to truthful small print on the same label: "Conceding that the product is not deleterious to health, it certainly is not orange juice sweetened in the ordinary meaning of those words. It might as well be called su~ar acid- ulated. The words 'Orange Juice Sweetened' are in large type. Other parts of the label fairly describing the ingredients are in very much smaller type. It is not probable that a purchaser of a drink made from the compound would notice the fine print. I consider the -5- He~bert R. Domke, M.D. label tends to deceive and mislead the ulti- mate purchaser and therefore the article is misbranded within the prohibition of the Food and Drugs Act. ii United States v. Nesbitt Fruit Products, 96 F.2d 972, 973 (5th Cir. 1938) (dissenting opinion) Very recently, a federal court concluded that "All Meat" labels on frankfurters containing 15% nonmeat constituted misbranding un- der a statute similar in its terms to the Pure Food and Drug Act: " ••• In applying the 'ordinary meaning' test to the word 'all', it is clear when that ad- jective is used on a label with the word 'meat', the common understanding is that it describes a substance that is totally and entirely meat. The application of the 'All Meat' label to frankfurters that are 15 percent nonmeat is a contradiction in terms and is misleading with- in the meaning of [the Whole some f,1ea t Act]. • . " Federation of Homemakers v. Hardin, 328 F.Supp. 181, 184-185 (D.C. D.C. 1971) We believe that there can be little doubt that the word NO- CAL to the ordinary consumer means uno calories," especially in connection with the words "SUGAR FREE!" displayed in bold letters above the brand name. Furthermore, on each side of the crown that appears to be part of the trademark, the legend ''NO CYCLAMATES, NO· SUGAR'' appears. Clearly, the purchaser of this product is encour- aged to conclude that the beverage contains no calories. However, on the bottom of the NO-CAL black cherry label is printed the fol- lowing statement, in type considerably smaller than the various words already described: "No proteins, no fats, no carbohydrates and approx. 1/2 of a calorie per ounce.u The contradiction on the label is evident and confusion will surely result. Accordingly, it is our opinion that this label is misleading and constitutes a misbrand under our Food and Drug and Nonalcoholic Beverage Laws. It remains to be considered whether NO-CAL is saved from mis- b!•anding by the "distinctive name'' exception, to wit: '' ... provided, that any nonalcoholic drink which does not contain any added poisonous or deleterious ingredients shall not be deemed -6- Herbert R. Domke, M.D. to be adulterated or misbranded under the fol- lowing conditions: (a) In the case of mixtures or compounds which may be now, or from time to time here- after, known as nonalcoholic beverages under their own distinctive names, and not an imi- tation of, or offered for sale under the name of another article; . "Section 196.140(5), RSMo This proviso makes it clear that a statement, design or device on a label will not be deemed misbranded if it amounts to a "dis- tinctive name. n Although the brand "NO-CAL 11 has been in use for· approximately twenty years, there is some authority from which we can infer that it is not a "distinctive namen within the purview of Section 196.140(5). Referring once again to interpret~tions of the Federal Pure Food Act, the Supreme Court in United States v. Forty Barrels, 241 U.S. 265, 36 S.Ct. 573, 60 L.Sd. 995 (1916) con- sidered whet:her Coca Cola was a distinctive name under a federal statute identical to Section 196.140(5), RSMo. In order for a name to be distinctive, the court observed that the name, to public know- ledge, must cease to have its original significance, and the public must recognize that the words used do not actually describe the con- tents of the bottle. Until such knowledge can be attributed to the public, ''the name would naturally continue to be descriptive in its original sense. 1' 60 L.Ed. at 1005. Further, the court stated: " ••. A mixture or compound may have a name descriptive of its ingredients or an arbitrary name. The latter (if not already appropriated) being arbitrary, designates the particular pro- duct. Names, however, which are merely descrip- tive of ingredients, are not primarily distinc- tive names save as they appropriately describe the compound with such ingredients. To call the compound by a name descriptive of ingre- dients which are not present is not to give it 'its own distinctive name,'--which distin- guishes it from other compounds,--but to give it the name of different compound. That, in our judgment, is not protected by the proviso, unless the name has achieved a secondary signif- icance as descrintive of a product known to be destitute of the ingredients indicated by its primary meaning.n Id. at 1006 We are, therefore, of the opinion that the label NO-CAL is not a "distinctive name 11 within the exception to misbranding set out in Section 196.140(5), RST'~1o. . -7- Herbert R. Domke, M.D. Therefore, it is our opinion that the label bearing the brand name "NO-CAL" on a bottle of carbonated nonalcoholic beverage con- stitutes misbranding within the meaning of the Missouri Food and Drug and Nonalcoholic Drink Laws even though there aopears in small print elsewhere on the label the actual number of calories contained in the beverage. ~ ~~r: :>.!lil!.,_"7 JOHN C. DANFORTH Attorney General -8-