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example, a food cannot be labeled as crabmeat if it does not contain crabmeat or contains other fish meat without appropriate labeling.)

The case most frequently cited as an example in which FDA relied exclusively on the prohibition basic to Section 403(b) involves apple cider vinegar, brought under the provisions of the 1906 Act. In this action, the government prevailed in its contention that vinegar produced from dehydrated apples and water was not "apple cider vinegar." The court ruled that cider is the expressed juice of apples, both popularly and generally known as such, and the product made from dehydrated apples and water did not represent "apple cider vinegar" U.S. v. 95 Barrels, 265 U.S. 438, 44 S.Ct. 529(1924).

Hutt and Merrill (1991) point out the close relationship between FDCA Sections 403(b) and 402(b):

Like the economic adulteration provisions, which am essentially designed to prevent the marketing of debased foods, section 403(b) requires a court to identify a standard against which to compare the product involved, i.e., the "other" food that the seized product is charged with imitating. The need for a standard of comparison is common to statutory as well as common law theories that are concerned primarily with "passing off" offenses (p. 53).

The need for a standard of comparison was reinforced by the Bireley's orange beverage case [US. v. 88 Cases, 187 F.2d 967 (3d Cir. 1951)], an economic adulteration case. In that case, the government failed to prevail because the product could not be condemned unless there was a confusion with a defined superior product, it was not sufficient for consumers merely to consider that the drink contained more orange than it did. A violation of Section 403(b) could not be found "without a finding that a marketable inferior product is likely to be confused with a specified superior counterpart" (Hutt and Merrill, 1991). FDA has reiterated the language of FDCA Section 403(b) at 21 CFR §101.18(a), but it has not expanded or further elaborated on its meaning.

FDA has also exempted selected foods from the general labeling requirements, including Section 403(b). Individually wrapped pieces of candy and other confectionery of less than 0.5 ounce per package are exempt from labeling requirements when the container in which they are shipped is in compliance [21 CFR §1.24(a)(4)]. In addition, eggs packaged in cartons of a dozen that can be divided into two six-egg containers are exempt if the original carton is adequately labeled, even though one of the resulting six-egg containers would not be in compliance [21 CFR 1.24(a)(9)(i)].

In the 1970s, FDA began formally to establish common or usual names for nonstandardized foods as an alternative to the procedurally burdensome process of establishing standards of identity for foods. The protection offered



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