When Food Deemed Misbranded

  1. Law
  2. Georgia Code
  3. Food, Drugs, and Cosmetics
  4. Standards, Labeling, and Adulteration of Food
  5. Adulteration and Misbranding of Food
  6. When Food Deemed Misbranded

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A food shall be deemed to be misbranded if:

  1. Its labeling is false or misleading in any particular;
  2. It is offered for sale under the name of another food;
  3. It is an imitation of another food for which a definition and standard of identity have been prescribed by regulations as provided by Code Section 26-2-35; or if it is an imitation of another food that is not subject to paragraph (7) of this Code section, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;
  4. Its container is so made, formed, or filled as to be misleading;
    1. In package form, unless it bears a label containing:
      1. The name and place of business of the manufacturer, packer, or distributor; and
      2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count.

      However, under division (ii) of subparagraph (A) of this paragraph, reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the Commissioner; and a food shall not be deemed misbranded because of omission of the information required by division (i) of subparagraph (A) of this paragraph where such omission is authorized in writing by the Commissioner.

    2. The Commissioner may authorize the omission from the label of packaged food of the name and place of business of the manufacturer, packer, or distributor upon a showing of undue hardship because of the size of the package, the material of which the package is made, or the disproportionate cost of compliance. Before authorizing such omission, the Commissioner shall require the filing of a certificate of territorial responsibility in a form prescribed by him. Failure to maintain on file with the Commissioner a correct current statement of territorial responsibility in accordance with the Commissioner's requirements shall terminate any such authorization previously granted;
  6. Any word, statement, or other information required by or under authority of this article to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  7. It purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by Code Section 26-2-35, unless:
    1. It conforms to such definition and standard; and
    2. Its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food;
  8. It purports to be or is represented as:
    1. A food for which a standard of quality has been prescribed by regulations as provided by Code Section 26-2-35 and its quality falls below such standard, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or
    2. A food for which a standard or standards of fill of container have been prescribed by regulation as provided by Code Section 26-2-35, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard;
    1. It is not subject to paragraph (7) of this Code section, unless it bears labeling clearly giving:
      1. The common or usual name of the food, if any such name exists; and
      2. In case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings without naming each;
    2. To the extent that compliance with the requirements of division (ii) of subparagraph (A) of this paragraph is impractical or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the Commissioner;
    3. The requirements of division (ii) of subparagraph (A) of this paragraph shall not apply to any carbonated beverage, the ingredients of which have been fully and correctly disclosed, to the extent prescribed by division (ii) of subparagraph (A) of this paragraph, to the Commissioner in an affidavit;
  10. It purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the Commissioner determines to be, and by regulations prescribes, as necessary in order fully to inform purchasers as to its value for such uses;
  11. It bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact, provided that, to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the Commissioner; or
  12. It is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded.

(Ga. L. 1956, p. 195, § 11; Ga. L. 1966, p. 180, § 1; Ga. L. 1982, p. 3, § 26.)

Law reviews.

- For comment on Aeration Processes v. Commissioner, 194 N.E.2d 838 (Mass. 1963), and Coffee-Rich v. Kansas State Bd. of Health, 192 Kan. 431, 388 P.2d 582 (1964), discussing imitation foods and misbranding statutes, see 13 J. Pub. L. 536 (1964).

JUDICIAL DECISIONS

ANALYSIS

  • 1. General Consideration

1. General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2104, 2115 and 2117, are included in the annotations for this Code section.

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that it was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

2. Jurisdiction

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2103, see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

3. Applicability

Word "imitation" as used in former Code 1910, § 2104 indicated something intentional rather than incidental, and imported more than mere resemblance or similitude. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Distinctive name not imitation.

- "Southern nut product" held a "distinctive" name, not an imitation of creamery butter and not adulterated. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Product sometimes used as a substitute for creamery butter without being declared to be such was not banned. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929) (decided under former Code 1910, § 2115).

Substitute must not be sold so misbranded as to deceive or so adulterated as to injure. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Former Code 1910, § 2101 did not prohibit the use of adulterated or misbranded foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Former Code 1910, § 2104 dealt with articles sold in commerce. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

OPINIONS OF THE ATTORNEY GENERAL

Provisions of Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28) apply to bottled soft drinks. 1958-59 Op. Att'y Gen. p. 7.

Label on a package of meat, in order to comply with Ga. L. 1956, p. 195 (see now O.C.G.A. § 26-2-28), must contain the name and place of business of the specific establishment where the food is packaged; merely placing the name of a retail food chain and the home office city on a label would not comply with these provisions. 1973 Op. Att'y Gen. No. 73-98.

RESEARCH REFERENCES

Am. Jur. 2d.

- 35A Am. Jur. 2d, Food, § 24 et seq.

C.J.S.

- 36A C.J.S., Food, §§ 19, 21, 41, 46, 47.

ALR.

- Constitutionality of statutes requiring notice by label or otherwise, of the fact that product is imported, or as to the place of production, 83 A.L.R. 1409; 124 A.L.R. 572.

Provisions of statutes against misbranding or false labeling of food, drug or cosmetic products as applicable to literature other than that attached to product itself, 143 A.L.R. 1453.


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