              OFFICE OF THE ATTORNEY CENERAL OF TEXAS
                              AUSTIN

Honorable John Lawson
County Attorney
San Patricia County
Sinton, Texas
Dear   Sir:                      Opinion No. O-6589
                                 Re:   Under the provisions of Ar-
                                       ticle 707,-Penal Code of
                                       Texas, is a bottier of soda
                                       water committing an offense
                                       by adding "saccharin" to his
                                       product?
          From your letter requesting our opinion, we quote the
following:
            "A bottler of soda water who vends soda water
       in'this county has been arrested by an official of
       the state health department, and charged by com-
       plaint w$th,the offense of selling snd,offering
       for saie'soda wasterto which has been added lsaccha-,
       rti,',and alleging that thereby the quality and '~I'"    '~
       strength had.been lowered and that such saccharin
       had,been substituted for sugar.
             "The writer desires to know whether or not
       Art. 707 of our Penal Code makes his action anof:    '
       fense. He does not label his product as containing
       sugar, ,,nordoes he represent that ,the~same.contalns
       sugar.
          By supplemental letter gou state that you areriot '.
worried about any mislabeling or misbranding aspect of.the ques-
tion, but merely %ritksh
                       to know whether the subst$tution.,bfsac-
charin for sugar 'in the soda water in Issue constLtutes 'adul-
teration" under the provisions of Article 707, Penal Code. .'You
also state that the manufacturer Isnot makw     his soda wat~erby
a patented formula'which calls for the use ~of sugar as a sweet-
ening agent.      I
Honorable Tohn Dawson, page 2


          The penal laws of this state relating to unwholesome
food and medicine are contained in chapter two of Title 12 of
the Penal Code: Article 706 defines food as Including "all
articles used by man for food,:drink; flavoring, confectionery,
or condiment,~whether simple, mixed orecompounded:." The soda
water of which you inquire is'therefore classified as food
within the meaning of Article 707,.Penal Code, which reads, in
part, as follows:
         'For the purposes of this chapter an article
    shall be deemed to be adulterated:~


          "(c) In the case of food;
                     substance has been mixed and packed
    with ;?:oi%93:   reduce'or lower or Injuriously af-
    feet its quality or strength;'
         Y(2) .lf any substance has been substituted
    wholly or in part ~for.thearticle;.
         "(3)'lf any'valuable constituent of the article
    has been wholly or in part abstracted, or if the pro-
    duct be below that standard of quality, quantity,
    strength or purity represented to the purchaser or
    consumer.
                    be mixed; colored.or powdered, coated
    or st$~d%i'~    manner whereby damage or inferiority
    Is concealed;                                   .:.
         "(5) if It contains any added poisonous or other
    added deleterious Ingredient which may render such
    article Injurious to health, provided, that when in
    the preparation of food products for shipment they
    are preserved by any external application applied in
    such manner that the preservative is necessarily re-
    moved mechanically, or by maceration in water or other-
    wise, and directions for the removal of said preservative
Honorable John Dawson, page 3


    shall be printed on the covering of the package, the
    provisions of this Act shall be construed as apply-
    ing only when said products are ready for consump-
    tion.
          "(6) if it consists in whole or IC part of a
     filthy, decomposed or putrid an:mal or vegetable sub-
     stance, or any portion of an anlcz.al
                                         or vegetable uzz-
     fit for food, whether manufactured or not, or If it
     is the product of a diseased anizal, or one that has
     died otherwise than by slaughter.
          " * * * "

         Your  question to us is whether or not the use of saccharin
in soda water constitutes adulteration within the meaning of the
above statute.
          We fall to find ang,Texas statute prohibiting the use
of saccharin in lieu of sugar as a sweeteningagent $n the manu-
facture of bottled beverages. The law~fixes'no standard for
sweetness of soda water, nor does it ,.otherw$se
                                               require.the,use
of any special ingredient 5.nits :compos~tiOn. Webster defines
"sodawater" to be !kow, Ln common usage, a beverage consisting
of water highly charged with carbon .d$o$lde(carbonic acid), to
which a flavored slrup Is usually added.",'Webster's New Inter-
national Dictionary, 2d Edlt@n,
          In the case of F. B, Washburn & Co. v. United States
(C. C. A. 1915) 224 F. 395, $t,was held that-In a prosecution
for violating the Food and Drygs~Act of.June 30,'19Q6 (21 Ui S.
C. A. 8 10) by adulterating macaroons by.the addition of ~glucose,
since there was no standard of s.weetness'formacaroons fixed
by lax or otherwi&e, the defendantwas not guilty.
                                 .-
          We know of no reason yhy'sodawater, not made in accord-
ance with a patented formula, aB @AI say is true with respect to
the product of which you Lnqulre,~,shculd,in the first Instance,
necessarily be made with sugar as the sweetenLng agent.
Honorable John Dawson, page 4


Saccharin is not per se unlawful, nor Is ;ttsuse condemned by
any Texas statute. While we claim no especial learning in the
field of science, chemistry, ormedicine; the most that we have
found against saccharin through Investigation of available
authorities, is that It is non-nutritive and of no food value,
and especially when used lnsuch small amounts as to sweeten
and thus impart a palatable flavor ,toso&water,   Is not.harm-
ful. See, e. g., Scientific American, December 1942, p. 269,
quoting Journal of American Medical Association.
          1.t is our opinion that a prosecution such as you men-
tion is not warranted on the grounds of adulteration as same is
defined in Article 707, Penal Code, supra, because of the lack
of prescribed definite standards fixed for soda water in com-
pliance with the general objects, principles and rules of in-
terpretation set out in the first title and chapter of the
Penal Code. See..,especially, Articles 1, 6, 9, and 10 of~sald
code.                             I

                                                           ..




          Howe.ver,,~.we-feels
                            that we should.dlrect your~attention
to the holdina of the Federal.Food and Drug Admlnlstratibn. -In
response to &'letter.written upon'recelpi of.youroriginal in-
quiry, we have received a communication from that agency reading,
Lnpart, as follows:       ~,,.,,,
                               ,~
                                                            .
          "Receipt is acknowle&ed of.your~.letterof July'
     5, 1945, requesting information as to regulations of
     the Federal Government which may restric,tthe use of
     saccharin $n bottled beverages.
          'No formal regulation dealing with the use of
     saccharin in beverages for general consumption has
     been issued. The Food and Drug AdmInIstration, in
     connection with the enforcement of the Food, Drugi
     and Cosmetic Act of 1938, has expressed the opinion
     that saccharin when used In foods to replace sugar
     renders the food In which so used adulterated within
     the meaning of section 402(b) (1) and (2)'of-the Act
     Ln that a valuable constituent has bean in whole or
     in part omitted, and that the non-nutritive substance,
     saccharin, has been added thereto so as to reduce Its
Honorable John Lawson, page 5


    quality of strength or make it appear better or of
    greater value than it Is. A number of actions have
    been taken against foods, including bottled beverages,
    alleged to be adulterated in this way. In no recent
    instance have such allegations been contested. A
    copy of Notice of Judgment 5602 showing termination
    of an factionagainst carbonated beverages Is enclosed.
         "Certain foods intended for special dietary,use
    by persons, such as those suffering from diabetes, who
    may wish to use a food sweetened with saccharin but
    containing no sugar, are not considered adulterated as
    outlined above if such special dietary foods are ac-
    tually what they purport to be and are properly labeled.
    Special regulations for the labeling of such foods have
    been promulgated and are contained in the Code of Federal
    Regulations, Cumulative Supplement, Title 21, page 5286,
    In the Chapter entitled tPart 125 Label Statements Con-
    cerning Dietary Properties 'ofFpod Purporting'to be or
    Represented for Special Dietary~Use.' Section 125.7
    deals with label statements relative to nontnutritive ~.
    constituents. Saccharin and saccharin salts are non-
    nutritive and are covered by the requirements of this.
    section."
         Trusting that .theabove is satisfactory, we.are
                                   Yours   very truly,
                                   ATTOti    GENERAL OF TEXAS


                                   BY               _
                                             Benjamin Woodall
    BW:zd/JCP                                       Assistant
                                            APPROVED:
                                            Opinion Committee
                                            BY O.W.BtLiman
